# Santosh Kumar & Ors v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 759
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-21
- **Bench:** Sudhir Agarwal, Shamsher Bahadur Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-ors-v-state-of-u-p-ors-44209
- **Pages:** 17

## Headnote

Land Acquisition - Urgency clause - Dispensation of Section 5-A inquiry - Validity - Newly
created district - Establishment of district headquarters - Public purpose - Judicial reviewLand
Acquisition - Invocation of urgency powers under Section 17 of the Land Acquisition Act, 1894 must be
justified by real urgency and cannot be exercised mechanically. (Paras 8, 19)

 However, where land is required for establishing infrastructure of a newly created district, including offices,
residences, and public institutions, the requirement may legitimately be treated as urgent. (Paras 20-22)
In such circumstances, dispensation of inquiry under Section 5-A is not per se illegal if supported by objective
material and administrative satisfaction. (Paras 21-22)

Section 17 invocation - Requirement of urgency - Infrastructure development - Administrative
satisfactionLand Acquisition - Section 5-A - Right of objection - Natural justice - Whether can
be dispensed withLand Acquisition - Lapse - Section 24(2) of 2013 Act - Non-payment of
compensation - Non-taking of possessionRemand by Supreme Court - Duty of High Court -
Consideration on merit.

Result - petition dismissed

Case cited:-

Gojer Brothers Private Limited and another v. State of West Bengal and others, (2013) 16 SCC 660
Prabhawati and others v. State of Bihar and others, (2014) 13 SCC 721
Union of India and others v. Shiv Raj and others, (2014) 6 SCC 564
Pune Municipal Corporation and another v. Harakchand Misirimal Solanki and others, (2014) 3 SCC 183
Naresh Kumar v. State of Haryana and others, (2014) 6 SCC 589
Magnum Promoters Private Limited v. Union of India and others, (2015) 3 SCC 327
Rajiv Chowdhrie HUF v. Union of India and others, (2015) 3 SCC 541
760 INDIAN LAW REPORTS ALLAHABAD SERIES

Velaxan Kumar v. Union of India and others, (2015) 4 SCC 325
Ram Kishan and others v. State of Haryana and others, (2015) 4 SCC 347

## Text

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7 All. Santosh Kumar & Ors. Vs State Of U.P. & Ors.
759
-----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHAMSHER BAHADUR SINGH, J.

Writ C No.- 9548 Of 2003

Santosh Kumar & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
W.H. Khan, Gulrez Khan, J.H. Khan

Counsel for the Respondents:
C.S.C., A.A. Khan

Land Acquisition - Urgency clause - Dispensation of Section 5-A inquiry - Validity - Newly
created district - Establishment of district headquarters - Public purpose - Judicial reviewLand
Acquisition - Invocation of urgency powers under Section 17 of the Land Acquisition Act, 1894 must be
justified by real urgency and cannot be exercised mechanically. (Paras 8, 19)

 However, where land is required for establishing infrastructure of a newly created district, including offices,
residences, and public institutions, the requirement may legitimately be treated as urgent. (Paras 20-22)
In such circumstances, dispensation of inquiry under Section 5-A is not per se illegal if supported by objective
material and administrative satisfaction. (Paras 21-22)

Section 17 invocation - Requirement of urgency - Infrastructure development - Administrative
satisfactionLand Acquisition - Section 5-A - Right of objection - Natural justice - Whether can
be dispensed withLand Acquisition - Lapse - Section 24(2) of 2013 Act - Non-payment of
compensation - Non-taking of possessionRemand by Supreme Court - Duty of High Court -
Consideration on merit.

Result - petition dismissed

Case cited:-

Gojer Brothers Private Limited and another v. State of West Bengal and others, (2013) 16 SCC 660
Prabhawati and others v. State of Bihar and others, (2014) 13 SCC 721
Union of India and others v. Shiv Raj and others, (2014) 6 SCC 564
Pune Municipal Corporation and another v. Harakchand Misirimal Solanki and others, (2014) 3 SCC 183
Naresh Kumar v. State of Haryana and others, (2014) 6 SCC 589
Magnum Promoters Private Limited v. Union of India and others, (2015) 3 SCC 327
Rajiv Chowdhrie HUF v. Union of India and others, (2015) 3 SCC 541
760 INDIAN LAW REPORTS ALLAHABAD SERIES

Velaxan Kumar v. Union of India and others, (2015) 4 SCC 325
Ram Kishan and others v. State of Haryana and others, (2015) 4 SCC 347

