Delhi High Court
Praveen Jain And Ors., B.R. Arora And ... vs Union Of India (Uoi) And Ors. on 31 May, 2002
Equivalent citations: 99(2002)DLT646, 2002 A I H C 4284, (2002) 64 DRJ 772 (2002) 99 DLT 646, (2002) 99 DLT 646
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. These writ petitions involving similar questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.
FACTS
2. The petitioners in these matters, inter alia, have questioned a Notification dated 30th July 1998 issued by the respondents herein purported to be in terms of Sections 4 and 17 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Acquisition Act') as also the Declaration and Notification dated 4th August 1998 issued under Sections 6 and 7 thereof. The said Notifications read as under:
No. F.11(24)/98/L&B/LA/6345 Dated: 30.07.1998 NOTIFICATION
Whereas it appears to the Ltd. Governor, Delhi that land is likely to be required to be taken by the Government at the public expense for a public purpose namely for Rehabilitation of JJ Clusters. It is hereby notified that the land in the locality described below is likely to be acquired for the above purpose.
The notification is made, under the provisions of Section 4 of the Land Acquisition Act, 1894, to all whom it may concern.
In exercise of the powers conferred by the aforesaid section, the Ltd. Governor, Delhi is pleased to authorise the officers for the time being engaged in the undertaking with their servants and workmen to enter upon and survey the land in the locality and do all other acts required or permitted by that section.
The Ltd. Governor is satisfied also that provisions of Sub-section (i) of the Section 17 of the said Act are applicable to this land and is further pleased under Sub-section (4) of the said section to direct that all the provisions of Section 5(A) shall not apply.
SPECIFICATION Village: Bhalsawa Jhangirpur Total Area (Bigha-Biswa) 929-15.
***** No. F.11(24)/98/L&B/LA/6711 Dated: 04.08.1998 NOTIFICATION Whereas the Lt. Governor, Delhi is satisfied that land is required for a public purpose, namely for Rehabilitation of JJ Clusters. It is hereby notified that the land described in the specification below is required for the above purpose.
This declaration is made under the provisions of Section 6, the Land Acquisition Act, 1894, to all whom it may concern and under the provisions of Section 7, of the said Act. The Collector of Delhi is hereby directed to take order for the acquisition of the said land.
A plan of the land may be inspected at the office of the Collector of Delhi.
SPECIFICATION Village: Bhalswa, Jhangirpur Total Area (Bigha-Biswa) 929-15"
3. By reason of the afore-mentioned Notifications, about 200 acres of land situated in Village Bhalaswa, Jahangirpur are sought to be acquired and possession thereof is sought to be taken over by resorting to the urgency provision contained in Section 17 of the Acquisition Act for alleged public purpose i.e. for rehabilitation of J.J. Clusters.
4. The petitioners are owners of their respective lands details whereof have been stated in their respective writ petitions.
5. it is not in dispute that in terms of Delhi Development Act, 1957 (hereinafter referred to as 'DDA Act') master plan of Delhi 1962 was prepared by the Central Government, which came into force on 1st September 1962. The plan was originally to remain valid for a period of 20 years, wherein the lands in question had been shown as Agricultural Green Belt. The master plan of Delhi 2001 indicates four tier system of planning and balanced development of the region with a view to promote orderly growth.
6. In terms of the said master plan recommendations for development of the Delhi Metropolitan Area had been made covering an area of 2073 Sq. Kms. Seven self contained towns were contemplated to be set up having residential facilities and also having strong economic, social and cultural ties with the core city. The Parliament also enacted the National Capital Region Planning Board Act 1985 with the following objective:
"To provide for the constitution of a Planning Board for the preparation of a plan for the development of the National Capital Region and for co-ordinating and monitoring the implementation of such plan and for evolving harmonised policies for the control of land uses and development of infrastructure in the National Capital Region so as to avoid any haphazard development of that region and for matters connected therewith or incidental thereto."
7. A statutory regional plan 2001 had also been prepared by the National Capital Region Planning Board. The important guide-lines, whereof are: (i) a balanced and harmonized developed region leading to dispersal of economic activities; and (ii) population.
The said document outlined the following strategies:-
(1) Projects for the acquisition and development of land for the proposed new townships in accordance with prescribed Master Plans. This includes provision of concomitant physical and social infrastructure in an integrated manner by way of support for the core economic activities in the new townships.
(2) Projects for development of core economic activities in each of these new townships e.g. a wholesale market at Kundli, a wholesale market as well as an industrial complex in Hapur, Central Government Office complexes in Alwar.
