Madhya Pradesh High Court
Deceased Smt.Shyam Verma W/O Dr. R.C. ... vs The Land Acquisition Officer on 11 March, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
WRIT APPEAL No. 250 of 2008
BETWEEN:-
DECEASED SMT.SHYAM VERMA W/O DR.
R.C. VERMA THROUGH LEGAL HEIR SHRI
ASHWINI VERMA S/O SHRI
RATANCHANDJI VERMA, AGED ABOUT 56
YEARS, OCCUPATION: BUSINESS, R/O
VERMA UNION HOSPITAL, 120 LABIRYA
BHERU DHAR ROAD, INDORE (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI VINAY GANDHI- ADVOCATE)
AND
1. THE LAND ACQUISITION OFFICER
COLLECTOR'S OFFICE,INDORE
(MADHYA PRADESH)
2. COLLECTOR, DISTT.INDORE
COLLECTOR'S OFFICE,INDORE
(MADHYA PRADESH)
3. COMMISSIONER, INDORE DIVISION
INDORE,COMMISSIONER OFFICE,
INDORE (MADHYA PRADESH)
4. INDORE DEVELOPMENT AUTHORITY 6-
7, RACE COURSE ROAD, INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANIKET NAIK- DEPUTY ADVOCATE GENERAL FOR THE
RESPONDENT/STATE
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 11-03-2024
15:44:59
2
BY SHRI BHART SINGH ALONG WITH VIRAJ GODHA- ADVOCATE FOR
RESPONDENT/IDA)
WRIT APPEAL No. 323 of 2008
BETWEEN:-
SANTOSH KUMAR S/O SAMPAT KUMAR,
AGED ABOUT 52 YEARS, OCCUPATION:
BUSINESS, ADD: 2, SHRINIWAS BHARAT
MARG, INDORE (MADHYA PRADESH)
.....APPELLANT
(BY MR. VINITIJAY HARDIA- ADVOCATE )
AND
1. LAND ACQUITION OFFICER,
COLLECTORATE OFFICE, INDORE
(MADHYA PRADESH)
2. COLLECTOR INDORE
COLLECTORATE OFFICE INDORE
(MADHYA PRADESH)
3. COMMISSIONER INDORE
DIVISIONAL INDORE,
COMMISSIONER OFFICE, MOTI
BANGLOW, INDORE (MADHYA
PRADESH)
4. INDORE DEVELOPMENT
AUTHORITY 7, RACECOURSE
ROAD, INODRE (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI ANIKET NAIK- DEPUTY ADVOCATE GENERAL FOR THE
RESPONDENT/STATE
BY SHRI BHART SINGH ALONG WITH VIRAJ GODHA- ADVOCATE FOR
RESPONDENT/IDA )
Reserved on : 30.10.2023
Pronounced on : 11 .03.2024
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 11-03-2024
15:44:59
3
These appeals having been heard and reserved for judgment,
coming on for pronouncement this day, JUSTICE PRANAY VERMA
pronounced the following.:
JUDGMENT
Since these appeals involve common questions of facts and law and have been preferred against a common order passed by the learned Single Judge, they have been heard together and are being decided by a common judgment.
2. These appeals under Section 2(1) of M.P. Uchcha Nyaylaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 have been preferred by the petitioners/appellants being aggrieved by a common order/judgment dated 13.02.2008 passed by the learned Single Judge in Miscellaneous Petition No.1066 of 2002 and other connected petition whereby the petitions preferred by them have been dismissed.
3. These appeals arise out of petitions preferred by the appellants challenging the notification under Section 4(1), 17(1)(4) and 6(1) of the Land Acquisition Act, 1894 (hereinafter referred to as „the Act, 1894‟) for compulsory acquisition of their lands which have been dismissed by the learned Single Judge. Earlier theses appeals had been allowed by a common order dated 30.11.2015 upon coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 by holding that the acquisition with respect to the lands in question is deemed to have lapsed under Section 24(2) thereof.
4. Being aggrieved by that order the respondents preferred Civil Appeals before the Hon‟ble Supreme Court which were referred to the large bench of five judges. The reference was decided by judgment Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 4 reported in 2020(8) SCC 129, Indore Development Authority Vs. Manoharlal and others.
5. Thereafter, by order dated 02.01.2023 the appeals were allowed and the order dated 30.11.2015 passed in these appeals was set aside and the appeals were remitted back to this Court to consider them afresh in accordance with law and to consider the correctness of the judgment and order passed by the learned Single Judge on merits including the submissions on behalf of the original land owners, i.e. the appellants, that the acquisition is bad in law under the Act, 1894 and/or on any other ground. It was made clear that so far as the applicability and deemed lapse of the acquisition proceedings under the 2013 Act is concerned, the said issue is concluded against the appellants in view of the Constitution Bench judgment in Indore Development Authority (Supra) which has been directed not to be re-opened by this Court. It is under such circumstances that these appeals are now before us for adjudicating upon the validity of the order passed by the learned Single Judge on merits.
6. The facts in brief are that the respondent Indore Development Authority (for short „the I.D.A.") framed a Scheme bearing No.135 for development of residential as well as commercial colony under the provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short „the Adhiniyam, 1973‟). For the purpose of implementation of the aforesaid scheme, the State Government, in exercise of powers under Section 4(1) and 17(1)(4) of the Act, 1894 issued a notification dated 18.03.2022 declaring its intention to acquire 25.532 hectare of land in village Tejpur Gadbadi in Tehsil and District Indore. By showing urgency, the provisions of Section 17(1) of the Act, 1894 were also invoked. The notification was published in the official Gazette on 05.04.2002 and Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 5 thereafter in the local newspapers. It was affixed in conspicuous places in the said village. Thereafter, a notification under Section 6(1) of the Act, 1984 was published on 03.05.2002 in the official Gazette. It was affixed at conspicuous places in the village. Thereafter the petitions were preferred by the appellants before the learned Single Judge challenging the aforesaid notifications. In the petitions, the Scheme framed by the IDA was also challenged.
7. The primary ground for the appellants to challenge the notification under Section 4(1) of the Act, 1894 was that the same is vague and does not disclose the details of the land sought to be acquired for implementation of the scheme of the I.D.A. There has been delay in the process of acquisition of the land, hence the acquisition has been frustrated and the same does not justify invocation of Section 17(1) for dispensing with the mandatory hearing of objections contemplated under Section 5-A of the Act, 1894. It was also urged that the Scheme has itself come to an end not having been implemented within the statutory period hence there cannot be any acquisition for a Scheme which has already lapsed.