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. These four writ petitions have raised common questions of fact and law relating to
acquisition of land in Villages Tarauha, Garhiva and Banari of Pargana Karvi, District Chitrakoot,
sought to be acquired by State Government by issuing notifications dated 18.06.2002 under Section
4(1) of Land Acquisition Act, 1894 (hereinafter referred to as the "Act, 1894") and dated
10.12.2002 under Section 6(1) of Act, 1894 for acquiring a total 234 acres of land (131.33 acres in
Village Tarauha, 40.76 acres in Village Garhiva and 61.91 acres in Village Banari), hence have
been heard together and are being decided by this common judgment.

2. In leading Writ Petition No. 9548 of 2003 there are 38 petitioners. Writ Petitions No.
17312 of 2003 has been filed by petitioner-Ram Bahori, 99 of 2006 has been filed by petitionerMulayam Singh and 43685 of 2015 has been filed by two petitioners, namely, Shaheed and
Nizamuddin.

3. Learned counsel for the parties stated that for the purpose of pleadings, record of leading
Writ Petition No. 9548 of 2003 should be referred to and that is how we are taking facts pleaded in
aforesaid writ petition.

4. The case set up by petitioners is that in 1835 when State of U.P. was under the regime of
Britishers (East India Company), Karvi was a Tahsil but it was given status of a sub-district. About
80 Bighas of land was secured for establishment of District Headquarters, whereupon Revenue and
Civil Courts were established and 75 Bighas of land remained vacant for being used for other
purposes of establishment of District Headquarters. A full fledged district named as "Chitrakoot"
was constituted in 1997, bifurcating District Banda.

5. For establishing District Headquarters by constructing residential and non-residential
buildings in newly created district, State Government proposed to acquire 234 acres of land and in
furtherance thereof issued notification dated 18.06.2002 under Section 4(1) of Act, 1894 proposing
to acquire aforesaid land comprising in three Villages Tarauha, Garhiva and Banari. State
Government also invoked powers under Section 17(1) and (4) stating that land is required urgently
hence to eliminate delay, likely to be caused due to inquiry under Section 5-A, the said inquiry is
being dispensed with and provision of Section 5-A shall not apply. Thereafter declaration under
Section 6(1) was made by notification dated 16.12.2002.

6. Local residents and tenure holders, even before aforesaid notifications, had opposed
attempt on the part of respondents in acquiring land and in this respect petitioners have referred to
letter dated 19.11.1999 sent by the then Member of Parliament to Chief Minister, letter dated
21.08.2000 sent by Gram Pradhan of Gram Panchayat Radauli and petitioners' representations
dated 03.08.2002 and 05.08.2002.
7 All. Santosh Kumar & Ors. Vs State Of U.P. & Ors.
761
7. Petitioners were issued notices under Section 9(3) on 25.01.2003, whereagainst also they
filed objections on 30.01.2003.

8. Acquisition notifications have been challenged on the ground that dispensation of
inquiry under Section 5-A is illegal in as much as:

(i) There is no urgency involved necessitating invoking of powers under Section 17
of Act, 1894.

(ii) No valid ground exist for dispensation of inquiry and opportunity of filing
objection available to tenure holders under Section 5-A.

(iii) No relevant material was placed before State Government or authorities
justifying exercise of power under Section 17.

(iv) Section 5-A brings in the principle of natural justice and substantial right upon
land owners and this could not have been denied in view of law laid down in Gojer Brothers
Private Limited and another Vs. State of West Bengal and others, 2013(16) SCC 660;
Prabhawati and others Vs. State of Bihar and others, 2014(13) SCC 721; and, Union of India
and others Vs. Shiv Raj and others, 2014(6) SCC 564.

(v) There is no objective application of mind by Collector in respect of objections
raised by petitioners pursuant to Supreme Court's order dated 08.04.2011 passed in Special Leave
to Appeal (Civil) No. 3740 of 2006 and report/ order shows that objections raised by petitioners
have not been considered objectively.

