M/s Sahara India Commercial, Corp.Ltd. v. State of U.P., (SC)
: Law Finder Doc Id # 814127
2016(12) Scale 495
SUPREME COURT OF INDIA
Before:- Mr. Ranjan Gogoi and Mr. N.V. Ramana, JJ.
Civil Appeal No. 11501 Of 2016 (Arising Out of Special Leave Petition (Civil) No. 16609 of 2010) Civil Appeal Nos. 11502-11512 of 2016 (Arising Out of Special Leave Petition (Civil) No. 16997-17007 of 2010) Civil Appeal Nos. 11513-11535 of 2016 (Arising Out of Special Leave Petition (Civil) No.17008-17030 of 2010) Civil Appeal No. 11536 Of 2016 (Arising Out of Special Leave Petition (Civil) No. 17099 of 2010) Civil Appeal No. 11537 Of 2016 (Arising Out of Special Leave Petition (Civil) No. 17110 of 2010) Civil Appeal No. 11538 Of 2016 (Arising Out of Special Leave Petition (Civil) No.17111 of 2010) Civil Appeal Nos.11539-11542 of 2016 (Arising Out Of Special Leave Petition (Civil) No.19333-19336 of 2010) Civil Appeal Nos. 11543-11548 Of 2016 (Arising Out of Special Leave Petition (Civil) No. 20250-20255 of 2010) Civil Appeal No. 11549 Of 2016 (Arising Out of Special Leave Petition (Civil) No. 21353 of 2010) Civil Appeal No. 11550 of 2016 (Arising Out of Special Leave Petition (Civil) No. 21559 of 2010) Civil Appeal No. 11551 of 2016 (Arising Out of Special Leave Petition (Civil) No.22995/2010) Civil Appeal No. 11552 of 2016 (Arising Out of Special Leave Petition (Civil) No. 23341 of 2010) Civil Appeal Nos. 11553-11561 of 2016 (Arising Out of Special Leave Petition (Civil) No. 24241-24249 of 2010) Civil Appeal Nos. 11562-11566 Of 2016 (Arising Out Of Special Leave Petition (Civil) No.24609-24613 of 2010) Civil Appeal No. 11567 of 2016 (Arising Out of Special Leave Petition (Civil) No. 24759 of 2010) Civil Appeal No. 11568 Of 2016 (Arising Out of Special Leave Petition (Civil) No.30035 of 2010) Civil Appeal No. 11569 of 2016 (Arising Out of Special Leave Petition (Civil) No. 30099 of 2010) Civil Appeal No. 11570 Of 2016 (Arising Out of Special Leave Petition (Civil) No. 30536 of 2010) Civil Appeal No.11571-11576 of 2016 (Arising Out of Special Leave Petition (Civil) No.31099-31104 of 2010) Contempt Petition (Civil) No. 346 of 2015 In S.L.P. (C) No. 24243 of 2010 @ S.L.P. (C) No. 24241-24249 of 2010). D/d.
M/s. Sahara India Commercial, Corp. Ltd. and ors. - Petitioners
State of U.P. and ors. - Respondents
For the Appearing Parties :- Mr. Huzefa Ahmadi, Senior Advocate Mr. Aarohi Bhalla, Advocate Mr. Keshav Mohan, Advocate Mr. Devashish A. Mehrotra, Advocate Mr. Vijay Kumar, Advocate Mr. Ankit Singh, Advocate Mr. Ram S., Advocate Ms. Sujata Kurdukar, A.O.R. Mr. Piyush Choudhary, Advocate. Mr. Shyam Kumar, Advocate Mr. Jayant Bhushan, Senior Advocate. Mr. Manish K. Bishnoi, A.O.R. Mr. Venkat Poonia, Adv. Mr. K.K. Tyagi, Advocate Mr. Iftekhar Ahmad, Advocate Mr. Anoop Kumar, Advocate Mr. Sanjib K. Roy, Advocate Mr. P. Narasimhan, A.O.R. Mr. Ramesh P. Bhatt, Senior Advocate. Mr. S.K. Sinha, AOR. Mr. Mahipal Singh, Advocate Mr. Ratan Lal, Advocate Ms. S. Kashysp, Advocate Mr. Jitendra Mohan Sharma, Senior Advocate. Mr. Ajit Sharma, Advocate Mr. Udaivir Singh, Advocate Ms. Seema Singh, Advocate Mr. Vikas Bansode, Advocate Mr. Pahlad Singh Sharma, A.O.R. Mr. Sunil Kumar Jain, A.O.R. Mr. S.S. Shamshery, Advocate Mr. Bhakti Vardhan Singh, Advocate Mr. Prateek Yadav, Advocate Mr. Amit Sharma, Advocate Dr. Kailash Chand, A.O.R. Mr. B.S. Choudhary, Advocate Ms. Ritu Rastogi, Advocate Mr. Bankey Bihari Sharma, A.O.R. Mr. Gunnam Venkateswara Rao, A.O.R. Mr. Basava Prabhu S. Patil, Senior Advocate. Ms. Reena Singh, A.A.G. Mr. Rakesh Uttamchandra Upadhyay, A.O.R. Ms. Aarti Upadhyay, Advocate. rr in SLP(C) 16609/and SLP(C) 17008-30/10 Ms. Reena Singh, A.A.G, Mr. Devesh Kumar, A.O.R. Dr. (Mrs.) Vipin Gupta, A.O.R., Mr. P.N. Misra, Senior Advocate. Mr. Abhishek Kumar Singh, Advocate Ms. Archana Singh, Advocate Mr. Abhisth Kumar, A.O.R. and Mr. Raman Yadav, Advocate.
