# 8 S.C.R. 359 SRI RADHY SHYAM (D) THROUGH LRS. & ORS v. STATE OF U.P. & ORS

- **Citation:** [2011] 8 S.C.R. 359
- **Court:** Supreme Court of India
- **Decided:** 2011-04-15
- **Case number:** Civil Appeal No. 3261 of 2011
- **Bench:** G.S. Singhvi, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8-s-c-r-359-sri-radhy-shyam-d-through-lrs-ors-v-state-of-u-p-ors-27915
- **Pages:** 86

## Headnote

Land Acquisition Act, 1894 - ss. 17(1) & (4) and 5-A:
A
B
Acquisition of land - Power of eminent domain - Power c
conferred upon the State to acquire private property -
Invocation of urgency clause and dispensing with enquiry as
envisaged under s.5-A - When permissible - Principles restated.
Writ petition filed by appellants questioning the
D
acquisition .of their/and for planned industrial development
of District Gautam Budh Nagar through Greater NO/DA
Industrial Development Authority by invoking s.17(1) and
17(4) of the Act, as amended by Uttar Pradesh Act No.8 of
1974 - Plea of appellants that there was no justification to
E
invoke the urgency clause and to dispense with the inquiry
envisaged under s. 5-A - High Court non-suited the appellants
and dismissed the writ petition - On appeal, held: The
appellants had succeeded in making out a strong case for
deeper examination of the issues raised in the writ petition
F
and the High Court committed serious error by summarily
non-suiting them - The assertion by the appellants that there
was no urgency in the acquisition of land; that the concerned
authorities did not apply mind to the relevant factors and
records and arbitrarily invoked the urgency provisions and
G
thereby denied him the minimum opportunity of hearing in
terms of s.5-A(1) and (2), should have been treated by the
High Court as sufficient for calling upon the respondents to
file their response and produce the relevant records to justify
359
H
360
SUPREME COURT REPORTS
[2011] 8 S.CJ _
A the invoking of urgency provisions - On facts, the acquisition
was primarily meant to cater private interest in the name of
industrial development of the district - Even if planned
industrial development of the district is treated as public
purpose within the meaning of s. 4, on facts there was no
B urgency which could justify the exercise of power by the State
Government under s.17(1) and 17(4) - The time required for
ensuring compliance of the provisions contained in s. 5-A
cannot, by any stretch of imagination, be portrayed as delay
which will frustrate the purpose of acquisition - There was no
c wa"ant to exclude the application of s.5-A which represent the
statutory embodiment of the rule of audi alteram partem -
There is also merit in the appellants' plea that the acquisition
of their land was vitiated due to violation of the doctrine of
equality enshrined in Article 14 of the Constitution inasmuch
0 as the respondents adopted the policy of pick and choose in
acquiring some parcels of land - The Court cannot refuse to
protect the legal and constitutional rights of the appellants
merely because some other landowners did not come forward
to challenge the illegitimate exercise of power by the State
Government - Respondent No. 1 directed to pay cost of
E Rs. 5, 00, 0001- to the appellants for forcing unwarranted
litigation on them - However, the respondents shall be free
to proceed from the stage of s.4 notification and take
appropriate action after complying with s.5-A(1) and (2) - If
the appellants fee/ aggrieved by the fresh exercise
F undertaken by the State Government then they shall be free
to avail appropriate legal remedy - Constitution of India, 1950
- Article 14.
Constitution of India, 1950 - Article 226 and 300A -
G Acquisition of land - Invocation of s.17(1) and/or 17(4) - Writ
petition filed by landowner under Art.226 - Held: While
examining the land owner's challenge to the acquisition of land
in a petition filed under Article 226, the High Court should not
adopt a pedantic approach - It should decide the matter
H keeping in view the constitutional goals of social and
1 SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v.
361
STATE OF U.P. & ORS.
economic justice and the fact that even though the right to
A
propetty is no longer a fundamental right, the same continues
to be an impottant constitutional right and in terms of Atticle
300-A, no person can be deprived of his propetty except by
authority of law - In cases where the

## Text

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[2011) 8 S.C.R. 359
SRI RADHY SHYAM (D) THROUGH LRS. & ORS.
v.
STATE OF U.P. & ORS.
(Civil Appeal No. 3261 of 2011)
APRIL 15, 2011
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Land Acquisition Act, 1894 - ss. 17(1) & (4) and 5-A:
A
B
Acquisition of land - Power of eminent domain - Power c
conferred upon the State to acquire private property -
Invocation of urgency clause and dispensing with enquiry as
envisaged under s.5-A - When permissible - Principles restated.