9. Petitioners have also taken plea in the light of Section 24 of Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter
referred to as the "Act, 2013") stating that Special Land Acquisition Officer (hereinafter referred
to as the "SLAO") made award on 27.12.2005 under Section 11 of Act, 1894 but actual and
physical possession of disputed land has not been taken. Neither amount of compensation has been
paid to petitioners nor deposited before appropriate forum hence acquisition proceedings must be
deemed to have lapsed under Section 24(2) of Act, 2013. In support of above submission
petitioners have placed reliance on Pune Municipal Corporation and another Vs. Harakchand
Misirimal Solanki and others, 2014(3) SCC 183; Naresh Kumar Vs. State of Haryana and
others, 2014(6) SCC 589; Magnum Promoters Private Limited Vs. Union of India and others,
2015(3) SCC 327; Rajiv Chowdhrie HUF Vs. Union of India and others, 2015(3) SCC 541;
Velaxan Kumar Vs. Union of India and others, 2015(4) SCC 325; and, Ram Kishan and
others Vs. State of Haryana and others, 2015(4) SCC 347.

10. The petition has been contested by respondents by filing a counter affidavit sworn on
08.04.2003 by Sri Gyan Prakash Srivastava, Tahsildar Karvi, District Chitrakoot. It is said that
District Chitrakoot was created by notification dated 13.05.1997 issued under Section 11 of U.P.
762 INDIAN LAW REPORTS ALLAHABAD SERIES

Land Revenue Act, 1901 (hereinafter referred to as the "Act, 1901") as a new Revenue District by
including Tahsils Mau and Karvi, which earlier were part of District Banda. On 23.05.1997 District
Magistrate was posted in newly created District and on 27.05.1997 Superintendent of Police was
posted. Other District officials were posted like, Chief Development Officer on 06.06.1997, District
Judge on 10.02.1998 and Chief Medical Officer on 24.08.2000.

11. For newly created district, since entire infrastructure of district offices as well as
residential accommodations of all the officials to be posted thereat was required, and need was
urgent, in order to construct residential and non-residential buildings for establishing District
Headquarters, 234 acres of land (547 Bighas) was sought to be acquired and in furtherance thereof
impugned notifications were issued. Since need was urgent and for public purposes, therefore,
inquiry under Section 5-A was dispensed with. The contention of petitioners that in 1835 certain
land was earmarked for establishing District Headquarters and 70-80 Bighas land are still available
is without any basis as there is no such record available to fortify the above claim of petitioners.
Acquisition proceedings have been initiated after indepth study of authorities of Government
inasmuch as State Government vide order dated 25.02.2000 constituted a committee under the
Chairmanship of Commissioner of Division to enquire into and submit report with regard to
acquisition of land for constructing residential and non-residential buildings to establish District
Headquarters at newly created District Chitrakoot. Committee deliberated on 22.04.2000 and
decided to establish District Headquarters on the side of Devangana Road which would include
Villages Tarauha, Garhiva and Banari, since this land is near to City Railway Station, Bus Stand
and others places of general public importance which would be convenient to public at large who
will have to visit District Headquarters for various purposes.

12. District Magistrate also certified that by virtue of acquisition notifications only nine
family/ individuals are likely to become landless, out of which three are in General Category and
remaining six are Scheduled Castes. District Magistrate also certified that these families likely to
render landless would be provided equivalent land at some other place. Thereafter District
Committee also made a survey on 24.12.2001 and submitted report to Bhoomi Upyog Parishad
stating that no unarable land is available for the purpose of establishing District Headquarters. The
proposed acquired land is situate within one kilometer from Town Karvi. In view thereof
notification under Section 4 was issued on 18.06.2002 and declaration under Section 6 was issued
on 16.12.2002. Since suitable accommodations for Government officers and residences was not
available, and, newly created district required land for establishing offices like Collectorate, Civil
Court, Vikas Bhawan, Police Officer, District Hospital, School, District Jail, Bank, Post Officer,
Educational Institutions etc, and requirement was urgent, hence inquiry was dispensed with. Details
of land proposed to be assigned to different departments has also been given in Annexure-6 to the
counter affidavit, which read as under:

Sl. No.
Name of Department
Area in acres proposed
to be given
7 All. Santosh Kumar & Ors. Vs State Of U.P. & Ors.
763
1
Collectorate
27
2
Civil Court
50
3
Vikas Bhawan
5
4
Office of Superintendent of Police
3
5
District Hospital
15
6
Stadium
25
7
I.T.I.
10
8
Polytechnic
10
9
Park and Museum
10
10
District Jail
30
11
Bank/ Post Office
10
12
Residential
45
13
Government Inter College
10

Total 250

13. Notification was also issued in daily newspaper as required under Section 4 of Act,
1894. District offices were mostly running in rented buildings which were inadequate, very small
and incapable for proper functioning of district authorities and others in such buildings.

