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Thursday, August 11, 2016

While there can be no manner of doubt that in the present case compensation under Section 17(3A) was paid (on 18th April, 2006) after the date of taking over of possession (on 17th March, 2006), time and again, it has been held by this Court that the said fact by itself would not invalidate the acquisition.=So far as the taking over of possession without notice is concerned, we do not find the said ground to be substantiated by the records placed before the Court in I.A. No.17. Notice to handover possession was issued on 10th March, 2006 and report of service of such notice(s) was submitted to the concerned authority on 16th March, 2006. Thereafter, possession was taken on 17th March, 2006. From the Possession Certificates, which are also on record, we do not find the contention of the land-owners that taking over of such possession was symbolic to be substantiated in any manner. Consequently, the reliance placed on the decision of this Court in Raghbir Singh Sehrawat vs. State of Haryana and others[5] is not of any consequence. For the aforesaid reasons, we cannot agree with the conclusion of the High Court that the impugned acquisition suffers from any fundamental flaw or illegality which would require the same to be struck down as has been done by the High Court in Writ Petition No.196 of 2006 (impugned in Civil Appeal No.6900/2009). Consequently, we allow the appeal filed by the State, namely, Civil Appeal No.6900 of 2009 and set aside the order of the High Court dated 1st March, 2007 passed in Writ Petition No.196 of 2006. The natural corollary of above would be to dismiss Civil Appeal No.6901 of 2009 which we hereby do. As we have expressed no opinion on the entitlement of the any of the parties to apportionment of the compensation no order will be called for in this regard except that compensation for the acquisition will now be determined in accordance with the provisions of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 6900 OF 2009

STATE OF UTTARAKHAND & ORS.     ..APPELLANTS

                                   VERSUS

RAJIV BERRY & ORS.                  ..RESPONDENTS

                                    WITH

                        CIVIL APPEAL NO.6901 OF 2009

SHASHANK SHARMA                      ..APPELLANT

                                   VERSUS

STATE OF UTTARANCHAL & ORS.    ..RESPONDENTS



                               J U D G M E N T

RANJAN GOGOI, J.


    The Civil Appeals arise out of two separate orders passed  by  the  High
Court of Uttarakhand in the matter of acquisition of land  for  the  purpose
of expansion of the Uttaranchal Secretariat. While Civil Appeal  No.6901  of
2009 arises out of the judgment and order dated 23rd December, 2005  of  the
High  Court  dismissing  the  challenge  to  the  acquisition  made  by  the
appellant land-owner on grounds to be noticed  herein  below,  Civil  Appeal
No.6900 of 2009 arises out of another judgment and order  dated  1st  March,
2007 by which the impugned acquisition has been interfered with by the  High
Court.
2.          A brief conspectus of the relevant facts may now be set out.
            By notification dated 4th May, 2004 issued  under  Section  4(1)
of the Land Acquisition Act, 1894 (hereinafter  referred  to  as  "the  L.A.
Act")  the  land  mentioned  in  the  schedule  thereto  was  notified   for
acquisition for the purpose  of  expansion  of  secretariat  on  both  sides
(North/South) of the existing secretariat  in  Dehradun.  By  means  of  the
aforesaid notification the urgency clause under Section 17(1)  of  the  L.A.
Act was invoked and furthermore enquiry under Section 5A  of  the  L.A.  Act
was dispensed with in exercise of power under  Section  17(4)  of  the  L.A.
Act. The acquisition was subjected to a challenge before the High  Court  of
Uttarakhand in Writ Petition No.469 of 2004 which was  disposed  of  by  the
order of High Court dated           30th  October,  2004  in  the  following
term:

"In these three writ petitions, particularly  in  writ  petition  No.469  of
2004 (M/B) 874 of 2004 (M/B) the notification under Section 4  of  the  Land
Acquisition  Act  has  been  challenged.   So  also  challenge  is  to   the
notification under Section 17(4) of the Land  Acquisition  Act  by  applying
the urgency clause. In writ Petition No.840 of 2004 (M/B) there is a  common
challenge to the notification which provides  for  the  acquisition  of  the
land for extension of the Secretariat as  also  for  the  expansion  of  the
road. These notifications are different.

Mr. Sudhanshu Dhulia, Senior Advocate,  in  his  usual  fairness  has  shown
readiness to hear the  petitioners  or  as  the  case  may  be  the  persons
interested. Instead  of  going  ahead  with  the  urgency  clause  and  more
particularly dispensing with the enquiry under Section 5-A.  In view of  the
statement made, Mr. Naithani, Senior Advocate appearing  on  behalf  of  the
petitioners withdraws the  writ  petitions,  so  far  as  challenge  to  the
notification dated 5.5.2004 is concerned.