Writ petition filed by appellants questioning the
D
acquisition .of their/and for planned industrial development
of District Gautam Budh Nagar through Greater NO/DA
Industrial Development Authority by invoking s.17(1) and
17(4) of the Act, as amended by Uttar Pradesh Act No.8 of
1974 - Plea of appellants that there was no justification to
E
invoke the urgency clause and to dispense with the inquiry
envisaged under s. 5-A - High Court non-suited the appellants
and dismissed the writ petition - On appeal, held: The
appellants had succeeded in making out a strong case for
deeper examination of the issues raised in the writ petition
F
and the High Court committed serious error by summarily
non-suiting them - The assertion by the appellants that there
was no urgency in the acquisition of land; that the concerned
authorities did not apply mind to the relevant factors and
records and arbitrarily invoked the urgency provisions and
G
thereby denied him the minimum opportunity of hearing in
terms of s.5-A(1) and (2), should have been treated by the
High Court as sufficient for calling upon the respondents to
file their response and produce the relevant records to justify
359
H
360
SUPREME COURT REPORTS
[2011] 8 S.CJ _
A the invoking of urgency provisions - On facts, the acquisition
was primarily meant to cater private interest in the name of
industrial development of the district - Even if planned
industrial development of the district is treated as public
purpose within the meaning of s. 4, on facts there was no
B urgency which could justify the exercise of power by the State
Government under s.17(1) and 17(4) - The time required for
ensuring compliance of the provisions contained in s. 5-A
cannot, by any stretch of imagination, be portrayed as delay
which will frustrate the purpose of acquisition - There was no
c wa"ant to exclude the application of s.5-A which represent the
statutory embodiment of the rule of audi alteram partem -
There is also merit in the appellants' plea that the acquisition
of their land was vitiated due to violation of the doctrine of
equality enshrined in Article 14 of the Constitution inasmuch
0 as the respondents adopted the policy of pick and choose in
acquiring some parcels of land - The Court cannot refuse to
protect the legal and constitutional rights of the appellants
merely because some other landowners did not come forward
to challenge the illegitimate exercise of power by the State
Government - Respondent No. 1 directed to pay cost of
E Rs. 5, 00, 0001- to the appellants for forcing unwarranted
litigation on them - However, the respondents shall be free
to proceed from the stage of s.4 notification and take
appropriate action after complying with s.5-A(1) and (2) - If
the appellants fee/ aggrieved by the fresh exercise
F undertaken by the State Government then they shall be free
to avail appropriate legal remedy - Constitution of India, 1950
- Article 14.
Constitution of India, 1950 - Article 226 and 300A -
G Acquisition of land - Invocation of s.17(1) and/or 17(4) - Writ
petition filed by landowner under Art.226 - Held: While
examining the land owner's challenge to the acquisition of land
in a petition filed under Article 226, the High Court should not
adopt a pedantic approach - It should decide the matter
H keeping in view the constitutional goals of social and
1 SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v.
361
STATE OF U.P. & ORS.
economic justice and the fact that even though the right to
A
propetty is no longer a fundamental right, the same continues
to be an impottant constitutional right and in terms of Atticle
300-A, no person can be deprived of his propetty except by
authority of law - In cases where the acquisition is made by
invoking s.4 read with s.17(1) and/or 17(4), the High Coutt
B
should insist upon filing of reply affidavit by the respondents
and production of the relevant records and carefully scrutinize
the same before pronouncing upon legality of the impugned
notification/action because a negative result without
examining the relevant records to find out whether the c
competent authority had formed a bona fide opinion on the
issue of invoking the urgency provision and excluding the
application of s.5-A is likely to make the land owner a landless
poor and force him to migrate to the nearby city only to live
in a slum - A depatture from this rule should be made only 0
when land is required to meet really emergent situations like
those enumerated in s. 17(2) - If the acquisition is intended
to benefit private person(s) and the provisions contained in
s.17(1) and/or 17(4) are invoked, then scrutiny of the
justification put forward by the State should be more rigorous
and relief should not be denied to the petitioner by applying
E
the technical rules of procedure embodied in the Code of Civil
Procedure and other procedural laws - While dealing with
challenge to the acquisition of land belonging to those who
suffer from handicaps of povetty, illiteracy and ignorance and
do not have the resources to access the material relied upon
F
by the functionaries of the State and its agencies for forming
an opinion or recording a satisfaction that the urgency
provisions contained in s.17(1) should be resorted to and/or
the enquiry envisaged under s. 5A should be dispensed with,
the High Court should not literally apply the abstract rules of G
·burden of proof enshrined in the Evidence Act - Land
Acquisition Act, 1894 - ss. 17(1) & (4) and 5-A.
The State Government acquired the land owned by
the appellants for the planned industrial development of
H
362
SUPREME COURT REPORTS
[2011) 8 S.C.F\
A District Gautam Budh Nagar through Greater NOIDA
Industrial Development Authority by invoking Section
17(1) and 17(4) of the Land Acquisition Act, 1894, as
amended by the Uttar Pradesh Act No. 8 of 1974. The
appellants filed writ petition challenging the acquisition
B of their land on grounds (i) that the land could not be
used for industrial purposes because in the draft Master
Plan of Greater NOIDA (2021 ), the same was shown as
part of residential zone; (ii) that they had already
constructed dwelling houses and as per the policy of the
c State Government, the residential structures were
exempted from acquisition; (iii) that the State Government
arbitrarily invoked Section 17(1) read with Section 17(4)
of the Act and deprived them of their valuable right to
raise objections under Section 5-A and (iv) that the
0 acquisition of land was vitiated by arbitrariness, mala
fides and violation of Article 14 of the Constitution
inasmuch while the lands )f the Member of Legislative
Assembly and other influential persons were left out from
acquisition despite the fact that they were not in abadi,
E the appellant-landowners were not given similar treatment
although their land was part of abadi and they had
constructed dwelling units. The writ petition was
dismissed by the High Court.