14. Writ Petition No. 9548 of 2003 initially came up before a Division Bench on
06.03.2003 when respondents were granted time to file counter affidavit and interim order was
passed providing that petitioners shall not be dispossessed from their agricultural holdings until
further orders of this Court.

15. Subsequently, Writ Petitions No. 9548 of 2003 and 17312 of 2003 came up before
Division Bench on 08.12.2005 when the same were dismissed, passing following order:

Order passed in Writ Petition No. 9548 of 2003
764 INDIAN LAW REPORTS ALLAHABAD SERIES

"Heard Sri W.H. Khan learned counsel for the petitioners and Sri A.A. Khan
learned counsel and the standing counsel appearing for the respondents.

It has been submitted by the learned counsel for the petitioners that no permission
has been taken from the Parishad and therefore, acquisition of the land of the petitioners is bad
under law.

Having considered the submission of the learned counsel for the petitioners, we
are of the view that there is no such impediment that permission from Parishad may be taken for
acquiring the land.

In view of this, the writ petition lacks merit and is dismissed summarily. No order
is passed as to costs."

Order passed in Writ Petition No. 17312 of 2003

"Heard Sri W.H. Khan learned counsel for the petitioners and standing counsel
appearing on behalf of respondents.

It has been submitted by the learned counsel for the petitioners that all the
petitioners are belonging to scheduled caste and are landless agriculturist therefore, their land
cannot be acquired.

Having considered the submission of the learned counsel for the petitioners, we
are of the view that there is no such provision under the Land Acquisition Act 1894 to grant any
relief to the landless scheduled caste person.

In view of this, the writ petition lacks merit and is accordingly dismissed. No order
is passed as to costs."

16. Matter was taken up in appeal before Supreme Court. On 08.04.2011, Court considered
matter and permitted petitioners to file objections under Section 5-A and competent authority was
directed to decide same. The order dated 08.04.2011 passed by Supreme Court in Special Leave to
Appeal (Civil) No. 3740 of 2006 with other connected appeals, reads as under:

"These petitions are directed against order dated 8.12.2005 passed by the Division
Bench of the Allahabad High Court dismissing the writ petitions filed by the petitioners questioning
the acquisition of their land by the State Government by invoking section 4 read with section 17(1)
and (4) of the Land Acquisition Act, 1894 (for short "the Act").

After the arguments were heard for some time, Shri Dinesh Dwivedi, learned
senior counsel appearing for the respondents made a request that further hearing of these cases be
adjourned and the respondents may be allowed to hold inquiry under section 5A and submit a
7 All. Santosh Kumar & Ors. Vs State Of U.P. & Ors.
765
detailed report which may then be scrutinized by this Court. According to Shri Dwivedi notices will
be issued to the affected persons within three weeks' from today to enable them to file objections
within four weeks and after hearing those who file objections, the report will be submitted to the
Court within three months.

In view of the statement made by Shri Dwivedi we deem it proper to issue the
following directions:

1. With three weeks' from today the Land Acquisition Officer shall issue notice
to the affected persons, who may file their objections within four weeks from the date of receipt
of notice.

2. The Land Acquisition Officer shall hear the objectors and submit report this
Court within three months.

3. Copies of the recommendations of the concerned officer shall be made available
to the petitioners, who may file further affidavit within next two weeks.

List the case on 8.8.2011."
(emphasis added)

17. Notices were issued by SLAO. Petitioners filed their objections and thereafter report
was submitted. Thereafter all these appeals came up before Court on 19.09.2011 and it allowed
appeals, set aside this Court's judgments dated 08.12.2005 and remanded matter to consider
grounds taken by petitioners in challenging acquisition notifications in taking recourse to Section
17 and decide matter on merits. The final order passed by Court on 19.09.2011 reads as under:

"Leave granted.

These appeals are directed against orders dated 8.12.2005 passed by the Division
Bench of the Allahabad High Court whereby the writ petitions filed by the appellants questioning
the acquisition of their land were summarily dismissed.

We have heard Shri Kailash Vasdev, learned senior counsel appearing for the
appellants and Shri S.R. Singh, learned senior counsel appearing for the respondents and carefully
perused the record including affidavit dated 4.8.2011 of the Special Land Acquisition Officer (Joint
Organization), Banda and additional documents filed by the appellants.