      In view of the urgency felt, we feel that it will be better for us  to
fix the programme. Public notice shall, therefore,  be  given  within  seven
days from today inviting the  objections.  The  concerned  Land  Acquisition
Officer, who is to hear the objection, shall hear them within fifteen  days.
All the objections shall be filed before the Land Acquisition and  the  Land
Acquisition Officer shall dispose of the matter one way or the  other  after
giving full opportunity of hearing, etc. by December, 2004 or  as  the  case
may be earlier thereto.

      With this, we dispose of the Writ Petition No.469 of 2004.”


Consequent to the aforesaid order of the Court all the land-owners who  were
affected by the acquisition notification submitted  their  objections  which
were heard by the Special Land  Acquisition  Officer/Collector.  Insofar  as
the appellant in Civil Appeal No.6901 of 2009 is concerned, it appears  that
the aforesaid appellant had filed his objections after  the  expiry  of  the
time stipulated by  the  High  Court  in  the  aforesaid  order  dated  30th
October, 2004. Despite the same his objections  were  considered  on  merits
and as the same pertained to the quantum of compensation to be  awarded  the
same were left open for consideration at  an  appropriate  stage.  The  writ
petition filed by the  appellant  land-owners  was  dismissed  by  the  High
Court.

 Insofar as the  other  land-owners  are  concerned,  the  objections  under
Section 5A  of  the  L.A.  Act  appear  to  have  been  rejected  on  merit.
Thereafter on 14th March, 2005 the declaration under Section 6 of  the  L.A.
Act was issued. Notice to handover possession was issued to the  land-owners
on 10th March, 2006  and  report  of  service  of  the  said  notice(s)  was
submitted to the concerned authority on 16th  March,  2006.  Thereafter  the
possession of the land was  taken  on         17th  March,  2006.  The  said
possession was taken in exercise of powers under Section 17(1) of  the  L.A.
Act which provision had already been invoked by the Notification  dated  5th
May, 2004 under Section 4  of  the  Act.  Compensation,  as  required  under
Section 17(3A) i.e. 80% was, however, deposited  in  Court  on  18th  April,
2006. No award could be passed as in the meantime Writ  Petition  No.196  of
2006 (out of which Civil Appeal No.6900/2009 has arisen) was instituted  and
interim orders were passed therein.  The  said  writ  petition,  as  already
mentioned, was allowed by the impugned judgment and order dated  1st  March,
2007 by which the acquisition in question was set aside by the  High  Court.
It is in these circumstances that the State of Uttarakhand has  filed  Civil
Appeal No.6900 of 2009 challenging  the  judgment  and  order  of  the  High
Court. Civil Appeal No.6901 of 2009, as already noticed, has been  filed  by
an individual land-owner by which his challenge to the same acquisition  was
negatived by the High Court by its judgment and order dated             23rd
December, 2005 in Writ Petition No.393 of  2005  on  the  grounds  mentioned
herein above.

We have heard the learned counsels for the parties.
CIVIL APPEAL NO. 6900 OF 2009 -

6.          A perusal of the order of the High Court would go to  show  that
the principal basis on which the High Court  thought  it  proper  to  strike
down the acquisition in question is  that  the  records  and  material  laid
before it by the State did not disclose due and satisfactory  consideration,
by the State Government, of the report  of  the  Collector  submitted  after
holding of the enquiry under Section 5A of the L.A. Act. Such  consideration
by the State Government being a mandatory requirement  under         Section
6, before publication of the declaration contemplated thereunder,  the  High
Court found fault with the notification/ declaration issued under Section  6
of the L.A. Act. The High Court further held that with the striking down  of
the Section 6 declaration/notification it will  become  impossible  to  meet
another  statutory  requirement,  namely,  publication  of  the  Section   6
declaration/notification within a period of one year of the  publication  of
the notification under Section 4 of the L.A.  Hence the  notification  under
Section 4 was also interfered with/set aside by the High Court.
7.          To demonstrate that the basis  of  the  High  Court’s  order  in
striking down the acquisition  is  apparently  wrong  and  unacceptable  Ms.
Rachana Srivastava, learned counsel for the appellant State in Civil  Appeal
No.6900 of 2009 who is the respondent in Civil Appeal No.6901 of  2009,  has
placed before the Court the record in original pertaining  to  the  decision
taken by the State Government on  the  report  of  the  Collector  submitted
after completion of the enquiry under Section 5A of the L.A.  Act.  In  fact
the said record was specifically called for  by  this  Court  by  its  order
dated 27th July, 2016,

