Delhi High Court
Seven Star Hotel & Resorts Pvt. Ltd. vs Union Of India & Ors on 14 January, 2011
Author: Valmiki J. Mehta
Bench: Sanjay Kishan Kaul, Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.533/2010
% Reserved on : 2nd December, 2010
Pronounced on: 14th January, 2011
SEVEN STAR HOTEL & RESORTS PVT. LTD. ...... Petitioner
Through: Mr. Ravinder Sethi, Sr.
Adv. with Mr. Sumit
Bansal and Mr. Ateev
Mathur, Advocates.
VERSUS
UNION OF INDIA & ORS .... Respondents
Through: Ms. Meera Bhatia &
Mr. RoshanKr. Adv. for
R-1/UOI.
Mr. Sanjay Poddar,
Adv. for R-2 to R-4
Mr. Sanjeev Sabharwal,
Adv. for R-5/MCD.
Mr. Ashok Bhasin, Sr.
Adv. with Mr. Sumeet
Pushkarna, Adv. for R-
6/DJB.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
WP(C) 533/2010 Page 1 of 22
VALMIKI J. MEHTA, J
1. The petitioner company, by means of the present writ petition
under Article 226 of the Constitution of India, seeks reliefs for quashing
the acquisition proceedings initiated under the Land Acquisition Act,
1894 (hereinafter referred to as the „said Act‟) and also alternatively
for quashing the notification under Section 17(4) of the said Act
exempting the grant of hearing under Section 5A of the said Act
alleging that the provision of Section 17(4) has not been validly
invoked.
2. The petitioner company is the owner of land measuring 14
biswas and 8 biswansi (approximately 720 sq. yds) situated in Khasra
No. 27/18/2 in village Khampur, Delhi. A notification under Sections 4
and 17(1) read with Section 17(4) of the Act was issued with respect to
the land on 13.2.2009. A declaration was thereafter issued under
Section 6 on 26.10.2009. The land in question was required for a public
purpose namely construction of sewage pumping station by Delhi Jal
Board/ respondent no.6. The petitioner received a notice under
Section 9 of the said Act dated 22.12.2009, and claims that
accordingly, for the first time, it came to know of the acquisition
proceedings. The petitioner, therefore filed the present writ petition
seeking reliefs as already stated above.
3. Before this court, the learned senior counsel for the petitioner
WP(C) 533/2010 Page 2 of 22
raised the following main arguments:-
(i) The notification under Section 4 was bad because the land which
was sought to be acquired was a small parcel of land belonging to the
petitioner company only and therefore it was necessary to effect
personal service on the petitioner company at its address and which
has not been done. It was also argued that there was no notification
under Section 4 which was affixed on the land in question and
consequently, once the notification under Section 4 fails, the entire
acquisition proceedings also have to go.
(ii) In the facts of the present case, the authorities have erred in
invoking the provisions of Sections 17(1) and 17(4) of the said Act by
not granting hearing to the petitioner under Section 5A of the said Act
as right to property was a valuable constitutional right under Article
300-A of the Constitution. It was urged that the subject land is part
and parcel of a much larger land totaling to about approximately 4
acres being Khasra Nos. 27/18/2 (3-10), 16 (4-16), 17(4-11), 27/23/2
(2-5), 24(4-16), 25(4-16) and 26(0-5) and with respect to this land,
plans for a motel were already sanctioned by MCD on 7.2.2007 which
aspect has not been considered before issuing the acquisition
notification. It is further urged that as per the Master Plan/Zonal Plan,
the land in question was a part of green belt and is a no construction
zone, being required for widening of the National Highway, and which
WP(C) 533/2010 Page 3 of 22
aspects were not brought to the notice of the authorities and hence
even after acquisition, this land cannot be put to use of a sewage
pumping station. The authorities have failed to apply their mind in
issuing the subject notifications which are therefore, liable to be
quashed.