(3) Concomitant schemes for shifting industries and other informal sector activities as well as informal sector housing (squatter settlements) from Delhi Union Territory to the new townships.
RIVAL CONTENTIONS:
8. The contentions of the petitioner as urged by Mr. Ravinder Sethi, learned Senior Counsel appearing on behalf of the petitioners are that:
(i) As for planned development, acquisition of land is only to be made by the Delhi Development Authority (in short 'DDA') in terms of the provisions of the DDA Act, the purported notification must be held to be bad in law.
(ii) The Lt. Governor did not apply his mind on the materials for invoking the urgency Clause as contained in Section 17(1) of the Acquisition Act.
(iii) In any event, no material is available on records to show that there existed a situation warranting action under Section 17(4) of the Acquisition Act and thus the impugned order must be held to be illegal as the same suffers from vice of total non-application of mind.
(iv) As Section 5-A of the Acquisition Act provides for a valuable statutory safeguard tot he owners of the land to file objections, such a right should not be taken away without cogent and valid reason, particularly in view of the fact that by reason of various orders of this Court, rehabilitation of jhuggy-jhopris had been prohibited.
(v) The impugned acquisition is mala fide in law.
In support of the said contentions strong reliance has been placed upon S.K. Gupta v. The Union of India and Ors. ; Mukesh Hans etc. v. Union of India and ors. reported in 2002 1 AD (Delhi) 422; Deepak Bhardwaj and Ors. v. Union of India and Ors. reported in 2001 VI AD (Delhi) 597; State of Punjab and Anr. v. Gurdial Singh and Ors. ; Deepak Bhardwaj and Ors. v. Union of India and Ors. reported in 92 (2001) DLT 891 (DB); Nandeshwar Prasad and Ors. v. U.P. Government and Ors. etc. ; Raja Anand Brahma Shah v. The State of Uttar Pradesh and ors.; Om Prakash and Anr. v. State of U.P. and Ors. .
(vi) In any event, as the master plan and zonal development plan prepared by the DDA under the provisions of the DDA Act as also in terms of National Capital Region Planning Board Act, 1985 (in short the 'Capital Region Act') could not have been deviated from the impugned notification is liable to be set aside.
Reliance, in this connection, has been placed on M.C. Mehta v. Union of India and Ors. and Ghaziabad Development Authority v. Delhi Auto & General Finance Pvt. Ltd. & Ors. .
9. Ms. Geeta Luthra, learned counsel appearing on behalf of the respondents, on the other hand, would contend:
(i) setting up a rehabilitation programme for settling J.J. Clusters is a public purpose;
(ii) there is no bar to acquire the land within the National Capital Territory of Delhi (in short 'NCT of Delhi') for settling the J.J. Cluster;
(iii) the acquiring authorities are free to choose the location;
(iv) this Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot interfere with the executive policy of the state.
(v) As the State is duty bound to remove encroachments of Government lands for which the rehabilitation programme for the encroacher had to be carried out and, keeping in view the fact that such rehabilitation programme was to be taken recourse to on an urgent basis, the urgency Clause contained in Section 17 of the Act could be invoked.
(vi) For a valid acquisition there must be a requisition and it is not necessary that such requisition should only emanate from DDA. It was pointed out that a requisition had been made by the Slum and JJ Department, Municipal Corporation of Delhi, which in turn had been requisitioned by 22 agencies.
(vii) Rehabilitation programme was required to be undertaken by removing the Jhuggy-jhopris and other encroachments, having regard to sanitation, environment, public health, etc.
(viii) A project of housing for dalit and poor and non-citizens had always been found to be urgent and thus urgency Clause invoked by the Lt. Governor cannot be said to be unjust. Reliance in this connection had bene placed on Chameli Singh and Ors. etc. v. State of U.P. and Anr.; Meerut Development Authority etc. v. Satbir Singh and Ors. ; Rajasthan Housing Board and Ors. v Shri Kishan and ors. ; Balmokand Khatri Educational and Industrial Trust, Amritsar v. State of Punjab and Ors. . Relying on a decision of the Apex Court in Jai Narain and Ors.etc. etc. v. Union of India and Ors. , learned counsel would contend that even the Court, having regard to the facts and circumstances of this case, may take judicial notice of the requirements of invoking the urgency Clause.
10. As regards the contention of Mr. Sethi to the effect that the lands in question are agricultural in nature learned counsel would contend that the same could not have been per se a ground for setting aside an acquisition proceedings inasmuch as development in terms of the master plan has nothing to do with acquisition. Learned counsel would contend that the State upon acquisition of such lands would be free to take recourse to the provisions of the DDA Act for the purpose of change in user of the land sin question in terms of the provisions of the Acquisition Act.
