# ANAND SINGH & ANR v. STATE OF UTTAR PRADESH & ORS

- **Citation:** [2010] 9 S.C.R. 133
- **Court:** Supreme Court of India
- **Decided:** 2010-07-28
- **Case number:** Civil Appeal No. 2523 of 2008
- **Bench:** R.V. Raveendran, R.M. Lodha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anand-singh-anr-v-state-of-uttar-pradesh-ors-26851
- **Pages:** 43

## Headnote

Land Acquisition Act, 1894:
A
B
ss. 17, 5A and 48(1) - Invocation of urgency clause and c
dispensation of enquiry u/s. 5A - Notification for land
acquisition for public purpose-development of residential
colony - Invocation of urgency clause and dispensation of
enquiry uls. 5A - Legality of- Challenge to, by appellant-land
owners - Held: Dispensation of enquiry u/s. 5A by invoking
D
s. 17(4) not justified -
No material placed by State
Government either before High Court or Supreme Court
warranting elimination of enquiry uls. 5A - There was prenotification and post-notification delay - Majority of other land
owners have received compensation -
Development E
Authority has already spent Rs. 5,28,00,0001- fordflvelopment
of the acquired land, and more than 60% of work has been
completed - Thus, appellants not entitled to de-acquisition
of land - However, in view of the peculiar facts, appellants
granted liberty to make representation to State Authorities u/
s. 48(1) for release of their land.
F
s. 5A - Scope of - Held: s. 5A confers a valuable right
on owner or person interested to file objections against the
proposed compulsory acquisition of the particular property for
public purpose - It also makes the provision for compulsory
G
acquisition, just and in conformity with fundamental principles
of natural justice.
s. 17(4) - Urgency clause - Invocation of- Dispensation
133
H
134
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A of enquiry u/s. 5A - Held: Is an exceptional and extra-ordinary
power- It should be invoked only when circumstances warrant
immediate possession - Government has to apply its mind
on the aspect whether urgency justifies elimination of
summary enquiry uls. 5A - Upon challenge being made to
B the use of power uls. 17, Government must produce
appropriate material before the court on basis of which
opinion was formed -
Where opinion formed on the
considerations is not germane to the purpose, judicial review
of such administrative decision may become necessary -
c Judicial review - Administrative Law.
D
'Eminent domain' - Power of - Held: It is acquisition of
private property by the Government in the public interest,
general welfare or for public purpose - It is inherent in the
Government.
The Gorakhpur Development Authority issued
Notifications for acquiring certain land including land of
the appellants for public purpose-development of
residential colony. The urgency clause uls. 17 of the Land
E Acquisition Act, 1894 was invoked and the enquiry uls.
SA was dispensed with. The appellants and other tenure
holders filed writ petition challenging the Notifications on
the ground that the urgency clause was invoked
dispensing with enquiry uls. SA without any basis and that
F structures and buildings were existing on their respective
holdings, thus, they were entitled to release of their land
from acquisition. The High Court upheld the Notifications.
As regard the prayer for seeking release of their land from
acquisition uls. 48, the appellants and others were
G directed to approach the State Government. Therefore,
the appellants filed the instant appeals.
Dismissing the appeals, the Court
HELD: 1. In the instant case, the Government
H completely failed to justify the dispensation of an enquiry
ANAND SINGH & ANR. v. STATE OF UTTAR
135
PRADESH & ORS.
u/s. 5A by invoking s. 17(4) of the Land Acquisition Act,
A
1894. The impugned notifications to the extent they state
that s. 5A of the Act shall not apply suffers from legal
infirmity. [Para 32] [174-8-D]
2. 'Eminent domain' is the right or power of a
sovereign State to appropriate the private property within
the territorial sovereignty for public uses or purposes. It
is exercise of strong arm of government to take property
B
for public uses without owner's consent. It requires no
constitutional recognition; it is an attribute of sovereignty
C
and essential to the &overeign government. The power
of eminent domain, being inherent in the government, is
exercisable in the public int

## Text

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[2010] 9 S.C.R. 133
ANAND SINGH & ANR.
v.
STATE OF UTTAR PRADESH & ORS.
(Civil Appeal No. 2523 of 2008)
JULY 28, 2010
[R.V. RAVEENDRAN AND R.M. LODHA, JJ.)
Land Acquisition Act, 1894:
A
B
ss. 17, 5A and 48(1) - Invocation of urgency clause and c
dispensation of enquiry u/s. 5A - Notification for land
acquisition for public purpose-development of residential
colony - Invocation of urgency clause and dispensation of
enquiry uls. 5A - Legality of- Challenge to, by appellant-land
owners - Held: Dispensation of enquiry u/s. 5A by invoking
D
s. 17(4) not justified -
No material placed by State
Government either before High Court or Supreme Court
warranting elimination of enquiry uls. 5A - There was prenotification and post-notification delay - Majority of other land
owners have received compensation -
Development E
Authority has already spent Rs. 5,28,00,0001- fordflvelopment
of the acquired land, and more than 60% of work has been
completed - Thus, appellants not entitled to de-acquisition
of land - However, in view of the peculiar facts, appellants
granted liberty to make representation to State Authorities u/
s. 48(1) for release of their land.
