Research › Search › Judgment

Uttarakhand High Court · body

2014 DIGILAW 123 (UTT)

HARI HAR SINGH v. STATE OF UTTARAKHAND

2014-03-26

ALOK SINGH

body2014
JUDGMENT Hon’ble Alok Singh, J. In both the writ petitions notification dated 20th February, 2006 under Section 4 (1) read with Section 17 (1) invoking the urgency clause under Section 17 (4) as well as notification dated 2nd March, 2007 under Section 6 (1) read with Section 9 of the Land Acquisition Act, 1894 are being assailed. 2. Brief facts of the present case, inter alia, are that Government of Uttarakhand proposed to establish and construct Government Polytechnic at Shakti Farm, District Udham Singh Nagar and for that purpose land of khasra Nos. 43/2/1, 44/2, 44/3, 45/1, 45/2, 47/1/1, 46/1/1, 46/2, 48/1, 62/1, 43/2/2, 46/1/2 and 43/1 measuring total 4.075 hectares was proposed to be acquired and consequently, the State Government issued impugned notification dated 20th February, 2006 under Section 4 (1) read with Section 17 (1) invoking the urgency clause under Section 17 (4) exempting the application of Section 5-A of the Land Acquisition Act. After the issuance of the notification dated 20th February, 2006, corrigendum by way of notification dated 31st January, 2007 came to be issued saying that in earlier notification dated 20th February, 2006, land of khasra No. 41/2 measuring 0.316 hectares would stand deleted and total area instead of 4.075 hectares should be read as 3.759 hectares. Thereafter, notification dated 2nd March, 2007 was issued under Sections 6 and 9 of the Act. 3. Mrs. Monika Pant, learned counsel for the petitioner, while placing reliance on the judgments of the Apex Court in Radhy Shyam and others Vs. State of Uttar Pradesh and others reported in (2011) 5 SCC 553 , Bharat Sewak Samaj Vs. Lt. Governor and others reported in (2012) 12 SCC 675 and Laxman Lal and another Vs. State of Rajasthan and others reported in (2013) 3 SCC 764 , vehemently argued that urgency clause should be allowed to be invoked, exempting the application of Section 5-A of the Act, only in most urgent cases and not in a routine way. Lt. Governor and others reported in (2012) 12 SCC 675 and Laxman Lal and another Vs. State of Rajasthan and others reported in (2013) 3 SCC 764 , vehemently argued that urgency clause should be allowed to be invoked, exempting the application of Section 5-A of the Act, only in most urgent cases and not in a routine way. She further contended that as per the mandate of Article 300-A of the Constitution of India, no person shall be deprived of his property save by authority of law, therefore, land owners/petitioners ought to have been given a fair chance to place their objections under Section 5-A of the Act saying property does not require to be acquired for the purpose of establishing Polytechnic or Polytechnic may be established and constructed somewhere else on the vacant Gram Sabha land as well as on the other banjar land. 4. Hon’ble Apex Court in the case of Radhy Shyam (Supra) in paragraph 77 has held as under :- “77. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out: (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. - Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal Chowdhuri v. Union of India, AIR (1951) SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat, (1995) Supp. (1) SCC 596. (ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriators legislation and such legislation must be construed strictly - DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, (2003) 5 SCC 622 ; State of Maharashtra v. B.E. Billimoria, : (2003) 7 SCC 336 and Dev Sharan v. State of U.P., civil Appeal No. 2334 of 2011 decided on 7.3.2011. (iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one’s property is a serious matter. (iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that 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 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. (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, 5A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke 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 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 5A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. therefore, before excluding the application of Section 5A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5A 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 fides 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 5A 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 5A would not apply to the cases covered under Sub-section (1) or (2) of Section 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 take few years. therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Section 5A(1) and (2) is not at all warranted in such matters. (ix) If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition.” 5. Hon’ble Apex Court in the case of Bharat Sewak Samaj (Supra), once again placed reliance on the judgment of Radhy Shyam (Supra) and dictum of Radhy Shyam (Supra) was again relied upon and approved in the latest judgment of the Apex Court in the case of Laxman Lal (Supra). 6. Now, let me examine facts of the present case in view of the dictum of the Apex Court in the case of Radhy Shyam (Supra) to find out as to whether there was such an extreme urgent situation before the State Government to invoke Section 17 (4) of the Act exempting the application of Section 5-A of the Act ? Now, let me examine facts of the present case in view of the dictum of the Apex Court in the case of Radhy Shyam (Supra) to find out as to whether there was such an extreme urgent situation before the State Government to invoke Section 17 (4) of the Act exempting the application of Section 5-A of the Act ? Undisputedly, notification under Section 4 read with Section 17 (1) invoking the provision of Section 17 (4) exempting the application of Section 5-A was notified on 20th February, 2006. While corrigendum thereof was notified on 31st January, 2007. 7. In view of the admitted fact that first of all notification under Section 4 read with Section 17 (1) invoking Section 17 (4) exempting application of Section 5-A of the Act was published on 21st February, 2006 and corrigendum thereof was published on 31st January, 2007, almost after expiry of 11 months. It goes to demonstrate that in fact there was no such urgent situation which could have justified invocation of urgency clause. Meanwhile, State Govt. could have easily invited objections under Section 5-A of the Act and could have easily decided the same in accordance with law and thereafter could have issued notification under Section 6 of the Act, if need be. 8. In my humble opinion, as per the mandate of Article 300A of the Constitution of India, although right to hold property is no more a Fundamental Right, however, still is a constitutional right which is akin to the Fundamental Right, therefore, landowner cannot be deprived of his property except by the authority of law and before depriving the land owner from the property, a fair opportunity should be given to the land owner to say that deprivation is not required in the peculiar facts and circumstances of case. Therefore, ordinarily mandate of Section 5-A of the Act should be allowed to be followed unless, of course, most urgent situation justifying exemption thereof exists. 9. In view of the discussion hereinabove, invocation of urgency clause under Section 17 (4) exempting application of Section 5-A is totally unjustified and arbitrary and does not sustain in the eyes of law. 10. Therefore, ordinarily mandate of Section 5-A of the Act should be allowed to be followed unless, of course, most urgent situation justifying exemption thereof exists. 9. In view of the discussion hereinabove, invocation of urgency clause under Section 17 (4) exempting application of Section 5-A is totally unjustified and arbitrary and does not sustain in the eyes of law. 10. Consequently, impugned notifications dated 20th February, 2006 under Section 4 invoking Section 17 (4) exempting the application of Section 5-A of the Act as well as notification dated 2nd March, 2007, under Sections 6 and 9 of the Act are hereby quashed. State Government, if need be, may issue fresh notification under Section 4 of the Act calling objection under Section 5-A of the Act from all the affected land owners and after deciding the objections in accordance with the mandate of Section 5-A of the Act, if need be, may proceed further in accordance with law. 11. Both the writ petitions stand allowed accordingly. 12. No order as to costs.