A. Land Acquisition Act, 1894 Sections 4 and 11A Nonpassing of award - Lapse of proceeding - Purpose for which land acquired implemented - On part of land construction under different Housing and other scheme come up - Even if acquisition found to be legally fragile return of land to landowner to have effect of jeopardising Housing and other project reaching completion - Compensation directed to be determine in accordance with Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
B. Land Acquisition Act, 1894 Sections 4 and 17 Acquisition - Urgency - Ground of urgency invoked to prevent unauthorised construction - Fact evident from document described as 'Certificate for invoking of Section 17 - Court not to travel beyond contents of certificate to determine validity of invocation of urgency - Ground primarily related to law and order issue - Within jurisdiction of authority to control - Invocation of urgency clause invalid - Notification issued without holding enquiry - Acquisition proceeding required interference - (1998)6 SCC(1), Relied on.
[Paras 7 to 10]
Cases Referred :
Delhi Air-tech Services Private Limited v. State of Uttar Pradesh, (2011) 9 SCC 354.
Om Prakash v. State of U.P., (1998) 6 SCC 1.
Leave granted in all the Special Leave Petitions.
2. The challenge in this bunch of Civil Appeals is against the order of the High Court of Allahabad which had negatived the challenge made by the landowners against acquisition of land for the public purpose, namely, "planned development of Ghaziabad Development Authority for residential colonies".
3. The notifications under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") (six in numbers) were issued on 16th October, 2004 (five notifications) and 11th November, 2004 (one notification) and published on 22nd October, 2004 (five notifications) and 9th December, 2004 respectively. The urgency clause under Section 17(1) read with Section 17(4) of the Act was invoked and hearing of objections under Section 5A of the Act was dispensed with.
4. There were interim orders passed in the writ petitions directing stay of dispossession. The earliest of such order was dated 22nd May, 2006. No award was passed possibly because of the pendency of the writ petitions and the interim orders passed therein.
5. Contending, inter alia, that the invocation of urgency clause was not justified and that the acquisition proceedings had lapsed under Section 11A of the Act as no award was published within a period of two years from the date of the publication of the notifications, the writ petitions in question were filed along with additional ground that compensation under Section 17(3A) of the Act to the extent of eighty per cent of the compensation for such land was also not paid which invalidates the acquisitions.
6. The twin issues, namely, the first with regard to lapsing of the proceedings under Section 11A of the Act in a case where Section 17(1) read with Section 17(4) has been invoked and, secondly, the consequence of the non-payment of compensation under Section 17(3A) on an acquisition proceeding are presently pending before a larger Bench of this Court on the basis of a reference made in Delhi Air-tech Services Private Limited and another v. State of Uttar Pradesh and another, (2011) 9 SCC 354. This Court, therefore, for the purposes of the present cases, will consider it expedient to confine its scrutiny to the question as to whether the invocation of urgency clause under Section 17 was justified in the facts of the present cases. This is with the consent of the parties. Even otherwise, if the Court is to hold the said issue in favour of the land owners the consequential finding would be determinative of the controversy between the parties.
7. It will not be necessary to burden this order by a detailed reference to the numerous precedents available as to the scope and ambit of the jurisdiction of the Court to interfere with what is essentially a subjective satisfaction of the Authority for invoking the urgency clause under Section 17. The power is extremely circumscribed and what facts would justify the invocation of the said power can only be visualised illustratively and not exhaustively. In the present cases, from the proceedings of the acquisition prior to the issuance of Notification under Section 4 and particularly from a certificate setting out the grounds for invoking the urgency clause it appears that the sole ground for the same is to prevent unauthorized construction which, if made, would make it difficult to take possession of the land. This is evident from the document described as 'Certificate for invoking of Section 17' dated 4th March, 2004 signed by the Officer on Special Duty, Ghaziabad Development Authority, Ghaziabad, the contents of which are as follows:
"'Certificate for invoking of Section 17' This is to certify that for the planned development of the city of Ghazibad, the expeditious acquisition of the proposed land of Rasoolpur Yaqootpur is required, because this is a scheme of public interest and any delay may cause unauthorized construction at work place, after which possession of the land would be difficult.
Therefore, for the acquisition of land under this scheme it is necessary to issue notification under sections 4 and 6 of Land Acquisition Act, 1894 for which the invoking of section 17 is necessary.