In the instant appeal, the appellants contended that
F the High Court had failed to consider the issues raised
in the writ petition in a. correct perspective. They
contended that though they had specifically pleaded that
there was no valid ground to invoke the urgency clause
contained in Section 17(1) and to dispense with the
G application of Section 5-A but the High Court did not even
call upon the respondents to file counter affidavit and
brushed aside the challenge to the acquisition
proceeding on a wholly untenable premise that the
affidavit filed in support of the writ petition was laconic.
H It was further contended on behalf of the appellants that
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v.
363
STATE OF U.P. & ORS.
the purpose for which land was acquired i.e. planned
A
industrial development of the district did not justify
invoking of the urgency provisions and denial of
opportunity to the appellants and other land owners to
file objections under Section 5-A (1) and to be heard by
the Collector in terms of the mandate of Section 5-A (2)
B
and further that the High Court had misdirected itself in
summarily dismissing the writ petition ignoring the
substantive plea of discrimination raised by the
appellants.
The questions which therefore arose for C
consideration in the instant appeal were (1) whether the
High Court was justified in non-suiting the appellants on
the ground that they had not raised a specific plea
supported by a proper affidavit to question the decision
taken by the State government to invoke Section 17(1)
D
and 17(4) of the Land Acquisition Act; 1894 and (2)
· whether the appellants had succeeded in prima facie
proving that there was no justification to invoke the
urgency clause and to dispense with the inquiry
envisaged under Section 5-A. .
E
Allowing the appeal, the Court
HELD:1.1. At the outset, this Court records its
disapproval of the casual manner in which the High Court
disposed of the writ petition without even calling upon
the respondents to file counter affidavit and produce the
relevant records. A reading of the averments contained
F
in the writ petition, coupled with the appellants' assertion
that the acquisition of their land was vitiated due to
discrimination inasmuch as land belonging to influential
G
persons had been left out from acquisition, but their land
was acquired in total disregard of the policy of the State
Government to leave out land on which dwelling units
had already been constructed, show that the appellants
H
364
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A had succeeded in making out a strong case for deeper
examination of the issues raised in the writ petition and
the High Court committed serious error by summarily
non-suiting them. [Para 15] [388-E-G]
8
1.2. The majority of the landowners do not have any
idea about their constitutional and legal rights, which can
be enforced by availing the constitutional remedies
under Articles 32 and 226 of the Constitution. They
reconcile with deprivation of land by accepting the
amount of compensation offered by the Government and
C by thinking that it is their fate and destiny determined by
God. Eve_n those who get semblance of education are
neither conversant with the functioning of the State
apparatus nor they can access the records prepared by
the concerned authorities as a prelude to the acquisition
D of land by invoking Section 4 with or without the aid of
Section 17(1) and/or 17(4). Therefore, while examining the
land owner's challenge to the acquisition of land in a
petition filed under Article 226 of the Constitution, the
High Court should not adopt a pedantic approach, as has
E been done in the present case, and decide the matter
keeping in view the constitutional goals of social and
economic justice and the fact that even though the right
to property is no longer a fundamental right, the same
continues to be an important constitutional right and in
F terms of Article 300-A, no person can be deprived of his
property except by authority of law. In cases where the
acquisition is made by invoking Section 4 read with
Section 17(1) and/or 17(4), the High Court should insist
upon filing of reply affidavit by the respondents and
G production of the relevant records and carefully scrutinize
the same before pronouncing upon legality of the
impugned notification/action because a negative result
without examining the relevant records to find out
whether the competent authority had formed a bona fide
H opinion on the issue of invoking the urgency provision
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v.
365
STATE OF U.P. & ORS.
and excluding the application of Section 5-A is likely to
A
make the land owner a landless poor and force him to
migrate to the nearby city only to live in a slum. A
departure from this rule should be made only when land
is required to meet really emergent situations like those
enumerated in Section 17(2). If the acquisition is intended
8
to benefit private person(s) and the provisions contained
in Section 17(1) and/or 17(4) are invoked, then scrutiny
of the justification put forward by the State should be
more rigorous in cases involving the challenge to the
acquisition of land, the pleadings should be liberally c
construed and relief should not be denied to the
petitioner by applying the technical rules of procedure
embodied in the Code of Civil Procedure and other
procedural laws. [Para 18] [390-E-H; 391-A-F]
1.3. It is clear that while dealing with challenge to the
D
acquisition of land belonging to those who suffer from
handicaps of poverty, illiteracy and ignorance and do not
1have the resources to access the material relied upon by
1the functionaries of the State and its agencies for forming
ian opinion or recording a satisfaction that the urgency
E
provisions contained in Section 17(1) should be resorted
..;o and/or the enquiry envisaged under Section SA should
-le dispensed with, the High Court should not literally
iapply the abstract rules of burden of proof enshrined in
•he Evidence Act. It is too much to expect from the rustic
F
•illagers, who are not co.nversant with the intricacies of
.aw and functioning of the judicial system in India to first
obtain relevant information and records from the
-:oncerned State authorities and then present skillfully
Brafted petition for enforcement of their legal and/or G
onstitutional rights. The Court should also bear in mind
hat the relevant records are always in the exclusive
•ossession/domain of the authorities of the State and/or
-s agencies. Therefore, in the instant case, an assertion
y the appellants that there was no urgency in the
H
366
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A acquisition of land; that the concerned authorities did not
apply mind to the relevant factors and records and
arbitrarily invoked the urgency provisions and thereby
denied him the minimum opportunity of hearing in terms
of Section 5-A(1) and (2), should be treated as sufficient
B for calling upon the respondents to file their response
and produce the relevant records to justify the invoking
of urgency provisions. [Para 19] [392-E-H; 393-A-B]
Authorised Officer, Thanjavur v. S Naganatha Ayyar
c (1979) 3 sec 466: 1979 (3) SCR 1121 - relied on.