8. Return was filed to the petitions by the respondents substantially stating that there is no legal defect in the notifications issued under Section 4(1) and 6(1) of the Act, 1894. The notifications are proper and valid and provisions of Section 17(1) of the Act, 1894 have been invoked after due application of mind and the proceedings of Section 5-A have been rightly dispensed with. Those provisions are directory and not mandatory. There is no mala fide or arbitrariness in the matter. The notifications under Section 4(1) and Section 6(1) of the Act, 1894 were published well within the period prescribed under the Act and no mandatory provision of the Act has been violated. It was further stated that Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 6 provisions of Section 56 of the Adhiniyam, 1973 are also directory and not mandatory in nature. By a Resolution No.73 dated 14.05.1993 it was resolved to frame the Scheme in question. The notification under Section 50(2) of the Adhiniyam, 1973 was published in the Official Gazette dated 18.06.1993. Within 30 days of passing of the resolution dated 14.05.1993 the IDA had sent it for publication. By Publication of notification under Section 50(3) of the Adhiniyam, 1973 dated 26.05.1995 objections and suggestions were invited. Pursuant thereto objections were received and duly considered by the IDA and for reasons stated in the decision, they were decided under Section 50(4) by order dated 22.02.2001. Thereafter, the final scheme was published under Section 50(7) in the Official Gazette dated 15.06.2001. All the notifications issued under the Adhiniyam, 1973 are valid and proper and well within the stipulated time. After publication of notification under Section 50(7) of the Adhiniyam in the Gazette dated 15.06.2001 requisition was made to the Collector, Indore to acquire the land which amounts to substantial step towards implementation of the Scheme.
9. By the impugned order the learned Single Judge has held that the appellants have not been able to prove that there was no urgency in the matter. It has further been held that since the right to file objections had already been made available to the land owners under the Adhiniyam, 1973 and the land owners had in fact availed the said right then in such a situation when the said objection were duly considered and adjudicated by the competent authorities no prejudice has been caused to the land owners when similar right to file objections under Section 5-A of the Act, 1894 had not been granted.
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 710. Learned counsel for the appellants submitted that the learned Single Judge has not properly appreciated and considered the submissions as were raised by them. The notification under Section 4(1) of the Act, 1894 was totally vague since the same did not give the details of the land which was proposed to be acquired. The defect in the Section 4 notification could not have been fulfilled by giving full particulars of the land in the Section 6 notification. The urgency Clause under Section 17 of the Act, 1894 was invoked without there being any existence of a real emergency. It could have been invoked only if there was reason to believe that a small delay even of few days or month would frustrate the purpose for which the land was to be acquired. The same was however not the case. The acquisition was for residential and commercial purpose which by itself could not have been treated to be an urgent purpose. There has been enormous amount of time consumed in the preparation of the Scheme under the Adhiniyam, 1973 up to the date of its finalization and also between dates of publication of notifications under Section 4 and 6 hence it is evident that there was absolutely no urgency in the matter. The appellants have thus been deprived of their fundamental right of being afforded an opportunity of hearing contemplated under Section 5-A of the Act, 1894. The invocation of Section 17 was a mala fide exercise on part of the respondents. There has been clear violation of provisions of Section 86 and Section 54 of the Adhiniyam, 1973 as no substantial steps were taken towards implementation of the Scheme which therefore shall be deemed to have lapsed. It is a case of arbitrariness and unreasonableness on part of the respondents and abuse and colorable exercise of power. Reliance has been placed by learned counsel for the appellants on the decisions of the Supreme Court in Nandeshwar Prasad and another vs Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 8 U.P. Government and others, AIR, 1964 SC 1217, Devendra Singh and others v. State of U.P. and others, AIR, 2011 SC 2582, Darshan Lal Nagpal(dead) by LRs. v. Government of NCT of Delhi and others (2012) 2 SCC 327, Radhy Shyam (dead) through LRs. and others v. State of Uttar Pradesh and others (2011) 5 SCC 553, Laxman Lal (dead) through LRs. and another v. State of Rajasthan and others AIR 2013 SC 1578, Union of India and others v. Krishan Lal Arneja and Others, AIR 2004 SC 3582, Manda Jaganath v. K.S. Rathnam and others, AIR 2004 SC 3600, Union of India and others v. Deepank Bharadwaj and others, AIR 2004 SC 3289, Dev Sharan and others v. State of Uttar Pradesh and others 2011 (4) SCC 769, Laxman Lal (dead) through LRs. and another v. State of Rajasthan and others, AIR 2013 (3) SCC 764. Darshan Lal Nagpal (dead) by LRs. v. Government of NCT of Delhi and others, AIR 2012(3) MPLJ 8 (SC), State of Punjab and another v. Gurdial Singh and another, AIR 1980 SC 319, P.V. Mohammed Ghouse v. State of Tamilnadu and another, AIR 1978 Madras 277, Harpal Singh and others v. State of Punjab and others, AIR 1992 P & H 314, G. Narsi Reddy and others v. District Collector, Guntur and others. AIR 1984 A.P. 335, S.S Transport Contractor v. Vice Chairman and Managing Director, A.P. State Civil Supply Corporation Ltd., Hyderabad and another, Munshi Singh and others v. Union of India AIR 1973 SC 1150, Suganthi Suresh Kumar v. Jagdeeshan, 2002(2) SS 420, Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and another, 1997 (6) SCC 450, Oriental Insurance Co. Ltd. v. Deo Patodi and Others, 2009 (3) J.L.J. 389 SC, Purbanchal Cable and Conductor Pvt Ltd. v. Assam State Electricity Board and others, 2012 (7) SCC 462, Kunwar Pal Singh (dead) through LRs. v State of U.P. and others, 2007 Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 9 (3) MPLJ 439, Shiv Kumar Chadha v Municipal Corporation, Delhi, 1993(2) MPWN SN, 73 SC, Kumwar Pal Singh (dead) by LRs. v. State of UP. and others, 2007 (3) MPLJ, 439 SC, Kulsum R. Nadiadwala v. State of Maharashtra and others, AIR 2012 SC 2718, Narinder Singh and another v. State of Haryana and others, 2007(1) MPLJ 214 SC, Agricultural Produce Marketing Committee Bangalore v. State of Karnataka and others, 2022 Livelaw (SC) 307, Khub Chand and others v State of Rajasthan and others, AIR 1967 SC, 1074, Chaitram Verma and others v. Land Acquisition Officer, Raipur and others, 1994 JLJ, 96 HCDB.
11. Per contra, learned counsel for respondents No.1 to 4/State as well as learned counsel for respondent No.5 IDA have submitted that there has not been any illegality on part of the respondents in proposing to acquire the land in question. The notification under Section 4(1) of the Act, 1894 was properly made, published and affixed at conspicuous places. The same cannot be termed to be vague in any manner. It gave sufficient description of the property proposed to be acquired. Under the Adhiniyam, 1973 the Scheme was finalized upon which it was decided to acquire the land pursuant to which the preliminary notification under Section 4(1) of the Act, 1894 was published and since there was real urgency in the matter the provisions of Section 17 were invoked dispensing with the provisions of Section 5-A. The record demonstrates that the urgency clause by the respondents was legally and validly invoked in the facts and circumstances of the case and there has been no violation of any statutory provisions. The Scheme under the Adhiniyam, 1973 was processed in accordance with the provisions of the Adhiniyam and only Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 10 after the mandatory requirements being fulfilled, the same was finalized in which no fault can be pointed out. It is hence submitted that the appeals deserve to be dismissed.
12. We have considered the submissions of the learned counsel for the parties and have perused the record.
13. For the purpose of appreciating the controversies involved in these appeals it would be relevant to reproduce the relevant provisions of the Act, 1894. Sections 4, 6, 5-A and 17 of the same read as under:-
"4. Publication of preliminary notification and powers of officers thereupon.--(1) Whenever it appears to the [appropriate Government]1 that land in any locality [is needed or]2 is likely to be needed for any public purpose 3[or for a company] a notification to that effect shall be published in the Official Gazette 9[and in two daily newspapers circulating in that locality of which at least one shall be in the regional language] and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality 9[(the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of die notification)].
