Delhi High Court
Essex Farms P. Ltd. vs Union Of India (Uoi) And Ors. on 9 July, 2007
Author: Vikramajit Sen
Bench: Vikramajit Sen, J.P. Singh
JUDGMENT Vikramajit Sen, J.
C.M. 4044/2006 in WP(C) No. 1289/1990
1. By means of this application the Petitioner seeks leave to amend the petition by incorporating therein subsequent facts and events viz. the Declaration dated 25.9.1990 issued under Section 6 of the Land Acquisition Act and Award No. 3/93 dated 22.5.1992. The delay in filing this application has not been properly explained. Furthermore, the Petitioner ought to have placed on record the amended writ petition. We have, however, not insisted on compliance with this formality since it would have unduly delayed the final determination of the writ petition, and would have resulted in a monumental waste of the time of this Court. The writ petitions have been heard on all aspects of the case. In these circumstances the application is allowed, subject to payment of Rs. 20,000/- as costs, to be shared equally by Shri Poddar and Ms. Takiar, learned Counsel for the Respondents.
W.P. (C) 1289 of 1990
3. The Petitioner has prayed for the quashing of the Notification dated 19.2.1990 and the entire acquisition proceedings in respect of the subject land commonly known as Essex Farms. On 8.6.1990 this Court had restrained the Respondents from "taking possession of the land of the Petitioner bearing Khasra Nos. 127, 128, 131 and 286/133 measuring 11 bighas 12 biswas situated in the revenue estate of village Kalu Serai, Delhi" (hereinafter referred to as "Essex Farms"). These interim orders were subsequently made absolute. The Notification, Annexure P-IX, reads as follows:
DELHI ADMINISTRATION : DELHI (LAND and BUILDING DEPARTMENT) NOTIFICATION Dated : 19-2-1990 No.F.9(5)/79-LandB (i) :- Whereas it appears to the Lt. Governor, Delhi that the land is likely to be required to be taken by Govt. at the public expense for a public purpose, namely for Planned Development of Delhi i.e. Shopping Centre and widening of Mehrauli Road, it is hereby notified that the land in the locality described below is likely to be required for the above purpose. This notification is made under the provisions of Section 4 of the Land Acquisition Act, to all whom it may concern. In exercise of the powers conferred by the aforesaid section, the Lt. Governor, Delhi is pleased to authorise the officer for the time being engaged in the undertaking with their servants and workmen to enter upon and survey any land in the locality and do all other acts required or permitted by that section.
The Lt. Governor being of the opinion that provisions of Sub-section (1) of Section 17 of the said Act are applicable to this land, is further pleased under Sub-section 4 of the said section to direct that the provisions of Section 5-A shall not apply.
SPECIFICATION
Name of Total area Khasra Nos. Areas
village (Bighas-Biswa) (Bigha-Biswa)
Kalu Sarai 11-17 127 1-12
128 3-03
130/2 0-05
131 3-18
286/133 2-19
By Order
Sd/-
(V. Ramnath)
SPECIAL SECRETARY (L and B)
DELHI ADMINISTRATION : DELHI
4. In the writ petition it has been asseverated that the Petitioner is a company incorporated under the Indian Companies Act and that it is conducting its business from Essex Farms for the last fifty years, which was initially notified for acquisition for public purpose vide Notification dated 13.11.1959 issued under Section 4 of the Land Acquisition Act (hereinafter referred to as `the Act') for the "Planned Development of Delhi". This Notification was followed-up by a Declaration dated 11.1.1969 issued under Section 6 of the Act. It has been asserted that, by virtue of the amended provisions contained in Section 11-A of the Act as introduced into the statute in 1984, these actions would automatically lapse should the Land Acquisition Collector fail to publish an Award on or before 23.9.1986. The Petitioner alleges that the Delhi Administration had issued instructions to the Deputy Commissioner of Delhi not to acquire lands which are fully built-up and for this reason, after conducting a joint survey it was recommended that the said land be released from acquisition proceedings, which was so done on 23.9.1986. It is further contended that despite the fact that the land had remained under acquisition for about 27 years the Respondents had issued the impugned Notification under Section 4 read with Section 17 of the Act thereby nullifying and taking away the statutory right of the Petitioner to file objections under Section 5A of the Act. It is asserted in the petition that the Lt. Governor had not adequately applied his mind while issuing a Notification under Section 4 read with Section 17 of the Act and that in any event the "Planned Development of Delhi (PDD)" is not a purpose which justifies invocation of Section 17 of the Act. The Notification is challenged as being a colourable exercise of power, having been issued without application of mind, with malafide intentions and ulterior motives. The Petitioner's protestation is that various other properties constructed alongside the existing road, namely, Aurobindo Marg, and in alignment with Essex Farms land have not been acquired. So far as the creation of a Shopping Centre is concerned the petitioner alleges that a number of such establishments have already come into existence in the environs, thus satiating this need.
5. So far as the Delhi Development Authority (DDA) is concerned the response is that the acquisition of land for the planned development of Delhi has received the imprimatur of the Supreme Court; that the question of urgency is a matter for the subjective satisfaction of the Government in respect of which the Court should refrain from venturing into a jural reappraisal; that the writ petition is not maintainable since no colourable exercise of power has been established; that the subject land "is required for widening of Mehrauli Road in addition to setting up a shopping Centre...and the acquisition of the land...has become imperative and, therefore, the same is being acquired by invoking emergency powers of Section 17...". The assertion that the land in question was released from acquisition has been vehemently denied. It has been contended on behalf of DDA that even if it is assumed that the earlier Notification under Section 4 and 6 of the Act lapsed by efflux of time, due to the coming into operation of the amended provisions of Section 11-A in the year 1984, the land can again be notified for acquisition if the stated purposes subsist.
6. Counter Affidavit has also been filed on behalf of Land and Building Department, Delhi Administration wherein the previous Notifications and Declarations have been admitted. Reliance has been placed on an Order dated 29.11.1990 which clarifies, inter alia, that since the sundry awards have been declared "now the question of leaving out built-up land for acquisition etc. is decided on merits in each and every case, the decisions/priorities mentioned in the said letter of 19-8-86 may please be treated as withdrawn and cancelled". Reliance has been placed on the decision of the Supreme Court in Kendriya Karamchari Sahkari Grih Nirman Samiti Ltd. v. The New Okhla Industrial Development Authority in which it has been held that Guidelines ought not to exist in addition to statutory provisions. It has further been pleaded that the provisions of Section 17 of the Act have been correctly invoked as the public purpose is one of grave urgency.
7. By Memorandum dated 18.1.1999 the Petitioner had lodged a request with the Vice Chairman, DDA for denotification under Section 48(1) of the Act and for the modification of land use in MPD-2001. In the course of hearings various affidavits have been filed by the Petitioner with the objective of placing documents on record showing that the concerned road does not need to be widened any further and that since a Shopping Centre has been developed contiguous or close to the subject land it no longer needs to be acquired for the creation of a Shopping Centre.
LOCUS STANDI OF PETITIONS AS TENANTS OF THE ACQUIRED LAND
8. Ms. Takiar, learned Counsel for DDA, has challenged the locus standi of the Petitioner to assail the subject land acquisition proceedings on the ground that avowedly it is a mere statutory tenant in occupation, on the strength of Radhey Shyam Gupta v. Union of India . The Division Bench held in paragraph 43 that since the owners had not objected to the land acquisition proceedings the Petitioners/tenants cannot object thereto. The Division Bench further opined that the "right of persons other than the owners in land acquisition proceedings is only to claim compensation, if entitled to in accordance with law". Ms. Takiar has also emphasised the fact that the lease had expired by efflux of time and therefore it is questionable whether the Petitioner would at all be entitled to receive compensation. Mr. Rohtagi, learned Senior Counsel appearing on behalf of the Petitioner, countered these arguments by highlighting that Section 5A of the Act bestows the right to file Objections on "any person interested in the land" in contradistinction to the "owner of the land". We find that the Act (in particular Sections 9, 10, 12 etc.) is unflaggingly concerned with the person interested in the land rather than the owner of the acquired land. The proviso to Section 4(2) speaks of the "occupier". In fact Section 5A(3) declares that a person shall be deemed to be interested in the land if he would be entitled to claim an interest in the compensation against acquisition. Apart from explicitly enabling all persons interested in the land to object to the acquisition, the rights of tenants cannot be endangered or jeopardised by the actions or inaction of third parties, including the owner. Reference can usefully be made to the decision of the Constitution Bench of the Supreme Court in C.B. Gautum v. Union of India wherein the vires of Sub-section (1) of Section 269UD of the Income Tax Act had been questioned. This provision empowered the Central Government to purchase properties, which were in the process of being sold, at the price stated in the documents, "free from all encumbrances". The Supreme Court declined even to read down the Section so as to save it from the vice of offending Article 14 of the Constitution since the rights of tenants were irretrievably and adversely affected. Keeping in mind the brevity of the observations in Radhey Shyam Gupta, it is apparent that our learned Brothers did not intend to lay down any principle of law of general application. Furthermore, a similar objection had been raised in Union of India v. Krishan Lal Arneja namely, that a tenant is not competent to challenge the acquisition proceedings. The Court opined that it was "clear from Section 5-A(3) of the Act that for the purpose of the said Section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired. In an appropriate case, a tenant having sufficient subsisting interest in the land can challenge the acquisition proceedings." Much has been made of the fact that the term of the lease had expired and the Petitioner is a statutory tenant under the Delhi Rent Control Act. As to whether such a statutory tenant can raise objections against acquisition when the real owner/landlord is not doing so. Can a statutory tenant under the Delhi Rent Control Act have rights over and above the rights of the owner and the landlord" Since main thrust of the case is as to whether in the facts and circumstances of this case the Respondents ought to have been given an opportunity to file objections, we are leaving the question of locus standi open, at this stage and shall deal with it if need be, after the main issue is decided.