Narayan Govind Gavate v. State of Maharashtra
(1977) 1 SCC 133 and Anand Singh v. State of Uttar Pradesh
(2010) 11 SCC 242: 2010 (9) SCR 133 - referred to.
o
Woolmington v. Director Public Prosecutions, 1935 AC
462 - referred to.
Phipson on Evidence (11th Edn) - referred to.
2.1. The acquisition of land under Section 4 read with
E Section 17(1) and/or 17(4) of the Land Acquisition Act,
1894 has generated substantial litigation in the last 50
years. Frorri an analysis of the relevant statutory
provisions and interpretation thereof by this Court in
different cases, the following principles can be culled out
F in this regard:
G
H
(i) Eminent domain is a right inherent in every
sovereign to take and appropriate property
belonging to citizens for public use. To put it
differently, the sovereign is entitled to reassert its
dominion over any portion of the soil of the State
including private property without its owner's
consent provided that such assertion is on account
of public exigency and for public good
(ii) The legislations which provide for compulsory
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v.
367
STATE OF U.P. & ORS.
acquisition of private property by the State fall in the
A
category of expropriatory legislation and such
legislation must be construed strictly.
B
(iii) Though, In exercise of the power of eminent
domain, the Government can acquire the private
property for public purpose, the compulsory taking
of one's property is a serious matter. If the property
belongs to economically disadvantaged segment of
the society or people suffering from other handicaps,
then the Court is not only entitled but is duty bound
to scrutinize the action/decision of the State with C
greater vigilance, care and circumspection keeping
in view the fact that the land owner is likely to
become landless and deprived of the only source of
his livelihood and/or shelter.
D
(iv) The property of a citizen cannot be acquired by
the State and/or its agencies/instrumentalities
without complying with the mandate of Sections 4,
5-A and 6 of the Act. A public purpose, however,
laudable it may be does not entitle the State to invoke
E
the urgency provisions because the same have the
effect of depriving the owner of his right to property
without being heard. Only in a case of real urgency,
the State can invoke the urgency provisions and
dispense with the requirement of hearing the land
F
owner or other interested persons.
(v) Section 17(1) read with Section 17(4) confers
extraordinary power upon the State to acquire private
property without complying with the mandate of
Section 5-A. These provisions can be invoked only G
when the purpose of acquisition cannot brook the
delay of even few weeks or months. Therefore, before
excluding the application of Section 5-A, the
concerned authority must be fully satisfied that time
of few weeks or months likely to be taken in
H
A
B
c
D
E
F
G
H
368
SUPREME COURT REPORTS
[2011] 8 S.C.R.
conducting inquiry under Section 5·A will, in all
probability, frustrate the public purpose for which
land is proposed to be acquired.
(vi) The satisfaction of the Government on the issue
of urgency is subjective but is a condition precedent
to the exercise of power under Section 17(1) and the
same can be challenged on the ground that the
purpose for which the private property is sought to
be acquired is not a public purpose at all or that the
exercise of power is vitiated due to mala tides or that
the concerned authorities did not apply mind to the
relevant factors and the records.
(vii) The exercise of power by the Government
under Section 17(1) does not necessarily result in
exclusion of Section 5-A of the Act in terms of which
any person interested in land can file objection and
is entitled to be heard in support of his objection.
The use of word "may" in sub-section (4) of Section
17 makes it clear that it merely enables the
Government to direct that the provisions of Section
5-A would not apply to the cases covered under sub·
section (1) or (2) of Sectio~ 17. In other words,
invoking of Section 17(4) is not a necessary
concomitant of the exercise of power under Section
17(1).
(viii) The acquisition of land for residential,
commercial, industrial or institutional purposes can
be treated as an acquisition for public purposes
within the meaning of Section 4 but that, by itself,
does not justify the exercise of power by the
Government under Section 17(1) and/or 17(4). The
Court can take judicial notice of the fact that
planning, execution and implementation of the
schemes relating to development of residential,
commercial, industrial or institutional areas usually
SRI RADHY SH'Y;AM (D) THROUGH LRS. & ORS. v. 369
STATE OF U.P. & ORS.
take few years. Therefore, the private property cannot A
be acq.uired for such purpose by invoking the
urgency provision contained in Section 17(1 ). In any
case, exclusion of the rule of audi a/teram partem
embodied in Section 5-A (1) and (2) is not at all
warranted in such matters.