5-A. 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 from the date of the publication 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 [in person or by any person authorised by him in this behalf] or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, [either make a report in respect of the land which has been notified under Section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government]. The decision of the [appropriate Government] on the objections shall be final.Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 11
(3) For the purposes of this section, a person shall he deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.
6. Declaration that land is required for a public purpose.--(1) Subject to the provisions of' Part VII of this Act, [when the [appropriate Government] is satisfied, after considering the report, if any, made under Section 5-A, sub-section (2)], that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders [, and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4, sub section (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5-A, sub-section (2)]:
[Provided that no declaration in respect of any particular land covered by a notification under Section 4, sub-section (1),--
(i) .................
(ii) published after the commencement** of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification]:
[Explanation 1.--In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, sub- section (1), is stayed by an order of a Court shall be excluded. (2) [Every declaration] shall be published in the Official Gazette, 17 [and in two daily newspapers circulating in the locality in which the land is situate of which at least one, shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the declaration), and such declaration shall state] the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected. (3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a Company, as the case may be;
and, after making such declaration, the [appropriate Government may acquire the land in a manner hereinafter appearing.
17. Special powers in cases of urgency.--(1) In cases of urgency, whenever the [appropriate Government] so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 12section (1), [take possession of any land needed for a public purpose.] Such land shall thereupon [vest absolutely in the [Government]], free from all encumbrances.
(2) ................
(3) ................
[(4) In the cases of any land to which, in the opinion of the [appropriate Government], the provisions of sub-section (1), or sub- section (2) are applicable, the [appropriate Government] may direct that the provisions of Section 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 date of the publication of the notification] under Section 4, sub-section (1).]"
14. The first question to be determined is as to whether the notification under Section 4(1) of the Act, 1894 was vague. The contention of learned counsel for the appellants is that the said notification was totally vague and unclear. There was total absence of details of the land which was proposed to be acquired or even the locality in which it was situated. There were no particulars for identification of the land. The description was extremely cryptic. Mere mention of the villages in which the land is situated was wholly insufficient. The villages are spread over a large area hence it was not possible for the land owners to ascertain as to whether their lands were also proposed to be acquired. The non-disclosure of the locality and Khasra number with precision has invalidated the notification and has rendered its publication a meaningless formality.
15. To appreciate the aforesaid contention, it would be apposite to reproduce the notification under Section 4(1) of the Act, 1891 which is as under:-Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 13
कायाा लय, कले क्टtर, जिला इन्दौAर, मध्यeप्रदे श एवं पदे न उपसजिव, मध्यमप्रदे श शासन , रािस्वल जवभाग इं दौर जदनां क 18 मािा, 2002 क्र. 62बी-भू -अर्जन-2002 चूूंकि राज्यय शासन िो यह प्रतीत होता है कि इसिे सूं लग्नव अनुसूची िे खाने (1) से (4) में वकणज त भू कम िी अनूसूची िे खाने (6) में उसिे सामने कदये गये सावज र्ाकनि प्रयोर्न िे कलये आवश्यर्िता है अथवा आवश्यलिता पड़ने िी सूं भावना है । अत: भू -अर्जन अकधकनयम , 1894 (क्रमाूं ि एि , सन 1894) िी धारा 4 िी उपधारा (1) िे उपबूं धो िे अनुसार , इसिे द्वारा , सभी सूं बूंकधत व्य4क्तियोूं िो, इस आशय िी सू चना दी र्ाना है , राज्यद शासन इसिे द्वारा अनुसूची िे खाने (5) में उल्लेयक्तखत अकधिारोूं िो उि भू कम िे सूं बूंध में उिे धारा 4 िी उपधारा (2) द्वारा दी गई शक्तियोूं िा प्रयोग िरने िे कलए प्राकधिृत िरता है , राज्ये शासन, यह भी कनदे श दे ता है कि उिि अकधकनयम िी धारा :- अ िे उपबन्ध् उिो भू कम िे सूं बूंध में लागू नही ूं होगे , क्योक कि उसिी राय में उिि अकधकनयम िी धारा 17 िी उपधारा (1) हे तु उपबन्धम उसिे सूं बूंध में लागू होते है :-
अनुसूची
भू कम िा वणज न धारा 4 िी उपधारा (2) सावज र्ाकनि प्रयोर्न
कर्ला तहसील नगर/ग्राम लगभग क्षे त्रफल िे द्वारा प्राकधिृत िा वणज न
अकर्जत रिबा अकधिारी
(हे क्टबर में)
(1) (2) (3) (4) (5) (6)
इन्दौ े र इन्दौ े र ते र्पुर 25.532 मुख्य़ िायज पाकलि आवासीय एवूं ररूं ग
गड़बड़ी अकधिारी, इन्दौअर कविास रोड़ कनमाज ण योर्ना
प्राकधिारी, इन्दौ ार 135
भू कम िा नक्श (प्लादन) िा कनरीक्षण कर्लाध्यउक्ष
, इन्दौ े र िे िायाज लय में किया र्ा सिता ,है
मध्य प्रदे श के राज्य्पाल के नाम से तथा आदे शानुसार
मो. सुलेमान, कले क्टेर एवं पदे न उपसजिव
16. Contention of learned counsel for the appellants that the notification under Section 4(1) is based primarily on the decision of the Hon‟ble Supreme Court in Narendrajit Singh (Supra), M.P. Housing Board Vs. Mohammad Shafi and Others (1992) 2 SCC 168 and Om Prakash Sharma and Others Vs. M.P. Audyogik Kendra Vikas Nigam and Others (2005) 10 SCC 306. All the aforesaid decisions have been considered in detail by another Division Bench of this Court in Executive Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 14 Engineer, M.P. Housing Board and Another Vs. Shrikant Mishra and Others (2008) 4 MPLJ 384. Therein the notifications issued in the cases of Narendrajit Singh (Supra) and Mohammad Shafi (Supra) were exhaustively dealt with. It was observed that in the case of Narendrajit Singh (Supra) the notification which was quashed by the Apex Court was mentioned in paragraph No.2 and not in paragraph No.4 of the judgment.
After considering the notification under Section 4(1) which was issued in the case of Narendrajit Singh (Supra), it was observed that the same had been quashed by the Apex Court since it did not mention the names of District, Pargana, Mouja and area by holding that in the notification the locality should be specified in which the land is needed. It was further observed that in case of Mohammad Shafi (Supra) in paragraph No.13 notification issued in Narendrajit Singh‟s case was quoted but it was not the notification which was quashed in the case of Narendrajit Singh (Supra). It was a notification under Section 17 referred to in paragraph No.4 of Narendrajit Singh. Thereafter, the notification which was quashed in the case of Mohammad Shafi was quoted and it was observed that the same had been quashed by the Apex Court since clear distinction had been made between small village and city district headquarter like Mandsaur divided into 35 wards having large population and area of 25 square kms. hence the notification was held to be vague. Ultimately, the ratio in the case of Narendrajit Singh and Mohammad Shafi was culled out to be that in a notification under Section 4 of the Act locality with precision should be mentioned and not the identity of the land. Too many details of land are not to be given.
