Paragraph numbers below are the court’s original numbering, recovered from the source text.
20. The court in the said case permitted the appellants to represent to the state’s authority under Section 48 of the Act for release of their land.
21. No doubt in State OF Haryanav. Eros City Developers Private Limited and Others8, this Court took the view that public interest must receive primacy when it conflicts with private interest. The stand of the state and the Second Respondent appears to be that the judgment rendered by two judges’ bench which deviated from the judgment in Pista Devi (supra) and Chameli Devi (supra) were not correctly decided. ANALYSIS AND FINDINGS
22. We may cull out the principles at play. What is required of the authority is to form a subjective opinion. This does not mean that the opinion can be whimsical or capricious. There must be materials before the authority. The materials must be relevant. The authority must apply his mind to the material. This is apart from the requirement that action must not be malafide. Undoubtedly the purpose must be a public purpose. But merely because the purpose of the acquisition is found to be a public purpose, the duty of the authority does not end. He must be satisfied that there is real agency such that the invaluable right vouchsafed to a person to ventilate his grievances against the acquisition is not unjustifiably extinguished. Section 5A of the Act guarantees a right to the person interested in the property which was the only statutory safeguard to stave off of a compulsory acquisition of his property. The power under Section 17 (4) is discretionary. Being a discretion it must be exercised with due care. It is true that if there is relevant material however meagre it may be and the authority has without being guided by extraneous considerations applied his mind and taken a decision,then the court would adopt a hands-off approach. In the ultimate analysis as with any other decision a balancing of conflicting interests is inevitable. The authorities must remain alive and alert to the precious right created in favour of the citizens which is not meant to be a mere empty ritual.
23. It is true again that the decisions in this Court appear to convey conflicting signals. However, there is a certain element of consensus on fundamental principles. The dichotomy essentially has to be resolved by carefully attending to the facts of each case. The decision of a Bench of three Judges in Gavate (supra) enunciates the principles relating to the manner in which a challenge to a notification under Section 17(4) must be approached in the matter of discharging the burden of proof. When a challenge is made to the invocation of power under Section 17 (4) the HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF U.P. & ORS. [K. M. JOSEPH, J.] 8 (2016)12 SCC 265 writ applicant cannot succeed on bare and bald assertions. The facts which are specifically within the exclusive knowledge of the state must be laid before the court on the basis of the principle in Section 106 of the Evidence Act. Existence of the exceptional circumstances justifying invoking of Section 17 (4) must be established in the wake of a challenge. The true concept unravelled by this Court in Gavate(supra) is the total evidence theory. In other words, on an appreciation of the evidence made available by all the parties it is open to the court to conclude that no occasion arose for resorting to the power under Section 17 (4) which indeed must be read as an exception to the general rule that the acquisition of property is made after affording an opportunity the person adversely affected to demonstrate that the acquisition was unjustified.
24. In the meeting held on 3.5.2002 by decision/item/21, there was a proposal to acquire 52 hectares of land for the scheme. In implementation of the said decision, letters were addressed on 6.6.2003 and 18.6.2003 by the second respondent. By letter 24.9.2003 the officer directed the Authority to deposit an amount towards acquisition. On 18.7.2003, second respondent sent a proposal to acquire 52.361 hectares of land and on 31.1.2004 deposited about 10% of approximate value of land. Certain deficiencies were pointed out by letter dated 13.12.2004. The second respondent thereafter deposited the remaining cost. State Government issued notification on 8.10.2004 under section 4 of the Act also invoking Section 17(4). The declaration under section 6 came to be published on 7.10.2005. A perusal of a communication issued dated 29.3.2006 addressed to the In-charge of Land Acquisition by the second respondent would show as follows: “In Gata No.880 and —893, Painth (Cattle Market) was being put for the animals, and that is why earl~er these Gatas have been kept separate from the acquisition, but now in these Gatas shops have been constructed and the land of these Gatas are being sold for residential houses, hence as these numbers are contiguous with the Plan, these gatas are also required ta_ be acquired after preparing an amended proposal.”