B
(ix) If land is acquired for the benefit of private
persons, the Court s_hQuld view the ~nvoking of
Section 17(1-)--and/or 17(4) with suspicion and
carefully scrutinize the relevant record before
adjudicating upon the legality of ·such acquisition. C
[Para 53] [436-E-H; 437-A-H; 438-A-H; 439-A-B]
2.2. In the instantcase, upon receipt of proposal from
the Development Authority, the State Government issued
directions to the concerned authorities to take action. for D
the acquisition of land in different villages. The comments/
certificate signed by three officers, which was submitted
in the context of Government Order dated 21.12.2006 was
accompanied by several documents including proposal
for the acquisition of land, preliminary inquiry report E
submitted by the Amin, Land Acquisition, copies of
khasra khatauni and lay out plan, 10 per cent of the
estimated compensation and a host of other documents.
In the note dated nil jointly signed by Deputy Chief
Executive Officer, Greater Noida, Collector, Gautam Budh
F
Nagar and four other officers/officials, the following
factors were cited in justification of invoking the urgency
provisions: (a) The area was notified under Uttar Pradesh
Industrial Areas Development Act, 1976 for planned
industrial development; (b) If there is any delay in the G
acquisition of land then the same is likely to be
encroached and that will adversely affect the concept of
planned industrial development of the district; (c) Large
tracts of land of the nearby villages have already been
acquired and in respect of some villages, the acquisition H
370
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A
proceedings are under progress; (d) the Development
Authority urgently requires land for overall development,
i.e. construction of roads, laying of sewerages, providing
electricity, etc. in the area; (e) the development scheme
has been duly approved by the State Government but the
B work has been stalled due to non-acquisition of land; (f)
Numerous reputed and leading industrial units of the
country want to invest in the State of Uttar Pradesh and,
therefore, it is extremely urgent and necessary that land
is acquired immediately; (g) If land is not made available
c to the incoming leading and reputed industrial concerns
of the country, then they will definitely establish their
units in other States and if this happens, then it will
adversely affect employment opportunities in the State
and will also go against the investment policy of the
0
Government; (h) If written/oral objections are invited from
the farmers and are scrutinized, then it will take
unprecedented long time and disposal thereof will
hamper planned development of the area and (i) as per
the provisions of the Act, there shall be at least one year's
time gap between publication of the notifications under
E Sections 4 and 17 and Section 6. In the considered view
of this Court, the above noted factors do not furnish
legally acceptable justification for the exercise of power
by the State Government under Section 17(1) because
the acquisition is primarily meant to cater private interest
F
in the name of industrial development of the district. It is
neither the pleaded case of the respondents nor any
evidence has been produced before the Court to show
that the
State
Government and/or
agencies/
instrumentalities of the State are intending to establish
G industrial units on the acquired land either by itself or
through its agencies/instrumentalities. The respondents
have justified the invoking of urgency provisions by
making assertions, which are usually made in such cases
by the executive authorities i.e. the inflow of funds in the
H State in the form of investment by private entrepreneurs
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v.
371
. STATE OF U.P. & ORS .
. and availability of larger employment opportunities to the A
people of the area. However , this Court does not find any
plausible reason to accept this tailor-made justification for
approving the impugned action which has resulted in
depriving the. appellants' of their constitutional right to
property. Even if planned industrial development of the B
district is treated as public purpose within the meaning
of Section 4, there was no urgency which could justify
the exercise of power by the State Government under
Section 17(1) and 17(4). The objective of industrial
development of an area cannot be achieved by pressing c
some buttons on computer screen. It needs lot of
deliberations and planning keeping in view various
scientific and technical parameters and environmental
concerns. The private entrepreneurs, who are desirous
of making investment in the State, take their own time in 0
setting up the industrial units. Usually, the State
Government and its agencies/ instrumentalities would
give them two to three years' to put up their factories,
establishments etc. Therefore, time required for ensuring
compliance of the provisions contained in Section 5-A E
cannot, by any stretch of imagination, be portrayed as
delay which will frustrate the purpose of acquisition. In
this context, it is apposite to note that the time limit for
filing objection under Section 5-A (1) is only 30 days from
the date of publication of the notification under Section
4(1). Of course, in terms of sub-section (2), the Collector F
is required to give opportunity of hearing to the objector
and submit report to the Government after making such
further inquiry, as he thinks necessary. This procedure
is likely to consume some time, but as has been well
said, "Principles of natural justice are to some minds G
burdensome but this price-a small price indeed-has to be
paid if we desire a society governed by the rule of law."
[Paras 54, 55] [439-D-H; 440-A-H; 441-A-H; 441-A-H; 442A-B]
H
372
SUPREME COURT REPORTS
(2011] 8 S.C.R.