EFFECT OF APPLICATION UNDER SECTION 48 OF THE LAND ACQUISITION ACT FOR DENOTIFICATION
9. We must forthwith clarify that no prayer has been made in the context of denotification of the land in this writ petition. This question has arisen because the Petitioner has in its Rejoinder referred to its its letter dated 18-1-1999 addressed to the Vice-Chairman DDA requesting for (i) Denotification and (ii) modification of land use in MPD-2001-AD. The Petitioner had adverted to its several Representations on this subject matter, and specifically to the Respondent's letter dated 23-6-2000 informing the Petitioner that its "request for change of land use can be examined only after the issue of denotification of land from acquisition is sorted out". Emphasis has also been placed on the fact that the Policy for Denotification has been filed by the Petitioner. It is on this sequence that Mr. Poddar, as well as Ms. Takiar, learned Counsel for the Respondents, have predicated the argument that the Petitioner must be deemed to have elected to abandon and/or waive its challenge to the acquisition proceedings especially since the request for denotification has been made after the publication of the Award. According to them, if the Petitioner is permitted to press this Petition, the Court would be permitting approbation and reprobation.
10. Mr. Rohtagi has stoutly challenged this contention on the ground that (a) a decision under Section 48 is only of administrative or executive character, which brooks no challenge in Court if the principle of natural justice have been complied with by the Authorities since detailed reasons need not be articulated; (b) such a representation cannot act as a waiver to a challenge to the acquisition proceedings unless it is manifest that the former was made with prejudice to the latter. Our attention has been attracted towards the following extract from Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh , which delineates the parameters of what constitutes waiver in legal firmament:
5. We shall first deal with the question of waiver since that can be disposed of in a few words. The High Court held that even if there was an assurance given by respondent 4 on behalf of the State Government and such assurance was binding on the State government on the principle of promissory estoppel, the appellant had waived its right under it by accepting the concessional rates of sales tax set out in the letter of respondent 5 dated January 20,1970. We do not think this view taken by the High Court can be sustained. In the first place, it is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. Here it was common ground that the plea of waiver was not taken by the State Government in the affidavit filed on its behalf in reply to the writ petition, nor was it indicated even vaguely in such affidavit. It was raised for the first time at the hearing of the writ petition. That was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea. If waiver were properly pleaded in the affidavit in reply, the appellant would have had an opportunity of placing on record facts showing why and in what circumstances the appellant came to address the letter dated June 25, 1970 and establishing that on these facts there was no waiver by the appellant of its right to exemption under the assurance given by respondent 4. But in the absence of such pleading in the affidavit in reply, this opportunity was denied to the appellant. It was, therefore, not right for the High Court to have allowed the plea of waiver to be raised against the appellant and that plea should have been rejected in liming. 6. Secondly, it is difficult to see how, on the facts, the plea of waiver could be said to have been made out by the State Government. Waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be "an intentional act with knowledge." Per Lord Chelmsford, L.C. in Earl of Darnley v. London, Chatham, and Dover Rly. Co. There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it. It is pointed out in Halsbury's Laws of England (4th edn.) Volume 16 in paragraph 1472 at page 994 that for a "waiver to be effectual it is essential that the person granting it should be fully informed as to his rights" and Issacs, J. delivering the judgment of the High Court of Australia in Craine v. Colonial Mutual Fire Insurance Co. Ltd., has also emphasized that waiver "must be with knowledge, an essential supported by many authorities". Now in the present case there is nothing to show that at the date when the appellant addressed the letter dated June 25, 1970, it had full knowledge of its right to exemption under the assurance given by respondent 4 and that it intentionally abandoned such right.
11. In Special Land Acquisition Officer v. Godrej and Boyce , the Apex Court has opined that "having regard to the scheme of the Land Acquisition Act it is difficult to see why the State Government should at all be compelled to give any cogent reason for a decision not to go ahead with its proposal to acquire a piece of land". In Radhasoami Satsang Beas v. Union of India , the land owner had endeavored to challenge the order of denotification made by the concerned Committee. The Division Bench held that "there is no legal right vested in the owner of the land to compel the Government to denotify the land.... The Government is expected to act fairly and the scope of Section 48 cannot be placed at parity with the quasi-judicial functions, as the plain language of the Section suggests that it is an administrative power which may be exercised by the State in consonance with the settled cannone of administrative jurisprudence.... In this scheme of Act, the provisions of Section 48 are not intended to vest any right in the owner for denotification of his land. It primarily indicates legislative intent of exception to the Rule of taking possession of the land which has been acquired. Grant of liberty to the appropriate Government should be understood in its correct perspective and its substitution by a vested right in the owner for release of the land from acquisition would be patent misconstruction of the provisions." This very question had also arisen before us in WP(C) 17538/2006 titled Dharamvir Singh v. Lt. Governor of Delhi, decided on 20.3.2007; and in WP(C) 2972/2007 titled Satya Narain Prakash Punj v. Union of India decided on 25-4-2007; and more recently in WP(C) 3795/2007 titled Dalpat Singh v. Lt. Governor decided on 18-5-2007. We have also adopted the view that the "second salvo" under Article 226 of the Constitution to the acquisition proceedings through the device of denotification, should not be encouraged or entertained.
12. We had noted that another Division Bench had held in Baijnath Aggarwal Dharmarth Trust Society v. The Lt. Governor decided on 22.8.2006 that the Petitioner opted to seek denotification of the land in question by filing an application in terms of Section 48 of the Act...clearly the Petitioner gave up its challenge to the validity of the Notification under challenge." It seems to us that since this approach had not been contested before the Division Bench, as is palpable from the absence of any analysis of the facets of this interesting legal nodus, our learned Brothers intended that the conclusion be restricted to the facts of that case.
13. It is further contended by Mr. Rohtagi that constitutional remedies cannot be affected or restricted or annihilated by application of the principles of estoppel. Reliance has been placed by him on the enunciation of law in Prashant Ramachandra Deshpandey v. Maruti Balaram Haibatti 1995 Supp (2) SCC 539, which was affirmed in the same matter by a larger Bench reported as P.R. Deshpande v. Maruti Balaram Haibatti . The main question raised before the Hon'ble Supreme Court was whether, owing to the non- compliance by the tenant of an undertaking to vacate the demised premises, the Appeal by Special Leave under Article 136 of the Constitution, could be dismissed. The Court answered in the negative, observing that constitutional rights cannot be taken away by legislation and much less by invoking principles of election or estoppel. We wish to add to this established exposition of the law by adverting to the decision of the Constitutional Bench comprising seven learned Judges of the Supreme Court in the landmark precedent titled L. Chandra Kumar v. Union of India . One of the questions that had arisen in that batch of Appeals/Petitions inter alia was whether the powers of the High Court under Article 226 of the Constitution could be curtailed by statutes such as the Administrative Tribunals Act, 1985. The Court pronounced that the powers of judicial review over legislative action inalienably vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution, and were integral and essential features of the Constitution constituting part of its basic structure. Ordinarily, therefore, the power of these Courts to test the constitutional validity of legislations could not be ousted or excluded by statute. It was further held that the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals and Authorities within their respective jurisdictions was also a concomitant of the basic structure of the Constitution. Divesting the High Courts of these powers had therefore to be abjured. It unequivocally stated that the provisions of the statute which endeavored to exclude the jurisdiction of the High Courts and the Supreme Court, such as Section 28 of the Administrative Tribunals Act, 1985 were unconstitutional.
