17 September 2004
Supreme Court
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UNION OF INDIA Vs MUKESH HANS

Case number: C.A. No.-006109-006109 / 2004
Diary number: 21030 / 2001
Advocates: Vs MANOJ SWARUP


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CASE NO.: Appeal (civil)  6109 of 2004

PETITIONER: Union of India & Ors.

RESPONDENT: Mukesh Hans  

DATE OF JUDGMENT: 17/09/2004

BENCH: N. Santosh Hegde , Ashok Bhan & A.K. Mathur

JUDGMENT: J U D G M E N T

(Arising out of S.L.P. (C) No. 15977  of 2002)

With  

C.A. No. 6110 @ out of SLP  (C) No. 15978  of 2002 C.A. No. 6111 @ out of SLP  (C) No. 15980  of 2002 C.A. No. 6112 @ out of SLP  (C) No. 15981 of 2002 C.A. No. 6113 @ out of SLP  (C) No. 15982  of 2002 C.A. No. 6114 @ out of SLP  (C) No. 15984  of 2002 C.A. No. 6115 @ out of SLP  (C) No. 15986 of 2002 C.A. No. 6116 @ out of SLP  (C) No. 15987  of 2002 C.A. No. 6117 @ out of SLP  (C) No. 15989  of 2002 C.A. No. 6118 @ out of SLP  (C) No. 15990  of 2002 C.A. No. 6119 @ out of SLP  (C) No. 15991  of 2002 C.A. No. 6120 @ out of SLP  (C) No. 15994  of 2002 C.A. No. 6121 @ out of SLP  (C) No. 15996  of 2002 C.A. No. 6142 @ out of SLP  (C) No. 15998  of 2002 C.A. No. 6127 @ out of SLP  (C) No. 16000  of 2002 C.A. No. 6128 @ out of SLP  (C) No. 16001 of 2002 C.A. No. 6143 @ out of SLP  (C) No. 16020  of 2002 C.A. No. 6140 @ out of SLP  (C) No. 16023  of 2002 C.A. No. 6120 @ out of SLP  (C) No. 16024 of 2002 C.A. No. 6124 @ out of SLP  (C) No. 16025  of 2002 C.A. No. 6125 @ out of SLP  (C) No. 16026  of 2002 C.A. No. 6129 @ out of SLP  (C) No. 16027  of 2002 C.A. No. 6141 @ out of SLP  (C) No. 16028  of 2002 C.A. No. 6122 @ out of SLP  (C) No. 16029  of 2002 C.A. No. 6123 @ out of SLP  (C) No. 16030  of 2002 C.A. No. 6133 @ out of SLP  (C) No.  16031 of 2002 C.A. No. 6126 @ out of SLP  (C) No.  16033  of 2002 C.A. No. 6138 @ out of SLP  (C) No.  16034 of 2002 C.A. No. 6132 @ out of SLP  (C) No.  16035 of 2002 C.A. No. 6130 @ out of SLP  (C) No.  16036 of 2002 C.A. No. 6136 @ out of SLP  (C) No.  16038 of 2002 C.A. No. 6137 @ out of SLP  (C) No.  16041 of 2002 C.A. No. 6139 @ out of SLP  (C) No.  16042 of 2002 C.A. No. 6131 @ out of SLP  (C) No.  16043  of 2002 C.A. No. 6135 @ out of SLP  (C) No.  16044  of 2002 C.A. No. 6134 @ out of SLP  (C) No.  16045 of 2002 C.A. No. 6145 @ out of SLP  (C) No. 16046  of 2002 C.A. No. 6146 @ out of SLP  (C) No.  16047 of 2002 C.A. No. 6147 @ out of SLP  (C) No.  16048 of 2002 C.A. No. 6148 @ out of SLP  (C) No.  16050 of 2002

SANTOSH HEGDE, J.

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               Leave granted.

In these appeals, a short but an important question of law  arises for our consideration as to the interpretation of Section 17(4)  of the Land Acquisition Act, 1894 (’the Act’) and the procedure to  be followed by the appropriate Government while dispensing with  the inquiry contemplated under Section 5A of the Act. These question arose for consideration before  the Division  Bench of the High Court which  on facts came to conclusion that  the  Lt.Governor of Delhi  who  was the authority   to pass  orders  under Section  17 (4) of the Act did not apply  his mind  as to the   existence of  need   for the dispensation of 5A inquiry. High Court  also held  that the Lt.Governor  was not informed that there was an  earlier attempt to  acquire  land measuring 40 bighas for the same  public purpose  and  said acquisition  had  lapsed by afflux of time   which also contributed to  non-application of mind.  Hence, the  decision  of the Lt. Governor  to exclude the inquiry under Section  5A of the Act  in the present  acquisition proceedings  was   vitiated. The acquiring authority  namely  the Union of India  and  others connected with the said acquisition are in appeal before  us   in the above appeals  questioning  the correctness of the said  judgment.