11. Satisfaction of the Lt. Governor, Ms. Luthra would urge is based on records and once it is found that there was some materials on record the Court will not substitute its view. The proceedings under the provisions of Section 5A of the Acquisition Act, as is not likely to be finished within a period of 30 days, invocation of urgency Clause cannot be said to be wholly illegal and without jurisdiction. In support of the said contention reliance has been placed on Jai Narain (supra).
FINDINGS:
12. The respondents have produced before us the records of the case. From the said records it appears that one Manjit Singh, Additional Commissioner (Slum and JJ) initiated the process of acquisition by sending a letter dated 20th July 1998, which was received in the office of the respondents on 24th July 1998. In the said requisition a request was made to acquire about 200 acres of land for establishment of J.J. Transit Camps on the right side of the outer Ring Road in the Bhalaswa Village by the side of the existing settlement, popularly known as Bhalaswa Dairy. The said proposal was approved by the Chief Minister in a meeting. It had been noticed that the proposal had not come through DDA which was necessary in terms of the order of the Lands & Building Department dated 14th July 1987. A draft notification had also been received from the office of the SDM/LAC (Model Town) by a letter of the same date Along with AKS Sizra and Field Book. It was further noticed that joint survey report had not been furnished Along with the draft notification.
13. The said draft notification was sent for checking to Tehsildar (L&B), where after the matter was placed before the office of DS (LA) on the same date asking Tehsildar to check the draft notification and report. One Mr. T. Singh compared the draft notification of Village Bhalaswa Jahangir Pur received from LAC (Narela) with L.R. Register and field book and allegedly found the same to be in order. The matter thereafter was placed before the Tehsildar (L&B). OS(LA) was asked to type out the fair draft notification under Sections 4, 6 and 17(1) of the Act and essential certification for the approval of Lt. Governor, Delhi; whereupon a fair typed notification under Sections 4, 6 and 17(1) of the Acquisition was added.
A note was prepared by OS/LA, which is to the following effect:
"This is regarding the proposal of acquisition of land for the establishment of JJ Transit Camps. The Slum and JJ Department, Municipal Corporation of Delhi, Copy of the minutes No. PS(S&JJ)/98/Addl.Commr/D-487, dated 20.2.98 which is issued by Sh. Manjit Singh, Additional Commissioner (S&JJ) is placed at page 1-3/C. The SDM/LAC (Model Town), Delhi has been sent the draft notification of under Section 4 & 6 of the LA Act evoked the urgency clause under Section 17(1) of the Act vide his letter SDM/MT/LA/98/2900, dated 24.7.98 (page 41/C). But it is worthwhile to mention here that this proposals has not come through DDA. Second, the SDM/LAC has not furnished the joint-Survey Report along with the draft notification and third he has indicated the 80% compensation amount in his forwarding letter at 40/C. However, the fair draft notification are placed opposite of under Section 4, 6 & 17(1) of the L.A. Act. The essential certificate is also placed opposite for the kind approval of Hon'ble Lt. Governor of Delhi. Hence, if approved, we may send this to N.T./The.(L&B) for checking of this notification before submitted the file to Higher Authorities.
Submitted please."
Thereupon the matter was again placed before an Officer who compared/checked the draft notification with the draft notification furnished by LAC/(Narela) and found the same in order.
The matter was again placed before DS(LA) who noted:
"The proposal has been received form Addl. Commissioner (S&JJ), Slum & JJ Department, MCD, Delhi vide his note No. PS(S&JJ)/98/Addl. Commissioner/D-487 dated 20.7.98 for acquisition of about 200 acres of land in North Delhi i.e. in the Village Bhalsawa Jhangirpur for the establishment of JJ Transit Camp/EWS beneficiary for about 15000 families and the proposal is stated to have been approved by the Hon'ble Chief Minister of Delhi in the meeting (at page 3/C). The proposal has not come through DDA in terms of order dated 14th July 1987 issued by this Department (at page 4/c).
The draft notification under Section 4, 6 & L.A. 17(1) of the Act for acquisition of 929-15 Bigha of land in village Bhalsawa Jhangirpur has been received along with the copies of related revenue record vide SDM/LAC (Model Town) letter No. SDM/MT/LA/98/2900 dated 24.7.98 (at page 41/C). The copy of the Joint Survey Report has not been received with the draft notification sent by the SDM/LAC (Model Town). The 80% estimated compensation amount for the above land to be acquired has been communicated by the SDM/LAC as Rs. 22,00,00,000/- (Twenty two crores) (at page 40/c).