14. In this analysis our conclusion is that invoking Section 48 of the Land Acquisition Act seeking denotification of the acquired land does not impede or restrain the Writ Court from deciding the matter on merits. This is also for the reason that a decision under Section 48 would normally not be subject to judicial review, unless principles of natural justice have patently been ignored. Since it is trite that reasons need not be given in support of the decision of the Government/Executive/ Administration under Section 48 of the Act, the scope for jural intervention would normally not go beyond an enquiry into whether procedural norms have been adhered to.
15. The contention of Mr. Poddar that the natural or inexorable consequence of the Petitioner's request to the Lt. Governor under Section 48 for denotification of the acquired land is the non maintainability of the present Writ Petition, is without merit and is rejected. Further, we are also of the view that principles of waiver or election or estoppel cannot be applied unless it is overwhelmingly evident that the petitioner had knowingly abandoned its position mindful of the legal repercussions that would inevitably ensue such action. The opposite party should also have acted to its detriment or should have altered its stance as a consequence of the conduct of the party who is seen to have waived its rights. In the present case the Petitioner has merely mentioned the pendency of its request for denotification of the acquired land, and that too not in its Petition. There can logically be no inadvertent or unintentional election or waiver. Pleadings are handmaids of justice not disguised obstacles waiting to consume an unwary litigant. We hold that while making its request of denotification of its land the Petitioner had no intention to prejudice the pendency of this Petition.
INTERPRETATION OF SECTION 17 OF THE LAND ACQUISITION ACT, 1894
16. The interplay between the various provisions of the Land Acquisition Act with which we are presently concerned have been dealt with in minute detail in a plethora of precedents. The following passage from Nandeshwar Prasad v. The State of U.P. followed one year later in Sarju Prasad Sinha v. The State of U.P. perspicuously encapsulates the law on the subject, holding that the State Government ought not to have dispensed with adherence to Section 5A in the Notification under Section 4 of the Act:
The proceedings for acquisition start with a preliminary notification under Section 4. By that notification the Government notifies that land in any locality is needed or is likely to be needed for any public purpose. On that notification certain consequences follow and authority is conferred on an officer either generally or specially by Government and on his servants and workmen to enter upon and survey and take levels of any land in such locality, to dig or bore into 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 so on. Then Section 5-A provides that any person interested in any land which has been notified in Section 4, may within thirty days of the issue of the notification object to the acquisition of the land or of any land in the locality as the case may be. Every such objection shall be made to the Collector in writing and the Collector has to give the objector an opportunity of being heard. After hearing all objections and after making further inquiry if any, as he thinks fit, the Collector has to submit the case for the decision of the Government together with the record of the proceedings held by him and the report containing his recommendations on the objections. The decision of the Government on the objections is final. Then comes the notification under Section 6, which provides that when the appropriate government is satisfied after considering the report, if any, made under Section 5-A that any particular land is needed for a public purpose, a declaration shall be made to that effect and published in the official gazette. After such a declaration has been made under Section 6, the Collector has to take order for acquisition of land. It is marked out, measured and planned under Section 8 if necessary and notice is given under Section 9 to persons interested. The Collector then holds inquiry under Section 11 and makes an award. After the award is made the Collector has got the power to take possession of the land under Section 16 and the land then vests absolutely in the Government free from all encumbrances.
It will be clear from this scheme that compliance with the provisions of Section 5-A is necessary before a notification can be issued under Section 6. As soon as the preliminary notification is issued under Section 4, the officer authorised by Government may enter upon the land to survey it and to do all other necessary acts to ascertain whether the land is adapted for the purpose for which it is to be acquired, and this action, if taken, will give sufficient notice to those interested to object. If objections are made the Collector will consider those objections and make his recommendation thereon in his report to Government. If no objections are made the Collector will report that no objection has been made and the Government then proceeds to issue a notification under Section 6. In either case however, the Collector has got to make a report with his recommendations on the objections if they are filed or inform the Government that there are no objections filed in pursuance of the notification under Section 4 and it is thereafter that the Government is empowered under Section 6 to issue a notification. This, as we have said, is the usual procedure to be followed before the notification under Section 6 is issued. To this usual procedure there is however an exception under Section 17, and that is why in Section 6 we find the words ``if any'` in the clause ``after considering the report, if any, made under Section 5A'`. When action is taken under Section 17(4), it is not necessary to follow the procedure in Section 5-A and a notification under Section 6 can be issued without a report from the Collector under Section 5-A. It will be seen that Section 17(1) gives power to the Government to direct the Collector, though no award has been made under Section 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 Section 17(1), taking possession and vesting which are provided in Section 16 after the award under Section 11 are accelerated and can take place fifteen days after the publication of the notice under Section 9. Then comes Section 17(4) which provides that in case of any land to which the provisions of Sub-section (1) are applicable, the Government may direct that the provisions of Section 5-A 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 after the publication of the notification under Section 4(1). It will be seen that it is not necessary even where the Government makes a direction under Section 17(1) that it should also make a direction under Section 17(4). If the Government makes a direction only under Section 17(1) the procedure under Section 5-A would still have to be followed before a notification under Section 6 is issued, though after that procedure has been followed and a notification under Section 6 is issued the Collector gets the power to take possession of the land after the notice under Section 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 Section 17(4) that it becomes unnecessary to take action under Section 5-A and make a report there under. It may be that generally where an order is made under Section 17(1), an order under Section 17(4) is also passed; but in law it is not necessary that this should be so.
17. Thirty five years later, their Lordships had garnered support from Nandeshwar Prasad which was applied by them in Union of India v. Mukesh Hans, , decided on 17-9-2004 without reference to its earlier decision titled Krishan Lal Arneja (infra). It was emphasised that there must be an application of mind by the appropriate Government to the facts of the case with special reference to the necessity of dispensing with the invaluable opportunity of showing cause and being heard against the acquisition consequent upon a Section 4 Notification. It should be noted that prior to the amendment of the statute in 1923, since the right to file Objections to the proposed expropriation of land was not in existence, there was no reason whatsoever to refer to the dismissal or disposal of Section 5A Objections. It is advisable, if not essential, to keep the annals of a statute in sight while interpreting its sundry sections. Their Lordships had upheld the decision of the Division Bench of this Court and had reiterated the law in these words:
29. A careful perusal of the above Section shows that Sub-section (1) of Section 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, Section 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.
30. 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 for the fifteen day period contemplated under Section 9(1). Therefore, in cases, where the Government is satisfied that there is an unforeseen emergency, it will have to in the normal course, issue a Section 4(1) notification, hold Section 5-A 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
31. 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-section (1) or (2) of Section 17 it may direct that the provisions of Section 5-A shall not apply and if such direction is given then Section 5-A inquiry can be dispensed with and a declaration may be made under Section 6 on publication of Section 4(1) notification and possession can be taken.
32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that 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 the Section 5-A inquiry. It requires an opinion to be formed by the government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5A inquiry which indicates that the Legislature intended the appropriate government to apply its mind before dispensing with Section 5A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 5-A 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 Section 5-A inquiry will be dispensed with. But then that is not the language of the Section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5-A 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 Section 5-A inquiry does not mean that in each 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 Section 5-A 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 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5-A inquiry is inherent in the two types of urgencies contemplated under Section 17(1) and (2) of the Act.
33. 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 5-A becomes automatic and the same can be done by a composite order meaning thereby that there is no need for the appropriate Government to separately apply its mind for any further emergency for dispensation with an inquiry under Section 5-A. We are unable to agree with the above argument because Sub-section (4) of Section 17 itself indicates that the ``government may direct that the provisions of Section 5-A shall not apply'` (emphasis supplied) 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 dispensation of the inquiry. For this we do find support from a judgment of this Court in the case of Nandeshwar Prasad v. The State of U.P., 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, this Court held thus:
It will be seen that Section 17(1) gives power to the Government to direct the Collector, though no award has been made under Section 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 Section 17(1), taking possession and vesting which are provided in Section 16 after the award under Section 11 are accelerated and can take place fifteen days after the publication of the notice under Section 9. Then comes Section 17(4) which provides that in case of any land to which the provisions of Sub-section (1) are applicable, the 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 after the publication of the notification under Section 4(1). It will be seen that it is not necessary even where the Government makes a direction under Section 17(1) that it should also make a direction under Section 17(4). If the Government makes a direction only under Section 17(1) the procedure under Section 5-A would still have to be followed before a notification under Section 6 is issued, though after that procedure has been followed and a notification under Section 6 is issued the Collector gets the power to take possession of the land after the notice under Section 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 Section 17(4) that it becomes unnecessary to take action under Section 5-A and make a report there under. It may be that generally where an order is made under Section 17(1), an order under Section 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 Section 17(1) or Section 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.