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

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30.6.1988   under  Section 4(1) of the Act came  to be published.    As stated above,  the public purpose  mentioned therein was  "Planned Development of Delhi".  This notification specifically  stated that  the Lt.  Governor was of the opinion  that provision of   sub-section (1) of Section  17 of the Act is  applicable to this   acquisition and that he was pleased  under sub-Section (4)  to  direct  the provisions of Section 5A of the Act should not apply.    Simultaneously,  a declaration under Section 6 of the Act as well  as the notice under Section 7 of the Act were also published. Being  aggrieved  by this notification  the owners of the land  and persons interested filed  Civil Writ Petitions  before  the High  Court of Delhi  primarily  contending that there was no such  urgency which require the invocation of  Section 17 (1) and (4)  of  the Act by deleting 5A inquiry.   The basis of this  argument  was   that  the decision of the Lt.  Governor  in this regard was vitiated   from the  vice of  non-application of mind  and  from procedural   irregularities.  The High Court which heard the petition, noticed that during  the course of arguments, the petitioners did not seriously press the  argument based on Section 17(1) of the Act and confined their  challenge to the question whether or not the provisions of Section  5A of the Act should  have been dispensed with by the Lt.  Governor. During the course of hearing before  the High Court the  records  of proceedings  were summoned  and the court examined  whether there was  any material  to indicate  the application of  mind by the  Lt. Governor  for dispensing  with the inquiry  under  Section 5A of the Act.    The High Court  after  copiously   referring to the notings in the file and considering   the  various  judgments cited before it  came to the conclusion  that there was no  application of mind by the Lt. Governor  as to whether or not an  inquiry under Section 5A of the Act  ought   to be dispensed with.    Though the notification   published under Section 4(1) of the Act  specifically  mentioned the dispensation of inquiry under Section  5A   of the Act. The High Court on the material placed before it,  also  noticed the fact that in regard to 40 bighas of land, out of the 72  bighas now sought to be acquired in the same Khasra, the  Acquiring Authorities  by a notification dated 24.7.1973 did try to  acquire the said land  for the same  public purpose which  acquisition came to be questioned before the High Court in a writ  petition and when the matter was pending before the Division  Bench  even though  there was no interim  order since  no further  steps were taken by the acquiring authorities, the said acquisition  lapsed.   Since the Lt. Governor was not made known of this  earlier attempt  having lapsed, it  considered this also as a ground  for  coming to the conclusion  that the decision to exclude 5A  inquiry  suffered from the vice of  non-application of mind. The High Court on the above finding   allowed the writ  petition   in part and while  setting aside  the decision  of the Lt.  Governor  to exclude 5A  inquiry  permitted the appellants to  continue the acquisition proceedings  afresh from the stage of 4(1)  notification.  Consequently, the declaration made  under Section 6  of the Act came to be quashed.  It directed that the  acquiring  authority should give an opportunity  to the persons interested  to  file their objections and the same should be  heard by the  concerned authority and further acquisition proceedings  should be   proceeded with and concluded within the time  and manner   stipulated in the impugned  judgment. It is against the said judgment and order of the High Court   the above appeals  are preferred. Though, it is  strictly   not necessary  for us   to go into the  subsequent  events  that had taken place after the impugned  judgment of the High Court , it may be of some relevance  to note  that after the  judgment of the  High Court the  authorities  held the