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 1517. It would be beneficial to reproduce the relevant extract of the case of Shrikant Mishra (Supra) as under:-
"7. In Narendrajit Singh (supra) which has been followed in Mohd. Shafi (supra) and Om Prakash Sharma (supra), the notification which was quashed by the Apex Court was mentioned in Para-2 not in Para-4 of the report in (1970) 1 SCC 125. The aforesaid notification in Paras 2 and 4 of the Narendrajit Singh (supra) contained the notification which came for consideration before their Lordships of the Apex Court, para-2 containing notification under section 4 is quoted below:--
"2. The facts relevant for the disposal of the appeals are follows. On October, 15, 1960 the Government of Uttar Pradesh issued a notification purporting to be one under section 4(1) of the Land Acquisition Act, 1894 to the effect that "the land mentioned in the schedule is needed for a public purpose". The notification further showed that "the Governor being of opinion that the provisions of sub-section (1) of section 17 of the said Act are applicable to the land, is further pleased under sub-section (4) of the said section to direct that the provisions of section 5-A of the Act shall not apply".
The schedule to the notification reads as follows:
"SCHEDULE"
District Pargana Approximate area For what purpose required. Mauza _______________________________________________________________ For the rehabilitation of displaced families from East Pakistan, under the Ministry of Rehabilitation, Government of India Note.-- The plan of the land may be inspected in the office of the Collector, Rampur." ______________________________________________________________________________ Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 16
8. In para 4 of Narendrajit Singh's case (supra) their Lordships of the Apex Court quoted the notification issued under sub-section (1) of section 17 to take possession of the land. The relevant portion of para 4 of Narendrajit Singh's case (supra) is quoted below:--
"4. The case being one of urgency the Governor was further pleased under sub-section (1) of section 17 of the Act to direct the Collector of Rampur, though no award under section 11 has been made, on the expiration of the notice mentioned in sub-section (1) of section 9, to take possession of the land, being waste or arable land mentioned in the schedule for a public purpose.
"SCHEDULE"
District Pargana Mauza Approximate area For what purposes required Remarks Rampur Bilaspur Gokal 125 acres For the rehabilitation of East Nagri Pakistan displaced families under the Ministry of Rehabilitation, Government of India _____________________________________________________________________ The Apex Court in Para-8 of Narendrajit Singh's case (supra) dealt with and held the "locality", where the land was needed was not specified. The Pargana, Mouza and approximate area were kept vacant which was the position in the notification issued under section 4 quoted in Para 2 of the Narendrajit Singh's report. The notification which is reproduced in Para 4 of the report of Narendrajit Singh's case in (1970) 1 SCC 125, was not adversely commented upon by the Apex Court in Narendrajit Singh's case as in it District, Tehsil, Mouza and Area were mentioned. The Apex Court in Narendrajit Singh's case in Para-8 has dealt with the aforesaid notification under Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 17 section 4 of the Act mentioned in Para-2 of the report of (1970) 1 SCC 125 thus:--
"8. Section 4(1) does not require that the identity of the lands which may ultimately be acquired should be specified but it enjoins upon the Government the duty to specify the locality in which the lands is needed. In the instant case the notifications suffer from a very serious defect in that the locality where the lands were needed was not specified. The notification merely showed that lands mentioned in the schedule were needed. The schedule in its turn though it contained the headings District, Pargana, Mauza and approximate area, gave particulars of the same and all that was mentioned by way of a note was that the plan of the land might be inspected in the office of the Collector of Rampur. As no details were given, the only indication about the locality of the lands was possibly the locality of the lands was possibly the District of Rampur inasmuch as the plan of the land was to be found in the office of the Collector of the same district. Certainly the Act did not intend that all the persons owning land in a district should rush to the Collector's office to find out whether his lands were covered by the notification."
9. Obviously, notification which was quashed by the Apex Court in Narendrajit Singh's case did not mention the names of District, Pargana, Mouza and Area, consequently it was quashed. The Apex Court has laid down that section 4(1) does not require that identity of the land which may ultimately be acquired should be specified only the locality should specified in which the land is needed. Locality does not mean that particulars of the land have to be mentioned.
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 1810. In Mohd. Shaft's case (supra) in Para-13, notification issued in Narendrajit Singh's case was quoted but it was not the notification which was quashed in the case of Narendrajit Singh's case. It was notification under section 17 referred to in Para 4 of Narendrajit Singh's case reported in (1970) 1 SCC 125. ...........................
It is apparent from aforesaid Para-13 of Mohd. Shaft's case that notification quoted in the para was not quashed by the Apex Court in Narendrajit Singh's case but the notification which was quashed was mentioned in Para-2 of the report of Narendrajit Singh (supra). The notification of Narendrajit Singh's case (supra) mentioned in Para 13 of Mohd. Shaft's case was not adversely commented upon by the Apex Court in para 8 of the report of (1970) 1 SCC 125 in Narendrajit Singh (supra) as in it name of District, Tehsil and Mouza and also the area were clearly mentioned. Thus on facts we cannot accept the submission raised by the respondents' counsel that a similar notification was quashed by the Apex Court in Narendrajit Singh's case. In Narendrajit Singh's case the notification which was quashed under section 4 was quite vague in which names of district, tahsil and mouza were not mentioned, it was quoted in Para-2 of the report.
11. The notification which was quashed by their Lordships in the Mohd. Shaft's case is quoted below:--
"2. The schedule to the notification provided as follows:--Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 19
SCHEDULE Particulars of land District Tahsil City Approximate area in Authorised Officer under Details of Public Hectares section 4(2) Purpose (1) (2) (3) (4) (5) (6) Mand- Mand- Mand- 229 Executive Engineer M.P. Residential saur saur saur Housing Construction Board, Ratlam"
______________________________________________________________________________ The Apex Court has quashed the aforesaid notification in Mohd. Shaft‟s case for the reason mentioned in Paras-11 and 12 quoted below:-s "11. The High Court found that Mandsaur is no more a small village but a municipal wards having a population of more than 80,000 people and is spread over an area of 25 sq. kms. and the absence of the details of the land or the locality where the same is situate, vitiates the notification for non-compliance with the provisions of the Act."
"12. The description of the land in the notification issued under sections 4(1) and 17(1), in our opinion, is very cryptic. Not only no khasra numbers have been given, even the precise "locality" has not been indicated. Mere mention of Mandsaur, which is spread over an area of 25 sq. kms. and is divided into various Municipal wards, against the "locality" is wholly insufficient description and the respondent or anyone else could not have come to know from that description whether 2.298 hectares of land which was required for acquisition included the land belonging to him or not. The non-disclosure of the "locality" with precision invalidates the notification and renders the publication of notice a meaningless formality."
Their Lordships clearly made distinction between small village and a big city district head quarter like Mandsaur divided into 35 wards having Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 20 large population and area of 25 sq. kms. Consequently, the notification was held to be vague. Mandsaur is a district place, divided into 35 municipal wards, even locality was not mentioned. Mere mention of „Mandsaur‟ which was spread over at 25 sq. kms. was held to be insufficient description of locality.