F
s. 5A - Scope of - Held: s. 5A confers a valuable right
on owner or person interested to file objections against the
proposed compulsory acquisition of the particular property for
public purpose - It also makes the provision for compulsory
G
acquisition, just and in conformity with fundamental principles
of natural justice.
s. 17(4) - Urgency clause - Invocation of- Dispensation
133
H
134
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A of enquiry u/s. 5A - Held: Is an exceptional and extra-ordinary
power- It should be invoked only when circumstances warrant
immediate possession - Government has to apply its mind
on the aspect whether urgency justifies elimination of
summary enquiry uls. 5A - Upon challenge being made to
B the use of power uls. 17, Government must produce
appropriate material before the court on basis of which
opinion was formed -
Where opinion formed on the
considerations is not germane to the purpose, judicial review
of such administrative decision may become necessary -
c Judicial review - Administrative Law.
D
'Eminent domain' - Power of - Held: It is acquisition of
private property by the Government in the public interest,
general welfare or for public purpose - It is inherent in the
Government.
The Gorakhpur Development Authority issued
Notifications for acquiring certain land including land of
the appellants for public purpose-development of
residential colony. The urgency clause uls. 17 of the Land
E Acquisition Act, 1894 was invoked and the enquiry uls.
SA was dispensed with. The appellants and other tenure
holders filed writ petition challenging the Notifications on
the ground that the urgency clause was invoked
dispensing with enquiry uls. SA without any basis and that
F structures and buildings were existing on their respective
holdings, thus, they were entitled to release of their land
from acquisition. The High Court upheld the Notifications.
As regard the prayer for seeking release of their land from
acquisition uls. 48, the appellants and others were
G directed to approach the State Government. Therefore,
the appellants filed the instant appeals.
Dismissing the appeals, the Court
HELD: 1. In the instant case, the Government
H completely failed to justify the dispensation of an enquiry
ANAND SINGH & ANR. v. STATE OF UTTAR
135
PRADESH & ORS.
u/s. 5A by invoking s. 17(4) of the Land Acquisition Act,
A
1894. The impugned notifications to the extent they state
that s. 5A of the Act shall not apply suffers from legal
infirmity. [Para 32] [174-8-D]
2. 'Eminent domain' is the right or power of a
sovereign State to appropriate the private property within
the territorial sovereignty for public uses or purposes. It
is exercise of strong arm of government to take property
B
for public uses without owner's consent. It requires no
constitutional recognition; it is an attribute of sovereignty
C
and essential to the &overeign government. The power
of eminent domain, being inherent in the government, is
exercisable in the public interest, general welfare and for
public purpose. Acquisition of private property by the
State in the public interest or for public purpose is
nothing but an enforcement of the right of 'eminent D
domain'. [Paras 29, 30] [169-C-E]
Words and Phrases, Permanent Edition, Volume 14,
1952 (West Publishing Co. - referred to.
3.1 In India, the Land Acquisition Act, 1894 provides
directly for acquisition of particular property for public
purpose. Though right to property is no longer
fundamental right but Article 300A of the Constitution
mandates that no person shall be deprived of his property
save by authority of law. Thats. 5A of the Act confers a
valuable right to an individual is beyond any doubt. It
confers an important right in favour of a person whose
land is sought to be acquired. When the government
proceeds for compulsory acquisition of particular
property for public purpose, the only right that the owner G
or the person interested in the property has, is to submit
E
F
his objections within the prescribed time u/s. 5A of the
Act and persuade the State Authorities to drop the
acquisition of that particular land by setting forth the
H
136
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A reasons such as the unsuitability of the land for the
stated public purpose; the grave hardship that may be
caused to him by such expropriation, availability of
alternative land for achieving public purpose etc.
Moreover, right conferred on the owner or person
s interested to file objections to the proposed acquisition
is not only an important and valuable right but also
makes the provision for compulsory acquisition, just and
in conformity with the fundamental principles of natural
justice. [Para 30] [169-E-H; 170-A-B]
c
3.2 The exceptional and extra-ordinary power of
doing away with an enquiry u/s. 5A in a case where
possession of the land is required urgently or in
unforeseen emergency is provided in s. 17 of the Act.