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5A inquiry  and after considering  the report of the Collector  a  fresh  Section 6 declaration has already been issued but the same   is pending fresh challenge before the High Court at present. Mr. P.P. Rao, learned senior counsel appearing for the  appellants, contended that the principal public purpose for which  the land was sought to be acquired is of great public importance to  the people of Delhi.  The festival "Phool Walon Ki Sair"   being a  festival in which both Hindus and Muslims take part, any step  taken towards furthering this objective would only benefit the  society.   Hence, the public purpose for which the land was sought  to be acquired was of great importance in the present day context.  He further  submitted that Section 17 of the Act is a special  provision which empowers the acquiring authorities when so  directed by the appropriate Government to proceed to take  possession of the land  as contemplated  in the said Section.   He  pointed out under sub-section (4) of  Section 17, a further wider  power is bestowed on the appropriate Government to even exclude  an inquiry under Section 5A of the Act and if so done, even a  declaration under Section 6 of the Act becomes unnecessary  and  what is necessary  was only a publication  of Section 4(1)   notification.  According to the learned counsel   a careful  perusal   of the provisions  of Section  17  indicates   that in case of urgency   it is open to the appropriate Government  as in the  instant case  to  exclude   the inquiry  under Section 5A of the Act by invoking  the  power  under sub-section (4)  of Section 17.  He contended that the  urgency contemplated  under sub-sections (1)  and (2)  of Section  17 by itself are sufficient  for  invoking  Section 17 (4) to exclude   the inquiry   and in the instant case the appellants  themselves  having  given up  their challenge as to the existence of the urgency  under Section 17 (1) they can not contend  that there was no  urgency to invoke Section 17(4)  of the Act,  therefore the Lt.  Governor  rightly entertained  the said urgency  under Section   17(1)   invoking  Section 17 (4) and  to exclude    5A inquiry.  It is  his  contention  that the High Court  erroneously   quashed the  notification though partially.  Mr. Rao submitted  from the material   on record it is clear that right  from  the time of  initiation of  acquisition proceedings there was application of mind  in regard to   the exclusion of  inquiry under Section 5A at every stage. The   learned counsel  also submitted  the degree or sufficiency  of  urgency is not a   matter  to be assessed  by the  High Court   in a  judicial  scale.  Hence, the High Court  in the present case erred  in  making  the impugned order.  He placed  strong reliance   on the  judgment of this Court in the case of  State of U.P.  vs. Smt. Pista  Devi & Ors.  {(1986) 4 SCC 251} wherein this Court held  thus:-  "The provision for housing  accommodation in these  days has  become a matter of national urgency and  courts should take judicial notice of this fact.  Having  regard to the enormous growth of population in the  country, the  governmental schemes of development  of residential areas, such as  those of Development    Authorities constituted by the State Governments for  cities, now demand  emergent action eliminating  summary enquiry under Section 5-A of the Land  Acquisition Act".  

Taking sustenance from the observations of this Court   extracted hereinabove,  Mr.Rao  contended  that the public purpose  of the acquisition  in the present case   is to further  religious amity   between the various communities  and to protect  ancient   monuments.   Therefore, the High Court  ought to have   taken   judicial notice  of the  urgency in the present case.  He then relied  upon the judgment  of this Court  in the case of  Chameli Singh &  Ors. vs. State of U.P. & Anr. { (1996) 2 SCC 549}  wherein this  Court  observed thus:-

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"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."

On the basis of the above observations of this Court, learned  counsel submitted in a given case  the delay by itself could  exhilarate  the urgency as in this case when an attempt to acquire  the land for a genuine public purpose was for some reason or the  other has remained unfulfilled from the year 1987  the High Court  ought  to have held  the delay  already occurred  itself  was  sufficient  evidence  of  the factum of urgency  to exclude Section  5A.  Learned counsel then placed reliance on the judgment of  this Court in the case of First Land Acquisition Collector & Ors.  vs. Nirodhi Prakash Gangoli & Anr. {(2002) 4 SCC 160} wherein  this Court  held thus  :-  "The question of urgency of an acquisition under  Section 17(1) and (4) of the Act is a matter of  subjective satisfaction of the Government and  ordinarily it is not open to the court to make a  scrutiny of the propriety of that satisfaction on an  objective appraisal of facts."  

Learned counsel also relied on another judgment of this  Court in Bhagat Singh etc. vs. State of U.P. & Ors. { (1999) 2 SCC  384} which supports the proposition as to the extent  to which  a  judicial scrutiny of a subjective satisfaction in  a land acquisition  case could extend.

Nextly, the learned counsel relied on another judgment of  this Court in Union of India & Ors. vs. Praveen Gupta & Ors. {  (1997) 9 SCC 78} wherein this Court held thus :-  "Decision on urgency is an administrative decision  and is a matter of subjective satisfaction of the  appropriate Government on the basis of the material  available on record. Therefore, there was no need to  pass any reasoned order to reach the conclusion that  there is urgency so as to dispense with the enquiry  under Section 5-A in exercise of power under Section  17(4)."  