34. A careful reading of the above judgment shows that this Court in the said Nandeshwar Prasad case has also held that there should be an application of mind to the facts of the case with special reference to this concession of Section 5-A inquiry under the Act.
35. At this stage, it is relevant to notice that the limited right given to an owner/person interested under Section 5-A 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 and Ors. v. Union of India , wherein this Court held thus:
7. 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 authorities concerned that acquisition of the property belonging to that person should not be made.... The legislature has, therefore, 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.
36. It is clear from the above observation of this Court that right of representation and hearing contemplated under Section 5-A 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 5-A.
37. 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 Section 5-A 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 are necessary for this limited purpose. The facts of the present case as found from the records show 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 Nos. 1151/3 (new) and 1665 (old) of the said village. It is also found from the record that ever since the revival of the festival the concluding programme was being continued on 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 efflux of time which was also a relevant factor to be taken note of by the Lt. Governor when he took the decision to dispense with the Section 5-A inquiry but the same was not placed before him. These facts coupled with the findings of the High Court that in almost all the nothings 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 Section 5-A 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.
18. We need to clarify that the present Notification as well as the Mukesh Hans Notification specifically state that the Lt. Governor is of the opinion that provisions of Sub-section (1) of Section 17 of the Act are applicable to the acquisition and that the provisions of Section 5-A of the Act would not apply. Simultaneously, a Declaration under Section 6 of the Act as well as the Notification under Section 7 of the Act had been published. Logically, if the Apex Court was of the opinion that the Lt. Governor had perforce to take a decision under Section 17(4) of the Act, the Notification could have been struck down on that short ground alone. Instead, however, their Lordships perused the file to satisfy themselves with regard to the appropriateness and legality of the Lt. Governor's decision under Section 17(1). In other words their Lordships did not consider it essential and mandatory that the Lt. Governor's opinion should have been predicated particularly on the provisions of Section 17(4). In the event, their Lordships struck down the Notification on the grounds that the rigours of Section 17(1) had not been respected in the factual matrix of that case. Their Lordships finding was to the effect that the Lt. Governor had not properly exercised his mind on the vexed question of whether the perceived urgency justified the forfeiture of Section 5-A rights.
19. A study of Krishan Lal Arneja, decided on 28-4-2004, i.e. prior to Mukesh Hans will disclose that their Lordships have not always drawn a distinction between the sundry sub-sections of Section 17 and on the contrary have treated Section 17 of the Act as a compendium for regulating the emergency powers of acquisition of land. In Krishan Lal Arneja also, the challenge was to the existence of sufficient material justifying resorting to Sections 17(1) and (4) in the Notification under Section 4(1) read with Section 17(1). It will bear repetition that the first sub-section permits dispossession after fifteen days where the appropriate Government is subjectively satisfied of the existence of urgency. The second sub-section spells out, in minute details as it necessarily should, the circumstances in which the appropriate Government can take possession of acquired lands merely after forty eight hours (virtually instantaneous for all practical purposes). Neither of these provisions make any mention of Section 5-A of the Act. Their Lordships observed as follows : "17. Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however laudable it may be by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a land owner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The Authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the land owners and the inquiry under Section 5-A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen's property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority, while applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State Administration."
20. These extracts would be directly applicable if the argument that Orders specifically mentioning Section 17(4) are essential, had been raised in the earlier cases. The frequently quoted opinion of the House of Lords in Quinn v. Leathem 1901 AC 495 : (1900-3) All ER Rep 1 is that of Lord Halsbury, namely, that "every judgment must be read as applicable to the particular facts proved or assumed to be proved.... The other is that a case is only an authority for what is actually decides". These passages have been reiterated in Goodyear India Ltd. v. State of Haryana and State of Orissa v. Sudhansu Sekhar Misra . In the latter case, the Court explicitly opined that "a decision on a question which has not been argued cannot be treated as a precedent". Their Lordships, in turn, referred back to the previous opinion in Rajput Ruda Meha v. State of Gujarat 1980 SC 1707 in which it had similarly been stated that where an issue has neither been raised nor argued any decision by the Court, even after 'pondering over the issue in depth', would not be a binding precedent. Similar observations have been made by the Constitution Bench in Padma Sundara Rao v. State of T.N. , as is evident from the following extract:
9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.
21. We have carefully perused the judgments in Nandeshwar Prasad, Krishan Lal Arneja and Mukesh Hans in order to ascertain whether it had been argued that a separate decision must be taken under Sections 17(1) or (2) on the one hand, and Section 17(4) on the other; or that even if Section 17(1) or 17(2) are resorted to, Objections under Section 5-A must be invited and decided before an acquisition can be completed. Our reading is that these contentions had not been raised. Therefore, the dictum in Quinn assumes great significance. We will nonetheless give due deference to all the observations made by the Apex Court, even though we find from the pleadings before us, that grounds predicated on the above arguments have not been articulated in the petitions. Indubitably, these are legal contentions and we would be loathe to ignore them solely for the reason that they have not been pleaded. It is also obvious that these arguments have been raised before us de hors the pleadings because of the views ventilated in Mukesh Hans. Prior to this pronouncement it has not been contended that if Section 17(4) of the Act has not been mentioned in the Notification under Section 4, the procedure set down in Section 5-A has to be complied with.
22. The scheme of the Act has already been reflected upon by the Apex Court in the precedents dealt with above. Three recent decisions rendered by Division Benches of this Court, applying the ratio in Nandeshwar Prasad and Mukesh Hans have however been appealed against and the Apex Court has ordered that - "there shall be interim stay of the High Court's order". These are (i) Sri Ballabh Marbles v. Union of India, (ii) Chaman Lal Malhotra v. Union of India, W.P. (C) 4002/1997 decided on 8.8.2005 and (iii) Vasant Kunj Enclave Housing Welfare Society v. Union of India 2006 (89) DRJ 406. We find ourselves unable to accept the contention of learned Senior Counsel for the Petitioner that we must nevertheless follow the line of reasoning in these three cases. Had an interim stay of the orders passed by the Division Bench in those three cases not been granted by the Apex Court we could have either followed those judgments or recommended the convening of a Full Bench to reconsider the legal nodus. Be that as it may, it is entirely unarguable that where a Supreme Court Judgment is available it must be followed in its true tenor regardless of the pronouncement of Benches of the High Court.
23. We have had the advantage of listening to the extremely erudite arguments of several learned Counsel for the parties. We have endeavored a meticulous study of the Act which is over a century in vintage, wearing the vestiges of colonial rule. Broadly stated, the law of land acquisition in India was predicated on the principle of "eminent domain" or "condemnation" or "expropriation", a concept which could conveniently be employed when land-owners were subjects and not citizens. Black's Law Dictionary, Fifth Edition explains "eminent domain" as "the power to take private property for public use by the state, municipalities, and private persons or corporations authorized to exercise functions of public character...eminent domain is the highest and most exact idea of property remaining in the government, or in the aggregate body of the people in their sovereign capacity. It gives a right to resume the possession of the property in the manner directed by the constitution and the laws of the state, whenever the public interest requires it." Like Article 300A of our Constitution the American Constitution requires that just compensation must be given to the owners of the property which is taken away. Originally, ownership of property was assumed to be a fundamental right in our country, but Article 19(1)(f) has been replaced by Article 300A which proclaims that no person shall be deprived of his property save by authority of law. Reverting back, however, to the pre-independence era, in 1894 when the Land Acquisition Act came into force, the sovereign possessed untrammeled powers to expropriate the lands of its subjects. What was required of the Government was merely making public its intention to acquire land (Section 4) which empowered it to enter upon the land for its mapping etc., in the course of which, if damage was caused compensation would have to be calculated and given (Section 5). Section 5-A, which enables the filing of Objections, was absent. The Government could then, at its own sweet will and convenience, issue a declaration that it needed the land for public purposes. The Government would thereupon direct the Collector to obtain necessary orders for the acquisition of the land (Section 7) and the Collector would complete the remaining and requisite measurements (Section 8). up to this stage the individual owner did not receive personalized attention, but this would obviously become advisable if not essential as soon as possession of his land was to be taken over and compensation for it was to be calculated and tendered. The original scheme of the Act, however, did not repose any say or right to remonstrate viz-a-viz acquisition proceedings on the owner of the land, as would be clear from a perusal of the Judgment of the Privy Council in Ezra v. Secretary of State for India (1905) XXXII I.L.R. Calc. 605, in the context of Sections 9 and 40 of the Act:
Now, upon the face of this enactment, there is no provision requiring or implying the presence or the knowledge of the owner of the land. The theory of the section would seem to be that the Government, through its officer, is to direct its attention to public interests, and it is significant that neither promoter, on the one hand, nor possible objector, on the other, is mentioned in the section. This does not imply that the officer is to disregard the existence of adverse rights, and the word "needed" implies this. But the standpoint is that of public interest, and the Government is given control of the enquiry, for this is all that is meant by its being empowered to appoint time and place; and all this derives the more significance from the fact that the Act, both in this stage and in the subsequent enquiry into value, takes the initiative out of the hands of the Company and puts it in the hands of the Government.