A
2.3. In this case, the Development Authority sent
proposal some time in 2006. The authorities up to the level
of the Commissioner completed the exercise of survey
and preparation of documents by the end of December,
2006 but it took one year and almost three months to the
B State Government to issue notification under Section 4
·read with Section 17(1) and 17(4). If this much time was
consumed between the receipt of proposal for the
acquisition of land and issue of notification, it is not
possible to accept the argument that four to five weeks
c within which the objections could be filed under subsection (1) of Section 5-A and the time spent by the
Collector in making inquiry under sub-section (2) of
Section 5-A would have defeated the object of
acquisition. [Para 56] [442-C-E]
D
2.4. The apprehension of the respondents that delay
in the acquisition of land will lead to enormous
encroachment is totally unfounded. It is beyond the
comprehension of any person of ordinary prudence to
think that the land owners would encroach their own
E land with a view to frustrate the concept of planned
industrial development of the district. The perception of
the respondents that there should be atleast one year's
time gap between the issue of notifications under
Sections 4 and 6 is clearly misconceived. The time limit
F of one year specified in clause (ii) of the proviso to
Section 6(1) is the outer limit for issue of declaration. This
necessarily means that the State Government can
complete the exercise under Sections 5-A and 6 in a
shorter period. There was no real and substantive
G urgency which could justify invoking of the urgency
provision under Section 17(1) and in any case, there was
no warrant to exclude the application of Section 5-A
which, as mentioned above, represent the statutory
embodiment of the rule of audi a/teram partem. [Paras 57,
H 58 and 59] [442-F-H; 443-A-B]
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v.
373
STATE OF U.P. & ORS.
2.5. There is also merit in the appellants' plea that the
A
acquisition of their land is vitiated due to violation of the
doctrine of equality enshrined in Article 14 of the
Constitution. A reading of the survey report shows that
the committee constituted by the State Government had
recommended release of land measuring 18.9725
8
hectares. Many parcels of land were released from
acquisition because the land owners had already raised
constructions and were using the same as dwelling
units. A large chunk of land measuring 4.3840 hectares
was not acquired apparently because the same belong c
to an ex-member of the legislative assembly. The
appellants had also raised constructions on their land
and were using the same for residential and agricultural
purposes. Why their land was not left out from acquisition
has not been explained in the counter affidavit filed by
0
the respondents. The High Court should have treated this
as sufficient for recording a finding that the respondents
had adopted the policy of pick and choose in acquiring
some parcels of land and this amounted to violation of
Article 14 of the Constitution. [Para 60] [443-C-F]
E
2.6. The argument of the respondents that the Court
may not annul the impugned acquisition because land of
other villages had already been acquired and other land
owners have not come forward to challenge th~
acquisition of their land cannot be entertained and the
F
Court cannot refuse to protect the legal and
constitutional rights of the appellants merely because the
others have not come forward to challenge the illegitimate
exercise of power by the State Government. It is quite
possible that others may have, due to sheer poverty,
G
ignorance and similar handicaps not been able to avail
legal remedies for protection of their rights, but that
cannot be made basis to deny what is due to the
appellants. [Para 61] [443-G-H; 444-A-B]
H
374
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A
Dwarkadas Shrinivas v. Sholapur Spinning and Weaving
Co. Ltd.,AIR (1954) SC 119: 1954 SCR 674 ; Chiranjit Lal
Chowdhuri v.Union of India AIR (1951) SC 4: 1950 SCR 869;
Jilubhai NanbhaiKhachar v. State of Gujarat (1995) Supp.
(1) SCC 596; DLF Qutab Enclave Complex Educational
B Charitable Trust v. State of Haryana (2003) 5 SCC 622: 2003
(2) SCR 1; State of Maharashtra v. B.E. Bi/limoria (2003) 7
SCC 336: 2003 (2) Suppl. SCR 603; Dev Sharan v. State
of U.P. Civil Appeal No.2334 of 2011 decided on 7.3.2011
- relied on.
c
Raja Anand Brahma Shah v. State of Uttar Pradesh
(1967) 1 SCR 373:1967 SCR 373; Om Prakash v. State of
U.P. (1998) 6 SCC 1; Union of India v. Krishan Lal Arneja
(2004) 8 SCC 453:2004 (1) Suppl. SCR 801; Esso Fabs
Private Limited v. State of Haryana (2009) 2 SCC 377; Babu
D Ram v. State of Haryana (2009) 10 SCC 115: 2009 (14) SCR
1111; Anand Singh v. State of Uttar Pradesh (2010) 11 SCC
242: 2010 (9) SCR 133; State of U.P. v. Pista Devi (1986) 4
SCC; Rajasthan Housing Board v. Shri Kishan (1993) 2 SCC
84: 1993 (1) SCR 269; Chameli Singh v. State of U.P. (1996)
E 2 SCC 549; First Land Acquisition Collector v. Nirodhi
Prakash Gangoli (2002) 4 SCC 160:2002 (2) SCR 326; Tika
Ram v. State of Uttar Pradesh (2009)10 SCC 689: 2009 (14)
SCR 905; Nand Kishore Gupta v. State of Uttar Pradesh
(2010) 10 SCC 282: 2010 (11 ) SCR 356; State of Punjab v.