(iii) The acquisition proceedings were malafide because in reality as
per the survey report dated 11.1.2008 what was sought to be acquired
was actually not the subject K.No. 27/18/2 belonging to the petitioner
but the adjoining K.No. 27/13. It is argued that by creating confusion
and in a malafide manner, the acquisition proceedings were got
altered to the K.No. 27/18/2 belonging to the petitioner.
4. The counsel for the respondent Nos. 2 to 4 being the land
acquiring authorities, and the learned senior counsel for respondent
no.6/the beneficiary of acquisition, have strongly opposed the case of
the petitioner. It was firstly argued in rebuttal that there exists valid
cause for issuance of the notifications under Section 4 read with
Sections 17(1) and 17(4) of the said Act because the sewage pumping
station is part of a larger grid which is being constructed pursuant to
the orders passed in various cases by the Supreme Court with respect
to the cleaning of the river Yamuna. It was argued that quite clearly
this is not only a valid public purpose but also that there were
therefore adequate reasons for directing that hearing under the
WP(C) 533/2010 Page 4 of 22
provision of Section 5A be exempted. It was argued that the
applicability of the provisions of Sections 17(1) and 17(4) in the facts of
the present case is fully justified and directly covered by the decision
of the Supreme Court in a case involving nearly identical facts and
reported as Jai Narain v. Union of India, (1996) 1 SCC 9. It was
argued that in this decision of Jai Narain (supra), it has been held
that the requirement of sewage plant/pumping station being part of a
larger grid for implementation of the requirement of the cleaning of
river Yamuna justified the invocation of the powers under Section 17(4)
for holding that Section 5A should not apply. It was urged that
construction of a sewage pumping station forming part of a larger grid
of sewage cleaning system is without doubt an urgent public purpose.
It was argued that the land in question is a miniscule part (being only
720 sq. yards) of the total land of approximately 19000 sq. yds
belonging to the petitioner and further that the land in question was
right in the corner of the total land of the petitioner and would
therefore not in any manner affect the motel project of the petitioner.
It was further argued that there is no question of malafides because
the survey report dated 11.1.2008 unnecessarily created confusion
inasmuch as right from 2007, the requirement was very much for the
land of the petitioner comprised in K.No. 27/18/2 and which was
pursuant to a project report of a consultant and actual inspection of
WP(C) 533/2010 Page 5 of 22
site in terms of a map prepared for creation of the larger grid. The
confusion which was created by revenue officials on 11.1.2008 was
cleared on the basis of a subsequent fresh survey conducted on
20.6.2008 where once again the actual location was co-ordinated with
the grid map showing the site location and it was once again reiterated
that what was required was land comprised in K.No.27/18/2 and not
the adjoining land comprised in K.No. 27/13.
5. So far as the issue with regard to the issuance of the notification
under Section 17(4) exempting the application of Section 5A is
concerned, for the construction of a sewage pumping station, the issue
is no longer res integra and is fully covered by the decision of the
Supreme Court in the case of Jai Narain (Supra). In the case of Jai
Narain (supra), the Supreme Court has held that requirement of
creation of a sewage pumping station/plant being part of the larger
sewage grid required for the project for clearing the Yamuna river
justifies the invocation of the powers under Section 17(4) of the said
Act. The relevant paras of the judgment in the case of Jai Narain are
paras 6 to 11 which read as under:-
"6. The land in dispute is being acquired for the construction
of STP. This Court in M.C. Mehta case, while directing the
closure of the stone-crushers in the city of Delhi, on 15-5-1992
observed as under: (SCC p. 257, para 2)
"We are conscious that environmental changes are the
inevitable consequence of industrial development in our
country, but at the same time the quality of environment
cannot be permitted to be damaged by polluting the air, water
WP(C) 533/2010 Page 6 of 22
and land to such an extent that it becomes a health hazard for
the residents of the area. We are constrained to record that
Delhi Development Authority, Municipal Corporation of Delhi,
Central Pollution Control Board and Delhi Pollution Control
Committee have been wholly remiss in the performance of
their statutory duties and have failed to protect the
environments and control air pollution in the Union Territory of
Delhi. Utter disregard to environment has placed Delhi in an
unenviable position of being the world‟s third grubbiest, most
polluted and unhealthy city as per a study conducted by the
World Health Organisation. Needless to say that every citizen
has a right to fresh air and to live in pollution-free
environments."