Such power is not a routine power and save
D circumstances warranting immediate possession it
should not be lightly invoked. The guideline is inbuilt in
s. 17 itself for exercise of the exceptional power in
dispensing with enquiry u/s. 5A. Exceptional the power,
the more circumspect the Government must be in its
E exercise. Therefore, the Government has to apply its
mind before it dispenses with enquiry u/s. 5A on the
aspect whether the urgency is of such a nature that
justifies elimination of summary enquiry u/s. 5A. A
repetition of statutory phrase in the notification that the
F State Government is satisfied that the land specified in
the notification is urgently needed and the provision
contained in s. 5A shall not apply, though may initially
raise a presumption in favour of the government that prerequisite conditions for exercise of such power have
G been satisfied, but such presumption may be displaced
by the circumstances themselves having no reasonable
nexus with the purpose for which the power has been
exercised. Upon challenge being made to the use of
power u/s. 17, the government must produce appropriate
H
ANAND SINGH & ANR. v. STATE OF UTTAR
137
PRADESH & ORS.
material before the court that the opinion for dispensing
A
with the enquiry u/s. SA has been formed by the
government after due application of mind on the material
placed before it. It is true that the power conferred upon
the government u/s. 17 is administrative and its opinion
is entitled to due weight, but in a case where the opinion
B
is
formed
regarding
the
urgency
based
on
considerations not germane to the purpose, the judicial
review of such administrative decision may become
necessary. As to in what circumstances the power of
emergency can be invoked are specified in s. 17(2) but c
circumstances necessitating invocation of urgency
clause u/s. 17(1) are not stated in the provision itself. 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
D
enquiry as contemplated u/s. SA 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 u/s. SA is set up as a
reason for invocation of extra-ordinary power in
dispensing with the enquiry little realizing that an
important and valuable right of the person interested in
E
the land is being taken away and with some effort enquiry
could always be completed expeditiously. The special
provision has been made ins. 17 to eliminate enquiry u/
s. SA in deserving and cases of real urgency. [Para 30]
[170-B-H; 171-A-E]
3.3 The pre-notification and post-notification delay
will have material bearing on the question of invocation
F
of urgency power, particularly, in a situation where no
G
material has been placed by the appropriate government
before the court justifying that urgency was of such
nature that necessitated elimination of enquiry u/s. SA of
the Act. [Para 30] [171-G-H; 172-A]
H
138
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A
3.4 In a country as big as India, the roof over head is
a distant dream for large number of people. The urban
development continues to be haphazard. The planned
development and housing are matters of priority in
developing nation. In all cases of 'planned development
B of the city' or 'for the development of residential area', the
power of urgency may not be invoked by the Government
and even where such power is invoked, the enquiry
contemplated u/s. 5A should not be dispensed with
invariably. Ordinarily 'planned development of city' or
c 'development of residential area' can allow delay of few
months to complete the enquiry u/s. 5A. Therefore, the
Government must do a balancing act and resort to the
special power of urgency u/s. 17 in the matters of
acquisition of land for the public purpose viz.; 'planned
0 development. of city' or 'for development of residential
area' in exceptional situation. Use of the power by the
Government u/s. 17 for 'planned development of the city'
or 'the development of residential area' or for 'housing'
must not be as a rule but by way of an exception. Such
exceptional situation may be for the public purposeE rehabilitation of natural calamity affected persons;
rehabilitation of persons uprooted due to construction of
dam or housing for lower strata of the society urgently;
rehabilitation of persons affected by time bound projects,
etc. The list is only illustrative and not exhaustive. In any
F case, without real urgency and need for immediate
possession of the land for carrying out the stated
purpose, heavy onus lies on the government to justify
exercise of such power. Therefore, the use of the power
of urgency and dispensation of enquiry u/s. 5A by the
G Government in a routine manner for the 'planned
development of city' or 'development of residential area'
and thereby depriving the owner or person interested of
a very valuable right u/s. 5A may not meet the statutory
test nor could it be readily sustained. [Para 31] [172-B-H;
H 173-A]
ANAND SINGH & ANR. v. STATE OF UTTAR
139
PRADESH & ORS.