Taking support from the above judgment, as stated above,  Mr. Rao submitted the High Court exceeded its jurisdiction by re- appraising the factual basis on which the appropriate Government  came to the conclusion that there was urgency requiring the  exclusion  of Section 5A inquiry,  which is impermissible  in law.

Before adverting to the arguments of learned counsel  appearing on behalf of the respondents, we would like to refer to  one of the grounds raised by way of preliminary objections by the  respondents which  is in regard to the maintainability of these  appeals on the ground that pursuant to the directions issued by the  High Court, the acquiring authorities have conducted a 5-A inquiry  and a fresh declaration under Section 6 has already been made,  therefore, these appeals are not maintainable. Mr. Rao, learned  senior counsel for the appellants, has rebutted this contention by  relying on the judgment of this Court in the case of  State of  Haryana & Ors. vs. Rajindra Sareen {(1972) 2 SCR 452}.   But in  fairness, we must note that the learned counsel appearing for the

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respondents has not pressed this objection any further than raising  the  same  in the pleadings. That apart, since this objection may  have some bearing on the pending writ petitions before the High  Court and is not a necessary question  to be decided in these  appeals, we refrain from making any observation on this   preliminary objection.

Mr. Ravindra Sethi, learned senior counsel appearing for the  respondents, rebutted  the arguments of learned counsel for the  appellants.  He  submitted that under the Scheme of the Act, each  and every section from Sections 4 to 17 has an independent role to  play though there is an element of interaction between them.    According to him, some of the sections  also provide certain  mandatory  conditions to be fulfilled  before the  next steps is  taken. Thus, in the Scheme of the Act, learned counsel submitted,   that Section 5A  has its own role to  play.   It is his  argument  that  the entire  acquisition proceedings  under the Act are based on the  principle of  eminent domain  and the only protection   given to a  person whose land is sought to be acquired  is an opportunity under  Section 5A of the Act  to convince the acquiring  authority that  the  public purpose for which  the land is  sought to be acquired  is  in  fact  is not a  public purpose and is only  purported  to be one in the  guise of a public purpose.  Therefore, according  to the learned  counsel excluding this  inquiry  can only  be an exception  where  the urgency cannot brook  any delay.  He also submitted this  inquiry provides an opportunity  to the owner of the land to  convince  the authorities concerned that the land in question is not  suitable for the purpose  for which it is sought to be acquired or the  same is sought to be acquired for collateral purpose.  He also  submitted that the report of the inquiry officer though not binding   on the acquiring  authority still it could  open the mind of the  acquiring authority  as to the need or  necessity  to acquire the   concerned land.  Further analysing  the Scheme  of  the Act and  with particular reference to Section 17 of the Act, the learned  counsel submitted that sub-sections (1) and (2) of Section 17  do   provide  a deviation from the  normal scheme  of the Act while   acquiring the land depending  upon the  nature of urgency.  It is his   argument that sub-sections (1) and (2) of Section 17 contemplates   different types of urgency and procedure contemplated while  exercising  the power under  each one of these sub-sections  are  also different from one and the other.  He pointed  out that though  for exercise of power under  Section 17(4) of the Act existence of  emergency  contemplated under  sub-sections (1) or  (2) is a  condition   precedent    that urgency   by itself  would not empower   the authority to dispense with the   5A inquiry under Section 17(4)  of the Act without there being  a  further  need to do  so.   In other  words, the learned counsel contends that assuming  that  there is   urgency for taking possession of the land as contemplated under  sub-sections (1) and (2) by excluding the operation of Section 6  and  the time mentioned in   Section 9 (1) of the Act, the same  would  not by itself   give rise  to the required urgency to avoid an  inquiry under Section 5-A. He submitted that in the instant case the  authorities have not understood this  mandatory difference and  have proceeded as if  the existence of urgency  required under  Section 17(1) is by itself  sufficient to exclude the  inquiry  under  Section 5A. Learned counsel also copiously referred to the various  notings in the file and pointed out that this aspect of the urgency  which is necessary  for excluding  an inquiry  under Section 5A  of  the Act was  not  taken note of.   He also pointed out that in almost  all the notings on the file which were considered by the High Court  there was actually no reference to Section 17(4) at all, much less  any reference to the need for  excluding the inquiry under Section  5A of the Act. It is also pointed out by the learned counsel from  the records that even  on the final  noting of the  Lt. Governor

