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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: PRAVEEN GUPTA & ORS.

DATE OF JUDGMENT:       04/10/1996

BENCH: K. RAMASWAMY, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      This appeal  by special  leave arises from the judgment of the  Division Bench  of the Delhi High Court made on July 14, 1992  in  L.P.A.  No.36/92  dismissing  the  L.P.A.  The learned single Judge had allowed the Writ Petition No.936/89 on the  ground that  there was no justification for invoking the urgency  clause in Section 17(4) of the Land Acquisition Act, 1894  (1 of  1894) (for short, the ’Act’). Accordingly, the learned  Single  Judge  quashed  the  declaration  Under Section 6.  The Division  Bench dismissed  the L.P.A. on the ground that there was inordinate delay of more than 200 days in filing the appeal. Thus, this appeal by special leave.      When  the   matter  had  come  up  before  us  and  the respondents pointed  out that  the land involved is only two bighas  and,   therefore,  it   is  not  a  case  warranting interference. We  directed the learned counsel for the Union of India  to find  out as  to why  they are  insisting  upon decision on  merits. A  statement was  made by  Shri  K.T.S. Tulsi, learned  Additional Solicitor  General that there are number of  cases of  the similar  nature pending in the High Court awaiting  the decision  of this  Court and, therefore, decision on  merits was  necessary. We  accordingly set  the case for  hearing on  merits. The  learned counsels  for the parties have filed their written submissions.      We have heard Shri N.N. Goswami, learned senior counsel for the  appellants and  Shri G.L.  Sanghi,  learned  senior counsel for  the respondants.  The admitted position is that the notification under section 4(1) of the Act was published on February  9, 1989  acquiring 1328 Bighas of land situated in Siraspur  & Libaspur.  The enquiry  under Section  5A was dispensed with. Declaration under Section 6 was published on February 7,  1990. The  writ petition  was filed on March 5, 1990. Two  awards No.8  end 9  of 1991  come to  be made  on February 7,  1992 in  respect of  the land  except these two bighas of  land which are subject matter in this case. Since the  learned   Judge  had   quashed  the  notification,  two questions have been raised and argued by the learned counsel for the  parties. The first question relates to the delay in

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filing the  L.P.A. It  is seen  that  learned  single  Judge passed the  order on March 5, 1990 and certified copy of the judgment was  obtained by  the  counsel  appearing  for  the Government on  July 12,  1990 and  a  letter  was  addressed immediately  on  July  31,  1990  directing  the  Government pleader to file the appeal. Instead of filing the appeal, he had given  the opinion  two months thereafter on November 4, 1990 that  it was  not a  fit case.  Accordingly, he did not file the  appeal. When  the matter  was re-examined  since a large number  of cases were involved, new Government pleader opined on  April 16,  1992 that it was a fit case for filing the appeal.  Accordingly, L.P.A.  came  to  be  filed.  Shri Sanghi,  learned   senior  counsel   for  the   respondents, contended that  delay has  not been  properly explained. The question is:  whether delay on the part of the appellants in filing the  appeal has  been explained?  It is  seen that as soon as the copy of the judgment of the learned single Judge was received  by the Government within 18 days from the date of the  receipt of  the judgment,  letter was written to the Government pleader to file the appeal. He had no business to give opinion  at that  stage that  it is  not a fit case for filing the  appeal. After  the lapse  of two months, he sent the letter. Obviously, relying upon that opinion, no further action was  taken. When the matter reached the Government of India, it  got  the  same  re-examined  and  the  Government pleader gave  his opinion. Unless this matter is challenged, all the other cases would follow the suit and law being laid down in  the appeal would be applicable and the notification would get  quashed. Resultantly,  the decision  was taken to file the  appeal. Under  these circumstances,  we are of the view that  though there  is considerable delay in filing the appeal, the  Division  Bench  of  the  High  Court  was  not justified in  refusing to  condone the delay and examine the matter on  merits. Accordingly,  we  condone  the  delay  in filing the appeal.      Two courses are open to be considered are whether it is a fit case for remitting the matter for consideration by the High Court  or whether this Court could decide the matter on merits. Having  regard to the facts that more than 200 cases are pending disposal in the High Court, remitting the matter again after  years for  decision of the High Court would not be justified  and we  feel it expedient to avoid any further delay that  the matter  could be  decided on  merits in this Court. Accordingly, we requested the learned counsel for the parties to  argue the case on merits. We have considered the written submissions  and  heard  the  arguments  elaborately addressed by the counsel.      Shri Sanghi,  learned Senior  Counsel has  pointed  out that there  is no  real  urgency  in  this  matter  and  the respondents could  have been given an opportunity to contend that land  is not  needed for any public purpose. In support In  support  thereof,  he  placed  strong  reliance  on  the judgments in  Narayan Govind  Gavate &  Ors.  vs.  State  of Maharashtra &  Ors. [(1977)  1 SCC  133]; Dora  Phalavli vs. State of  Punjab &  Anr. vs.  Gurdial Singh & Anr. [(1980) 2 SCC 471].  The decision  in Narayan  Govind’s case, has been distinguished by  this Court  in several cases. In the light of  the  ratio  in  catena  of  decisions,  this  Court  has consistently held  that acquisition  of the property for the planned development  of  the  housing  accommodation  is  an urgent for  acquisition and,  therefore, dispensing with the enquiry under  Section 5A,  exercising power  under  Section 17(4) has  been held  to be  valid. It  is true that in Dora Phalavi and  Gurdial Singh’s  cases the  two Judge  Bench of this Court  in each  of the  cases held  that enquiry  under