In our considered opinion, the impugned orders are liable to be set aside only on
the ground that while dismissing the writ petitions, the High Court did not advert to the factual
matrix of the case and grounds on which the appellants have challenged the acquisition of their
land including the one that the urgency provision contained in section 17 of the Land
Acquisition Act, 1894 could not have been invoked for the acquisition of land for construction of
766 INDIAN LAW REPORTS ALLAHABAD SERIES

residential and non-residential wings of District Headquarter. The High Court should have
considered on merits the grounds of challenge and decided the same by assigning cogent
reasons. Its failure to do so has resulted in manifest injustice to the appellants.

In the result, the appeals are allowed, the impugned orders are set aside and the
matters are remitted to the High Court for fresh disposal of the writ petitions. The parties are given
liberty to file additional affidavits and documents before the High Court within a period of 12
weeks.

All the pending interlocutory applications are disposed of as infructuous."
(emphasis added)

18. Petitioners have filed supplementary affidavit placing on record copies of their
objections and report submitted by authorities. They have also amended their petitions in the light
of provisions of Act, 2013. We shall refer to relevant pleadings etc. whenever the same would be
required.

19. Basic submission as we have already noticed is that dispensation of inquiry by invoking
powers under Section 17 of Act, 1894 is illegal and arbitrary and in any case acquisition
proceedings in respect of petitioners' land have deemed lapsed under Section 24(2) of Act, 2013.

20. It is not in dispute that Karvi was a Tahsil of Revenue District Banda till it was
separated and made part of a new District Chitrakoot by notification dated 13.05.1997 issued under
Section 11 of Act, 1901. Newly created Revenue District 'Chitrakoot' comprised of two Tahsils,
Mau and Karvi. District Headquarter was sought to be set up in Karvi.

21. Before creation of new District Chitrakoot, Karvi did not have any infrastructure so as
to cope up with requirement of a new Revenue District. As a result of creation of new Revenue
district a large number of district level offices and other incidental institutions had to be set up
which included offices pertaining to different departments like Health, Education, Transportation,
Postal Services, Irrigation, Public Works Department, Rural Development, Police, Revenue,
Judiciary etc. Since after creation of Revenue district, in respect of various things certain
formalities are also required to be performed which took some time. This is evident from the fact
that first district level officer, i.e., District Magistrate was posted in newly created District
Chitrakoot on 23.05.1997. Thereafter district level Police Officer, i.e., Superintendent of Police was
posted on 27.05.1997. Rest district level officers were posted on various subsequent dates. District
Judge could be posted on 10.02.1998, Chief Medical Officer on 24.08.2000 and the process
continued. All these district level officers and their entire subordinate hierarchy required not only
functional office space but also residential accommodation to keep their families at the place of
their posting and for catering other needs and attending facilities like Hospital, School etc. First and
foremost responsibility of State as well as Authorities was to build up official infrastructure to cater
need of district level Revenue Officers, Police Officers, Judicial Officers, Medical Officers etc. and
to provide requisite residential accommodation to them. State Government constituted a committee
7 All. Santosh Kumar & Ors. Vs State Of U.P. & Ors.
767
to work out area of land required for various purposes so that it may proceed to acquire the same.
The committee proposed 27 acres of land for Collectorate, 50 acres for Civil Court, 3 acres for
office of Superintendent of Police, 15 acres for District Hospital, 5 acres for Vikas Bhawan, 30
acres for District Jail and so on. At first stage it resolved to possess atleast 250 acres of land,
whereagainst identified land was only about 234 acres. Hence first notification under Section 4(1)
proposing to acquire land measuring 234 acres land came to be issued on 18.06.2002.

22. Though it is contended by petitioners that there was already land earmarked more than
a century back but they could not substantiate and identified any such land available to State.
Requirement of establishing district level offices in a newly created Revenue District as well as
residential accommodations for newly posted officers factually is not disputed and looking to
backdrop that it was a newly created district, it also cannot be said that said requirement was not
urgent. Government constituted initially a committee to find out requirement of various
departments who submitted report ultimately on 24.12.2001 and thereafter notification was issued
on 18.06.2002.