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dated 23.6.1988 pursuant to which a preliminary notification was  issued,  there is no reference to the exclusion of the inquiry under  Section 5A of the Act. While for the first time such an exclusion  was specifically notified in Section 4(1)  notification dated  30.6.1988 by the Delhi Administration, therefore, the High Court  was justified in coming to the conclusion that the Lt. Governor did  not apply his mind to the need for  dispensing  with the inquiry   under Section 5A of the Act. He further submitted  that the  fact  that  the respondents have given up their challenge in regard to  the  urgency under Section  17 (1)  would not in any way affect the  merit of  their argument of  non application of mind  by the  acquiring  authority   to exclude  5A inquiry.  Keeping in mind  the arguments of  the learned counsel for  the parties, we will now examine  certain relevant provisions of the  Act  to understand the scheme of the Act.    Section 4(1) of the Act requires the Government to publish a  preliminary notification declaring its intention to acquire the land  in question as also the likely  public purpose for which the land is  sought to be acquired. This  section itself provides for a procedure  for publication of the notice and puts an embargo on the future  dealings  by the owners of the said property. Section 5-A contemplates a right of hearing to any person  interested in the land and provides for filing of objections which  objections will have to be heard by the authorised officer by  providing an opportunity of hearing to such interested persons.  As  noted above, the reports submitted after this inquiry may not be  binding on the appropriate Government but the same is necessary   to be considered   by appropriate Government at the same time  the  report can not  be  left out of consideration. Section 6 contemplates the making of a declaration as to the   requirement of the  land   for the  public purpose.  This declaration   in the normal course  will have to be  made only after   the report  of the Inquiry Officer under Section 5-A is considered  by the  appropriate Government.  This declaration is required to be    published in the official gazette. Section 9 contemplates issuance of a notice to the interested  persons after steps enumerated in Section 7 & 8 is completed.   

       Section  11 contemplates an inquiry and award being made   by the Collector  and  Section 16 contemplates  when an award  is  made under Section  11, the collector  is entitled to take possession  of the land which thereupon  vests absolutely with the Government  .  The only exception to deviate from the above scheme of the Act  is found under Section 17 of the Act.  Said Section 17  to the extent   required for our consideration  is extracted hereinbelow:-       

"17. Special powers in cases of urgency. \026 (1)  In cases of urgency, whenever the Appropriate  Government so directs, the Collector, though no such  award  has been made, may, on the expiration  of  fifteen days from the publication of the notice  mentioned  in section 9, sub-section (1), 1[take  possession of any land needed for a public purpose].  Such land shall thereupon vest  absolutely in the  Government, free from all encumbrances.  

(2) Whenever owing to any sudden change in the  channel of any navigable river or other unforeseen  emergency, it becomes necessary for any Railway  administration to acquire  the immediate possession of  any land for the maintenance  of their  traffic  or for  the purpose of making  thereon  a river-side or ghat  station, or of providing convenient  connection with or  access to any such station,  2[or the appropriate  Government considers it necessary to acquire the

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immediate possession of any land for the purpose of  maintaining   any  structure  or system pertaining to  irrigation, water supply, drainage, road  communication or  electricity,] the  Collector may,  immediately  after the publication of the notice  mentioned  in sub-section  (1)  and with the previous  sanction of the appropriate  Government, enter upon  and take  possession of such land, which shall  thereupon  vest absolutely  in the government  free  from all encumbrances :

Provided  that the Collector shall not take possession   of any building  or part of a building under this sub- section  without giving  to the occupier thereof at least  forty-eight hours’ notice of his intention so to  do, or  such longer notice as may be reasonably sufficient  to  enable  such occupier  to remove his movable  property from such building  without unnecessary   inconvenience.

(3)     In every case under either of  preceding sub- sections the Collector shall at the time of taking  possession offer to the persons interested,   compensation  for the standing crops and trees (if any)  on such land and for any other damage sustained by  them caused by such sudden  dispossession and not  excepted in section 24; and, in case such offer is not  accepted, the value of such crops and trees and the  amount of such other damage shall be allowed for in  awarding  compensation for the land under the  provisions herein contained.