F Gurdial Singh (1980) 2 SCC 471: 1980 (1 ) SCR 1071;
Union of India v. Mukesh Hans (2004) 8 SCC 14; Sh yam
Nandan Prasad v. State of Bihar (1993) 4 SCC 255:1993 (1)
Suppl. SCR 533; Nandeshwar Prasad v. The State of Uttar
Pradesh (1964) 3 SCR 425; A.P. Sareen v. State of U.P.
G (1997) 9 SCC 3591997 (1) SCR 210; Ghaziabad
Development Authority v. Jan Kalyan Samiti (1996) 2 SCC
365: 1996 (1) SCR 307; Jai Narain v. Union of India (1996)
1 SCC 9: 1995 ( 5 ) Suppl. SCR 769; Munshi Singh v. Union
of India (1973) 2 SCC 337: 1973 (1) SCR 973; Hindustan
H Petroleum Corporation Limited v. Darius Shapur Chenai
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v.
375
STATE OF U.P. & ORS.
(2005) 7 SCC 627: 2005 (3) Suppl. SCR 388; Swadeshi A
Cotton Mills v. Union of India (1981) 1 SCC 664: 1981 (2)
SCR 533; A.K. Kraipak v. Union of India (1969) 2 SCC 262:
1970 (1) SCR 457; Mohinder Singh Gill v. Chief Election
Commissioner (1978) 1 SCC 405: 1978 (2) SCR 272;
Maneka Gandhi v. Union of India (1978) 1 SCC 248: 1978 (
B
2 ) SCR 621; State of Orissa v Dr. Bina Pani Dei 1967 (2)
SCR 625:1967 SCR 625; Sayeedur Rehman v. State of
Bihar (1973) 3 SCC 333: 1973 ( 2 ) SCR 1043 - referred
to.
Cooper v. Wandsworth Board of Works (1863) 143 ER
C
414; Board of Education v. Rice (1911 AC 179 at 182);
O'Reilly v. Mackman 1983 2 AC 237; Lloyd v. Mcmahon 1987
AC 625 and Ridge v. Baldwin 1964 AC 40; King Emperor v.
Shibnath Banerjee [Criminal Appeal No.110 of 1966
decided on July 27, 1966]; Jaichand Lal Sethia v. State of D
West Bengal (1958) 1 WLR 546; Estate and Trust Agencies
Ltd. v. Singapore Improvement Trust (1914) 1 Ch 438; Ross
· Clunis v. Papadopoul/os 44 1A 11 and R. v. Australian
Stevedoring Industry Board 39 1A 133 - referred to.
3. Respondent No.1 is directed to pay cost of
Rs.5,00,0001- to the appellants for forcing unwarranted
litigation on them. However, the respondents shall be free
E
to proceed from the stage of Section 4 notification and
take appropriate action after complying with Section 5F
A(1) and (2) of the Act. If the appellants feel aggrieved by
the fresh exercise undertaken by the State Government
then they shall be free to avail appropriate legal remedy.
[Para 62] [444-C-D]
Case Law Reference:
Relied on
Para 18
Referred to
Para 20
G
1979 (3) SCR 1121
(1977) 1 sec 133
1935 AC 462
Referred to
Para 20
H
376
SUPREME COURT REPORTS
[2011) 8 S.C.R.
A
2010 (9) SCR 133
Referred to
Para 21
(1863) 143 ER 414
Referred to
Para 24
(1911 AC 179 at 182)
Referred to
Para 25
B
1964 AC 40
Referred to
Para 26
1983 2 AC 237
Referred to
Para 26
1987 AC 625
Referred to
Para 26
1973 (2) SCR 1043
Referred to
Para 28
c
1978 (2) SCR 272
Referred to
Para 29
1978 ( 2) SCR 621
Referred to
Para 30
1981 (2) SCR 533
Referred to
Para 31
D
1970 (1) SCR 457
Referred to
Para·31
1967 (2) SCR 625
Referred to
Para 31
1973 (1) SCR 973
Referred to
Para 32
E
1980 (1) SCR 1071
Referred to
Para 33
1993 (1) Suppl. SCR 533
Referred to
Para 34
(2004) 8 sec 14
Referred to
Para 35
2005 (3) Suppl. SCR 388
Referred to
Para 35
F
(1964) 3 SCR 425
Referred to
Para 36
(1967) 1 SCR 373
Referred to
Para 37
(1958) 1 WLR 546
Referred to
Para 37
G
(1914) 1 Ch 438
Referred to
Para 37
44 1A 117
Referred to
Para 37
39 1A 133
Referred to
Para 37
H
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v. 377
STATE OF U.P. & ORS.
1993 (1) SCR 269
Referred to
Para 39
A
1997 ( 1) SCR 210
Referred to
Para 39
1996 (1) SCR 307
Referred to
Para 39
1995 (5) Suppl. SCR 769
Referred to
Para 39
B
2004 (1) Suppl. SCR 801
Referred to
Para 41
2009 (14) SCR 1111
Referred to
Para 43
2002 (2) SCR 326
Referred to
Para 49
2009 (14) SCR 905
Referred to
Para 49
c
2010 (11) SCR 356
Referred to
Para 51
1954 SCR 674
Relied on
Para 53
1950 SCR 869
Relied on
Para 53
D
(1995) Supp. (1) sec 596
Relied.on
Para 53
. 2003 (2) SCR 1
Relied on
Para 53
2003 (2) Suppl. SCR 603
Relied on
Para 53
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3261 of 2011.