That the nature of the first enquiry is in no sense litigious, and that the owners of the land are purposely ignored, as parties, is strongly shown by the anxious provisions made as regards the second enquiry for which (section 9) "public notice" is to be given calling for claims for compensation and requiring all persons interested in the land to appear at a time and place specified.
24. Section 9 of the Act has not undergone any significant change over the last century. It bestows on any person interested in the land the opportunity of personal appearance, however, but only with regard to the computation of compensation. The said Sub-section (3) thereof obliges the Collector to serve notice on the occupier also, since the Government can assume possession of the acquired land. Section 11 thereafter postulates the publication of an Award, which would become final by virtue of Section 12, whereupon the Collector became empowered to take possession of the land with the result that it would vest absolutely in the Government free from all encumbrances (Section 16). Obviously this procedure would span a number of years, during which the owner or the person interested in the land or the occupier, would not normally be dispossessed. The painfully protracted procedure of acquisition has been shortened by amendments carried out by Act 68 of 1984, enjoining that no Declaration under Section 6 shall be made after the expiry of one year from the Notification under Section 4. However, situations may well arise which would warrant and necessitate the Government to take possession of land forthwith. This is what Section 17 of the Act catered for, from the very inception. The first sub-section enables the Collector, even before an Award has been made, on the expiration of fifteen days from the publication of a Section 9 notice, to assume possession of any land. In even more pressing circumstances, dealt with in detail in the second sub-section of Section 17, the Collector retains the power to take possession of the land after the expiry of just two days, without the owner/occupier of the land having any right to remonstrate against this extraordinary action. Such a situation would appear abhorrent to us today, but in a colonial era this would not have been looked askance at. Ironically, the decision in Ezra acted as a catalyst for bringing about widespread and welcome amendments to the Act in 1923.
25. We think it advantageous to reproduce Act xxxviii of 1923 not only for facility of reference but also so that the sequence and impact of the alterations are comprehensively appreciated. Its Statement of Objects and Reasons took note of the fact that the Act "does not provide that persons having an interest in land which it proposed to acquire shall have the right of objecting to such acquisition and that the Government is not bound to enquire into and consider any objections that may reach them. The object of the Bill is to provide that a Local Government shall not declare, under Section 6 of the Act, that any land is needed for a public purpose unless time has been allowed after the notification under Section 4 for persons interested in the land to put in objections and for such objections to be considered by the Local Government". Act No. xxxviii of 1923 An Act further to amend the Land Acquisition Act, 1894, for certain purposes. Whereas it is expedient further to amend the Land Acquisition Act, 1894, for certain purposes hereinafter appearing; It is hereby enacted as follows:
1. Short title and commencement.--(1) This Act may be called the Land Acquisition (Amendment) Act, 1923.
(2) It shall come into force on such date as the Governor General in council may, by notification in the Gazette of India, appoint.
2. Amendment of Section 4, Act I of 1894.--In sub-section(1) of Section 4 of the Land Acquisition Act, 1894(hereinafter referred to as the said Act), after the word "locality", where it first occurs, the words "is needed or" shall be inserted.
3. Insertion of new Section 5-A in Act I of 1894.--After Section 5 of the said Act the following heading and section shall be inserted, namely:
Objections.
5A. Hearing of objections.--(1) Any person interested in any land which has been notified under Section 4, Sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under Sub-section (1) shall be made to the collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision of the Local Government, together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the Local Government on the objections shall be final.
(3) for the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.
4. Amendment of Section 6, Act I of 1894.-- In sub-section(1) of Section 6 of the said Act, for the words "whenever it appears, to the Local Government" the following shall be substituted, namely:
when the Local Government is satisfied, after considering the report, if any, made under Section 5-A, Sub-section (2).
5. Amendment of Section 11, Act I of 1894.-- In Section 11 of the said Act, after the words "the value of the land," the words "at the date of the publication of the notification under Section 4, Sub-section (1)," shall be inserted.
6. Amendment of Section 17, Act I of 1894.-- To Section 17 of the said Act the following sub-section shall be added, namely:
(4) In the case of any land to which, in the opinion of the Local government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the Local Government may direct that the provisions of Section 5-A 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 after the publication of the notification under Section 4, Sub-section (1).
7. Amendment of Section 23, Act I of 1894.-- In clause first of Sub-section (1) of Section 23 of the said Act, for the words "declaration relating thereto under Section 6," the words "notification under Section 4, Sub-section (1)," shall be substituted.
8. Amendment of Section 24, Act I of 1894.--In clause seventhly of Section 24 of the said Act, for the words "declaration under Section 6" the words "notification under Section 4, Sub-section (1)," shall be substituted.
9. Amendment of Section 40, Act I of 1894.-- In Sub-section (1), of Section 40 of the said Act, after the word" satisfied," the words "either on the report of the Collector under Section 5-A, sub-section(2), or "shall be inserted.
10. Amendment of Section 41, Act I of 1894.--In Section 41 of the said Act,
(a) the words "Such officer shall report to the Local Government the result of the inquiry, and, " shall be omitted; and
(b) after the word "satisfied" the following words shall be inserted, namely:
after considering the report, if any, of the Collector under Section 5-A, Sub-section (2), or on the report of the officer making an inquiry under Section 40.
26. As we have already noted that the draconian nature of the Act came to the fore in Ezra, resulting in an infusion of humaneness into the statute in the form of Act xxxviii of 1923, the most far-reaching feature of which is Section 3, which now constitutes Section 5-A of the Act. It enables the filing of objections to the proposed acquisition, requiring their consideration of the Collector culminating in his Report/s. The Report is the precursor of the Declaration under Section 6 of the Act. The amendment, however, had the effect of making the procedure considerably more time consuming. Section 17 automatically assumed added significance for the Government because unless the right to file Objections under Section 5-A could be consumed by the Government, Section 17 would become illusory and otiose. Hence, dispensation of Section 5-A was made available in terms of Section 17(4) which was simultaneously introduced by Act xxxviii of 1923. If the annals of legislation are ignored, the interpretation of these provisions may become an anachronism.
27. In our considered opinion Section 17(4) is not a fasciculous of the Act, a sub-pandect or a self-contained code having its own realm of operation. Its sole purpose is to clarify that Sections 17(1) and (2) continue to operate as they did prior to 1923. If Section 17(4) is to function in its own field, the factual matrix attending thereto should be spelt out on the lines delineated in its preceding Sub-sections (1) and (2). On a careful perusal of the provision of Section 17(4) it will be evident that it contemplates the formation of an opinion by the Government as to existence of the fact situation postulated either by Section 17(1), thereby enabling possession to be taken over after fifteen days, or under Section 17(2) empowering the taking of similar action after only two days. Originally, neither of these provisions had Section 5-A within their respective sights. Sections 17(1) and (2) predated the introduction of the rights of landowners/occupiers to object to the acquisition of their lands. We have not come across a case where a citizen is dispossessed instantaneously with the taking of a decision to acquire his land. If this is the practical reality, we are unable to conceive of a situation of such urgency as would justify or necessitate the formation of an opinion in respect of a decision to be taken other than in the factual matrix disclosed in Sub-section (1) or Sub-section (2) of Section 17(i.e. signing and simultaneously executing a decision) reference to which would not have been necessary if there were other and even more extreme situations (in practical terms unthinkable to us), envisaged by Sub-section (4) alone. This is why we have said that Section 17(4) is not a self-contained sub-code; if theoretically there is urgency which does not brook even a delay of forty-eight hours, it should have been articulated in painstakingly minute detail, so that its abuse is safeguarded against. It is equally unrealistic to expect that Objections, which are normally numerous, can be decided in two days or even in fifteen days. Section 17(4) merely clarifies that the original intendment of the unamended Section 17 of the Act would continue even after the introduction of Section 5-A, viz that in emergent situations acquisition proceedings could be concluded virtually instantly.