4.1 In February, 2000, a Land Selection Committee
A
was constituted to identify the availability of land for a
housing colony by the GOA. In April, 2001, the Committee
so constituted inspected. the site and proposed
acquisition of land in Village M and few other villages but
nothing further was done as the tenure holders opposed
B
the. acquisition of their land and the Commissioner,
Gorakhpur in public interest stayed proposal for
acquisition. Abruptly the notifications for the proposed
acquisition were issued on November 22, 2003/February
20, 2004 u/s. 4 of the Act: In these notifications urgency c
clause was invoked and the enquiry u/s. SA was
dispensed with. Then, for more than one year nothing
was done. It was only on December 28, 2004 that a
declaration u/s. 6 was made. If the matter could hang on
from April, 2001 to November 22, 2003/February 20, 2004
D
before the notifications u/s. 4 were issued and for about
a year thereafter in issuance of declaration u/s. 6,
acquisition proceedings could have been arranged in a
manner so as to enable the land owners and/or the
interested persons to file their objections u/s. SA within
E
the prescribed time and complete the enquiry
expeditiously. Insofar as Uttar Pradesh is concerned,
there is amendment in section 17. Sub-section (1 A)
enables the Government to take possession under subsection (1) of section 17 if the land is required for public
purpose viz.; 'planned development'. Nevertheless for
F ·
forming an opinion that provisions of s. SA shall not
apply, the State Government must apply its mind that
urgency is of such nature warranting elimination of
enquiry u/s. SA. Although some correspondence
between the Authorities and the Government was placed
G
before the High Court by the GOA, but no material was
placed on record by the State Government either before
the High Court or before this Court indicating the
application of mind that the urgency was of such nature
140
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A which warranted elimination of the enquiry u/s. 5A of the
Act. The GOA wanted the subject land to be acquired
because their land bank had no land and they wanted
land to keep the Authority running. If profit-making and
the sustenance of the Development Authority was the
B motive, surely urgency was not of such nature that it
could allow no delay whatsoever. [Para 32) [173-B-H;
174-A-B]
4.2 In the written submissions of the GOA, it is stated
that subsequent to the declaration made u/s. 6 of the Act
C in the month of December, 2004, award was passed and
out of the 400 land owners more than 370 have a:.~ady
received compensation. Out of the total cost of Rs.
8,85, 14,000/- for development of the acquired land, an
amount of Rs. 5,28,00,000/- has already been spent by the
D GOA and more than 60% of work has been completed. It
seems that barring the appellants and few others all other
tenure holders/land owners have accepted the 'takings'
of their land. It is too late in the day to undo what has
already been done. Therefore, in the peculiar f~cts and
E circumstances of the case, the appellants are not entitled
to any relief although dispensation of enquiry u/s. 5A was
not justified. Since the existence of houses/structures
and buildings as on November 22, 2003/February 20, 2004
over the apr>ellants' land has been seriously disputed, it
F may not be appropriate to issue any direction to the State
Government, as prayed for by the appellants, for release
of their land from acquisition. However, as the possession
has not been taken, the interest of justice would be
subserved if the appellants are given liberty to make
G representation to the State Authorities u/s. 48(1) of the Act
for release of their land. Therefore, the appellants are
granted liberty to make appropriat~ representation to the
State Government. [Paras 32 and 33) [174-C-E; 175-B-D]
H
Raja Anand Brahma Shah v. State of Uttar Pradesh and
ANAND SINGH & ANR. v. STATE OF UTTAR
141
PRADESH & ORS.
Ors. (1967) 1 SCR 373; Jage Ram and Ors. v. State of A
Haryana and Ors (1971) 1 SCC 671; Narayan Govind
Gavate and Ors. v. State of Maharashtra and Ors. (1977) 1
SCC 133; State of Punjab and Anr. v. Gurdial Singh and Ors.
(1980) 2 SCC 471; Deepak Pahwa and Ors. v. Lt. Governor
of Delhi and Ors. (1984) 4 SCC 308; State of U.P. v. Smt.
B
Pista Devi and Ors. (1986) 4 SCC 251; Rajasthan Housing
Board and Ors. v. Shri Kishan and Ors. (1993) 2 SCC 84;
Chameli Singh and Ors.v. State of U.P. and Anr (1996) 2 SCC
549; Meerut Development Authority and Ors. v. Satbir Singh
and Ors. (1996) 11 SCC 462; Om Prakash and Anr. v. State
C
of U.P. and Ors. (1998) 6 sec 1; Union of India and Ors. v.
Mukesh Hans (2004) 8 SCC 14; Union of India and Ors. v.
Krishan Lal Arneja and Ors. (2004) 8 SCC 453; Hindustan
Petroleum Corporation Ltd. v. Darius Shapur Chenai and Ors.
(2005) 7 SCC 627; Mahadevappa Lachappa Kinagi and Ors.
D
v. State of Karnataka and Ors. (2008) 12 SCC 418; Babu Ram
and Anr. v. State of Haryana and Anr. (2009) 10 SCC 115;
Tika Ram and Ors. v. State of Uttar Pradesh and Ors. (2009)
10 sec 689 - referred to.
Case Law Reference:
E
(1967) 1 SCR 373
Referred to.
Para 14
(1971) 1 sec 671
Referred to.
Para 15
(1977) 1 sec 133
Referred to.
Para 16
F
(1980) 2 sec 471
Referred to.
Para 17
(1984) 4 sec 308
Referred to.
Para 18
(1986) 4 sec 251
Referred to.
Para 19
G
(1993) 2 sec 84
Referred to.
Para 20
(1996) 2 sec 549
Referred to.
Para 21
(1996) 11 sec 462
Referred to.
Para 22
H
A
8
c
142
SUPREME COURT REPORTS
[2010] 9 S.C.R.
(1998) 6 sec 1
Referred to.
Para 23
(2004) 8 sec 14
Referred to.
Para 24
(2004) 8 sec 453
Referred to.