25. Based on the 32nd Board Meeting of the Authority held on 8.9.2005, a Committee was constituted. A proposal was sent to in regard to Survey No. 880 and 893, situated allegedly in the middle of the total area of the scheme. Based on the 33rd Board Meeting held on 29.05.2006 the third respondent Vice Chairman of the second respondent wrote to the Collector, Bulandshehar on 6.10.2006. Herein, he refers to the 33rd Board Meeting of the second respondent held on 29.05.2006 and that it was decided to forward a proposal for acquiring the land in question apart from other lands. It is further mentioned by the third respondent about the 13 shops, in the application which is referred to as the letter dated 2.9. 2006 written by the appellants were illegally constructed againstwhich action was taken. It is further stated as follows: “For the animals coming in Painth (Cattle Market) there is no Shed, Khor or Kundia for drinking water etc. are present at he spot. In the revenue records, in the above both Gatas instead of entering Painth (Cattle Market), the names of Shri Hamid Ali Khan and Shri Jahid Ali Khan sons of Mohd. Hussain Ali Khan has been entered and it has also beenentered that those land are declared non-cultivatedland under Section 143.”
26. Thereafter on 10.10.2006 the third respondent again wrote to the Deputy Secretary, Housing & Urban Planning. It is essentially a reiteration of letter dated 06.10.2006. It is further pointed out the area of the Mosque and Petrol pump in Survey No.880-and the area of Mazhar in survey No. 893 has been left out in the final proposal. It is lastly pointed out inter alia that in Bulandshehar except Khurja cattle market are being put at very large level in many other Kasbas/Nagars. The cattle market is stated to be in the middle of the total area of 52.361 hectares. It is specifically pointed out that in view of the requirement of clean environment the work of cattle market in between housing area of any residential area will not be proper. There is reference to a further letter 7.1.2007. On 3.1.2008 again the Vice Chairman of the second respondent wrote to the Special Secretary reiterating the earlier communications hereinbefore. On 8.2.2008, it is pointed outby the Vice Chairman that the land to be acquired will be developed as part of the scheme. Reference is made to a request for notification for acquiring the land. On 8.3.2008 the Special Secretary wrote to the Vice Chairman of the second respondent. He sought information in terms of Government order dated 19th October, 2001 what is the purpose to require only 2.692 hectares land for the residential/commercial scheme. The appellants would point out that this was replied to by communication dated 27.3.2008 by the vice Chairman. Again, it is inter alia stated as follows: HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF U.P. & ORS. [K. M. JOSEPH, J.] The said Painth (Cattle Market) in question is situated at the middle of the Planning area and in view of the clean environment, putting of Painth (Cattle Market) for the animals under thehousing scheme is not proper from any angle. According to the record available in the authority,on the land in question only on one day Painth (Cattle Market) is being put for the animals. In the Gatas in -question the areas of Mosque and. Mazarare being kept free from acquisition.
27. A perusal of the files made available would reveal that on 14.1.2008, there is reference to the clarification by the Vice chairman as to the justification for acquiring of 2.692 hectares for the development of residential and commercial scheme and from the planning point of view. Thereafter referring to letter 8.2.2008 from the Vice chairman of the second respondent it is found that the land is situated in the middle of land acquired earlier and that the Vice chairman has requested that notification be issued at the earliest. The matter was put up before the Ministerfor issuance of the notification under section 4(1)/17 for acquiring the land. This is dated 19.2.2008. On 2.3.2008, the Special Secretary found that there was some request seeking exemption of the some land sought to be acquired which was examined by the Government in the enclosed file 2033LA/2006. The proposal for exemption was not allowed. The Principal Secretary (Planning) had referred to the rejection of application for exemption and therefore the matter was put up for notification under section 4(1)/17. On the very same day, the signature of the Minister was obtained. From this we are to infer that the Minister approved the proposal for issue of notification and it was issued thereafter on 11.4.2008.