12. The ratio of Narendrajit Singh's case and Mohd. Shaft's case is that in notification under section 4 of the Act locality with precision should be mentioned not identity of the land. Too many details of land are not to be given. In Om Prakash Sharma (supra) also, the decision of Mohd. Shaft's case has been relied upon which is based on Narednrajit Svngh's case. In Om Prakash Sharma's case in Para-5 notification of Mohd. Shaft's case has been quoted which was with respect to Mandsaur, the district place devided into various municipal wards, locality of Mandsaur was not mentioned. Thus we are unable to agree with the submissions raised by the counsel for respondents/owners of land that similar notification was quashed in Mohd. Shaft's case."
18. In the present case also the notification which has been issued under Section 4(1) of the Act, 1894 is in respect of village Tejpur Gadbadi. Therein the area proposed to be acquired of village Tejpur Gadbadi has been stated to be 25.532 hectare. This village is stated to be in Tehsil and District Indore. It is a sufficiently large area of land of the aforesaid village which was proposed to be acquired. The appellants have not produced any material on record to show the total area of the aforesaid village from which it could be ascertained as to what portion of the same was proposed to be acquired. It is also not pleaded by the appellants at any stage of these proceedings that the area of aforesaid village was extremely large hence merely for giving the area of the land to be acquired they could not ascertain as to whether their land is also proposed to be acquired.
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 2119. Another important distinctive feature in the matter is that prior to publication of notification under Section 4(1) on 05.04.2002, a town development scheme was floated and processed by the I.D.A, The initial resolution was passed thereunder on 14.05.1993. Pursuant thereto notification under Section 50(2) of the Adhiniyam, 1973 was published in the official Gazette on 18.06.1993. The Scheme was titled as "Scheme No.134". After publication of notification under Section 50(2) objections and suggestions were invited by publishing notification under Section 50(3) in the Gazette dated 26.05.1995. Pursuant thereto objections were received, considered and decided under Section 50(4) by order dated 22.02.2001. Thereafter, the final scheme was published under Section 50(7) of the Adhiniyam, 1973 on 15.06.2001. It was only thereafter that requisition was made to the Collector to acquire the land.
20. In the finalization of the aforesaid scheme Gazette notifications were made not once but twice. The record also indicates that the appellants being aggrieved by the aforesaid scheme had preferred revision before the State Government hence it is obvious that the appellants were very well aware that a town development scheme is being prepared and finalized which includes their land also and which is going to be compulsorily acquired for the purpose of implementation of the scheme. Pertinently, the notification dated 15.06.2001 made under Section 50(7) of the Adhiniyam, 1973 contained the precise details of the lands which were included in the scheme and which also included the lands of the appellants. Thus, the details and particulars of lands included in the scheme and which were thereafter proposed to be compulsorily acquired were always to the knowledge of the appellants. It hence cannot be contended by them that due to absence of details of the lands in the notification under Section 4(1) Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 22 they have been prejudiced in any manner. Their contention as regards the notification under Section 4(1) being vague is hence not liable to be accepted and is accordingly rejected.
21. The next crucial question for consideration is as to whether invocation of urgency Clause under Section 17 of the Act, 1894 and dispensing with the inquiry contemplated under Section 5-A thereof is justified and sustainable in the available facts of the case.
22. The principles as regards invocation of emergency Clause under Section 17 (1) of the Act, 1894 have been culled out by the Hon'ble Apex Court in the case of Radhy Shyam (dead) through LRs and Others {2011(5) SCC 553} (supra) in the following terms :-
"77. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out:
(iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard.
Only in a case of real urgency, can the State invoke the urgency provisions and dispense with the requirement of hearing the landowner or other interested persons.
(v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of Section 5-A, the authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5- A will, in all probability, frustrate the public purpose for which land is proposed to be acquired.
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 23(vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the authorities concerned did not apply their mind to the relevant factors and the records.
(vii) The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word "may" in sub-section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub-section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1).
(viii) The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Sections 17(1) and/or 17(4). The court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years. Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Sections 5-A(1) and (2) is not at all warranted in such matters.
(ix) If land is acquired for the benefit of private persons, the court should view the invoking of Sections 17(1) and/or 17(4) with suspicion and carefully scrutinise the relevant record before adjudicating upon the legality of such acquisition."
23. The aforesaid principles have been reiterated by the Apex Court on a number of occasions including in the case of Darshanlal Nagpal (supra) and Devsharan and Others (supra).
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 2424. In the light of the aforesaid principles, the facts of the present case may be seen. The proceedings which eventually culminated in the publication of notifications under Section 4(1) along with 17(1) and 6(1) of the Act, 1894 commenced by passing of resolution dated 14.05.1993 of IDA proposing to prepare a town development scheme over the lands including that of the appellants. Notification under Section 50(2) was published on 18.06.1993. Objections were thereafter received pursuant to the notification under Section 50(3) of the Adhiniyam, 1973 published in the Gazette dated 26.05.1995. They were decided under Section 50(4) by order dated 22.02.2001. Eventually the final scheme was published under Section 50 (7) in the official Gazette dated 15.06.2001. Upon publication of notification under Section 50(2) in the Gazette on 18.06.1993 the notification under Section 50(3) inviting objections was published in the Gazette after nearly one year and eleven months. The objections took a period of five years and eight months to be decided and even thereafter it took a further period of four months for the publication of the final scheme.
25. In the returns which have been filed by the IDA in both the petitions there is not a whisper as to why such an enormous period of time was taken at each and every step of the proceedings which started with the initial resolution on 14.05.1993 up to the time when requisition was sent to the Collector, Indore for compulsorily acquiring the land on 10.06.1988. The said period is noticeably eight years. The manner in which the proceedings were conducted by the IDA itself shows that there was no urgency leave aside real urgency in the matter because if had the same been so then between each step taken by the IDA such inordinate period of Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 25 time would not have been consumed. After completion of one step there was no legal impediment for the next step to be taken and if there had been any real urgency in the matter the same would have certainly been taken promptly even if not immediately.
26. This is not all. After the requisition having been sent to the Collector, Indore for initiating the process of compulsory acquisition of the lands, the notification under Section 4(1) of the Act, 1894 was published in the official Gazette on 05.04.2002 i.e. after a period of almost ten months from finalization of the scheme. There is no explanation offered by either of the respondents for this period consumed from the date of finalization of the scheme and publication of notification under Section 4(1) along with Section 17(1) dispensing with the provisions of Section 5- A to deprive the land owners/appellants of opportunity of personal hearing. The lethargic attitude of the respondents did not end even with publication of notifications under Section 4(1) and 17 (1). Though valuable rights of the appellants of being afforded opportunity of hearing in terms of Section 5-A had been done away with, instead of proceeding with the matter expeditiously, the respondents took their own sweet time and eventually published the notification under Section 6(1) of the Act, 1894 on 03.05.2002. There was thus a gap of nearly a month between publication of notifications under Section 4(1) and 17(1) and under Section 6(1) of the Act, 1894 which in itself is sufficient to conclude that there was absolutely no real and existing emergency in the matter for respondents to invoke the provisions of Section 17(1) and dispense with the inquiry contemplated under Section 5-A. The invocation of the urgency clause is justifiable only if there exists real emergency which Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 26 cannot brook delay of even few days or months and if there would be even a small delay of few weeks or months it may frustrate the public purpose for which the land is sought to be acquired. That is however not the factual position in the present case. Since the IDA had already taken a period of almost eight years for finalizing the scheme and sending the proposal to the Collector for compulsory acquisition of the land, we do not see any valid reason for the State Government not to have extended the valuable right to the appellants to be heard in terms of Section 5-A of the Act, 1894.