Para 25
(2005) 7 sec 627
Referred to.
Para 26
(2008) 12 sec 418
Referred to.
Para 27
(2009) 10 sec 115
Referred to.
Para 28
(2009) 10 sec 689
Referred to.
Para 28
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2523 of 2008.
From the Judgment & Order dated 06.05.2005 of the High
Court of Judicature at Allahabad in Civil Misc. Writ Petition No.
D 16842 of 2005.
With
C.A. Nos. 2517, 2518, 2519, 2524, 2525, 2561, 2703, 2724,
E 2731 of 2008.
K.8. Sinha, S.C. Paul, Roopa Paul, S.S. Muncie, Rekha
Pandey, Santosh Kumar Tripathi, Vikram, Sarika Singh,
Shailendra Mishra for the Appellants.
F
Shail Kr. Dwivedi, Addi. A.G., P.V. Shetty, Sanjay Visen,
Vandana Mishra, Manoj Kr. Dwivedi, Ashutosh Kr. Sharma,
Manish Srivastava, Gunnam Venkateswara Rao, S.C. Birla,
Tulika Prakash, Sheela Khan, Parveen Rawal, lrshad Ahmad,
Amit Sharma, Anupam Lal Das, Arpit Gupta, Jatinder Kumar
G Bhatia, Kamlendra Mishra for the Respondents
H
The Judgment of the Court was delivered by
R.M. LODHA, J. Of this group of ten appeals, 7 arise from
the common judgment and order dated May 6, 2005 passed
ANAND SINGH & ANR. v. STATE OF UTIAR
143
PRADESH & ORS. [R.M. LODHA, J.]
by the High Court of Judicature at Allahabad. The remaining 3
A
appeals arise from separate judgments (dated January 18,
2007, March 22, 2007 and April 25, 2007) and in one of them,
the common judgment and order dated May 6, 2005 was
followed. As identical questions are involved, these appeals
were heard together and are being disposed of by this common
B
judgment.
2. The appellants in these appeals have small holdings of
land in Manbela, Hamidpur and Jangal Sikri etc., Pargana
Haveli, District Gorakhpur in the State of Uttar Pradesh. About
C
209.515 hectares of land including the land of the appellants
was sought to be acquired for the public purpose, namely, for
residential colony by the Gorakhpur Development Authority
(GOA), Gorakhpur. Vide public notices issued under subsection (1) of Section 4 of the Land Acquisition Act, 1894 (for
short, 'the Act') on November 22, 2003 and February 20, 2004
D
notifying for general information that the land mentioned in the
schedule appended thereto was needed for the said public
purpose. The provisions of sub-section (1) of Section 17 of the
Act were also invoked as in the opinion of the Governor, the
land proposed to be acquired was urgently required. By use
E
of power under Section 17(4) of the Act, it was stated in the
notification that Section 5A of the Act shall not apply. These
public notices are said to have been published in the Official
Gazette as well as other modes as prescribed in Section 4.
F
3. On December 28, 2004, a declaration was made under
Section 6 of the Act that the land mentioned in the schedule
including the subject land was needed for public purpose,
namely, for the construction of residential colony under a
planned development scheme. By the said notification, the
G
Collector, Gorakhpur was also directed that on expiration of 15
days from the publication of the notice under Section 9(1 ), the
possession of the !and mentioned in the schedule may be
taken, although no award under Section 11 has been made.
4. The present appellants and the other tenure holders
H
144
SUPREME COURT REPORTS
[2010] 9 S.C.R.
A whose land was sought to be acquired pursuant to the
aforesaid notifications, approached the High Court by filing writ
petitions wherein. inter alia, a plea was raised that there was
no justification to invoke urgency clause and there was no
material before the Government for dispensing with the enquiry
B 11nder Section SA of the Act. They averred that structures and
buildings were existing on their respective holdings and even
otherwise they are entitled to release of their land from
acquisition.
S. The State Government as well as the GOA opposed the
C writ petitions and justified invocation of urgency clause and the
dispensation of summary enquiry under Section SA as the land
was required for providing residential and housing colony for
the lower income group, middle income group and higher
income group by the GOA.
0
6. The High Court by its common judgment and order
dated May 6, 200S held that none of the grounds raised by the
petitioners in the writ petitions was sustainable and
consequently upheld the notifications under challenge. While
E dealing with the aspect of existence of buildings on the subject
land and petitioners' prayer for direction to the State
Government to consider deacquisition by exercising its power
under Section 48 of the Act, the Court observed that the
petitioners may approach the State Government for the
F redressal of their grievance in accordance with law. As noticed
above, in one of the subsequent orders, the High Court has
followed the common judgment and order dated May 6, 200S.