The draft notification so received has been scrutinized by the Revenue Branch of this Department and reported to be in order is at page 2/N. In view of the above, if approved we may request the Hon'ble L.G. to accord his approval for issue of notification under Section 4, 6 & 17 of L.A. Act, 1894. The draft notifications under Section 4, 6 & 17(1) of the LA Act are placed opposite (at page 42/c to 54/c) and order for invoking Section 17 of the Act for signature of Hon'ble LG is at page 55/c.
Submitted please."
14. On the said note-sheet the Joint Secretary (L&B) noted:
(1) "As decided in the meeting in the room of Secy (Land) on 16.7.98, a site inspection of land at Village Bhalaswa was conducted by Revenue Slums & L&B Officials on 20.7.98.
(2) Based on it, a draft notification has been forwarded by SDM/LAC, Model Town for acquisition of 929-15 Bigha (i.e. 193.7 acres) for rehabilitation of JJ Clusters.
(3) Draft notifications under Section 4, 6 & 17 of the Land Acquisition Act are placed at 54/C, 48/C and 42/C respectively for approval of Hon'ble LG. The order invoking the urgency clause is also placed at 55/C for LG's approval and signature.
15. All happened in one day i.e. on 24th July 1998. The matter was placed by the Joint Secretary before the Secretary (Land) on 27th July 1998 stating the Secretary (Land) approved the said proposal on the same day and placed before the PS/Secy(Land), whereupon the matter was placed before the Lt. Governor who approved the same on 28th July 1998, pursuant whereto, a direction was made to issue the notification, and on 29th July 1998 the notification was prepared and it, as noticed hereinafter, was gazetted on 30th July 1998.
A bare perusal of the afore-mentioned nothings would clearly show that the purported acquisitions were made for J.J. Transit Camps but in the counter affidavit it has been contended:
"It has been noticed that many Jhuggi Jhopri Clusters are located on various prime project lands and the same laos need to be vacated and the clusters removed so that the said projects may be commenced. More than 6000 families are located in jhuggi jhopri clusters along the proposed metro project tracks, NDMC areas, Nehru Place, District Centres, Railway Lines and many other prime locations. These Jhuggi Jhopri clusters and dwellers are required to be relocated on an urgent basis. It is pertinent that the jhuggi jhopri clusters belong to the poorest section of people who are mainly labour and working class and the same have to be rehabilitated in centres even for the purposes of hygiene and health. The planners of Delhi have every right and authority to decide how and in what manner the development of the city should be planned and to modify the plans in accordance with law."
16. We may also notice that after orders of stay were passed by this Court whereupon Mr. Sahib Singh Verma, a former Chief Minister of Delhi stated in 2nd week of October 1998 which had been recorded in a video cassette, the manuscript whereof is as under:-
"DEKEIA MEA SHALIMAR BAGH KA LOGON SAY MERA AKE COMMITMENT THA ORE BHOTH SARE COMMITMENT THEA, EAK COMMITMENT KO MAE PURA NEHI KAR PAYA HOON AUR WO COMMITMENT THA YAEH HEI KI HEI JITENA LOG GAREEB LOG YEAHN REHATHE HEIN JHUGGI CHOPARA WALLE, MEI IN JHUGGI JHOPARI WALLEM KO KHEHIN VEKELIP STHAN DILWAOGA, KAKELIP STHAN DILWAKKAR ENHEN YEHAN SAY SHIFT KARVUGA, THAKI IN LOGO KE BHI RATHA MELA OR HUM LOGO KE BHE RATHA MELE, YEHAM LOGO REHATHE HE THO PHIR USKE LIYE MENA 200 ACRE JHAMIN BHALASWA ME UNKELIYA ACQUIRE KARWAI, ACQUIRE KARWAI, USKELIYA SARI YOGJANA GHEN GHAI, SARA PAISA JAMA HOGAYA JAB IN LOGO KO LENE LEJANE BATH AAI THO IS ZHIMEN PAR STAY AAGAYA, COURT KI THARAF SAY STAY HO GAYA, HIGH COURT KI THARAF SAY STAY ORDER HO GAYA USKELIYA 23 SEPT. THARIKH LEGI THAI OR AB 23 OCTOBER THERIKH HAE. Ab JIS DIN BHEE COURT KA STAY ORDER KATHAM HOGAYA YEA SARA KI SARI JHUGGIYAAN YAHAN SAY HATTAKAE BHALASWA MAYE JO KI YAHAM SAY BHOOTH THODI DOOR HEI 3-4 KILO METER HAE UAS JAGAHAN PHER INKO PLOT DILYANGAE AUR YENKO VAHAN BASAYANGAN ISHKI YOGJANA PAHALE SAY BHEN CHUKKI HAE AUR MERA THO YUEI VADA THA SHALIMAR BHAGH KA LOGO KELIYA YAE VADHA BHEE MERA PURA HOGA MAE KAHEIN BHE HOON, KESI BHE PAD PAR HOON, YA KISI PAD PHAR NA BHE HOON MERA COMMITMENT LOGO SAY HAE AUR MAE ISH YADA KO PURA AVESH KARUNGA."