While dealing with the construction of STPs in Delhi, this Court
in Mehta case1 passed the following order on 22-4-1994:
"The Delhi Development Authority has filed an affidavit
through its Secretary, Mr V.N. Bansal. It is stated that the
Authority is ready and willing to provide land to the MCD for
setting up of the sewage treatment tanks. Keeping in view the
urgency of the matter, we request Mr Subhash Sharma,
Commissioner, MCD, Mr S.P. Jkhanwal, Vice-Chairman, DDA, Mr
Ashok Kumar, Additional Commissioner, Water and Mr J.K.
Mathur, Chief Engineer of the Delhi Water Supply and Sewage
Disposal Undertaking to be present in Court on May 6, 1994.
We are requesting the officers to be present in Court so that
we can have their viewpoints for taking appropriate decisions
on the spot. Needless to say that with the increase of
population in Delhi, it is of utmost urgency to set up the
sewage treatment plants within the time-bound schedule."
Thereafter, on 13-5-1994 this Court issued various directions
regarding the transfer of land to the Delhi Water Supply and
Sewage Disposal Undertaking (the Undertaking) for the STPs in
Delhi and finally directed as under:
"We direct the DDA through Mr S. Roy, Commissioner, Lands
to hand over the possession of the vacant land available for
setting up of the sewage treatment plants in various colonies
within four weeks from today. We further direct the MCD to
make payment in respect of these lands simultaneously. Mr S.
Prakash, Engineer-in-Chief will be responsible for taking over
the land and also for making payment to the DDA on behalf of
the MCD. The work for setting up of sewage treatment plants
shall be undertaken forthwith and shall be completed at war
footing." (emphasis supplied)
WP(C) 533/2010 Page 7 of 22
7. Further directions were issued to the Delhi Administration
on 14-12-1994 to take over the land from DDA and acquire
where necessary for the STPs at various places in Delhi.
8. This Court has been issuing time-bound directions for the
procurement of land for the STPs in various parts of Delhi. The
impugned notifications regarding Keshopur STP were issued
under the directions of this Court. On 23-1-1995 this Court
passed the following order regarding the land in dispute:
"Notification under Section 4 read with Section 17(1) of the
Land Acquisition Act has been issued. The land in the
notification has been identified by way of a plan indicating
boundaries and not by the khasra numbers. To issue
notification under Section 6, exact khasra numbers of the land
in dispute are required . Mr Jaitley states that the DDA will give
exact khasra number of the land within one week from today.
The notification be issued within two weeks from today."
9. In Mehta case, this Court on 24-3-1995 observed as under:
"A very grim picture emerges regarding increase of pollution in
the city of Delhi from the two affidavits filed by Shri D.S. Negi,
Secretary (Environment), Government of Delhi. He has pointed
out that the population of Delhi which was about 17 lakhs in
1951 has gone up to more than 94 lakhs as per the 1991
census. In fact, more than 4 lakh people are being added to
the population of Delhi every year out of which about 3 lakhs
are migrants. Delhi has been categorised as the fourth most
polluted city in the world with respect to concentration of
Suspended Particular Metal (SPM) in the ambient atmosphere
as per World Health Organisation Report, 1989. From NEERI‟s
annual report 1991 it is obvious that the major contributions,
so far as air pollution is concerned, is of the vehicular traffic
but the industries in the city are also contributing about 30%
of the air pollution. So far as the discharge of effluent in
Yamuna is concerned, the industries are the prime contributors
apart from the MCD and NDMC which are also discharging
sewage directly into the River Yamuna. We are dealing with
the sewage problems in separate proceedings."