28. The minutes of meeting of the second respondent authority 29.5.2006 inter alia under itemNo.31/3 states as follows: Item No.(31/3): – Regarding the land acquisition plan proposed by the authority: – It was expected by the committee constituted by the board meeting, that keeping in view the financial position and plans of the authority, by showing the “profit – loss” justification, the detailed description should be prepared by the developed authority and should be put up in the next board meeting, so that it can be considered by the members of the board/ committee constituted at the time of the board meeting. The site inspection was conducted by the committee on 03.12.2005, 15.12.2005 and 05.04.2006 of the Kalindi Kunj residential scheme, situated in Khurja and transport Nagar commercial scheme and Ganga Nagar residential/commercial schemes, situated in Bulandsahar and the Gata numbers left out from the scheme were inspected. In this regard, it was informed by the vice chairman that a plot left out and that time, under the Kalindi Kunj residential scheme i.e. Gata number 880, area 1.383 ha and Gata number 893, area 1.309 ha with total area of 2.692 ha, the supplementary proposal for the same has been sent to the special land acquisition officer, Bulandsahar. The proposal for issuing the Section – 4/17 notification for land acquisition of the Ganga Nagar residential scheme and transport Nagar scheme Bulandsahar is presently under consideration of the government and efforts are being made to take necessary action regarding its pronouncement by establishing the coordination with the government level. As per the instructions received from government of India, New Delhi, since the “Commonwealth Games” are to be arranged in New Delhi in the year 2010 and for providing residential and commercial facilities and in order to control the population pressure within the NCR region, development of residential and commercial schemes is absolutely necessary, in the broad interest of the public and the authority. It may be mentioned regarding the unavailability and necessary of both the schemes that in accordance with the instructions of the NCR planning board, demand survey work for these schemes was started from 02.01.06 to 10.02.2006, in which demand was received for 642 plots as against 685 plots and the estimated amount of Rs. 2.67 crore was received as 10% registration charges. From this it is seen that the above schemes of the authority will be very profitable for the authority and their implementation is necessary in the broad public interest. Therefore, changes have been sent in the proposal for land acquisition for both these schemes, land development under the scheme, public interest and broad interest of the authority. The proposal for issue of Section – 4/17 notification for both the schemes is under consideration of the government, in which there appears to be no need for any amendment/stains. Therefore, it is necessary in public interest and broad interest of the authority that action should be taken for the pronouncement of Section – 4/17 notification of these schemes by establishing the coordination at the government level…” HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF U.P. & ORS. [K. M. JOSEPH, J.]
29. A perusal of the file notings would reveal that on 24.3.2009 it was noticed that as per the rules the notification under section 6/17 had to be issued before 11.4.2009 in view of the notification issued under 4(1)/17(4) on 11.4.2008. There is reference to Rs.37,76,711/- having been deposited by the second respondent constituting unnecessary expenditure, if the acquisition lapsed. On the said basis it was stated in view of the unavoidable situation of issuing the section 6/17 notification before 11.4.2009 it was proposed to issue the notification. Thereafter, it was found that in view of the elections being underway and enforcement of the election code, permission of the officer had to be obtained. The approval/signature of the Principal Secretary had to be obtained for issuing the Section 6/17 declaration. It is thereupon that the notification under Section 6 came to be issued on 9.4.2009.
30. On the basis of the declaration, the possession of the land according to the second respondent was taken over on 27.7.2009 and the name of the second respondent was entered in the revenue record.