17. We may further notice that the petitioner have, inter alia, contended that the lands in question are situated near the water sports complex and by the side of Butkal lake, where a tourist complex including a five star hotel, was to be set up.
18. The principal questions which arise for consideration in these writ petitions are:
(i) whether there had been any materials on record to show that the acquiring authority applied his mind for invoking the urgency provision as contained in Section 17 of the Acquisition Act?
(ii) whether, in any event, it was a fit case where the provision under Section 5-A of the Act could be dispensed with?
19. The power of the State of acquire a land in terms of the doctrine of eminent domain is not in dispute. It is also beyond any cavil of doubt that once it is found that proceedings for acquisition of land had been initiated for a public purpose, the Court will not interfere therewith unless it is inter alia found to be: (a) without jurisdiction; (b) suffering from vice of non-application of mind; and (c) mala fide.
20. Land acquisition proceedings are expropriatory in nature. It is, therefore, expected that the procedure laid down for invoking the urgency provision shall be strictly complied with. Existence of materials for arriving at a decision that the land sin question are required to be acquired may not appear from the notification itself but once such a contention is raised in a court of law, the State must satisfy it thereabout by placing on records the relevant materials in support thereof.
21. The letter of Shri Manjeet Singh dated 4th July 1998 shall reveal that the acquisition proceeding was initiated at the instance of the Chief Minister for reallocation in respect of J.J. Cluster Shalimar Bhagh, etc. The said reallocation programme consisted of establishment of transit camps for jhuggi jhopri families which were to be shifted from J.J. Clusters.
The nothings show that in the requisition it had not been stated that possession of lands is required to be obtained on an emergent basis. The said idea appears to be the brain child of the Office Superintendent of the Land Acquisition Department whence for the first time he directed Shri Kwatara to type draft notification under Section 4, 6 and 17(1) of the Acquisition Act. Even at that point of time there was no material to show that the provisions of Section 17(4) of the Act was required to be invoked. File moved through five desks before the afore-mentioned draft notification was added. The proposal for acquisition shows that the lands were required for establishment of transit camp which was not permanent in nature. Despite pointing out that the proposal had not come through DDA nobody appeared to have applied his mind as to why an exception should be made to entertain requisition from an authority other than DDA, particularly when planned development of Delhi is the statutory responsibility of the D.D.A. under Delhi Development Act.
We may notice that in a note-sheet dated 25th September 1998 Shri J.K. Rawal, Deputy Secretary (L&B) stated that in future all lands including non-planned land would be acquired through DDA. He was not the authority to make an exception to the policy. No reason has been assigned as to why the requisition was not required to be made through DDA contrary to the policy decision adopted in that behalf.
All actions up to the level of Deputy Secretary had been taken on one day, viz., 24th July 1998. The matter was placed before the Lt. Governor and the order as noticed hereinbefore was passed wherefor no reason was assigned to show that there had been an independent application of mind on his part.
22. Section 17(4) of the Land Acquisition Act reads thus:
"In the case 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 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 date of the publication of the notification under Section 4, Sub-section (1)."
23. The provisions of Section 17 of the Acquisition Act are to be taken recourse to by way of an exception. Section 17 confers special power in case of urgency. The said provision, therefore, can be resorted to only when there exists urgency wherefor special power is required to be invoked. Existence of such urgency must therefore be reflected in the records. Some reasons, if not strong and cogent, must be recorded as to why the special power is required to be invoked. The jurisdiction of the appropriate government to invoke such powers emanates only from urgency and not otherwise. Existence of 'urgency' therefore is the sine-qua-non for invoking the said provision.
24. Sub-sections (1) and (4) of Section 17 of the Acquisition Act, stand on different footings. In terms of Sub-section (1) possession of any land needed for a public purpose can be taken over on the expiration of 15 days from the publication of the notification mentioned in section 9, whereupon lands vests absolutely in the Government; whereas Sub-section (4) thereof merely refers to the land, in respect whereof the provision of Sub-section (1) is applicable and, in terms thereof, a direction can be issued by the appropriate Government that the provisions of Section 5A shall not apply and if it so directs, a declaration may be made under Section 6 at any time after the date of publication of the notification under Sub-section (1) of Section 4. For the said purpose also the satisfaction of the Appropriate Government is pre-requisite.