Thereafter, on 21-4-1995 this Court, regarding the
construction of STPs observed as under:
WP(C) 533/2010 Page 8 of 22
"Treatment of sewage is of utmost importance for health and
for supply of pure water to the citizens of Delhi. Any delay in
this respect is a health hazard and cannot be tolerated."
10. Various orders and directions issued by this Court from
time to time in Mehta case1 clearly show that the land in
dispute -- for Keshopur STP -- is being acquired under the
directions of this Court. Even the impugned notifications under
Section 4 read with Section 17 and Section 6 of the Act have
been issued under the directions of this Court. This Court
repeatedly indicated in the orders/directions that there was
urgency in taking over the possession of the land, under
acquisition, for the construction of STP at Keshopur. The
authorities were directed to take up the work of land
acquisition and construction of STPs on war footing. „Likely‟ in
the background of this Court‟s orders passed from time to time
for a time-bound programme for setting up the STPs means,
for purposes of this case, „certainly‟ and „urgently‟.
11. Delhi -- the capital of India -- one of the world‟s great and
historic cities has come to be listed as third/fourth most
polluted and grubbiest city in the world. Apart from air
pollution, the waters of River Yamuna are wholly
contaminated. It is a paradox that the Delhiites -- despite
River Yamuna being the primary source of water supply -- are
discharging almost totality of untreated sewage into the river.
There are eighteen drains including Najafgarh drain which
carry industrial and domestic waste including sewage to River
Yamuna. Thirty-eight smaller drains fall into Najafgarh drain.
The Najafgarh drain basin is the biggest polluter of River
Yamuna. Eight of the drains including Najafgarh drain are
untrapped, four fully trapped and remaining six are partially
trapped. All these eighteen drains, by and large, carry
untreated industrial and domestic wastes and fall into River
Yamuna. The River Yamuna enters Delhi at Wazirabad in the
North and leaves at the South after travelling a distance of
about twenty-five kilometres. The water of River Yamuna till it
enters Najafgarh is fit for drinking after treatment, but the
confluence of Najafgarh drain and seventeen other drains
makes the water heavily polluted. The water quality of
Yamuna, in Delhi stretch, is neither fit for drinking nor for
bathing. The Biochemical Oxygen Demand (BOD) level in the
river has gone so high that no flora or fauna can survive. It is
of utmost importance and urgency to complete the
construction of the STPs in the city of Delhi. The project is
of great public importance. It is indeed of national importance.
WP(C) 533/2010 Page 9 of 22
We take judicial notice of the fact that there was utmost
urgency to acquire the land in dispute and as such the
emergency provisions of the Act were rightly invoked. We
reject the first contention raised by the learned counsel."
(Emphasis added)
6. In view of the decision in the case of Jai Narain (supra) and that
the acquisition of the land is for the requirement of construction of a
sewage pumping station, the authorities were fully justified in invoking
the provision of Section 17(4) of the said Act for exempting the
application under Section 5A of the said Act on the ground that the
land in question was required for an urgent public purpose viz urgency
for creation of sewage pumping station which formed part of a larger
grid and also that the acquisition is being made pursuant to the various
judgments of the Supreme Court including "M.C.Mehta" cases.
7. It may also be noted that the land in question which is required
by the petitioner is merely a very minor portion of the land of the
petitioner being just 720 sq. yards and which parcel of land is right in
the corner of the entire land of the petitioner and therefore the project
of the petitioner of a Motel will not be affected by this acquisition. It is
not correct for the petitioner to state that the requirement of the land
is necessary for the construction of a Motel. It is an admitted case that
no construction has to be made as per the sanctioned plan within the
subject land of 720 sq. yds. Also it is logical that no construction will
be made on this land because the same is right in the corner of the
WP(C) 533/2010 Page 10 of 22
larger piece of land of the petitioner.