28. Furthermore, it would be futile to consider Objections under Section 5-A after possession has been wrested away from the owner or occupier or person interested in the land, as the case may be; as inane and inconsequential as shutting the stable after the horse has bolted out of it. It will be fatal to ignore the fact that Section 5-A permits and enables any person interested in any land which has been notified under Section 4 to file objections within thirty days from the date of the publication of the Notification. If objections must necessarily be called for and entertained either under Section 17(1) or Section 17(2), the Act should have clarified that the period of fifteen days and two days mentioned in sub-Section (1) and (2) of Section 17 would commence after the period of thirty days prescribed in Section 5-A. We have duly noted the use of "may" in the provision, denoting the availability of a choice, which militates against our understanding that as soon as the Government forms an opinion that conditions covered by Section 17(1) or (2) are current, dispensation of Section 5-A inexorably and automatically follow. However instances are legion where "may" has been freely interchanged or used synonymously with "shall" or even "must", especially where the context of the statute so dictates. In our opinion Section 17(4) is clarificatory in nature, calculated to caution interested persons that objections would not be entertained both to the acquisition of the land and to the consequent dispossession of the owner/occupant. Otherwise, Sections 17(1) and (2) would be rendered meaningless, otiose and ineffectual. In other words, the Government has been explicitly reminded in Section 17(4) that whenever it resorts either to Section 17(1) or Section 17(2) the consequence is the annihilation of the citizens rights enshrined in Section 5-A and that therefore it must take due care and caution in doing so; and that ordinarily this procedure is to be eschewed.
29. In Om Prakash v. State of U.P. their Lordships had pithily observed that they "could have appreciated the stand of the State authorities for invoking the urgency clause under Section 17(4) of the Act on the ground that when about 500 acres of land were to be acquired for further planned development of Sector 43 and other sectors of NOIDA, as mentioned in the impugned notification, hearing of objectors who might have filed written objections when there are a large number of occupants of these lands and who possess about 438 plots of land under acquisition, would have indefinitely delayed the acquisition proceedings and years would have rolled by before Section 6 notification could have been issued. Under these circumstances, the entire further development of the area would have, on the peculiar facts and circumstances of these cases, come to a grinding halt. Such a stand would have justified the subjective satisfaction of the authorities for invoking Section 17(4) of the Act. Such satisfaction then could not have been gone behind by a court of law. But unfortunately for the respondents, such was not their case nor did they even whisper in these cases that these aspects were kept in view while dispensing with Section 5-A inquiry." The Court was concerned only with the applicability of Section 17(4), and accordingly they had only to sift through the relevant material available with the appropriate Government to enable it to arrive at its subjective satisfaction about dispensing with a Section 5-A inquiry.
30. It has been contended that Section 17(1) and for this reason Section 17(2) also, refer to publication of a notice under Section 9 of the Act, and hence Section 5-A has to be complied with. However, it should not be overlooked that in the original scheme of the statute Section 9 operated sans Section 5-A and the land-owner had the right to be heard only in the context of the nature of his interest in the land and the determination of compensation for such interests. Whenever Section 17 has been correctly invoked the inexorable consequence is that the acquisition cannot be objected to (since Section 5-A stands dispensed with) resulting in the enquiry being restricted to quantum of compensation receivable by the persons interested in the land prior to the Section 6 Declaration. This position would endure even post the invocation of Section 17 of the Act. An award would then be published in accordance with law and procedure. No anomalous or contradictory situation is reached if our analysis is accepted.
31. The conclusion that we have arrived at as a result of the above discussion is that Section 17, as a composite whole, is a pandect within the Land Acquisition Act, in much the same manner in which Section 25B of the Delhi Rent Control Act has been viewed by the Hon'ble Supreme Court. Section 17 deals with the entire spectrum of emergencies which call for urgent action leading to expropriation of private property. It empowers the State to take possession of lands required for public purposes in two categories of contingencies " (a) in urgent circumstances as adumbrated in the first sub-section enabling dispossession after fifteen days and (b) situations specifically spelt out in the second sub-section empowering immediate dispossession, i.e. after two days. These provisions were available to the State from the very inception of the Act, and had the result of permitting the Government to take possession along with the publishing of a notification under Section 4, leaving the matter of computing and tendering compensation to follow. The introduction in 1923 of the right to file Objections under Section 5-A within thirty days of the Section 4 Notification required necessary clarification that where circumstances obtain necessitating urgent action, it could be taken. This was clarified by the simultaneous inclusion of Section 17(4), which notably does not have its own field of operation, distinct of Sub-sections (1) and (2). Therefore, once the Government is subjectively satisfied that circumstances chronicled in the first two sub-sections exist, the effect is the suspension of the right to file Objections under Section 5-A. In the present case Section 17(1) has been resorted to, it would not be open to the Authorities to take possession of the property till the expiration of fifteen days from the publication of the Notification. We have come to this conclusion respectfully and humbly mindful of observations made by their Lordships in Nandeshwar Prasad, Krishan Lal Arneja and Mukesh Hans, in which cases the argument that separate orders under Section 17(4) are essential, were not raised.
VALIDITY OF DECISION OF LT. GOVERNOR INVOKING SECTION 17 OF THE ACT.
32. Mr. Rohtagi has argued that mere existence of conditions of urgency or emergency, as may be postulated under Sub-sections (1) and (2) of Section 17 would not justify dispensing with the valuable rights preserved in Section 5-A of the Act. The contention that this can properly be achieved only by specifically resorting to Section 17(4) of the Act has already been rejected by us. However, regardless of which of these sub-sections have been invoked, there cannot possibly be any debate on the question that the virtual attainder of Section 5-A rights must be predicated on sufficient material made available to the Lt. Governor in order to enable him to arrive at an informed and well- considered decision. Even though the subjective satisfaction is that of the Lt. Governor (and not of the Court), for his decision to pass muster of judicial review, it is essential that these two factors should be satisfied. Even though Section 17 had not been invoked in Hindustan Petroleum Corp. Ltd. v. Darius Shapur Chenai the observations made in the context of Sections 4, 5A and 6 are apposite, namely, that while exercising judicial review the Court would nullify any executive action which is begotten of illegality, irrationality, or procedural irregularity, or where power has not been exercised fairly and reasonably. Their Lordships have observed that given the expropriatory nature of land acquisition, Section 5-A assumes almost akin to fundamental rights under our Constitution. When even these rights are forfeited by by-passing and circumventing the opportunity to file Objections to the measure of condemnation, a fortiori, the decision should be unimpeachable so far as adherence to these conditions are concerned. In other words the most stringent satisfaction is called for whenever Section 17 is resorted to by the Government or appropriate Authority.
33. It is appropriate to give a brief account of the annals of the acquisition of the present property. On 13-11-1959 a Notification under Section 4 for the 'Planned Development of Delhi' and a Declaration under Section 6 on 11-1-1969 had been issued. Consequent upon the amendments carried out to the Act in 1984, these proceedings lapsed in September, 1986. The second Notification under Section 4 read with Section 17(1), dispensing with Section 5-A, was issued on 19-2-1990 purportedly for public purpose, namely for "Planned Development of Delhi, i.e. Shopping Centre and widening of Mehrauli Road." This was followed by the Declaration dated 25-5-1990 under Section 6. The present writ was filed on 24-4-1990. Interim Orders dated 8-6-1990 restrained the Respondents from taking possession of the said land. On 25-10- 1991 these Orders were made absolute or coterminous with the disposal of the petition. The Award was published on 22-5-1992. It is in this manner that possession of the land continues to be retained by the Petitioners till date. Keeping in mind the fact that acquisition proceedings had been initiated thirty years prior the second Notification, the obvious question that arises is whether it was prudent to invoke the emergency provisions encapsulated in Section 17 and forfeit the irreplaceable rights of the citizens under Section 5-A. Indeed, there are weighty arguments on both sides of this legal watershed. The Respondents contend that the first acquisition came to naught because of a technicality triggered by the amendments brought about by Act 68 of 1984 with effect from 24-9-1984 and that had the writ petition been decided before September 1986 there was a every possibility that the acquisition action would have received the imprimatur of the Court. Expectedly, the Petitioner submits that so much water has flowed since the First Notification that it should have been allowed to avail of its rights under Section 5-A and thereby oppose the acquisition.