7. Be it noticed here that prior to the issuance of the
notifications dated November 22, 2003/February 20, 2004
G under Section 4(1) read with Sections 17(1) and 17(4) of the
Act, somewhere in the month of February, 2000, a Land
Selection Committee was constituted to identify the availabiiity
of land for a housing colony in or around Gorakhpur. The
Committee so constituted made spot inspection in April, 2001
H
ANAND SINGH & ANR. v. STATE OF UTIAR
145
PRADESH & ORS. [R.M. LODHA, J.]
and proposed acquisition of land in nine villages including
A
Manbela, Jungle Sikri @ Khorabar, Khorabar@ Subba Bazar,
Salempur@ Mugalpur, Hamidpur etc. However, nothing further
was done as the tenure holders opposed the acquisition of their
land and the Commissioner, Gorakhpur by his order dated May
2, 2001 stayed proposal submitted by the Land Selection
B
Committee in public interest.
8. Mr. K.B. Sinha, learned senior counsel for the appellants
principally raised two-fold submission before us. Firstly, learned
senior counsel submitted that invocation of urgency clause
C
under Section.17(1) and dispensation of summary enquiry for
the public purpose, namely, 'development of residential colony'
were wholly unjustified. He contended that such an act of the
State was in colourable exercise of power. He would submit
that the development of residential colony takes sufficiently long
time and does not necessitate dispensation with the enquiry
D
and no exceptional circumstances have been brought on record
by the Government that may justify exercise of such
extraordinary power. Secondly, learned senior counsel
£~t.mitted that in view of the fact that the appellants have
constructed their residential houses much before the issuance
E
of impugned notifications, the State must exercise its power
under Section 48 and release their land from acquisition. He
would submit that the State Government has adopted a policy
of pick and choose inasmuch as some land has been released
from acquisition while the appellants' land has not been
F
considered for being released.
9. Learned counsel for the other appellants adopted the
arguments of Mr. K.B. Sinha. Insofar as Civil Appeal No. 2703
of 2008 is concerned, learned counsel submitted that in
G
respect of the land under consideration in this appeal, a
Degree College is in existence and this aspect has been
overlooked by the Government while issuing impugned
notifications.
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10. Mr. Oinesh Owivedi, learned senior counsel for the
State of Uttar Pradesh as well as Mr. lrshad Ahmad, learned
counsel for the GOA justified the impugned notifications and
submitted that the State Government has acted within its
competence and power in invoking urgency clause and
8 dispensation of enquiry under Section SA for the public purpose
viz., development of residential colony since in Gorakhpur
housing was urgently required for various groups of the society.
They submitted that there is no impediment for the State
Government in invoking urgency clause for the public purpose
c of housing. On behalf of the GOA, it was contended that many
steps have been taken in developing the land acquired under
the impugned notifications inasmuch as water line, electric line,
sewerage line, drainage etc. have been laici and roads
constructed. In the written arguments submitted by the GOA, it
0 has been stated that the total cost of development of the
acquired land is Rs. 8,8S, 14,000/- and out of which S,28,00,000/
- have already been spent and about 60% work has already
been completed. It has also been submitted by the GOA that
after the award was made, compensation amount has been
E deposited and barring appellants and 6-7 other persons, all
land owners have accepted compensation. As regards
appellants' land, it is stated that structures have been put up
subsequent to the issuance of impugned notificati~ns.
11. Learned senior counsel and counsel for the parties
F cited some decisions of this Court in support of their respective
submissions. We shall refer to them appropriately a little later.
12. In the light of the contentions of the parties, the question
for our consideration is as to whether the impugned
G notifications dated November 22, 2003/February 20, 2004
invoking urgency clause and dispensation of enquiry under
Section SA for the public purpose viz., 'development of
residential colony' are legal and valid and if the answer is in
negative, whether on the facts and in the circumstances, the
appellants are entitled to any relief.
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ANAND SINGH & ANR. v. STATE OF UTTAR
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PRADESH & ORS. [R.M. LODHA, J.]