[(3A) x x x

(3-B) x x x

(4)     In the case if any land  to which, in the opinion   of the appropriate  Government, the provisions of sub- section (1), or sub-section (2) are applicable , the  appropriate  Government may direct that the  provisions of section 5A 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 1[after the  date of the publication of the notification under  section 4, sub-section (1):"

A careful perusal of the above Section  shows that sub- section (1) of Sec. 17 contemplates  taking  possession of the land  in the case of an urgency without making an award  but after the  publication  of  Section 9(1) notice and  after the expiration of 15  days of  publication of Section 9(1)  notice.    Therefore it is seen   that if the appropriate Government  decides that there is an urgency  to invoke Section 17(1)  in the normal course Section 4(1) notice  will have to be  published, Section 6 declaration will have to be  made and  after  completing  the procedure  contemplated under  Sections 7 and 8,  9(1) notice will have to be given and on  expiration of 15 days from the date of  such notice  the  authorities  can take possession of  the land  even before passing of an award. Sub-section (2) of Section 17 contemplates a different type   of   urgency inasmuch as  it should be an unforeseen emergency.   Under this Section if the appropriate Government  is satisfied that  there  is  such  unforeseen emergency the authorities can take  possession  of the land  even without   waiting fort 15 days period  contemplated under Section 9(1). Therefore,  in cases, where  

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Government is satisfied  that  there is an unforeseen  emergency  it  will have to in the normal  course,  issue a Section  4(1)  notification, hold  5A inquiry, make  Section 6 declaration, and  issue Section  9(1) notice and   possession can  be taken  immediately thereafter without waiting for the period of 15 days  prescribed  under Section  9(1) of the Act. Section 17 (4) as noticed above  provides  that in  cases   where the appropriate Government   has come to the conclusion   that  there  exists an urgency or  unforeseen  emergency  as  required  under sub-sections (1)  or (2) of Section 17  it may  direct  that the provisions of Section 5A  shall not  apply and if such  direction is given then 5A inquiry can be dispensed  with  and  a  declaration may be made under Section  6 on publication of 4(1)  notification  possession can be  made. A careful  perusal of this provision which is an exception  to  the normal  mode of acquisition  contemplated under the Act  shows mere existence of urgency or unforeseen emergency though   is a condition precedent  for invoking  Section 17(4) that by itself  is not sufficient  to direct the  dispensation  of 5A inquiry.  It  requires  an opinion to be formed by the concerned  government  that along with the existence of such urgency  or unforeseen   emergency there is also  a need for dispensing with 5A inquiry  which indicates that the Legislature intended that the appropriate  government  to apply its mind before dispensing with 5A inquiry.   It also indicates the mere existence of  an urgency under Section 17  (1)  or unforeseen emergency  under Section 17  (2) would not by  themselves  be sufficient  for dispensing with 5A inquiry.  If that  was not the  intention  of  the  Legislature  then the latter part of   sub-section (4) of Section 17 would not have been necessary and   the Legislature  in Section 17 (1) and (2)  itself    could have   incorporated  that in such situation  of existence of urgency or  unforeseen emergency  automatically 5A inquiry will be dispensed  with.  But then  that is not  language  of the Section which in our  opinion requires the appropriate Government  to further  consider   the need for dispensing with 5A inquiry  in spite of the existence   of unforeseen emergency.  This understanding of ours  as to the  requirement of  an application of mind by the appropriate  Government while dispensing with 5A inquiry does not mean that  in and every case when there is an urgency contemplated under      Section 17 (1) and unforeseen   emergency contemplated  under  Section 17 (2) exists that by itself  would not contain  the need for  dispensing with 5A inquiry.  It is possible in a given case the  urgency noticed by the appropriate Government  under Section   17(1) or the unforeseen emergency  under Section 17(2)  itself   may be  of  such  degree that it could require the appropriate  Government on that very basis to dispense with the inquiry under  Section 5A but then there is a need for application of mind by the  appropriate Government  that such an urgency   for dispensation   of the 5A inquiry is   inherent in the  two types of  urgencies  contemplated  under Section  17 (1) and (2) of the Act. 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  Section 17(1) and (2), the dispensation of enquiry under Section  5A becomes  automatic and  the same  can be done by a composite  order meaning  thereby  that there  no need  for the appropriate  Government  to separately apply its mind for any further   emergency for  dispensation with an inquiry  under Section 5A.    We are unable  to agree with the above argument because  sub- section (4) of Section 17  itself indicates that the "government may  direct that provisions of Section 5A  shall not apply" 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