23. State Government apparently, therefore, in our view, did not erred in law in invoking
urgency clause by exercising powers under Section 17(1) and (4) and dispensing with inquiry under
Section 5-A of Act, 1894. Even otherwise, grievance of petitioners that opportunity of hearing
which was available to land owners if inquiry under Section 5-A would have been made, has also
been observed in this case in view of directions issued by Supreme Court on 08.04.2011 pursuant
whereto objections were filed by various land owners and after referring to same a report has been
submitted by concerned revenue officials. The objections submitted by land owners, some of which
have been placed on record, would show that they have mainly pleaded for exemption of their land
from acquisition. It has been highlighted in report that from 1835 to 1982 Karvi was enjoying status
of a Tahsil only and there was no district level office available. Only block level officers were
posted and offices for them were available. These facts formerly are not shown to be incorrect. We
would further elaborate our views on the question, whether Government was justified in this
particular case in dispensing with inquiry under Section 5-A by invoking powers under Section
17(1) of Act, 1894.

24. In this regard we may recapitulate the law relevant on this aspect by referring to some
relevant authorities on the subject.

25. Section 5-A was inserted in Act, 1894 as long back as in 1923, by Act No. 38 of 1923.
There are minor amendments made subsequently but substance of provision has remained the
same.

26. Normal procedure of acquisition is that a proposal of acquisition is published in
notification under Section 4 of Act, 1894. Land owners whose land is proposed to be acquired, are
given an opportunity to make their objections. Collector is under an obligation to consider
objections and also offer an opportunity of hearing to objectors and thereafter submit a report to
Government containing his recommendations on the objections, for decision of Government. After
768 INDIAN LAW REPORTS ALLAHABAD SERIES

considering the report and other material, Government make declaration that land is proposed to be
acquired for public purpose and this is done by publication of notification under Section 6.
Therefore, there is possibility of some difference in details of land stated in the notification issued
under Section 4 and finally declared land, as acquired for public purpose, detailed in notification
under Section 6.

27. Collector is then authorised to take order for acquisition and under Section 8 is
supposed to mark, measure and plan the acquired land. A notice thereafter is issued under Section 9
to Land Owners by Collector notifying his intention of taking possession of land and that the claim
for compensation be submitted to him. Under Section 11, Collector makes enquiry for determining
amount of compensation payable to land owners, whose land has been acquired, and make award.
After payment of compensation, Collector takes possession of land.

28. There is an exception to normal procedure of taking possession which is contained in
Section 17 of Act 1894. It says that in case of urgency, even though no award has been made,
Government can direct Collector to take possession of any land, needed for public purpose, and on
such possession being taken by Collector, land shall vest absolutely with the Government free from
all encumbrances. Section 17(4) provides, where such urgency for the purpose of possession is to
be acted upon, Government, shall declare that provision of Section 5-A shall not apply.

29. The circumstances, when Government would be justified to dispense with enquiry
under Section 5-A while invoking urgency clause under Section 17, for the purpose of taking
possession, has been considered in a catena of decisions in last several decades and it would be
useful to refer some relevant authorities in this regard.

30. Right to file objection against proposal of acquisition of land published under Section 4
is a substantial right, consistent with principle of natural justice, since forcibly acquisition of land,
without consent of land owners, is a serious matter.

31. In Nandeshwar Prasad vs. U.P. Government AIR 1964 SC 1217, Court said, "the
right to file objection under Section 5-A is a substantial right when a person's property is being
threatened with acquisition and we cannot accept that that right can be taken away as if by a side
wind".

32. In Munshi Singh and others vs. Union of India (1973) 2 SCC 337, which is a
decision of three judges bench, Court stressed upon and emphasized upon an inbuilt legislative
recognition of principle of natural justice in Section 5-A and said:

"Sub-section (2) of Section 5-A makes it obligatory on the Collector to give an
objector an opportunity of being heard. After hearing all objections and making further inquiry he
is to make a report to the appropriate Government containing his recommendation on the
objections. ........ The legislature has, therefore, made complete provisions for the persons
interested to file objections against the proposed acquisition and for the disposal of their
7 All. Santosh Kumar & Ors. Vs State Of U.P. & Ors.
769
objections. It is only in cases of urgency that special powers have been conferred on the
appropriate Government to dispense with the provisions of Section 5-A".

33. In State of Punjab vs. Gurnail Singh and others 1980 (1) SCC 471 it was held that it
is fundamental that compulsory taking of a man's property is a serious matter and smaller the man
the more serious the matter. Hearing him before depriving him is both reasonable and preemptive
of arbitrariness. 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 Articles 14 (and 19),
burke an enquiry under Section 17 of Act, 1894. A slumbering process, pending for years and
suddenly exciting itself into immediate forcible taking, makes travesty of emergency power.