8. It was also vehemently argued that the authorities have mis-
directed themselves and have not taken into consideration the fact
that the land in question would be required for road widening for the
purpose of National Highway and consequently, no construction can be
made as per the zonal plan on the land in question and therefore the
authorities have not applied their minds by seeking to acquire the
subject land. Once again, this issue is fully covered by the decision in
the case of Jai Narain in which it has been held that different use of
land as provided in the Master Plan is not a ground for quashing of the
acquisition proceedings. Para 12 of the judgment in Jai Narain's
case is relevant in this regard and which reads as under:-
"12. So far as the second contention raised by Mr Vashisht,
the same is mentioned to be rejected. Whatever may be the
user of the land under the Master Plan and the Zonal
Development Plan the State can always acquire the same
for public purpose in accordance with the law of the land. In
any case the object and purpose of constructing the STPs is
to protect the environment, control pollution and in the
process maintain and develop the agricultural green."
9. In any case, we have also satisfied our judicial conscience that
the land in question is not such that if a sewage pumping station is
constructed on the same there would in any manner be any hindrance
to the widening of the National Highway. Pursuant to the directions of
this court, the revenue authorities have filed before us a rough sketch
WP(C) 533/2010 Page 11 of 22
of the present site conditions/site location of the subject land qua the
National Highway. This plan has been filed on 17.11.2010 and which
shows that presently the National Highway comprises of approximately
109 feet in width. After the existing road there is still a width of 43
feet on which there exists an unmetalled road and there is thereafter
another 25 ft. belt on which there is a drain. The land in question is
situated only thereafter, meaning thereby, there is still about 70 ft. of
space available for widening of the National Highway towards the side
where the subject land is located. In any case, it is not as if, the
sewage pumping station which is basically to comprise a sump and one
room would be built right at the edge of the plot towards the boundary
wall facing the National Highway. The authorities are well advised to
avoid any future problem to make any construction in the subject plot
which is sought to be acquired at a location which should be furtherest
from the boundary of the plot facing the National Highway i.e, any
construction be made right inside the plot. This, in our opinion, should
take care of the argument raised on behalf of the petitioner that the
land in question even if, acquired cannot be used for the public
purpose. We, again, hasten to add that we have looked into this
argument in addition although the same was not required in view of
the decision of Jai Narain's case which states that this aspect of land
use need not be considered with respect to the acquisition of land for a
WP(C) 533/2010 Page 12 of 22
public purpose.
10. So far as the issue of malafides is concerned, once again we find
that this argument on behalf of the petitioner is devoid of substance.
The fact of the matter is that right from the inception, land which was
projected as being required was the land of the petitioner comprised in
K.No.27/18/2. This is clear from the first letter in this regard of the
Delhi Jal Board issued on 2.11.2007 and which itself was pursuant to
the key plan indicating the location of the sewage pumping station
prepared as per a report of the project consultant. This letter dated
2.11.2007 clearly mentions the requirement of the land comprising
K.No.27/18/2. This letter has been further followed up by the letter
dated 26.12.2007 which stated the requirement was of the land of the
petitioner and on the basis of which a joint survey was fixed for
11.1.2008. On 11.1.2008, when the survey was conducted, it appeared
as per the survey report that the requirement of the land for Delhi Jal
Board in fact could be partly in the adjoining K.No.27/13 and partly in
the land of the petitioner as per the site coordinates. Obviously, there
was confusion in the minds of the revenue officials and the officials of
the Jal Board because it was an issue of coordinating the location in the
key plan being the grid plan and the sewage pumping station thereon
with its actual positioning at the ground level. The officials seem to
have found that the actual land required as per the key plan may be
WP(C) 533/2010 Page 13 of 22
27/13 and part of the land of the petitioner in K.No. 27/18/2 and not
the entire K.No. 27/18/2. Change of acquisition proceedings by
seeking to acquire the land in K.No.27/13 would be fraught with grave
consequences of enhancement of costs and delay and changing of the
entire grid and four consequences were projected, and in our opinion
rightly, for stopping the change of acquisition of land from the
K.No.27/18/2 of the petitioner to part of this K.No. 27/18/2 and part of
K.No. 27/13 belonging to someone else. These four consequences are
stated as under:-
"A. The entire sewerage scheme of all the three villages i.e.