8.          Shri M.L. Varma, learned Senior Counsel for  the  respondent  in
C.A.No.6900 of  2009  and  Dr.  Abhishek  Atrey,  learned  counsel  for  the
appellant in Civil Appeal No.6901 of 2009 have very  elaborately  taken  the
Court through the orders of the High Court and  the  materials  laid  before
the High Court in the course of the adjudication of the writ  proceeding  in
question. It is contended that the  Office  Memorandum  dated  15th   April,
2006  under  the  signature  of  the  Secretary,  Public  Works  Department,
Government of Uttarakhand, which was issued in connection with  the  instant
subject matter, goes to show that the  consideration  and  approval  of  the
Government under Section 6 of the L.A. Act was rendered  on  the  said  date
i.e.  15th  April,  2006   which   is   well   after   the   date   of   the
notification/declaration under Section 6 of the L.A.  Act.  The  said  fact,
according to  the  learned  counsels,  has  been  admitted  in  the  counter
affidavit of the State before the High Court.
9.          It is further contended by the learned counsels  for  the  land-
owners that for the first time before  this  Court  some  records  had  been
placed by means of an I.A. (I.A. No.6) to show that it  is  on  14th  March,
2005 that the approval of the Government to the report of the Collector  was
accorded. However in the  said  record  the  Authority  who  had  taken  the
decision is not mentioned. The said defect is  sought  to  be  rectified  by
placing the same document showing the name of the Departmental Secretary  by
means of another I.A. (I.A. No.8). According to  the  learned  counsel,  the
said facts should not inspire the confidence of the  Court  in  veracity  of
the record produced. Furthermore, according  to  the  learned  counsel,  the
fact that alleged approval to the report of the collector and the Section  6
notification  is  of  the  same  day  i.e.  14th  March,  2005  is   another
significant  fact  that  the  Court   must   consider   in   adjudging   the
acceptability of the stand taken.

10.   It has also been submitted by the learned counsels  that  Shri  Sandhu
was not duly authorized to consider the  report  of  the  Collector  and  to
approve the same. Under Section 6 of the L.A. Act the  report  was  required
to be considered and satisfaction arrived at by the State Government.  There
is no mention that the consideration of the report and the approval  thereto
by         Shri Sandhu was in the name of the  Governor  as  required  under
Article 166 of the Constitution of India.

11.   Additionally, it has been contended on behalf of the land owners  that
the urgency clause invoked in the notification under Section 4 of  the  L.A.
Act having been subsequently waived and the objections  of  the  land-owners
having been heard, the State could not have, once again, reverted to  invoke
the provisions of Section 17(1) of the L.A.  Act.  Possession  of  the  land
prior to the passing of the Award could not have been taken and that too  by
payment of 80% of the estimated compensation at a point of  time  subsequent
to the taking over  of  possession.   In  this  regard,  it  has  also  been
contended that taking over of possession of the land  on  17th  March,  2016
was without adequate notice and furthermore that the possession  taken  over
was only symbolic/paper possession.  It has also been  contended  on  behalf
of the land-owners that the land is  lying  unutilized  till  date  and,  in
fact, in a recent meeting of the Government convened by the Chief  Secretary
of the State it was expressed that the  impugned  acquisition  need  not  be
proceeded with any further.