25. A perusal of the Notification dated 30 30th July 1998 would show that although nothing has been mentioned in the noting that the proceedings under Section 5A be dispensed with, the Lt. Governor in the impugned Notification dated 30th July 1998 expressed his purported satisfaction as regards existence of a situation for invoking Sub-section (4) of Section 17 by directing that the provisions of Section 5A shall not apply. A declaration under Section 6 as also a notification under Section 17(1) were issued on 4th August 1998. But as indicated hereinbefore, for the said purpose, there existed no material. The entire action smacks of malice as indecent haste has been shown.
26. In M/s. Braj Kishore Singh & Company v. State of Bihar and Ors. , the Patna High Court has held:
"This indecent haste on the part of the respondent No. 5 to finalise all the tenders in his residence at late hours on the eve of his departure and addressing a letter from his office before hand to the Chief Engineer informing him of his decision to finalise all the four tenders by giving different reasons for awarding all the contracts in favor of the said M/s. North Bihar Construction Corporation does not and cannot indicate that the action of the said respondent No. 5 was fair and above board. The whole transaction reeks, if not with malice in fact but certainly with malice in law. I think that this Court will be failing in its duty if the said action of respondent No. 5 is not condemned in no uncertain term. This Court, therefore, declares that the respondent No. 5 has failed to maintain purity of administration in the office he holds. Even though the contract in question has been awarded and executed but he question raised in this petition has not become either stale or obsolete, namely that in matters of consideration of various offers of the tenderers absolute fairness and impartiality must be maintained. Here there has been a singular failure of the respondent No. 5 on both the counts - he has neither been fair nor has been able to show his impartiality."
27. It is a matter of common experience that setting up of a rehabilitation programme takes a long time. It is not a case where lands are required for rendition of essential services on an urgent basis. Only because, emergency clause exists in the statute book the name would not mean that in all cases the provisions of Section 17 of the Acquisition Act shall be invoked. Such invocation should not be a routine matter. A whim or fancy on the part of an officer cannot be a ground for invocation of Sub-section (4) of Section 17. Something more than mere emergency is necessary for taking away a valuable right conferred upon the owners of the land.
28. A Full Bench of this Court in almost identical situation in S.K. Gupta v. The Union of India and Ors. held:
"46. True, the 'planned development of Delhi' is a public purpose; but the phrase is not a synonym for, and does not of itself import, 'urgency'. for decades the 'development' of Delhi has been 'planned', and certainly there will be more decades before the process is complete, if, needed, it ever is. Moreover, the 'purpose' of acquisition is one thing: 'urgency' is another: see Seshagiri Maller v. Special Tehsildar for Land Acquisition, Kozhikode, . Acquisition is permitted by Section 4 only for a 'public purpose'. Every public purpose is not per se urgent. Otherwise, Section 17 would have prescribed a routine procedure and not conferred 'special powers' as its side-note proclaims.
48. On receipt of this letter the Land Acquisition Collector was asked 'to send the draft notification under Sections 4, 6, 17(1)'. In his reply dated 26th Nov. 1971 the Collector separated lands which were waste or arable, to which Section 17(1) and (4) could be applied, from the rest, and submitted two draft notifications. He said nothing whatsoever about urgency. The copy of an office-note prepared on 1st Jan. 1972 is also attached to the supplementary affidavit. It suggests, in accordance with the Collector's report, that the waste or arable lands 'be acquired by invoking provisions of Section 17(1) of the Land Acquisition Act whereas the remaining area may be acquired in the normal course'. There was no reference made to any urgency. On 15th Jan. 1972 the Lieutenant-governor put the word 'approved' under this note and signed it. Thereafter, the notifications impugned were issued."
29. It is not in dispute that Section 17(1 and Section 17(4) stand on a different footing.
In Om Prakash and Anr. v. State of U.P. and Ors. , it has been held that the urgency provisions contained in Section 17 being an exception to the general rule, the same indisputably should be invoked only when the exigencies of the situation so demand and not otherwise.
30. It is not and cannot be disputed that in the matter of acquisition of land normal procedure as provided for in the Land Acquisition Act should be followed. Exceptions referred to in Section 17, it is trite, should not ordinarily be taken recourse to. Circumstances specified therein and conditions precedent laid down therefore must exist for invoking the urgency Clause contained in Section 17 of the Act, particularly, in view of the fact that the said Act is expropriatory in nature.