27. In our aforesaid view we are fortified by the decision of the Apex Court in Prabhavati and Others V/s. State of Bihar and Others (2014) 13 SCC 721 in which a delay of 7 years had been taken into consideration which is akin to the delay in the present matter. It was held as under :-
"11. If factual matrix of this case is considered in the light of the principles laid down in the aforesaid judgments, it becomes crystal clear that the State Government had no valid reason to invoke the urgency provision contained in the Act. The time gap of almost seven years between the first requisition sent by the Superintendent of Police, Bagaha and the issue of notification under Section 4(1) of the Act leaves no room for doubt that there was no urgency at all to acquire the land for construction of police lines. If the functionaries of the Police Department and other authorities of the State thought that the construction of police lines should be undertaken on emergency basis, they would not have spent 7 years for reaching the stage of issuing preliminary notification under Section 4. Be that as it may, it is impossible to discern any rational reason for invoking the urgency provisions and dispensing with the application of Section 5-A of the Act."
28. It has been repeatedly held by the Apex Court that right of an owner/person interested under Section 5-A is not an empty formality and Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 27 the State Government has to apply its mind before invoking its power of urgency and dispensation of inquiry under Section 5-A and arrive at a conclusion that compliance with the mandate Section 5-A may lead to loss of precious time which may defeat the purpose for which the land is sought to be acquired. In this regard it would be profitable to refer to the decision of the Apex Court in Laxmanlal (dead) and Others V/s. State of Rajasthan and Others (2013) 3 SCC 764 in which it has been laid down as under :-
"22. In light of the above legal position which is equally applicable to Sections 17(1) and (4) of the 1953 Act, we may turn to the fact situation of the present matter:
22.1. The Section 4(5) notice under the 1953 Act was issued by the State Government in 1980. For almost seven years, no steps were taken in taking the acquisition proceedings pursuant to the Section 4(5) notice to the logical conclusion. Even inquiry under Section 5-A was not commenced, much less completed.
22.2. Abruptly on 19-3-1987, without following the procedure contemplated in Section 5-A, the declaration under Section 6 was made and in that Notification the State Government stated that it has invoked its power of urgency under Section 17(1) and dispensed with inquiry under Section 5-A in exercise of its power under Section 17(4).
22.3. Can it be said that an inquiry under Section 5-A could not have been completed in all these years? We think that it could have been done easily and conveniently in few months leave aside few years. There were not large number of owners or persons interested in respect of the subject land.
22.4. Section 5-A, which gives a very limited right to an owner/person interested, is not an empty formality. The substantial right under Section 5-A is the only right given to an owner/person interested to object to the acquisition proceedings. Such right ought not to be taken away by the State Government sans real urgency. The strong arm of the Government is not meant to be used nor should it be used against a citizen in appropriating the property against his consent without giving him right to file Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 28 objections as incorporated under Section 5-A on any ostensible ground. The dispensation of enquiry under Section 17(4) has to be founded on considerations germane to the purpose and not in a routine manner. Unless the circumstances warrant immediate possession, there cannot be any justification in dispensing with an enquiry under Section 5-A. As has been stated by this Court in Anand Singh [(2010) 11 SCC 242 : (2010) 4 SCC (Civ) 423] , elimination of enquiry under Section 5-A must only be in deserving and in the cases of real urgency. Being an exceptional power, the Government must be circumspect in exercising power of urgency.
26. The explanation by the State Government unsupported by any material indicates that the State Government feels that power conferred on it under Sections 17(1) and (4) is unbridled and uncontrolled. The State Government seems to have some misconception that in the absence of any time-limit prescribed in Sections 17(1) and (4) for exercise of such power after issuance of notice under Section 4 of the 1953 Act, it can invoke the power of urgency whenever it wants. We are afraid the whole understanding of Section 17 by the State Government is fallacious. This Court has time and again said with regard to Section 17(1) read with Section 17(4) of the 1894 Act that the provisions contained therein confer extraordinary power upon the State to appropriate the private property without complying with the mandate of Section 5-
A and, therefore, these provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. This principle equally applies to the exercise of power under Sections 17(1) and (4) of the 1953 Act. The State Government, therefore, has to apply its mind before it invokes its power of urgency and dispensation of inquiry under Section 5-A that the compliance with the mandate of Section 5-A may lead to loss of precious time which may defeat the purpose for which land is sought to be acquired. Any construction of building (institutional, industrial, residential, commercial, etc.) takes some time and, therefore, acquisition of land for such purpose can always brook delay of few months. Ordinarily, invocation of power of urgency by the State Government for such acquisition may not be legally sustainable."
29. In Dev Sharan and Others (supra) it has been held that the time lapse between publication of notifications showing slow pace itself shows that there was no urgency. It was held as under:
Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 29"37. Thus the time which elapsed between publication of Section 4(1) and Section 17 notifications, and Section 6 declaration in the local newspapers is 11 months and 23 days i.e. almost one year. This slow pace at which the government machinery had functioned in processing the acquisition, clearly evinces that there was no urgency for acquiring the land so as to warrant invoking Section 17(4) of the Act."
30. In Anand Singh and another vs. State of U.P. and others (2010)11 SCC 242, it was held that generally development of an area for residential purposes or planned development of city takes many years therefore there is no reason why summary enquiry as contemplated under Section 5-A may not be held. The same is the situation in the present case where acquisition is being made for development of a residential colony and commercial area. It was held by the Supreme Court in Anand Singh (supra) as under :
"40. "Eminent domain" is the right or power of a sovereign State to appropriate the private property within the territorial sovereignty to public uses or purposes. It is exercise of strong arm of the Government to take property for public uses without the owner's consent. It requires no constitutional recognition; it is an attribute of sovereignty and essential to the sovereign government. [Words and Phrases, Permanent Edn., Vol. 14, 1952 (West Publishing Co.).]
50. Use of the power by the Government under Section 17 for "planned development of the city" or "the development of residential area" or for "housing" must not be as a rule but by way of an exception. Such exceptional situation may be for the public purpose viz. rehabilitation of natural calamity affected persons; rehabilitation of persons uprooted due to commissioning of dam or housing for lower strata of the society urgently; rehabilitation of persons affected by time-bound projects, etc. The list is only illustrative and not exhaustive. In any case, sans real urgency and need for immediate possession of the land for carrying out the stated purpose, heavy onus lies on the Government to justify the exercise of such power."Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 30
31. In the present case also it is apparent that after receiving the requisition from IDA for compulsory acquisition of the land which requisition itself took nearly eight years for being made from the date of commencement of the formation of the scheme, the State Government straight away without any application of mind published the notification under Section 4(1) and Section 17(1) (4) and dispensed with the right of the appellants conferred under Section 5-A. The respondents have not even tried to justify at any place in any of the returns filed by them in all the cases as to what was the real emergency for which the urgency clause was invoked. They have nowhere pleaded that the matter was such which could not have waited for a few days or a few months and if the same had been done, the very purpose of acquisition of the land would have stood frustrated. The non-application of mind on part of the State Government is further affirmed by the fact that despite publication of notification under Section 4(1) and 17(1) it took nearly a month for it to publish the notification under Section 6(1). Had there been any real emergency, the same would have followed the notification under Section 4(1) in a few days or a few weeks. The fact that the same was made after a period of nearly a month belies the stand of the respondents of existence of any real emergency in the matter.