34. It cannot but be mentioned that almost invariably the purpose mentioned in acquisition Notification is - "Planned Development of Delhi". The administration understandably has hitched a ride on the Aflatoon v. Lt. Governor of Delhi bandwagon, pursuant to this nomenclature finding favor with the Apex Court. But the public purpose mentioned in the subject Notification is altogether different to Aflatoon since it is actually for the creation of a Shopping Centre and for widening of Aurobindo Marg. In this light, no useful purpose or advantage can be derived from the 1959 Notification. The subject acquisition must therefore stand on its own feet, the justification for resorting to Section 17 of the Act immediately assumes almost unsatisfiable onerousness. There is nothing on record to indicate that such a calamitous situation had come about that even a couple of months delay could not be endured; couple of months because thirty days is required to be given for filing of Objections and thereafter a like period of hearing and deciding them provided the Respondents act with diligence. It need not have taken longer since only one party would have to be heard.
35. We now proceed to succinctly reflect upon whether the assailed acquisition is founded on public interest. In this regard the Restatement of the law is available in the perspicuous precedent titled Daulat Singh Surana v. First Land Acquisition Collector . Pubic interest is always the foremost and fundamental factor whenever land is to be acquired. Speaking for the Apex Court his Lordship Dalveer Bhandari opined
73. Public purpose cannot and should not be precisely defined and its scope and ambit be limited as far as acquisition of land for the public purpose is concerned. Public purpose is not static. It also changes with the passage of time, need and requirements of the community. Broadly speaking, public purpose means the general interests of the community as opposed to the interest of an individual.
74. The power of compulsory acquisition as described by the term 'eminent domain' can be exercised only in the interest and for the welfare of the people. The concept of public purpose should include the matters, such as, safety, security, health, welfare and prosperity of the community or public at large.
75. The concept of 'eminent domain' is an essential attribute of every State. This concept is based on the fundamental principle that the interest and claim of the whole community is always superior to the interest of an individual. Mr. Rohtagi had conceded that road widening as well as construction of a Local Shopping Centre would constitute public purpose, and hence brevity is called for at our end on this aspect of the case. The gravamen of Mr. Rohtagi's argument was that in the factual matrix surrounding the present case these were only the ostensible reasons ascribed to the acquisition, and that with the passage of several decades both needs stood satiated. Therefore, the short-circuiting of Section 5-A was imperative for the Respondents since otherwise, had the Petitioner been allowed to avail the opportunity to remonstrate against the expropriation by filing Objections under Section 5-A, these questions would have to be addressed and answered by the Respondents. The argument is that the case manifests malice in law in contradistinction to personal malice or mala fides.
36. We, therefore, need not discuss the series of Judgments referred to by learned Counsel for the Respondents on the question of what constitutes public purpose. In Aflatoon the terminology, "Planned Development of Delhi" was held to be a valid public purpose and it is obvious that the ubiquitous use of this phrase in almost all subsequent acquisitions in Delhi has its own source to this decision. Learned Counsel for the Respondents have drawn our attention to P. Narayanappa v. State of Karnataka 2006 (7) SCC 578, Pratibha Nema v. State of M.P. , Bajirao T. Kote v. State of Maharashtra and S.S. Darshan v. State of Karnataka .
37. Krishi Utpadan Mandi Samiti, Muzaffarnagar (U.P.) v. Ratan Prakash Mangal to be dealt with in some detail, because of factual similarities. A Notification dated May 20, 1982 was issued under Section 4(1) read with Section 17(4) of the Act and followed by the Declaration dated May 21, 1982 under Section 6 of the Act. The Notification under Section 4(1) was quashed by the High Court insofar it invoked Section 17(4) and thereby dispensed with any inquiry under Section 5-A, whilst the Declaration under Section 6 was quashed as a whole. Prior thereto, a Notification dated 20-3-1975 was issued under Section 4(1) for acquiring nearly 80 acres of land for the public purpose of construction of a market yard. After five months, vide a superseding Notification the area was reduced to 60 acres. Yet another Notification was issued so as to include the plot in question which had been excluded when the acreage had decreased. The main plank of the attack of the land owners was that there was no urgency justifying the exclusion of the inquiry contemplated by Section 5-A of the Act. The challenge was upheld up to the Hon'ble Supreme Court; the Declaration under Section 6 was quashed. However, the Apex Court did not agree that the Notification under Section 4(1) should have been quashed in its entirety. Possession of the land was restored to those Petitioners. At the culmination of the Section 5-A proceedings the Report recommended the exemption from acquisition of the plot in question. The Government, however, decided not to act upon the Report. By that time, however, three years had elapsed from the date of the publication of the Notification under Section 4(1). Their Lordships observed that "the submission that Section 17(4) of the Act has been erroneously invoked in the fresh notification under Section 4(1) dated May 20, 1982 also and that inquiry under Section 5-A had again to be made before issuing this notification, suffice it to point out that once an inquiry under the said section had already been made and the parties had been given full opportunity to substantiate their case in the said inquiry and the State Government was not inclined to agree with the report of the Land Acquisition Officer submitted in pursuance of that inquiry it would have been a futile exercise to repeat the whole performance again. After the issue of the earlier Notification dated October 26, 1978 period of nearly 3 " years had expired when the fresh Notification dated May 20, 1982 under Section 4(1) was issued and apparently the necessity to acquire Plot No. 289 during this period became more acute due to this delay". Their Lordships found that there was sufficient justification for invoking the provisions of Section 17(4) of the Act and dispensing with a further inquiry under Section 5-A of the Act. However, as we have already noted above it is impermissible for the Respondents to rely on the earlier Notification in the facts of the present case.
38. In Krishan Lal Arneja fourteen properties were notified for acquisition on 6.3.1987 under the provisions of Section 4 and 17(1) and (4) of the Act, all of which had been requisitioned for several years/decades under the defense of India Rules. Since the parent statute viz Requisitioning and Acquisition of Immovable Property Act, 1952 was to lapse on 10.3.1987 the Notification was issued four days prior to that event. Paragraph 16 of the Judgment has been reproduced above and may be adverted to once again in order to appreciate the opinion of their Lordships that Section 17 can be legitimately resorted to only in extraordinary circumstances. The Apex Court noted that the Authorities had allowed almost the entire period of two years available to them for completing acquisition in consonance with the Act, as per the "usual course"; that they had "enough time to provide opportunity for filing objections and holding inquiry under Section 5-A of the Act" and hence there was no need to invoke Section 17. These observations are obviously pithy to the present case.
39. Mukesh Hans is at the other end of the spectrum, as will be evident from a reading of paragraph 37 thereof which we have already extracted above. The Supreme Court had noted that the concluding programme of the festival had been conducted on the land sought to be acquired without any hindrance; that the earlier attempt for acquiring 40 bighas of land for the same purpose had lapsed, and this fact had not been brought to the notice of the Lt. Governor. The proceedings were therefore quashed.
40. In the present case we may refer to a couple of notes/correspondence by Respondents'-Officers, which are as under:
Letter dated 26.10.1992 from the Dy. Director (MP) states: the Chief Architect, DDA prepared a plan for shopping centre earlier in the year 1981 which has been implemented at site. In this plan, the land under Essex Farms is not covered for the shopping purpose and is shown as existing Essex Farms. In MPD-2001, this land which is under Essex Farms forms part of the District Park area as shown on the land use plan.
41. Another note dated 13th August, 1999 is as follows:
Consequent upon the meeting convened by Commr. (Plg.) dt. 2.6.99 regarding pending reference of M/s. ESSEX Farms Pvt. Ltd., 4 Aurbindo Marg, New Delhi. AC(Plg.) DCandB sent a note to the Commr. (IM) to enquire about the observation and comments regarding the status of case whether any application has been filed by the Lands Deptt. or the legal Deptt. of DDA against the status-quo granted by the Court in the above said case (Ref. P/C 29 to 30) As per reference in the Legal file the case stands adjourned since-die while vide Court's order dated 26.2.99 (P. No. As per above note dt. 10.5.99 the file had been sent to Plg. Deptt. to know the land use of the area u/ref. and as to whether the land u/r is still required for the planned development of Delhi or not. The land use of the referred site as per MPD-1962 and MPD-2001 has already been supplied to the Legal Deptt. many times. However, i) it is stated that the land use of the property under ref. as per MPD-1962 and Zonal Plan 10 + 16 is partly `residential' and partly `Recreational' (Distt. park). ii) as per MPD-2001 the land use of this pocket is earmarked as `Recreational'. (District Park). iii) as per approved Zonal plan of `F' the land use of the property is `Recreational'. (District Park). The question as to whether the land is still required for planned development of Delhi or not it is to be decided in the context of facts submitted by the applicant which is being dealt in MP File No. F.3(48)87.MP, Part-II.