31. In this connection, the specific stand set up by the appellants in the writ petition as to the location of the market, which is comprised survey nos. 880/893, is as follows: “That the Vice Chairman again sent false information vide letter dated 27.3.2008 to the Special Secretary, that there are 13 houses overthe land in dispute, which was wholly false andagainst spot position. The true copy of reportdated 27 .3.2008 is being filed herewith asAnnexure No. 14 to this Writ Petition. That it is respectfully submitted that the said plot nos. 880 and 893 are not situated in the centre of Scheme as alleged in the reports dated 6.10.2006 and 10.10.2006. They are situated at the one end of city facing G.T. Road and if a huge boundary wall is erected on these plots by the petitioners the said plots can very well be separated from theresidential area without disturbing the expansion plan of the Scheme. It is respectfully submitted that the petitioners are ready to erect a boundary wall on their own expense if they are permittedand assured that no such acquisition would bemade as depicted in the letter issued from theoffice of respondent nos. 2/3 dated 10.10.2006. That the layout plan of respondent no. 2 itself show that on plot no.-880 there is a plan i.e.Cattle market and this fact is also proved fromthis layout plan that both the plots in questionare at the end of scheme which is facing G.T. Road. It is not in any case situated in the centre of the Scheme. That the layout plan of respondent no. 2 also shows that the end of plots in questions have beenintended to be used for commercial purposes inthe whole layout plan, entire commercial activities have been projected all along the National Highway. The residential area in the Scheme isbehind this commercial area.”
32. A short counter affidavit was filed by the second respondent. There is no specific denial of the case set up by the appellants in paragraph 23, 24 and 27. If that be so on the unrebutted allegations an inference could be drawn that the case set up by the respondents that the properties in question were situated in the middle of the scheme area is incorrect.
33. We must notice certain salient features. Perusal of the impugned notification under section 17(4) and even Section 6 declaration shows that the land in question is recited as being required for the public purpose of the Bulandshehar-Khurja Development Authority or for the Kalindi Kunj residential/commercial (supplementary). It is further recited that as the Governor was convinced about the great necessity of the land and the provision of section 17 (1) of the Act being applicable and in view of the necessity, inquiry under section 5A was not applied on the basis that ‘possibility of delay may be abandoned’. It is further stated that land is required for Kalindi Kunj residential/commercial scheme. A perusal of the revised lay out plan inter alia would show that the scheme was a residential cum commercial scheme. It was to consist of park, community facilities such health, post office, social and cultural centre and educational centre. The land which was reserved for the residential area is shown as constituting 38.57% of the area of the scheme. The commercial part of the Scheme was to consist of 4.9% of the total area of the scheme. We make this observation to record our finding that the scheme is not a pure residential scheme. Secondly, the only case which the respondents have further is that under a scheme 5% of the plots are reserved for the landless.Therefore, this fact may stand out in sharp contrast with the scheme which fell for consideration before this Court in Chameli Singh (supra) wherein the power under section 17(4) was invoked for land for building houses for the dalits. Initially, the land in question, was not proposed to be acquired. The total land which was proposed to be acquired was fixed at 52 and odd hectares. HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF U.P. & ORS. [K. M. JOSEPH, J.]
34. A perusal of the communication dated 29.3.2006 from the second respondent Authority reveals that according to it, survey nos. 880 and 893 were being used for keeping a cattle market and therefore the lands were not required. It is further found that in the survey 13 shops were constructed and the land inthese surveywere sold for residential house. Being contiguous with the scheme area, these lands were projected as required on preparing an amended proposal. However, in the communication dated 06.10.2006 issued by the third respondent he refers to requirement of clean environment and therefore a cattle market of the animalsin the housing area may not be proper. The same position is again reiterated as already noted in communication dated 10.10.2000 as well. The appellants had given a representation on 08.12.2006 to the Chief Secretary praying that the property may not be taken for the residential/commercial scheme. Therein, it is inter alia stated that the cattle market is located at one corner of the acquired land of 52.361 hectares. The appellants state about their readiness to construct a separate boundary wall. It is stated to be their only source of income.