32. The findings of the learned Single Judge that since the appellants had been afforded the right to file objections at the time of preparation of the scheme under the Adhiniyam, 1973 they have not been prejudiced by not affording such an opportunity to file objections under Section 5-A of the Act 1894 cannot be sustained. The Adhiniyam, 1973 and the Act, 1894 operate in separate spheres. The objection which is Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 31 invited under Section 50(3) of the Adhiniyam, 1973 is in respect of preparation of a Town Development Scheme the process of which takes a considerable period of time. There is also a provision under Section 54 of the Adhiniyam, 1973 that if the Town Development Scheme is not implemented within stipulated period stated therein which can extended up to five years, the scheme shall lapse.
33. Thus the considerations which are there at the time of preparation of a Town Development Scheme and those which are there at the time of acquisition of land for the purpose of implementation of the scheme are entirely different. The preparation and finalization of the scheme is merely a preliminary step and despite rejection of objections made by a land owner thereunder, there is always a possibility of such land despite such objections being not included in the scheme. A land owner has a reasonable belief of his land not being included in the eventual Town Development Scheme. However, under the Act, 1984 when process of acquisition is started, objections are invited which process contemplates hearing of the objections by giving opportunity of being heard in person to the objector. However, no such opportunity of personal hearing in contemplated under Section 50(4) of the Adhiniyam, 1973 which only provides for opportunity to be heard and does not specify personal hearing. Section 5-A(2) of the Act 1894 also permits further enquiry by the Collector on the objections of the land owner which provision is absent under Section 50(4) of the Adhiniyam, 1973. Moreover, the report which is prepared by the Collector under Section 5-A (2) is sent to the appropriate Government containing his recommendations on the Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 32 objections for the decision of that Government. Such a provision is also absent under Section 50(4) of the Adhiniyam, 1973.
34. It is evident that the provisions contained under the Adhiniyam, 1973 and under the Act, 1894 as regards making and consideration of the objections are entirely distinct and cannot be equated with each other. The right which has been provided to a land owner under Section 5-A of the Act, 1894 is a valuable right which cannot be denied to him only on the ground that at any earlier point of time while preparation of the Town Development Scheme, he was afforded opportunity of hearing. The right being a statutory right cannot be defeated by merely observing that by not extending the same to the land owner, no prejudice has been caused to him. On the contrary, until and unless the objections are heard and decided, the question as to whether similar objections had earlier been considered and rejected and the objections being currently made are the same cannot be decided. The issue of prejudice hence does not arise at all.
35. Thus, in the factual position as is available on record we have no hesitation in holding that the invocation of emergency clause by the State Government under Section 17(1) of the Act, 1894 was without any application of mind, unreasonable, arbitrary and wholly unjustified which has resulted in deprivation of the valuable rights of the appellants available to them under Section 5-A of the Act, 1894.
36. The appellants have also challenged the Scheme finalized by the IDA on the ground of violation and non-fulfillment of the mandatory provisions of Adhiniyam, 1973. It is their contention that the Scheme has lapsed and in any case the provisions which were required to be followed Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 33 strictly were not followed even at the time of finalization of the Scheme which is hence vitiated.
37. In this regard the relevant provisions of the Adhiniyam, 1973 may be noticed. They are as under :-
"50. Preparation of Town Development Schemes. - (1) The Town and Country Development Authority may, at any time, declare its intention to prepare a town development scheme.
(2) Not later than thirty days from the date of such declaration of intention to make a scheme, the Town and Country Development Authority shall publish the declaration in the Gazette and in such other manner as may be prescribed.
(3) Not later than two years from the date of publication of the declaration under sub-section (2) the Town and Country Development Authority shall prepare a town development scheme in draft form and publish it in such form and manner as may be prescribed together with a notice inviting objections and suggestions from any person with respect to the said draft development scheme before such date as may be specified therein, such date being not earlier than thirty days from the date of publication of such notice.
(4) The Town and Country Development Authority shall consider all the objections and suggestions as may be received within the period specified in the notice under sub-section (3) and shall, after giving a reasonable opportunity to such persons affected thereby as are desirous of being heard, or after considering the report of the committee constituted under sub-section (5) approve the draft scheme as published or make such modifications therein as it may deed fit:
[Provided that the final publication of such draft scheme shall be notified after the layout proposed therein has been approved by the Director. Such final publication shall be notified not later than one year from the date of publication of the draft scheme failing which the draft scheme shall be deemed to have lapsed.]
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(7) Immediately after the town development scheme is approved under sub-section (4) with or without modifications the Town and Country Development Authority shall publish in the Gazette and in such other manner as may be prescribed a final town development scheme and specify the date on which it shall come into operation.
54. Lapse of scheme. - If the Town and Country Development Authority fails to commence implementation of the town development scheme Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 34 within a period of two years or complete its implementation within a period of five years from the date of notification of the final scheme under Section 50, it shall, on expiration of the said period of two years or five years, as the case may be, lapse :
Provided that, if a dispute between the authority and parties, if any, aggrieved by such scheme, is brought before a Court or Tribunal of competent jurisdiction, for consideration, the period for which such dispute pending before such Court or Tribunal shall not be reckoned for determination of the lapse of the scheme.]
56. Acquisition of land for Town and Country Development Authority. - The Town and Country Development Authority may at any time after the date of publication of the final town development scheme under Section 50 but not later than three years therefrom, proceed to acquire by agreement the land required for the implementation of the scheme and, on its failure so to acquire, the State Government may, at the request of the Town and Country Development Authority, proceed to acquire such land under the provisions of the Land Acquisition Act, 1894 (No. 1 of 1894) and on the payment of compensation awarded under that Act and any other charges incurred by the State Government in connection with the acquisition, the land shall vest in the Town and Country Development Authority subject to such terms and conditions as may be prescribed :
Provided that the said agreement may contain such conditions and executed in such manner as may be prescribed]:
Provided further that any proceedings undertaken at any point of time for compulsory acquisition of land or any award passed in any land acquisition proceeding undertaken as per the provisions of this Section, it shall be deemed to be proceedings undertaken under this Act or award passed under this Act.]
82. Vacancy not to invalidate proceedings. - No act of a Town and Country Development Authority or a Special Area Development Authority or any of its committed shall be invalid merely by reason of,-
(a) any vacancy in, or defect in the Constitution thereof; or
(b) any defect in the appointment of a person acting as a Chairman or member thereof; or
(c) any irregularity in the procedure thereof not affecting the merits of the case."