Hamidpur, Bakoli and Khampur has to be changed
including topographical survey.
B. The new consultant has to be appointed as the
agreement with M/s Shah Technical Consultants [P] Ltd
is closed.
C. Land acquisition process has to be started again.
D. In view of A,B and C above the project will be delayed by
2-3 years and the cost of project will be escalated
accordingly."
Clearly, the consequences being drastic leading to delay in the
project and considerable escalation of cost, it was decided to conduct a
fresh survey as to whether the survey of 11.1.2008 was really the
correct one. A fresh survey was accordingly conducted on 20.6.2008
and this survey again checked up the site coordinates and it was found
that by coordinating the location on the key plan prepared by the
WP(C) 533/2010 Page 14 of 22
consultant and the actual site position that what was really required
was in fact the land of the petitioner comprised in K.No. 27/18/2 and
not the land comprised in K.No.27/13. We thus do not find any
malafides in the stand of the respondents no.2 to 4 and the respondent
no.6. It is therefore not correct that the acquisition which was
projected was earlier was of different K.No. 27/13 and thereafter the
acquisition proceedings are deliberately sought to be changed to K.No.
27/18/2 belonging to the petitioner.
11. On behalf of the petitioner strong reliance has been placed upon
the decision in the case of Babu Ram Vs State of Haryana 2009
(10) SCC 115 wherein it has been held that when a sewage plant has
to be constructed, there cannot be exemption of hearing under Section
5A and powers under Section 17(4) ought not to be exercised. In our
opinion, this judgment is clearly distinguishable because this case did
not pertain to lands in Delhi whereas the judgment in the case of Jai
Narain (supra) specifically pertains to the requirement of lands in
Delhi for construction of a sewage grid for cleaning of the river Yamuna
pursuant to various directions issued by the Supreme Court from time
to time in different cases. Further, in our opinion, a sewage pumping
plant is a much bigger project than a small sewage pumping station
which is basically just one sump and one room. For construction of a
small sewage pumping station there is no general public interest
WP(C) 533/2010 Page 15 of 22
involved of a large number of persons/public and the decision in the
case of Babu Ram (supra) is thus also distinguishable in this ground.
Therefore, there is no question of a serious consequence affecting the
health of the general public by construction of sewage pumping station
as compared to a sewage plant as was the case in Babu Ram
(supra).
12. That takes us to the final issue with respect to the challenge to
the notification under Section 4. The challenge which has been laid is
that there was no publication of the notification in the locality and in
fact in terms of Section 45 of the said Act, it was necessary that there
is personal service since the land in question was only a small piece of
land belonging to one person namely the petitioner. It is therefore at
this stage necessary to reproduce Sections 4 and 45 of the Act which
read as under:-
"4. Publication of preliminary notification and
powers of officers thereupon.--(1) Whenever it appears
to the [appropriate Government] that land in any locality [is
needed or] is likely to be needed for any public purpose [or
for a company] a notification to that effect shall be
published in the Official Gazette 9[and in two daily
newspapers circulating in that locality of which at least one
shall be in the regional language] and the Collector shall
cause public notice of the substance of such notification to
be given at convenient places in the said locality [(the last
of the dates of such publication and the giving of such
public notice, being hereinafter referred to as the date of
publication of die notification)].
