Allahabad High Court: Mere Public Purpose Not Sufficient To Invest Authority With Power To Automatically Invoke Section 17 Land Acquisition Act Unless There’s Urgency
The issue before the Allahabad High Court was whether invocation of urgency power under Section 17 of the LA Act, for dispensing with the enquiry under Section 5-A, passes the muster of judicial review or not.
Justice Manoj Kumar Gupta, Justice Anish Kumar Gupta, Allahabad High Court
The Allahabad High Court has clarified that mere existence of public purpose is not sufficient to invest the authority with power to automatically invoke Sections 17(1) and 17(4) of the Land Acquisition Act, 1894 (LA Act), unless urgency is of such amplitude, that the same in itself could form basis to dispense with the enquiry.
The Court clarified thus in a batch of more than 30 Writ Petitions questioning the validity of the notifications under Sections 4(1) and 6(1) of LA Act, proposing to acquire 367-0-5 bighas (229.3828 acres) of land of Village Mohiddinpur Kanavani, Pargana Loni, District Ghaziabad for a public purpose.
A Division Bench of Justice Manoj Kumar Gupta and Justice Anish Kumar Gupta held, “The legal principle which thus emerges is that mere existence of public purpose is not sufficient to invest the authority with power to automatically invoke Sections 17(1) and 17(4) of the Act unless urgency is of such amplitude, that the same in itself could form basis to dispense with the enquiry. Even in such a case, there is again need for application of mind by the appropriate government that such an urgency is inherent in the very nature of scheme. If we read the dictum in Nand Kishore Gupta and Radhy Shyam, accordingly, we find no inconsistency, nor any implied overruling.”
The issue before the Bench was whether invocation of urgency power under Section 17 of the LA Act, for dispensing with the enquiry under Section 5-A of the Act, passes the muster of judicial review or not.
Advocate Pankaj Dubey appeared for the Petitioners, while Senior Advocate Mahesh Chandra Chaturvedi appeared for the Respondents.
Factual Background
The batch of Writ Petitions sought to challenge the validity of the notifications dated October 16, 2004 under Section 4(1) of LA Act and dated November 28, 2005 under Section 6 (1) of LA Act, proposing to acquire 367-0-5 bighas (229.3828 acres) of land of Village Mohiddinpur Kanavani, Pargana Loni, District Ghaziabad for a public purpose, viz. “construction of residential colony under planned development scheme” by the Ghaziabad Development Authority, (GDA) Ghaziabad. While issuing the notification under Section 4, the power conferred upon the State Government under Section 17(4) was invoked, thereby dispensing with the enquiry contemplated under Section 5-A of LA Act.
Likewise, while issuing notification under Section 6, the power under Section 17(1) was invoked, empowering the Collector to take possession of the acquired land after expiration of 15 days from the date of publication of notice under Section 9(1), though, no award under Section 11 was made. A Division Bench had earlier allowed the first set of 30 Writ Petitions and quashed the acquisition notifications in respect of the land of the Petitioners. This was challenged by the GDA by filing 34 Special Leave Petitions (SLPs), out of which 33 were decided by the Supreme Court. The case was remitted to the High Court for a fresh consideration.
Court’s Observations
The High Court in view of the above facts, observed, “The interplay between Section 5-A and 17(4) of the Act, 1894 has been succinctly explained by the Supreme Court in Union of India and others vs. Mukesh Hans9. It has been held that mere existence of urgency or unforeseen emergency, though is a condition precedent for invoking Section 17(4), by itself is not sufficient to direct the dispensation of the enquiry under Section 5-A of the Act.”
The Court reiterated that the satisfaction of the appropriate Government as regards need for invocation of urgency power under Section 17 of the Act is a subjective satisfaction and not an objective one.
“At the same time, it is not an empty formality, but requires application of mind to the relevant factors. Thus, mere recital in the acquisition notifications that the land is urgently needed may raise a presumption in favour of the Government but if the same is challenged before the Court, the Government shall have to produce relevant material before the Court on basis of which opinion was formed for dispensing with the enquiry under Section 5-A. The Government will have to satisfy the Court that the formation of opinion was based on relevant material germane to the issue”, it added.
The Court noted that the present Scheme, which pertains the development of a residential colony under planned development programme, was not of such urgency that a few months' delay occasioned by the process of the objections under Section 5-A would have jeopardised the Scheme itself.
“As already observed, the time consumed in issuing Section 6 notification itself was sufficient to hold the enquiry. The State Government failed to distinguish between existence of public purpose and existence of real urgency to warrant dispensation of enquiry under Section 5-A of the Act. Consequently, applying the test laid down by the Supreme Court in Zora Singh Vs. J.M. Tandon & others29, we are of the considered view that the formation of opinion by the State Government to invoke Section 17, albeit subjective, suffers from manifest error of law. We are, therefore, unable to uphold the dispensation of enquiry under Section 5-A of the Act”, it said.
Future Course and Relief
The principal issue which arose was whether the Respondents can be permitted to proceed with the acquisition from the stage of enquiry under Section 5-A, and further, what relief the Petitioners would be entitled to, in the facts and circumstances of the case.
“… since the dispensation of enquiry under Section 5-A of the Act has been held to be illegal, the respondents even cannot be given benefit of the judgment of the Supreme Court in Faizabad Ayodhya Development Authority (ibid) and proceed with the acquisition”, it remarked.
The Court took note of the fact that large number of the land owners, representing more than half of the acquired land, have not challenged the acquisition proceedings and consequently, the Respondents have succeeded in completing the acquisition proceedings qua the said part of the land.
“They have carried out development over the same by laying roads, constructing sewer lines, and developing other public amenities. Some part of the acquired land has been allotted to third parties for developing housing colonies and other uses and thus third party interests have also come into existence”, it added.
The Court was of the view that at this stage, if the acquisition is quashed in its entirety, it will definitely have serious adverse consequences.
“Apart from haphazard growth, the further development of public amenities like roads, sewer lines, parks etc. would get hampered. Thus, having regard to overarching public interest, we consider it appropriate to give option to the respondents to retain the land, subject to conditions, as would balance individual interests also”, it further observed.
Conclusion and Directions
The Court also said that except in cases where any award has been made prior to filing of the Writ Petition or any compensation has been paid, it does not consider it appropriate to draw any distinction among the land owners.
“We take this view while being fully conscious of the legal position relating to belated challenge to any acquisition, in view of the peculiar facts and circumstances of the present case”, it added.
Furthermore, the Court directed as follows –
(a) It shall be open to the Respondents to retain any part of the land in dispute in the present batch of Petitions.
(b) If the Authority needs to retain any land, in terms of the option, it shall notify the same by issuing a public notice at least in two newspapers, one in English and other in Hindi, having wide circulation in the area within one month.
(c) Where any award is made, it shall be subject to the right and remedies available under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
“For any land for which option is not exercised, by declaration of award in terms of the instant order, the acquisition would stand quashed and the land will revert to the owners free from any encumbrances created over it by the respondents”, concluded the Court.
Accordingly, the High Court dismissed the Writ Petitions.
Cause Title- Hatam Singh and Others v. State of U.P. Thru Secy. Housing and Urban Planning and Anr. (Neutral Citation: 2025:AHC:186414-DB)
Appearance:
Petitioners: Advocates Pankaj Dubey, Pradeep Kumar Sinha, R D Tiwari, and Shiv Kant Mishra.
Respondents: Senior Advocate Mahesh Chandra Chaturvedi, Advocates Ashwani K. Mishra, Jagannath Maurya, Mahendra Pratap, Rajesh Dutta Pandey, Tejasvi Misra, and Ved Byas Mishra.