35. It is to be noticed that the declaration under section 6 was issued only on the eve of expiry of one year from 11.4.2008. The urgency indicated in the file is to tide over the bar of issuance of declaration under section 6 beyond one year from 11.4.2008 the date on which notification under 4/17 was issued. There is no indication in the file about the urgency for issuing the declaration immediately after the notification under Section 4. In other words, the file does not reveal any urgency at all associated with the need to acquire the land immediately which constitutes the foundation for invoking the urgency clause.
36. We are at a loss as to what was the material which was relevant to a decision under section 17(4) of the Act. In this regard we may notice the following: Notification was issued under section 17(4) in October 2004 regard to 52 and odd hectares of land. The Section 6 declaration is made only in October 2005. The survey numbers in question in this case according to the respondent is located in the middle. However, it is not acquired on the basis that the said land was being used as cattle market (see communication dated 29.3.2006). The appellants have a definite case that possession itself was taken despite the availability of power to take possession immediately, only on 6.1.2006. The proposal to take the further land was taken in March, 2006 if not earlier. The reason given for acquiring the land is alleged construction of shops by the appellants and the contiguity of the land covered by the land earlier acquired with the land in question. On the other hand, the third respondent refers further to the need for clean environment which is in contradiction to the communication dated 29.3.2006.
37. What is relevant for the purpose of this case is to find the following: (1) Whether there were relevant material before the Government to invoke power under section 17(4)? (2) Lastly, whether the government applied its mind?
38. We have noticed the material which consists of the communications addressed to the second respondent and the communications by the third respondent. Apart from the same, the usual certificates/forms indicating inter alia that there was no place of worship located in the scheme was no doubt available. But the point is only whether there was material for dispensing with the inquiry under Section 5A and even, more importantly, whether the authority applied its mind to it. Even the notification under section 17(4) came to be issued after more than two years of the proposal sent sometime in March, 2006 if not earlier. We have already noted the fact that declaration under section 6 came to be issued only on 9.4.2009, just two days prior to the first anniversary of the date of notification under section 4. More importantly, we have noticed what finally impelled Government to issue the notification, namely, the apprehension that if it is not issued within one year of the section 4 notification the acquisition would lapse. This had nothing to do with urgency which would have manifested in the section 6 declaration being issued much earlier.This must also be viewed in the background that though the Section 4(1)/(17) Notification was earlier issued in regard to 52.361 hectares on 08.10.2004, the declaration under Section 6 was issued only on 07.10.2005.
39. The statutory authority under section 5A of the Act is expected to give a fair hearing. It can stand between an uncalled for proposal to acquire property. Disputed questions of facts in regard to the property to acquire the property are to be considered by the same Authority. Yet another pertinent aspect is the fact that the subject matter of the second HAMID ALI KHAN (D) THROUGH LRS. & ANR. v. STATE OF U.P. & ORS. [K. M. JOSEPH, J.] acquisition was 2 and odd hectares. It was apparently just the appellants, who had to be given a hearing.
40. We would therefore think that in the facts of this case, having regard to the nature of the scheme, the delay with which section 6 declaration was issued, possession taken and the nature of the material on the basis of which the proposal was processed, the appellants are justified in contending that the notification under 17(4) dispensing with the inquiry under Section 5A was unjustified.
41. We may notice another aspect. This appeal arises from the order passed by the High Court in the year 2000. While issuing notice, this Court in the SLP stage ordered status quo as on 6.11.2009 be maintained. Thereafter, the leave was granted on 27.1.2012. The interim order was however directed to continue. It is after nearly 12 years that the case is finally being disposed of. In the meantime, the Land Acquisition Act was repealed and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has taken its place. Therefore, there is no question of the matter being considered for an inquiry being held under section 5A. We have also noted that there is no denial of the allegation in the writ petition about the lie of the property, viz., it not being in the middle of the scheme area.
42. The appeal is allowed. The impugned judgment is set aside and the writ petition filed by the appellants shall stand allowed and the impugned notifications and proceedings based on the same shall stand quashed. The property shall be returned back to the appellants. This will be without prejudice to the rights/powers available to the respondents under law. Nidhi Jain Appeal allowed.