WP(C) 533/2010 Page 16 of 22
(2) Thereupon it shall be lawful for any officer, either
generally or specially authorized by such Government in
this behalf, and for his servants and workmen,--
to enter upon and survey and take levels of any land in
such locality;
to dig or bore in the sub-soil;
to do all other acts necessary to ascertain whether the
land is adapted for such purpose;
to set out the boundaries of the land proposed to be
taken and the intended line of the work (if any) proposed to
be made thereon;
to mark such levels, boundaries and line by placing
marks and cutting trenches; and,
where otherwise the survey cannot be completed and
the levels taken and the boundaries and line marked to cut
down and clear away any part of any standing crop, fence
or jungle:
Provided that no person shallenter into any building or upon
any enclosed court or garden attached to a dwelling-house
(unless with the consent of the occupier thereof) without
previously giving such occupier at least seven days‟ notice
in writing of his intention to do so.
45. Service of notices.--(1) Service of any notice under
this Act shall be made by delivering or tendering a copy
thereof signed, in the case of a notice under Section 4, by
the officer therein mentioned, and, in the case of any other
notice, by or by an order of the Collector or the Judge.
(2) Whenever it may be practicable, the service of the
notice shall be made on the person therein named.
(3) When such person cannot be found, the service may be
made on any adult male member of his family residing with
him; and, if no such adult male member can be found, the
notice may be served by fixing the copy on the outer door
of the house in which the person therein named ordinarily
dwells or carries on business, or by fixing a copy thereof in
some conspicuous place in the office of the officer aforesaid
or of the Collector or in the court-house, and also in some
conspicuous part of the land to he acquired:
Provided that, if the Collector or Judge shall so direct, a
notice may be sent by post, in a letter addressed to the
person named therein at his last known residence, address
or place of business and [registered under Sections 28 and
WP(C) 533/2010 Page 17 of 22
29 of the Indian Post Office Act, 1898], and service of it may
be proved by the production of, the addressee‟s receipt."
A conjoint reading of the aforesaid provisions of Sections 4 and
45 shows that there is substance in the stand of the petitioner because
the land in question in fact belongs only to one person and there was
no actual service or tender of the acquisition notifications under
Sections 4 and 17(4) upon the petitioner. In a general notification
which involves acquisition of large parcels of land which involves many
persons, the existence of acquisition proceedings are easily known
because a large section of the public is affected and which is not the
case where a small piece of land of one person is sought to be
acquired. A reading of Section 45 shows that there is very much
envisaged a personal service upon a person in certain circumstances.
Acquisition of a small portion of land belonging only to one person in
our opinion is a fit case whereby on a conjoint reading of Sections 4
and 45 it can be said that there ought to be a personal service upon
the person whose land is sought to be acquired. After all, acquisition
proceedings are harsh proceedings as the same has the effect of
taking away valuable rights of ownership of land. Interpretation of
the provision therefore in such cases would necessarily have to be
balanced with the right of the authorities to acquire land on the one
hand and the right of the individual owning the land on the other
inasmuch as right to ownership of land is still very much a
WP(C) 533/2010 Page 18 of 22
constitutional right under Article 300A of the Constitution. Quite
clearly, therefore, the notification under Section 4 in the present case
is flawed because there was no due service upon the petitioner as
required by a conjoint reading of Sections 4 and 45.
13. The question therefore is what follows. Should the acquisition
proceedings be necessarily set aside? The power to acquire the land is
a power of eminent domain and even if the notification under Section 4
is flawed, surely, the authorities can again issue a fresh notification
under Section 4 for acquisition of the land. At best, this would only
result in grant of higher price of the land as would be on the date of
issuing the subsequent Section 4 notification. In our opinion, this issue
is fully covered by the decision in the case of Competent Authority
Vs Barangore Jute Factory (2005) 13 SCC 477 in which it has been
held that instead of quashing of the notification, the owner of land can
be given a higher price of a notification issued on a subsequent date.
In the facts of the case of Barangore Jute Factory (supra) price
which was held payable was the price on the date on which possession
was taken. Paras 14 and 15 of the said judgment are relevant and the
same reads as under:-
"14. Having held that the impugned notification
regarding acquisition of land is invalid because it fails to
meet the statutory requirements and also having found
that taking possession of the land of the writ petitioners
in the present case in pursuance of the said notification
WP(C) 533/2010 Page 19 of 22
was not in accordance with law, the question arises as to
what relief can be granted to the petitioners. The High
Court rightly observed that the acquisition of land in the
present case was for a project of great national
importance i.e. the construction of a national highway.