13. Before we advert to the aforesaid question, it is A
appropriate that we briefly notice the relevant provisions
contained in the Act. The Act was enacted for the acquisition
of land needed for public purposes and for companies and for
determining the amount of compensation to be made on such
acquisition. Section 4 makes a provision for publication of B
preliminary notification notifying that land mentioned therein is
needed for a public purpose. It provides for the mode of
publication of such notification and empowers the authorized
officers to make survey and set out the boundaries of the land
proposed to be taken amongst other acts as provided in the c
said Section. Section SA confers a right on the person
interested in any land which has been notified under Section
4(1) as being needed for a public purpose or likely to be
needed for public purpose to object to the acquisition of the
land. It provides that the objector shall be provided an D
opportunity of hearing and after hearing all such objections and
after making such further enquiry, the Collector may submit his
report to the appropriate government along with his
recommendations on the objections and the record of
proceedings. Section 6 provides for declaration of intended
acquisition in the mode prescribed thereunder. The declaration E
made under Section 6 is conclusive evidence that the land is
needed for a public purpose and after making such declaration,
the appropriate government may acquire the land in the manner
provided in subsequent provisions. Section 6 also prescribes
time limit in making such declaration. Section 9 provides a F
public notice to be given by the Collector stating that the
government intends to take possession of the land and that
claims to compensation for all interests in such land may be
made to him. As per Section 11, the Collector is.required to
enquire into the objections that may be receive'd from the G
persons interested pursuant to the notice issued under Section
9 and determine the award of compensation, inter alia by
enquiring into the value of the land and the respective interests
of the persons claiming compensation. Section 11-A
prescribes the limitation for making an award under Section 11. H
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Section 16 provides for taking possession of the land after the
Collector has made an award under Section 11. The special
powers in cases of urgency and unforeseen emergency are
conferred upon the government under Section 17. Sub-section
(1) thereof provides that in case of urgency the appropriate
B
government may direct the Collector to take possession of any
land needed for public purpose on expiration of fifteen days
from the publication of the notice mentioned in Section 9,
although no award has been made. Sub-section (2) confers
power on the appropriate government to acquire the immediate
C
possession of the land for the purposes specified thereunder
in the cases of unforeseen emergency. Sub-section (3A),
however mandates that before taking possession of any land
under sub-section (1) or sub-section (2), the Collector shall
tender payment of 80% of the compensation as estimated by
0
him to the persons entitled thereto and pay the said
compensation to them unless prevented by the contingencies
under Section 31(2). Sub-section (4) empowers the government
to direct that the provisions of Section 5A shall not apply, on
its satisfaction that the provisions contained in sub-section (1)
or sub-section (2) are applicable and a declaration may be
E
made under Section 6 after the publication of the notification
under Section 4(1 ). Insofar as Uttar Pradesh is concerned, subsection (1A) has been inserted after sub-section (1) of Section
17 which provides that the power to take possession under
sub-section (1) may also be exercised, inter alia, if the land is
F
required for 'planned development'. Section 48 gives liberty to
the government to withdraw from acquisition of any land.
14. The matters involving invocation of urgency clause and
dispensation of the enquiry under Section 5A have come up
G for consideration before this Court from time to time. In Raja
Anand Brahma Shah v. State of Uttar Pradesh and Ors., this
Court observed that the opinion of the government formed under
Section 17(4) of the Act can be challenged as ultra vires in a
court of law, if it could be shown that the government never
H
applied its mind to the matter or that the action of the
ANAND SINGH & ANR. v. STATE OF UTTAR
PRADESH & ORS. [R.M. LODHA, J.]
government is mala fide.
149
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15. In case of Jage Ram and Ors. v. State of Haryana and
Ors. while considering the urgency provision contained in
Section 17, this Court held that merely because there was
some laxity at an earlier stage, it cannot be inferred that on the
B
date the notification was issued there was no urgency. It was
held that the conclusion of the government in a given case that
there was urgency is entitled to weight, if not conclusive.
16. A three-Judge Bench of this Court in Narayan Govind
Gavate and Ors. v. State of Maharashtra and Ors. extensively
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considered Section 17 of the Act vis-a-vis extent of judicial
review. That was a case wherein the public purpose recited in
the notification was 'development and utilization of said land
as a residential and industrial area'. This Court stated the legal
position as follows :
D
"37. We think that Section 17(4) cannot be read in isolation
from Section 4(1) and 5-A of the Act. The immediate
purpose of a notification under Section 4(1) of the Act is
to enable those who may have any objections to make to
E
lodge them for purposes of an enquiry under Section 5-A
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of the Act. It is true that, although only 30 days from the
notification under Section 4(1) are given for the filing of
these objections under Section 5-A of the Act, yet,
sometimes the proceedings under Section 5-A are unduly
prolonged. But, considering the nature of the objections
which are capable of being successfully taken under
Section 5-A, it is difficult to see why the summary enquiry
should not be concluded quite expeditiously. In view of the
authorities of this Court, the existence of what are prima
facie public purposes, such as the one present in the
G
cases before us, cannot be successfully challenged at all
by objectors. It is rare to find a case in which objections
to the validity of a public purpose of an acquisition can
even be stated in a form in which the challenge could
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succeed. Indeed, questions relating to validity of the
notification on the ground of mala tides do not seem to us
to be ordinarily open in a summary enquiry under Section
5-A of the Act. Hence, there seems to us to be little difficulty
in completing enquiries contemplated by Section 5-A of
the Act very expeditiously.
38. Now, the purpose of Section 17(4) of the Act is,
obviously, not merely to confine action under it to waste
and arable land but also to situations in which an inquiry
under Section 5-A will serve no useful purpose, or, for
some overriding reason, it should be dispensed with. The
mind of the officer or authority concerned has to be
applied to the question whether there is an urgency of such
a nature that even the summary proceedings under Section
5-A of the Act should be eliminated. It is not just the
existence of an urgency but the need to dispense with an
inquiry under Section 5-A which has to be considered.