31. Section 5-A of the Act provides for a principle. An enquiry there under has two fold purposes. It intends to instruct the decision making authority as regards need of a particular land for a public purpose as also for safeguarding the said authority against any ill formed action on the part of the requisition authority. The procedural requirement as envisaged under Section 5A of the Act in ordinary situation should strictly be complied with, having regard to the fact that the opinion required to be formed for invoking the urgency clause as also the decision to acquire the lands in question is based on subjective satisfaction. An enquiry in terms of Section 5A of the Act would enable those for whose benefit the same had been enacted which shows how acquisition of the land in question would not serve any public purpose and/or no public purpose at all is involved in the matter. The basic theme therefore is compliance of the principles of natural justice. There cannot be any doubt whatsoever that principles of natural justice in a given situation need not be rigidly applied but sufficient or cogent reasons must exist for not following the same.
32. Furthermore in a given case it may be justifiable to take over possession of the lands in question even without issuing any notification or declaration as envisaged under Section 6 of the Acquisition Act but that by itself may not be a sufficient ground to complete the acquisition proceedings itself by dispensing with the requirements of Section 5A of the Acquisition Act. As envisaged under Sub-section (4) of Section 17, each case therefore has to be adjudged on its own merit and no strait jacket formula can be laid down therefore.
33. We have noticed hereinbefore that the requisition had not been made by the DDA despite the fact that the area in question is covered by a master plan as also zonal development plan. It is also not in dispute that the Regional Plan 2001 for the National Capital Region had also been contemplated having regard to the year 2001 in view. Although in its strict enforcement the said plan may be held to be irrelevant, the master plan as also the zonal development plan cannot be held to be so. Having regard to the provisions of DDA Act, it is beyond any doubt procedure required for change in user of the land must strictly be complied with.
34. In M.C. Mehta v. Union of India and Ors. the law in this behalf has clearly been laid down.
35. In M.C. Mehta v. Union of India and Ors. reported in JT 1996 (6) S.C. 129 the Apex Court in no uncertain terms laid down the law that the requirements of master plan and zonal development plan should be strictly compiled with having regard to the fact that Delhi is one of the most polluted city in the world.
Yet recently in M.C. Mehta v. Union of India and Ors. the same principles were reiterated as regards location of certain industries, which were required to be shifted.
36. The contention of Ms. Luthra to the effect that providing of housing sites for dalit, poor, landless labour, harijan, etc. would itself be a sufficient ground for invoking the urgency Clause must be considered in that perspective. It may as has been submitted by the learned counsel that the public purpose as stated in the impugned notification by itself do justify invocation of urgency clause but the same must be considered, having regard to the fact that, even if possession is taken, the purpose for which lands are acquired would not be fulfillled. It is one thing to say that the objects under-lined for preparation of master plan and zonal development plan would not vitiate a land acquisition proceeding but it is another thing to say, whether despite a conscious knowledge that the public purpose would not be achieved unless and until the procedure laid down under Section 11A of the DDA Act are complied with as regard change of user, as has been specified in the master plan and the zonal development plan, can it be said that the Administrator was justified in invoking the urgency Clause? Answer to the said question, in our considered view, must be rendered in the negative.
37. The respondents, on the other hand, would contend that urgency for taking possession is such, which would not justify even hearing the persons, who were interested in the lands sought to be acquired in terms of Section 5A of the Acquisition Act, which would take about thirty days' of time. Such a plea cannot be accepted. Apart from the fact that no step has yet been taken for change in user of the lands in question as provided for in the master plan and zonal development plan, in the event, the procedures laid down under Section 12 of the DDA Act are taken recourse to, which is mandatory in nature, some time would be required therefore and, thus, in our opinion, it does not lie in the mouth of the respondent to contend that there existed emergency. The respondents by raising the said contention has sought to blow hot and cold at the same time. Only because an authority is entitled to exercise its discretion the same never means that such a power can be exercised in an arbitrary and fanciful manner. Discretion, it is trite, does not confer an arbitrary power upon a statutory authority. Discretion has to be exercised fairly, reasonably and equitably. Discretion must also be exercised having regard to the purport and object of the relevant Statute. (See: Chaitnya Charan Das v. State of West Bengal and Ors. :
38. An action, it is trite, which is used for unauthorized purpose, would amount to malice in law. It may be correct that the Administrator has subjective satisfaction both in relation to the locale of the lands, which would be needed for being used for the public purpose for which the same are being acquired as also the necessity to take possession thereof on an emergency basis but it is also well settled that this Court in exercise of its jurisdiction under Article 226 of the Constitution of India is entitled to consider, as to whether the subjective satisfaction so vested in the authority, was based on objective criteria. The Court can also interfere when such a decision on the part of the authority is bound to be suffering from the vice of non-application of mind or unreasonableness.