34. In Shyam Nandan Prasad and others vs. State of Bihar and others (1993) 4 SCC
255 reiterating that section 5-A is mandatory, Court said "the proceeding before the Collector is a
blend of public and individual enquiry".

35. In Union of India and others vs. Mukesh Hans (2004) 8 SCC 14, Court held that
Section 17(4) is an exception to normal mode of acquisition. Mere existence of urgency or
unforeseen emergency by itself is not sufficient to direct for dispensation of Section 5-A. Court
reiterated that there must be real existing emergency for which an opinion must be formed by the
Government, objectively. Court said:

"It requires an opinion to be formed by concerned government that along with
existence of such urgency or unforeseen emergency there is also a need for dispensing with Section
5-A enquiry, which indicates that the legislature intended that the appropriate government to apply
its mind before dispensing with Section 5-A enquiry. It also indicates the mere existence of an
urgency under Section 17 (1) or unforeseen emergency under Section 17 (2) would not by itself be
sufficient for dispensing with Section 5-A enquiry. If that was not the intention of the legislature
then the latter part of sub-section (4) of Section 17 would not have been necessary and the
legislature in Section 17 (1) and (2) itself could have incorporated that in such situation of
existence of urgency or unforeseen emergency automatically Section 5-A enquiry will be dispensed
with, but then that is not language of the Section which, in our opinion, requires the appropriate
Government to further consider the need for dispensing with Section 5-A enquiry in spite of the
existence of unforeseen emergency. This understanding of ours as to the requirement of an
application of mind by the appropriate Government while dispensing with Section 5-A inquiry does
not mean that in every case when there is an urgency contemplated under Section 17(1) and
unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the
need for dispensing with Section 5-A enquiry. ....... There is need for application of mind by
appropriate Government that such an urgency for dispensing of Section 5-A enquiry is inherent
........... ."

36. In Hindustan Petroleum Corporation Ltd. vs Darius Shapur Chenai & Ors (2005)
7 SCC 627 it was held that the provisions of Section 5-A of Act, 1894 must be read consistent with
770 INDIAN LAW REPORTS ALLAHABAD SERIES

Article 300-A of the Constitution and it is akin to fundamental right of procedure before depriving
a persons of his land, and must be strictly complied with.

37. In Essco Fabs Pvt. Ltd. & Anr vs State Of Haryana & Anr (2009) 2 SCC 377 it was
held that enquiry should not be dispensed with lightly.

38. In Anand Singh and another vs. State of U.P. and others (2010) 11 SCC 242 Court
considered as to when State would be justified in invoking power under Section 17(4) for
acquisition of land and dispensing with enquiry under Section 5-A so as to take possession
immediately. It is said that power under Section 17 is not to be exercised in a routine manner. It
would be justified only when circumstances warrant immediate possession. It should not be lightly
invoked. It is an exceptional power enabling land acquiring body to dispense with enquiry under
Section 5-A. Government must apply its mind before dispensing with enquiry under Section 5-A
whether urgency is of such a nature that justifies elimination of summary enquiry under Section 5A. The mere mention of words in acquisition notification that Government is satisfied about
urgency and dispensing with enquiry under Section 5-A may raise a presumption in favour of
Government with per-requisite conditions for exercise of such power are satisfied but when
challenged, Government has to produce relevant material before Court to show existence of such
circumstances, which justify dispensation of inquiry and avail an exceptional power under Section
17. Court further said, "upon challenge being made to the use of power under Section 17 the
Government must produce appropriate material before the Court that the opinion for dispensing
with enquiry under Section 5-A has been formed by the Government after due application of mind
on the material placed before it".

39. With regard to judicial review of exercise of power, Court in Anand Singh and another
(Supra) further said in paras 45, 46, 47 and 48 as under :

"45. It is true that power conferred upon the Government under Section 17 is
administrative and its opinion is entitled to due weight, but in a case where the opinion is formed
regarding the urgency based on considerations not germane to the purpose, the judicial review of
such administrative decision may become necessary.