39. Section 17(2) deals with a case in which an enquiry
under Section 5-A of the Act could not possibly serve any
useful purpose. Sudden change of the course of a river
would leave no option if essential communications have
to be maintained. It results in more or less indicating, by
an operation of natural physical forces beyond human
control, what land should be urgently taken possession of.
Hence, it offers no difficulty in applying Section 17(4) in
public interest. And, the particulars of what is obviously to
be done in public interest need not be concealed when its
validity is questioned in a Court of justice. Other cases may
raise questions involving consideration of facts which are
especially within the knowledge of the authorities
concerned. And, if they do not discharge their special
burden, imposed by Section 106, Evidence Act, without
even disclosing a sufficient reason for their abstention from
disclosure, they have to take the consequences which flow
from the non-production of the best evidence which could
ANAND SINGH & ANR. v. STATE OF UTTAR
151
PRADESH & ORS. [R.M. LODHA, J.]
be produced on behalf of the State if its stand was correct.
A
40. In the case before us, the public purpose indicated is
the development of an area for industrial and residential
purposes. This, in itself, on the face of it, does not call for
any such action, barring exceptional circumstances, as to
make immediate possession, without holding even a
summary enquiry under Section 5-A of the Act, imperative.
B
On the other hand, such schemes generally take sufficient
period of time to enable at least summary inquiries under
Section 5-A of the Act to be completed without any
impediment whatsoever to the execution of the scheme.
C
Therefore, the very statement of the public purpose for
which the land was to be acquired indicated the absence
of such urge11cy, on the apparent facts of the case, as to
require the elimination of an enquiry under Section 5-A of
the Act.
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41. Again, the uniform and set recital of a formula, like a
ritual or mantra, apparently applied mechanically to every
case, itself indicated that the mind of the Commissioner
concerned was only applied to the question whether the
E
land was waste or arable and whether its acquisition is
urgently needed. Nothing beyond that seems to have been
considered. The recital itself shows that the mind of the
Commissioner was not applied at all to the question
whether the urgency is of such a nature as to require
F
elimination of the enquiry under Section 5-A of the Act. If
it was, at least the notifications gave no inkling of it at all.
On the other hand, its literal meaning was that nothing
beyond matters stated there were considered.
42. All schemes relating to development of industrial and
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residential areas must be urgent in the context of the
country's need for increased production and more
residential accommodation. Yet, the very nature of such
schemes of development does not appear to demand
such emergent action as to eliminate summary enquiries
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under Section 5-A of the Act. There is no indication
whatsoever in the affidavit filed on behalf of the State that
the mind of the Commissioner was applied at all to the
question whether it was a case necessitating the
elimination of the enquiry under Section 5-A of the Act. The
recitals in the notifications, on the other hand, indicate that
elimination of the enquiry under Section 5-A of the Act was
treated as an automatic consequence of the opinion
formed on other matters. The recital does not say at all that
any opinion was formed on the need to dispense with the
enquiry under Section 5-A of the Act. It is certainly a case
in which the recital was at least defective. The burden,
therefore, rested upon the State to remove the defect, if
possible, by evidence to show that some exceptional
circumstances which necessitated the elimination of an
enquiry under Section 5-A of the Act and that the mind of
the Commissioner was applied to this essential question.
It seems to us that the High Court correctly applied the
provisions of Section 106 of the Evidence Act to place the
burden upon the State to prove those special
circumstances, although it also appears to us that the High
Court was not quite correct in stating its view in such a
manner as to make it appear that some part of the initial
burden of the petitioners under Sections 101 and 102 of
the Evidence Act had been displaced by the failure of the
State to discharge its duty under Section 106 of the Act.
The correct way of putting it would have been to say that
the failure of the State to produce the evidence of facts
especially within the knowledge of its officials, which rested
upon it under Section 106 of the Evidence Act, taken
together with the attendant facts and circumstances,
including the contents of recitals, had enabled the
petitioners to discharge their burden under Sections 101
and 102 of the Evidence Act."
17. In State of Punjab and Anr. v. Gurdial Singh and Ors.
H while dealing with the invocation of Section 17 of the Act for
ANAND SINGH & ANR. v. STATE OF UTTAR
153
PRADESH & ORS. [R.M. LODHA, J.]
the public purpose, namely, grain market, this Court stated that
A
compulsory taking of a man's property is a serious matter and
the smaller the man the more serious the matter. This Court
observed that hearing the owner before depriving him is both
reasonable and pre-emptive of arbitrariness and denial of this·
administrative fairness is constitutional anathema except for
B
good reasons. It was further observed that save in real urgency
where public interest does not brook even the minimum time
needed to give a ! tearing land acquisition authorities should not,
having regard to Articles 14 (and 19), burke an enquiry under
Section 17 of the Act.
c
18. In the case of Deepak Pahwa and Ors. v. Lt.