Officer on Special Duty,
Ghaziabad Development Authority,
Addl. District Magistrate (L.A)
8. The above being the stated ground, the Court would not be required to travel beyond what has been stated in the aforesaid certificate to determine the validity of the invocation of the urgency clause under Section 17 of the Act.
9. In Om Prakash and another v. State of U.P. and others, ((1998) 6 SCC 1) this Court had an occasion to consider the validity of the very same ground as a justification for invoking the urgency clause under the Act. The view expressed in that regard is available in paragraphs 14 and 15 of the report in Om Prakash (supra) wherein this Court after holding that the said ground primarily relates to a law and order issue which is within the jurisdiction of the Authority to control went on to observe in paragraph 15 as follows:
"15. So far as the present proceedings are concerned, the situation was tried to be salvaged further in the counter-affidavit filed on behalf of NOIDA. Its Working Secretary Rama Shankar has filed a counter-affidavit in the present proceedings explaining the necessity to apply emergency provisions. It has been averred in para 9 of the counter to the effect that what necessitated application of emergency provisions was imminent possibility of unauthorised construction and/or encroachment upon the suit land which would have hammered the speedy and planned industrial development of the area which was the purpose of acquisition proceedings. This stand is in line with the earlier stand of NOIDA in its written requisition dated 14-12-1989. We have already seen that the said stand reflects a ground which is patently irrelevant for the purpose of arriving at the relevant subjective satisfaction by the State authorities about dispensing with Section 5-A inquiry. We could have appreciated the stand of the State authorities for invoking urgency clause under Section 17(4) of the Act on the ground that when about 500 acres of land were to be acquired for further planned development of Sector 43 and other sectors of NOIDA, as mentioned in the impugned notification, hearing of objectors who might have filed written objections when there are a large number of occupants of these lands and who possess about 438 plots of land under acquisition, would have indefinitely delayed the acquisition proceedings and years would have rolled by before Section 6 notification could have been issued. Under these circumstances, the entire further development of the area would have, on the peculiar facts and circumstances of these cases, come to a grinding halt. Such a stand would have justified the subjective satisfaction of the authorities for invoking Section 17(4) of the Act. Such satisfaction then could not have been gone behind by a court of law. But unfortunately for the respondents, such was not their case nor did they even whisper in these cases that these aspects were kept in view while dispensing with Section 5-A inquiry. The court cannot obviously, therefore, make out a new case for them which is not pleaded in these proceedings to justify their action."
10. The view of this Court in Om Prakash (supra) being with regard to an identical ground and the purpose of acquisition in Om Prakash (supra) being largely similar to the present cases, we are of the view that the facts of the present cases would not justify a departure from what has been held in Om Prakash (supra).
11. From the discussions that have preceded the conclusion is obvious. The invocation of the urgency clause is invalid and the Notification under Section 6 issued without holding the enquiry/hearing of objections under Section 5A of the Act would not be justified and the acquisition proceedings as a whole would be open for interference.
12. The next question that confronts the Court is the relief that should be granted in the present cases. Ordinarily, in the normal course, interference with the acquisition proceedings would result in a return to the status prior to the commencement of the acquisition proceedings obliging the acquiring authority to return the land to the landowners. However, from the materials placed before us it appears that the purpose for which the land was acquired has been implemented and on parts of the land constructions under different Housing and other Schemes have come up. While there is a controversy with regard to the extent of the development that has taken place, what is reasonably certain is that a fairly large portion of the land has been put to use for the purposes for which the same was acquired. What, however, is clear that insofar as the land of the appellants is concerned the same continue to be largely vacant on account of the interim orders passed by the Court. In such a situation, we are of the view that even though the impugned acquisition has been found to be legally fragile, requiring the acquiring authority to return the land to the landowners, at this stage, would have the effect of jeopardising the Housing and other projects which either have been completed or have reached completion. This would be contrary to public interest. Therefore, we are of the view that in the totality of the facts of the case we should mould the relief in the following manner:
(i) Though this Court is interfering with the acquisition proceedings as a whole, yet it directs that there will be no obligation on the part of the acquiring Authority to return any part of the land to any of the landowners. In other words, the acquiring Authority would have the option to retain entire of the land acquired by the notifications in question. In such an event, only in respect of the land of the appellants before this Court [stated to be 76 in number and the area involved 281 acres, approximately] the date of the present order will be deemed to be the date of a fresh notification for acquisition of the aforesaid land of the appellants before this Court. We repeat to make it clear that for the rest of the land acquired and in respect of the landowner who may have received any part of the compensation the aforesaid directions would have no application. The compensation to be determined on the basis of the deemed notification, as directed, will be in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and claims of compensation for constructions that may have come up on the acquired land prior to the dates of original Notifications (16th October, 2004 and 11th November, 2004) will also be considered by the Collector on their own merits.
13. All the appeals as also the contempt petition are disposed of in the above terms.
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