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Section 5A  may not  be dispensed  with in a cavalier manner unless real urgency is shown, enquiry under Section 5A would not be  dispensed with,  denying the  opprtunity to file the objections under  Section 5A. Each case has to be considered On its  own facts.  The very object of enquiry under Section 5A is  whether the land proposed to be acquired is needed or is likely  to be  needed for the public purpose mentioned in the notification  and whether  any other suitable land other than the  acquired  land  is  needed  for  the  said  public purpose. In  this case,  the entire land in two villages was acquired. It  is seen  that timber business is being carried on in  the walled  city of old Delhi. It has become a source of traffic  congestion and  that it  requires to  be shifted urgently from  the existing  place to relieve the congestion by acquiring  the concerned  land  for  the  public  purpose namely, establishment  of timber  depots. It  is true that a mention was  also made  that unauthorised  construction  has been made  in the  area proposed  to  be  acquired.  If  the enquiry was  conducted, delay  would defeat  the very public purpose of  acquisition for shifting of timber business from the walled  city and  establishment  of  the  timber  depots outside the walled city. Therefore, the urgency mentioned in exercising the  power under Section 4(1) was justified. Shri Goswami, learned  senior counsel for the Union of India, has relied upon  the judgment of this Court in Jai Narain & Ors. vs. Union  of india  & Ors. [(1996) 1 SCC 91. It is true, as pointed out  by Shri  Sanghi, that  the acquisition  in this reported decision was made for the establishment of sewerage plan as  per the  direction of  this Court  and,  therefore, there was urgency.      But, as  stated earlier,  since the  acquisition is for shifting of  timber business  from the  walled city  to  the outskirts  of  the  city,  shifting  itself  is  for  urgent purpose, viz.,  to relieve  the traffic  congestion  in  the walled city.  Under those circumstances, the exercise of the power under  Section 17(4)  cannot be said to be unwarranted in this  case. It  is true  that there was a delay, from the date of  the notification  under Section  4(1) of the Act in publication of  the declaration under Section 6. When it was pointed out  that no counter-affidavit was filed in the High Court explaining the delay, we directed the learned counsel for the State to produce the record. An averment has been made  in the  special leave petition that the delay was due to  enquiry being  conducted into  the objections  filed before Lt.  Governor in this behalf and until the objections were over-ruled,  declaration under  Section 6  could not be published. The  note in the office file and the running file do  indicate   that   certain   persons   kept   on   making representations right  from  1983  and  as  far  as  present notification is  concerned, objections  had been received on April 25,  1990 and,  thereafter, they  have been considered after the  Lt. Governor  directed to enquire into the matter and submit  the report.  Consequently,  they  conducted  the enquiry  and   submitted  the   report.  Consequently,  they conducted the enquiry and submitted the report.      It is  now settled  legal  position  that  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 5A in exercise of power under Section 17(4). It  is then  contended by Shri Sanghi that as per the revised Master Plan, only 37 hectares of land was needed for establishment of  timber depots,  though extensive  land was

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sought to  be acquired.  When that  objection was  taken, we passed the  order directing the competent officer to file an affidavit. By  our proceedings dated August 24, 1995, it was observed as under:      "In view  of the specific averments      made in  the written submissions of      the   respondents   regarding   the      location of  the timber  depots  in      terms  of   the  master   plan,  it      requires clarification by the Delhi      Administration whether the lands in      Siraspur  &   Libaspur  are   still      required for  the purpose mentioned      in   the    notification,   namely,      planned development  of  Delhi  and      shifting of  the timber depots from      the  Teliwara  area  into  the  new      places"      One  G.S.  Meena,  Under  Secretary  (L  &  B)  of  the Government of  National Capital Territory of Delhi has filed the affidavit.  Therein, he  has stated that the acquisition of the  land in  the said village for shifting of the timber market is  still exist  as per the provisions scheme of MPD- 2001, as notified by the DDA. Under these circumstances, the public purpose still subsists. Even under the revised Master Plan, the  acquisition is  valid in  law and dispensing with the enquiry  under Section  5A was  justified.  The  learned single Judge,  therefore, was  not  right  in  quashing  the declaration under  Section 6.  Shri Sanghi,  learned  senior counsel, further  contended that  the notification discloses that the  land is  likely to  be needed which would indicate that  there   is  no  real  urgency.  The  language  of  the notification is  not conclusive but the Court is required to consider the  material  whether  there  is  any  urgency  to exercise the  power under Section 17(4) of the Act. The same view taken  by this  Court in  Jai Narain’s case referred to earlier.      Accordingly, we  are of  the view  that mere mention in the notification  that the  land is  likely to be needed for the public  purpose does  not take  away the  power  of  the appropriate Government  to exercise  the  power  of  urgency clause under Section 17(4).      The appeal  is accordingly  allowed. The  order of  the learned single Judge as well as of the Division Bench of the High Court  are set  aside. The  declaration under Section 6 stands restored. The Land Acquisition Officer is directed to pass the  award after issue of the notice to the respondents within a  period of  three months  from the  receipt of  the order. No costs.