From the Judgment and Order dated 15.12.2008 of the
High Court of Judicature at Allahabad in CMWP No. 64127 of
F
2008.
N.P. Singh, Advocate for the Appellants.
Dinesh Dwivedi, Sanjay Visen, Ravindra Kumar, Shashank
Kumar Lal and Gunnam Venateswara · Rao for the G
Respondents.
The Judgment of the Court was delivered by
G.S. SINGHVI, J. 1. Leave granted.
H
378
SUPREME COURT REPORTS
[2011] 8 S.C.R.
A
2. This appeal is directed against order dated 15.12.2008
passed by the Division Bench of the Allahabad High Court
whereby the writ petition filed by the appellants questioning the
acquisition of their land for planned industrial development of
Distriet Gautam Budh Nagar through Greater f'.-IOIDA Industrial
B Development Authority (hereinafter referred to as the,
"Development Authority") by invoking Section 17(1) and 17(4)
of the Land Acquisition Act, 1894 (for short, "the Act"), as
amended by Uttar Pradesh Act No.8 of 1974, was dismissed.
C
3. Upon receipt of proposal from the Development
Authority for acquisition of 205.0288 hectares land of village
Makora, Pargana Dankaur, Tehsil and District Gautam Budh
Nagar, which was approved by the State Government,
notification dated 12.3.2008 was issued undar Section 4(1)
D read with Section 17(1) and 17(4) of the Act. The relevant
portions of the notification are extracted below:
E
F
G
H
"Under Sub-Section (1) of Section 4 of the Land
Acquisition Act 1894 (Act no.1 of 1894), the Governor is
pleased to notify for general information that the land
mentioned in the scheduled below, is needed for public
purpose, namely planned industrial development in District
Gautam Budh Nagar through Greater Noida Industrial
Development Authority.
2. The Governor being of the opinion that the provisions
of sub-section 1 of Section 17 of the said Act, are
applicable to said land inasmuch as the said land is
urgently required, for the planned industrial development
in District Gautam Budh Nagar through Greater Noida
Industrial Development Authority and it is as well
necessary to eliminate the delay likely to be caused by an
enquiry under Section 5A of the said Act, the Governor is
further pleased to direct under sub-section 4 of Section 17
of the said Act that the provisions of Section 5A of the said
Act, shall not apply."
SRI RADHY SHYAM (D) THROUGH LRS. & ORS. v.
379
STATE OF U.P. & ORS. [G.S. SINGHVI, J.]
4. Since the appellants' land was also included in the A
notification, they made a representation to the Chairman-cumChief Executive Officer of the Development Authority
(Respondent No.4) with .copies to the Chief Minister, Principal
Secretary, Housing and Urban Development, U.P., the District
Magistrate and the Special Officer, Land Acquisition, Gautam
B
Buddh Nagar with the request that their land comprised in
Khasra No.394 may not be acquired because they had raised
construction 30-35 years ago and were using the property for
abadi/habitation. The concerned functionaries/authorities did
not pay heed to the request of the appellants and the State c
Government issued notification dated 19.11.2008 under
Section 6 read with Section 9 of the Act.
5. The appellants challenged the acquisition of their land
on several grounds including the following:
(i) That the land cannot be used for industrial purposes
because in the draft Master Plan of Greater NOIDA
(2021), the same is shown as part of residential zone.
D
(ii) That they had already constructed dwelling houses and
E
as per the policy of the State Government, the residential
structures are exempted from acquisition.
(iii) That the State Government arbitrarily invoked Section
17(1) read with Section 17(4) of the Act and deprived them
of their valuable right to raise objections under Section 5F
A.
(iv) The acquisition of land is vitiated by arbitrariness, mala
tides and violation of Article 14 of the Constitution
inasmuch as lands of the Member of Legislative Assembly G
and other influential persons were left out from acquisition
despite the fact that they were not in abadi, but they were
· not given similar treatment despite the fact that their land
was part of abadi and they had constructed dwelling units.
H
A
B
c
D
E
F
G
H
380
SUPREME COURT REPORTS
[2011] 8 S.C.R.
6. In support of their challenge to the invoking of Section
17(1) and (4), the appellants made detailed averments in
paragraphs 11 and 16 and raised specific grounds A and F,
which are extracted below:
"11. That as per the scheme of the said Act, each and
every section from sections 4 to 17 has an independent
role to play though there is an element of interaction
between them. Section 5-A, has a very important role to
play in the acquisition proceedings and it is mandatory of
the part of the government to give hearing to the person
interested in the land whose land is sought to be acquired.
It is relevant to point out that the acquisition proceedings
under the Act, are based on the principal of eminent
domain and the only protection given to the person whose
land is sought to be acquired is an opportunity under
Section 5-A of the Act to convince the enquiring authority
that the purpose for which the land is sought to be acquired
is in fact is not a public purpose and is only purported to
be one in the guise of a public purpose.
It is relevant to mention here that excluding the
enquiry under Section 5-A can only be an exception where
the urgency cannot brook any delay.