46. As to in what circumstances the power of emergency can be invoked are
specified in Section 17 (2) but circumstances necessitating invocation of urgency under Section
17(1) are not stated in the provision itself. Generally speaking, the development of an area (for
residential purposes) or a planned development of city, takes many years if not decades and,
therefore, there is no reason why summary enquiry as contemplated under Section 5-A may not be
held and objections of land owners/persons interested may not be considered. In many cases on
general assumption, likely delay in completion of enquiry under Section 5-A is set up as a reason
for invocation of extraordinary power in dispensing with the enquiry little realizing that an
important and valuable right of the person interested in the land is being taken away and with
some effort enquiry could always be completed expeditiously.
7 All. Santosh Kumar & Ors. Vs State Of U.P. & Ors.
771
47. The special provision has been made in Section 17 to eliminate enquiry under
Section 5-A in deserving and cases of real urgency. The government has to apply its mind on the
aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5-A.
We have already noticed few decisions of this Court. There is conflict of view in the two decisions
of this Court viz.; Narayan Govind Gavate and Pista Devi. In Om Prakash this Court held that
decision in Pista Devi must be confined to the fact situation in those days when it was rendered and
the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan
Govind Gavate. We agree.

48. As regards the issue whether pre- notification and post-notification delay
would render the invocation of urgency power void, again the case law is not consistent. The view
of this Court has differed on this aspect due to different fact-situation prevailing in those cases. In
our opinion such delay will have material bearing on the question of invocation of urgency power,
particularly in a situation where no material has been placed by the appropriate government
before the court justifying that urgency was of such nature that necessitated elimination of enquiry
under Section 5-A."

40. In Radhe Shyam (Dead) through Lrs. and others vs. State of U.P. and others
2011(5) SCC 553 it was reiterated that property of a citizen cannot be acquired by State without
complying with the mandate of Sections 4, 5-A and 6 of Act, 1894. A public purpose however,
loudable would not entitle Government to invoke urgency provisions, since the same have the
effect of depriving owner of his right to property and that too without being heard. Only in a case
of real urgency, Government would be justified in invoking urgency provisions. Section 17 must
have been invoked only when purpose of acquisition cannot brook the delay of even few weeks or
months. The authority must be fully satisfied that time of few weeks or months likely to be taken in
conducting enquiry under Section 5-A shall, in all probability, frustrate the public purpose for
which land is proposed to be acquired. Satisfaction of Government on issue of urgency is
subjective but is a condition precedent to the exercise of power under Section 17(1) and can be
challenged on the ground that authority did not apply its mind to relevant factors, and on record,
there is no material justifying existence of alleged urgency. It also held that exercise of power
under Section 17(1) necessarily does not result in exclusion of Section 5-A, inasmuch as, the
person concerned 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 shows that it merely enables Government to direct
that Section 5-A would not apply to the cases covered under Sections (1) or (2) of Section 17.
Therefore, mere fact that certain purposes may be treated as public purpose for purpose of
acquisition but that by itself would not mean that their exists urgency to dispense with inquiry
unless the circumstances actually and really are in existence to show that delay in taking possession
would be adverse to public interest. It also held that Court can take judicial notice of the fact that
forplanning, execution and implementation of scheme relating to development of residential,
commercial and industrial or institutional areas, Government takes few years, therefore, in such
cases private property should not be acquired by invoking urgency clause as denial of Rule of audi
alteram partem embodied in Section 5-A is not at all warranted in such cases.
772 INDIAN LAW REPORTS ALLAHABAD SERIES

41. In Darshan Lal Nagpal (Dead) By Lrs. vs. Govt. of NCT of Delhi and others (2012)
2 SCC 327 after having retrospection of some of authorities on the subject, Court in para 28 of the
judgment stated as under :

"What needs to be emphasized is that although in exercise of the power of eminent
domain, the State can acquire the private property for public purpose, it must be remembered that
compulsory acquisition of the property belonging to a private individual is a serious matter and
has grave repercussions on his Constitutional right of not being deprived of his property without
the sanction of law - Article 300-A and the legal rights. Therefore, the State must exercise this
power with great care and circumspection. At times, compulsory acquisition of land is likely to
make the owner landless. The degree of care required to be taken by the State is greater when the
power of compulsory acquisition of private land is exercised by invoking the provisions like the one
contained in Section 17 of the Act because that results in depriving the owner of his property
without being afforded an opportunity of hearing."

42. In Union of India and others vs. Shiv Raj (supra), Court in para 15 said that Section
5-A confers a valuable right on the owner of land and it is not an empty formality. It is a
substantive right, which can be taken away only for good and valid reasons and within the
limitations prescribed under Section 17(4) of Act, 1894.

43. The up shot of the authorities discussed above is that inquiry under Section 5-A should
not be dispensed with on mere asking or in a routine course but it is only when there actually exist
urgency, such inquiry should be dispensed with.

44. There are total 42 petitioners in these four petitions.