1. The acquisition notification under Section 4 issued on 19th Feb. 1999 was for shopping centre but in MPD-2001 the site in question has been shown as Distt. Park. Thus negating the basis of earlier issued acquisition notification under Section 4 for shopping centre, i.e. the acquisition of same became vitiated. Further a proposal of shopping centre has already implemented adjacent to the site u/ref. As per evidence/document submitted by the applicant the area in question is heavily built up, to be precised approx. 50,000 sq. feet is being used as restaurant and recreational club. (Ref. File No. F3(48) 87-MP. Pt II). As per MPD-2001 in Distt. Park/Regional Green Restaurant and Recreational Club are permissible. (Ref. page C/31). Further the Secy. Revenue/Lands on dt. 2.12.98 had issued policy guidelines for denotification of land wherein under para 4.3 specifies that the properties built up prior to issue of notification under Section 4 of the Land Acquisition Act, 1894 can be considered for de-notification provided: (Ref. P/C 32 to 34)
a) Possession of the land should not have been taken.
b) Where the feasibility studies if any, conducted show that the land is not suitable for the public purpose for which it is being acquired.
c) Where the colony including the area in question has itself been regularised and services handed over to MCD, the land may be recommended for denotification.
d) In all cases a sub-committee comprising the Land Acquisition Collector, a representative of Land and building Deptt. (Not below the rank of a Dy. Secy) shall inspect the land and submit a detailed report outlining the number and nature of structures, the feasibility of taking over the land after demolition of the structures and the specific recommendation on denotification of the land. The Denotification Committee shall consider the report of the sub-committee, the comments of the requisitioning department with specific reference to its need for land, and then make a recommendation to the Lt. Governor for considering or rejecting the proposal.
Since the shopping centre has already come up adjacent to the referred site therefore, the very purpose of the issuing notification under Section 4 for acquisition of the site for commercial purpose has already been met. So far the purpose of acquisition for road widening is concerned an undertaking from the applicant can be obtained stating that applicant will have no objection in surrendering the area required for widening of Aurbindo Marg as and when required.
2. The existing use of the site i.e. the restaurant and recreational club is compatible to the recreational use as per MPD-2001. Therefore, if agreed, Plg. Deptt. may recommend for denotification the subject khasra Nos.
Submitted please.
Jt. Dir. (AP)I 13.8.99
42. The above mentioned letter and the note and some other nothings are inked and twisted obviously in favor of the Petitioner. But the ground reality is that the property in question is no more a Farm but has been converted into a banquet hall to hold parties and marriages etc. besides running a regular restaurant whether all this can be said to be a District Park or a free public recreational area, may be a subject of appreciation by the concerned authorities. Our view is that a District Park does not generate money for a private person nor does a market/shopping complex cater to the income of only one person or one family.
43. A perusal of the writ petition manifests that the attack to the acquisition proceedings are on various grounds
(a) The property was usefully built-up; (b) the Respondents decided to release the land from acquisition proceedings after 27 years; (c) Section 17 has been invoked without sufficient reason and there was no urgency; (d) the Lt. Governor failed to apply his mind before signing the Notification; (e) that there is a colorable exercise of powers without application of mind and mala fide intentions and ulterior motives; (f) no other land has been acquired for widening of the road; (g) in the affidavit filed on behalf of DDA it has been asseverated, devoid of details, that "quantum (sic) of urgency is a matter for subjective satisfaction of the Government. The Petitioner cannot ask the Court to make an subjective re-appraisal of it by invoking writ jurisdiction... the adequacy of material required for subjective satisfaction of the Government before invoking the provisions of Section 17 of the Land Acquisition Act cannot be gone into by the Court.... In paragraph 9 of the writ petition it has been pleaded that the land remained under acquisition for 27 years after which it is decided that it be released from acquisition.... It is also not denied that the prevalence of Section 17(1) of the Land Acquisition Act have been invoked with a view to getting the land acquired on emergent basis, so that the purposes for which the land is being acquired may be achieved urgently. In other words it has not been explained by the DDA why it was necessary to invoke Section 17 of the Act. The abject vagueness of this Counter Affidavit, so far as the existence of urgency is concerned, is matched by the Counter Affidavit filed on behalf of Land and Building Department, Delhi Administration wherein it has been pleaded that "the provisions of Section 17 of the L.A. Act were invoked in accordance with the provisions of L.A. Act, as the public purpose was one of great urgency.
44. In actual fact only one legal entity is contesting the acquisition, namely, the Petitioner. We can fully appreciate that considerable time, running sometimes into several years, is required to dispose of multiple and multifarious objections that may be received under Section 5-A from numerous persons who are interested in the large tracts of land in the ownership of different persons. Where there is only one person whose objections are required to be heard and decided, there is scant reason to invoke Section 17 of the Act especially where acquisition proceedings have been pending for over a quarter century. May be the Petitioner and the Respondents' staff are the culprits for such abominable delays, but this gives advantage to the party which gains with delay. We are also not oblivious of the fact that writ petitions are invariably filed by the persons interested in the land with a view to stalling the acquisition proceedings. In the interregnum in which interim orders are in force such persons profit from escalation in land prices. The Courts should as a rule not permit such persons to profit from their ill-motivated and malafide litigation. In the present case, however, the pleadings are woefully laconic on the question of why the previous acquisition were rendered nugatory by the Respondents. Although it is not difficult to assess the answer as to who were pulling the strings and manipulating the records whether the interested party or the colluding and obliging bureaucrats but it is not possible in this Writ Petition to enquire into or order investigation or direct departmental enquiry. The Respondents may do so on their own.
45. It appears to us that had Section 17 not been invoked, the Objections that may have been filed pursuant to Section 5-A, would have been comprehensively and properly answered. Keeping the expropriatory nature of acquisition of land in perspective, we harbor no doubt that the burden of proving urgency rests heavily on the Government. In other words it is not for the landowner/occupier to prove that there was no emergency such as would justify invoking Section 17 of the Act. Since the annihilation of the invaluable right under Section 5-A of the Act runs contrary to the scheme of the Act after the introduction of Section 5-A by Act 38 of 1923, material should be available on the record. Cogent reasons, however briefly articulated, should be given by the appropriate Government. While exercising judicial review the Court would indubitably eschew interference with such a decision unless it is patently perverse and genuinely malafide. We have already expressed the view that the standards of satisfaction would be less onerous while deciding Section 5-A objections or issuing a Notification under Section 4 and/or a Declaration under Section 6 relative to defending a decision to draw upon Section 17 of the Act. It would thus be legally prudent and astute for the Government to invite and decide Objections on the merits of a proposed acquisition rather than run the danger of getting lost in the skein of Objections relating to the propriety of availing the extreme measures contained in Section 17.
46. Considering all the facts and circumstances of the present case we find no justification for depriving the Petitioner of its statutory rights under Section 5-A of the Act. The Government or the Authority concerned must grant a personal hearing to the interested person. When this procedure is adhered to the scope of judicial review under Article 226 of the Constitution is indeed minimal. However, where the Government emasculates and strangulates the citizens right to object to a exprorpriatory measure, the writ Court would be guilty of dereliction of duty if it does not grant succour.
47. We are leaving it to the Government or the concerned authority to examine as to whether the Petitioner's banquet hall is protruding into or abutting the main road or is preventing road widening or is causing traffic jams or cannot be treated as a District Park and the like and whether more markets are required in the area to prevent misuse of residential houses for commercial purposes.
48. The Notification insofar as it resorts to Section 17 is severable and is stuck down. The effect is that the Petitioner is hereby granted an opportunity to file Objections under Section 5-A within thirty days from today. The Objections shall be disposed of within 30 days. The Petitioner shall be given not more than two dates for completing the hearing. We have derived this calender in order to expedite the matter.
49. The writ petition is disposed of in these terms. Nothing said herein will tantamount to expression of opinion on the merits of the case. The parties to bear their respective costs.