The construction of a national highway on the acquired
land has already been completed as informed to us
during the course of hearing. No useful purpose will be
served by quashing the impugned notification at this
stage. We cannot be unmindful of the legal position that
the acquiring authority can always issue a fresh
notification for acquisition of the land in the event of the
impugned notification being quashed. The consequence
of this will only be that keeping in view the rising trend in
prices of land, the amount of compensation payable to
the landowners may be more. Therefore, the ultimate
question will be about the quantum of compensation
payable to the landowners. Quashing of the notification at
this stage will give rise to several difficulties and practical
problems. Balancing the rights of the petitioners as
against the problems involved in quashing the impugned
notification, we are of the view that a better course will
be to compensate the landowners, that is, the writ
petitioners appropriately for what they have been
deprived of. Interests of justice persuade us to adopt this
course of action.
15. Normally, compensation is determined as per the
market price of land on the date of issuance of the
notification regarding acquisition of land. There are
precedents by way of judgments of this Court where in
similar situations instead of quashing the impugned
notification, this Court shifted the date of the notification
so that the landowners are adequately compensated.
Reference may be made to:
(a) Ujjain Vikas Pradhikaran v. Raj Kumar Johri
(b) Gauri Shankar Gaur v. State of U.P.
(c) Haji Saeed Khan v. State of U.P.
In that direction the next step is what should be
the crucial date in the facts of the present case for
determining the quantum of compensation. We feel that
the relevant date in the present case ought to be the
date when possession of the land was taken by the
WP(C) 533/2010 Page 20 of 22
respondents from the writ petitioners. This date
admittedly is 19-2-2003. We, therefore, direct that
compensation payable to the writ petitioners be
determined as on 19-2-2003, the date on which they
were deprived of possession of their lands. We do not
quash the impugned notification in order not to disturb
what has already taken place by way of use of the
acquired land for construction of the national highway.
We direct that the compensation for the acquired land be
determined as on 19-2-2003 expeditiously and within ten
weeks from today and the amount of compensation so
determined, be paid to the writ petitioners after adjusting
the amount already paid by way of compensation within
eight weeks thereafter. The claim of interest on the
amount of compensation so determined is to be decided
in accordance with law by the appropriate authority. We
express no opinion about other statutory rights, if any,
available to the parties in this behalf and the parties will
be free to exercise the same, if available. The
compensation as determined by us under this order along
with other benefits, which the respondents give to parties
whose lands are acquired under the Act, should be given
to the writ petitioners along with what has been directed
by us in this judgment."
In the present case, the petitioner had obtained a status quo order on
27.1.2010 when the writ petition first came up for hearing. The
authorities therefore have not been able to take land pursuant to the
orders of this court dated 27.1.2010. Accordingly, applying the ratio in
the case of Barangore Jute Factory,(supra) we are of the opinion
that the price of land which should be awarded to the petitioner should
be the price of land as on 27.1.2010 and not the price of land when the
notification under Sections 4 and 17(4) of the Act was passed on
13.2.2009.
WP(C) 533/2010 Page 21 of 22
14. In view of the above, the writ petition is disposed of with the
direction that the acquisition proceedings are sustained and it is held
that the authorities have validly invoked the powers under Section
17(4) of the Act exempting the application of Section 5A. It is further
held that the petitioner will be entitled to price of land as on 27.1.2010
and not the price as on 13.2.2009 when the notification under Section
4 was published. The writ petition is accordingly dismissed subject to
the directions made above.
VALMIKI J. MEHTA, J.
JANUARY 14, 2011 SANJAY KISHAN KAUL, J. ib/Ne WP(C) 533/2010 Page 22 of 22