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dispensation  of inquiry.  For this we do find support from a   judgment of this Court in the case of    Nandeshwar Prasad & Anr.  vs. The State of U.P. & Ors. { 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  held  thus :   "It will be seen that s. 17(1) gives power to the  Government to direct the Collector, though no award  has been made under s. 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 s. 17(1), taking possession and vesting  which are provided in s. 16 after the award under s. 11  are accelerated and can take place fifteen days after  the publication of the notice under s. 9. Then comes  s.17(4) which provides that in case of any land to  which the provisions of sub-s. (1) are applicable, the  Government may direct that the provisions of s. 5-A  shall not apply and if it does so direct, a declaration  may be made under s. 6 in respect of the land at any  time after the publication of the notification under s.  4(1). It will be seen that it is not necessary even where  the Government makes a direction under s. 17(1) that  it should also make a direction under s. 17(4). If the  Government makes a direction only under s. 17(1) the  procedure under s. 5-A would still have to be  followed before a notification under s. 6 is issued,  though after that procedure has been followed and a  notification under s. 6 is issued the Collector gets the  power to take possession of the land after the notice  under s. 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  s. 17(4) that it becomes unnecessary to take action  under s. 5-A and make a report thereunder. It may be  that generally where an order is made under s. 17(1),  an order under s. 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 s. 17(1) or s. 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."

A careful  reading of the above judgment shows  that this  Court  in the said case  of  Nandeshwar Prasad’s case  (supra) has  also held that there should an application of mind to the facts of the  case  with special reference   to this concession  of  5A inquiry  under the Act.         At this stage, it is relevant to notice that the limited right  given to an owner/person interested under Section 5A 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 5A inquiry was  noticed  by this Court  in the case of Munshi Singh & Ors.  vs.  Union of India  {(1973) 2 SCC 337 where this Court held thus:-      "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

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authorities  concerned that acquisition of the  property belonging to that person  should not be  made.  The legislature  has 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."    

It is clear from the above observation of  this Court   that  right   of representation and hearing  contemplated  under Section  5A 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 5A. We will now   refer  to the facts of the present case.    We  make it clear   that this consideration  of facts  by us  is not for the  purpose   of finding  out whether  the stated public purpose  is in  reality  a public purpose or not,  nor is it for the purpose of finding  out  whether there was   an urgency as contemplated under Section  17(1) of the Act, but limited  to the question of  whether  there was  any material  available  before the Lt. Governor  pursuant to whose  order Section  4(1)  notification  stated  that  5A inquiry is   dispensed with.  Since formation of an opinion  and application of  mind cannot  be assessed  except by looking  into the  proceedings   which culminated in the impugned order, we intend  considering  only  such facts  as is necessary  for this limited purpose.  The facts  of the present  case as found from the records  shows that the   Anjuman-Saire-e-Gul-Faroshan  the committee that  organises this  festival  was using some land  in village Mehrauli for  conducting  its concluding ceremony.  It  is for this purpose  it  sought  4000 sq.  yards  of land  in Khasra No. 1151/3  (new) and 1665 (old)  of said  village.   It is also found from the record  ever since  the  revival of  the festival the concluding  programme was being continued in  a  piece of  land  situated  in the said Khasra  of Mehrauli village  which  is  now   sought to be acquired  along with certain other  lands.  There is  no material on record to show   that either  the said  festival has been  discontinued  for want of land  or the owners  of  the land  where the festival   has its concluding  ceremony  are  preventing the utilisation of that land for the said purpose.  We  have also noticed  hereinabove   that  an earlier attempt to acquire   40 bighas  of the land  for the very same purpose  was allowed to  be lapsed by the authorities  concerned by afflux  of time which  is  also a relevant factor to be taken note  of by the Lt. Governor   when he took the decision  to dispense with  the 5A inquiry but the  same was not placed before him.  These facts coupled with the  findings of the High Court that in almost all the  notings in the file  there is no reference to the need for invoking  Section 17(4)   indicates  that the Lt. Governor  was not apprised  of  all the   necessary and relevant  facts before  he took the decision in  question.    Therefore, in our opinion, the findings  of the High  Court   that the decision of the Lt. Governor  to dispense with the  5A inquiry  suffered from the vice  of non-application  of mind has  to be upheld.  For the reasons stated above, these appeals fail and  are dismissed.