39. Do the records filed before us justify such an action? Having seen the records we do not think so.
The requisitioning authority do not state that the urgency clause should be invoked for acquiring the land. The requisitioning authority do not state that lands are required for rehabilitation of the inhabitants of the JJ Clusters. The acquisition was necessary for a transit camp. Only one Officer who has no role to play either under a Statute or otherwise cannot take into his head that a notification under Section 17(1) should also be issued. Even at the point of time no material existed. In any event, no material whatsoever was brought on records to show that the provisions of Section 17(4) of the Acquisition Act was necessary to be applied. A decision of a statutory authority must be adjudged on the basis of an order passed under a statute. A statutory order by a statutory authority cannot be permitted to be supplemented by affidavit (see: Commissioner of Police v. Gordhandas Bhanji and Mohinder Singh Gill and Anr. v. The Chief Election Commissioner and Ors. .
40. Although a large number of decisions have been cited before us, in our opinion, suffice it to refer the recent two Division Bench decisions of this Court.
In Deepak Bhardwaj and Ors. v. Union of India and Ors. reported in 2001 VI AD (Delhi) 597 ; this Court upon consideration of several decisions most of which have been relied upon by Ms. Luthra, held:
"An inquiry envisaged under Section 5A of the Act is a summary inquiry which need not take long. It has been commented upon that such inquiries take long and, therefore, the government may justifibly dispense with such an inquiry. Here it has to be seen as to who has to hold the inquiry. It is the Collector who has to hold the inquiry and the Collector is the acquiring authority's own man. For delays on the part of the Collector in completing the inquiry should the land owner whose land is sought to be compulsorily acquired suffer and be denied even the basic right of being heard before being condemned. So far as the land owner is concerned he is allowed only thirty days from the date of publication of the notification under Section 4 of the Act of file objections. Thereafter whatever delay that follows is on account of the Collector. The acquiring authority cannot make the land owner suffer by depriving him of his statutory right under Section 5A for the delays on the part of the Collectors in completion of inquiry which is envisaged only as a summary inquiry. The State Government must ensure that such inquiries are expeditiously completed. In this connection the following observations of the Supreme Court in State of Punjab v. Gurdial Singh and Ors., are very relevant:
"16. The fourth point about the use of emergency power is well taken. Without referring to the supportive case-law, it is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Article 14 (and 19), bruke and enquiry under Section 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power."
It was further observed:
"Section 17 confers extraordinary power. The statutory power must be exercised subject to the conditions and limitations laid down by the statute. The major conditions is that the Government must be satisfied that there is a situation, grave and sudden, which calls for an immediate action.
19: What is the theory of Section 17? The taker of the land has to be satisfied that there is an emergency, an unforeseen combination of circumstances, that calls for immediate action. Unless it is shown that there was an urgency created by a special situation the Government cannot resort to the extra ordinary power conferred by Section 17.
21: "Section 17(2) vividly illustrates the principles of the Section. "Unforeseen emergency" cannot be anticipated. There is a concurrence of circumstances which no one can foresee. No one can be prepared for sudden happening."
41. Yet again in Mukesh Hans etc. v. Union of India and Ors. reported in 2002 1 AD (Delhi) 422, Deepak Bhardwaj's case (supra) was referred to and having regard to the nothings in the file it was held that:
"From these nothings, it is not possible to hold that the Lt. Governor independently applied his mind to the question of dispensing with an enquiry under the provisions of Section 5A of the Act. This is because if the Lt. Governor had applied his mind to this question, he would have survey adverted to it however briefly. There is nothing to suggest from the note of the Lt. Governor that he was even aware that the relevant draft notification dispensed with an enquiry under Section 5A of the Act. On the contrary, the application of mind by the Lt. Governor was limited to the issuance of a notification under Section 17(1) of the Act, which he apparently seems to believe results in the automatic issuance of a notification under Section 6 of the Act. This is not so, inasmuch as prior to the issuance of a notification under Section 7 of the Act, either an enquiry should be held under of Section 5A of the Act, or it should be consciously dispensed with. Neither of these two postulates are reflected in or discernible from the note of the Lt. Governor."
For the reasons afore-mentioned these writ petitioner are allowed. The impugned notifications are set aside. Let an appropriate writ issue. However, in the facts and circumstances of the case, there shall be no order as to costs.