38. The aforesaid provisions were the subject matter of consideration before a Division Bench of this Court in Sanjai Gandhi Grih Nirman Sanstha Maryadit V/s. State of M.P. & Others AIR 1991 M.P. 72 wherein it was held that if during declaration of Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 35 intention or preparation of the Scheme and final publication of the draft Scheme there is some delay which has caused prejudice to someone so as to deprive his valuable right which might have accrued to him during this period, then it would be a case where prejudice can be said to have been caused because of the delay in publication. It was held as under :-
"19. In the instant case the scheme is for the preparation of a ring road and developing different facilities and civic conveniences around the ring road. A scheme for a much larger construction and development may be prepared which may even take ten years to complete. If we interpret the word „implementation‟ in its narrow sense, a big scheme can never be taken in hand by any development authority because it may not be possible to complete that scheme within 3 years. Therefore, that only reasonable interpretation in view of the different provisions of the Adhiniyam, can be that if the development authority takes steps towards the implementation of the scheme and does not sit just idle for a period of three years, then the scheme shall not lapse, but if after the publication of the scheme nothing is done on the part of the authority, towards the implementation of the scheme then that scheme shall lapse.
20. A Division Bench of this Court in the case of Laxmichand v. The Indore Development Authority, Indore (M.P. No. 390 of 1980 decided on 14-12-81) in which a similar argument was advanced that after the expiry of three years if the scheme is not implemented it lapsed, has held that S. 54 does not appear to apply when substanital steps have been taken within three years to implement the scheme. The Court had also taken into consideration Ss. 56, 57 and 58 of the Adhiniyam and has taken a view that the words „fails to implement‟ would mean failure to take any substantial steps for the implementation of the scheme and if no such step is taken within three years the scheme will lapse. If substantial steps have been taken within three years though the scheme is not fully implemented within that period the scheme would not lapse and proceedings for acquisition of land under the scheme is a substantial step towards its implementation. We are in respectful agreement with the aforesaid view taken by a Division Bench of this Court and hold that the word „implement‟ occurring in S. 54 of the Adhiniyam cannot be construed to mean that even if a substantial step has Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 36 been taken by the authority towards the implementation of the scheme then also the scheme shall lapse after the expiry of three years because of its non-completion within that period.
36A. ..................
As regards the publication of the draft scheme Section 50(3) of the Adhiniyam reads as under:--
"(3) Not later than two years from the date of publication of the declaration under Sub-section (2) The Town and Country Development Authority shall prepare a town development scheme in draft form and publish it in such form and manner as may be prescribed together with a notice inviting objections and suggestions from any person with respect to the said draft development scheme before such date as may be specified therein, such date being not earlier than thirty days from the date of publication of such notice."
Rule 18(2) of the M.P. Nagar Tatha Gram Nivesh Niyam, 1975 (hereinafter called the Niyam) reads as under:--
"Not later than two years from the date of publication of the declaration in the form of the notice referred to in Sub-rule (1) the Town and Country Development Authority shall publish a public notice under Sub-section (3) of Section 50 in Form XIV in the "Madhya Pradesh Rajpatra" and in one or more local Hindi newspapers to give due publicity intimating that the draft town development scheme has been prepared and is avilable for inspection in the office of the Town and Country Development Authority and regional office of Town and Country Planning Department concerned during office hours inviting objections and suggestions with respect to the said draft within a period of thirty days from the date of publication of such notice."
Section 82(c) of the Adhiniyam reads as under;
"82 No act of a town and Country Development Authority or special Area Authority or any of its committee shall be invalid merely be reason of--
(a).. .. .. (b).. .. ..
(c) any irregularity in the procedure thereof not affecting the merits of the case."
As such from reading the provisions of the Karnataka Act and the M. P. Adhiniyam with Niyam it is manifest that what has been contemplated under Section 50(3) is the publication of the draft scheme for the purpose of inviting objections to the Scheme and Rule 18(2) of the Rules provides for the mode of publication, the purpose being giving a notice to the public that the draft development plan has been prepared and the scheme is Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 37 available for inspection at the office of the Town and Counrty Planning Department during office hours inviting objections and suggestions with respect to the said draft within a period of 30 days from the date of publication of such notice. As such the intention of the Legislature behind publication under Section 50(3) is the same as has been provided under Section 13(4) of the Karnataka Act. Now if during the declaration of intention or the preparation of the scheme and the final publication of the draft scheme if there is some delay which has caused prejudice to someone so as to deprive him of a valuable right which might have accrued to him during this period and that right has been refused to him because of the delay in publication, then it would be a case wherein it would be said that a prejudice has been caused to a person because of the delay in the publication. But in the instant case nothing has been brought to our notice to indicate that any person has been prejudiced because of the delay in the publication of the draft scheme. Therefore, in view of the Supreme Court judgment in the case of B.K. Srinivasan v. State of Karnataka (supra) a scheme cannot be held to be vitiated because of this defect. The provision in the Karnataka Act contained in Section 75-J is identical to that contained in Section 82(c) of the Adhiniyam and the provision of Section 82(c) saves the irregularity in the publication of the notice of the draft scheme because the irregularity does not affect the merits of the case."
39. The aforesaid judgment has been approved by the Apex Court in Indore Development Authority Vs. Burhani Grih Nirman Sahakari Sanstha Maryadit Sneh Nagar and others 2023 SCC Online SC 232.
40. In the present case also, it has not been shown that any prejudice has been caused to any of the appellants on account of the delay in finalization of the Scheme. There is no pleading by the appellants in that regard. The steps which were contemplated under the Adhiniyam, 1973 particularly Section 50 thereof have been taken and if there has been some delay in making of the publication under various sub Sections of Section 50 it has not prejudiced the appellants in any manner. It is not the case of any of the appellants that for the time limit as specified in Section 50 of Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 38 the Adhiniyam, 1973 not having been adhered to the IDA they have lost any of their valuable right or that they have acquired certain rights during pendency of proceedings of the Scheme which are being taken away by its finalization.
41. After the final Scheme was published on 15.06.2001, steps were taken by the IDA for compulsory acquisition of the lands covered thereunder. i.e. for implementation of the Scheme within the prescribed period of two years as provided for in Section 54 by sending a request to the Collector, Indore for compulsory acquisition of the lands. In such implementation the notifications under Section 4(1), 17(1) and 6(1) of the Act, 1894 were issued. However, the same were challenged by the appellants by preferring instant petitions before this Court in which interim order was passed in their favour. It is on account of such interim orders that implementation of the Scheme could not be completed in which no fault can be attributed to the respondents Non-completion of implementation of Scheme within the period of five years cannot be faulted with and it cannot be accepted that the Scheme has lapsed by virtue of Section 54 of the Adhiniyam since as per Section 56, the IDA has proceeded to acquire the land covered under the Scheme under the provisions of Act, 1894 within the outer limit of three years as provided therein. It thus took effective steps for implementation of the Scheme. There has hence not been any violation of the provisions of Adhiniyam, 1973 and the contention of the learned counsel for the appellants that the Scheme has lapsed hence cannot be accepted.
42. Thus, in view of the aforesaid discussion, since we have held that there has been gross illegality and irregularity in the matter of Signature Not Verified Signed by: JYOTI CHOURASIA Signing time: 11-03-2024 15:44:59 39 invocation of the urgency clause under Section 17(1) of the Act, 1894 dispensing with the enquiry contemplated under Section 5-A which has deprived the appellants of their fundamental right of hearing in the matter, the appeals deserve to be and are accordingly allowed. The notification under Section 4(1) & 6(1) of the Act, 1894 and the consequent award only in so far as the same relates to the present appellants are hereby quashed.
The appeals are accordingly allowed and disposed off.
(S. A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
jyoti
Signature Not Verified
Signed by: JYOTI
CHOURASIA
Signing time: 11-03-2024
15:44:59