12.   We have perused the records  in  original  placed  before  us  by  the
appellant-State. The note-sheets contained in I.A. Nos.6-7 and I.A.  Nos.8-9
are translated copies of  the  relevant  portions  of  the  decision  making
process contained in the said Original  Records.  Having  perused  the  said
records we find no difficulty in accepting the same and in holding that  the
contents thereof reflect a true and correct account of the manner  in  which
the decision had been arrived at. The  decision to  approve  the  report  of
the Collector was taken on 14th March, 2005 by one Shri S.S.Sandhu who  was,
at that time, the Departmental Secretary (P.W.D.  Secretary).  The  detailed
note-sheet would go to show a consideration of  the  grounds  urged  by  the
land-owners and the  reasons  for  the  rejection  of  the  said  objections
raised.  The  decision  making  process  involved   a   multi-tier   process
culminating  in  the  final  decision  of  Shri  Sandhu,  the   Departmental
Secretary.  If the above is what is disclosed  by  a  consideration  of  the
records in-original, we do not see how any fault can be found in the  manner
in which the decision has been arrived. Looking into the  reasons  cited  we
do not find any infirmity in the merits of the  decision  either.  The  fact
that the final order in the file was passed by  the  Departmental  Secretary
on 14th March, 2005 on which very date  the  declaration/notification  under
Section 6 of the L.A. Act was also issued  cannot  lead  the  Court  to  any
adverse conclusion so as to invalidate either  the  decision  taken  or  the
notification  issued.  Insofar  as  the  jurisdiction  of  the  Departmental
Secretary to take the  decision  in  question  is  concerned,  all  that  is
required to be noticed is that under the  Rules  of  executive  business  it
cannot be denied that Shri Sandhu as  the  Departmental  Secretary  (P.W.D.)
would be competent to take a  decision  on  behalf  of  the  State.  When  a
decision is taken in the file, the same obviously would not be in  the  name
of the Governor. However, in the formal notification dated 14th March,  2005
the above decision is expressed to be taken in the name of the  Governor  of
the State. In such a situation, the  Court  will  find  no  fault  with  the
notification/declaration dated 14th March, 2005 on the  ground  that  it  is
contrary to or inconsistent with  the  provisions  of  Article  166  of  the
Constitution of India.

13.    The above facts coupled with the text of the Notification dated  15th
April, 2006 would make it clear that the said Notification does not  detract
from the above position as has been sought to be contended on behalf of  the
land-owners. The contents of the State’s affidavit before  the  High  Court,
in the light of what is disclosed by the  original  records,  would  not  be
determinative of the issue.

14.         There  can  be  no  doubt  that  the  statute  under  which  the
acquisition was made is an expropriatory legislation  and,  therefore,  must
be strictly construed. This has been the  consistent  view  of  this  Court.
Illustratively we may refer to Essco Fabs Private Limited  and  another  vs.
State of Haryana and another[1].  In the instant case  in  the  Notification
dated 5th May, 2004 under Section 4  of  the  L.A.  Act  the  provisions  of
Sections 17(1) and 17(4) were invoked. Objections of the  land-owners  under
Section 5A were dispensed with. The said position was  subsequently  altered
and objections were allowed  to  be  filed  and  all  such  objections  were
considered by the Collector. Thereafter the  report  of  the  Collector  was
duly considered by the State Government and the Notification  under  Section
6 was issued. The objections of the land- owners in  this  regard  have  not
been found acceptable by us for reasons indicated above.

15. In  the  light  of  the  above,  the  alternative/additional  contention
advanced on behalf of the land-owners may now be  considered.  It  is  urged
that the provisions of Section 17(4) of the L.A. Act having  been  initially
invoked but subsequently abandoned and objections having  been   allowed  to
be filed, the State cannot turn back and take possession of the  land  under
Section 17(1) of the Act.

16.     Sections 17(1) and Section 17(2) vest power and jurisdiction in  the
State to take possession of the land  even  prior  to  the  passing  of  the
award.  Section 17(4) enables the State to  take  such  possession  even  by
dispensing with  the  requirement  of  the  opportunity  contemplated  under
Section 5A of the Act.  Sections  17(1)  and  17(2)  on  the  one  hand  and
Section 17(4) operates in two different fields. It is extent of  urgency  or
emergency  that  would  determine  the   application   of   the   respective
clauses/sub-sections of Section 17 of the L.A. Act.  In  other  words,  even
though the urgency clause under Section  17(1)  and  Section  17(2)  may  be
invoked in a given case, the opportunity of filing objections under  Section
5A of the L.A. Act need not be dispensed with and  can  still  be  afforded.
However, if the provisions of Section 17(4) are  invoked,  the  State  would
be empowered to dispense  with  the  requirement  of  affording  opportunity
under Section 5A and take possession prior  to  making  of  the  award.  The
dispensation of the opportunity  contemplated  by  Section  5A  by  invoking
Section 17(4)  is  not  an  invariable  consequence  of  the  invocation  of
Sections 17(1) or (2). This is what has been held in  Nageshwar  Prasad  and
others vs. U.P. Government and others etc.[2]; Union  of  India  and  others
vs. Mukesh Hans[3]  and Essco Fabs Private Limited and another vs. State  of
Haryana and another (supra).


17.         What has happened in the present case is that  even  though  the
State had departed from its initial stand of invoking Section 17(4)  of  the
Act and had  given  to  the  land-owners  the  opportunity  contemplated  by
Section 5A, it had taken possession of the land prior to the passing of  the
award by invoking the provisions of Section 17(1) of the L.A.  Act.  It  has
already been elucidated in details why it was permissible for the  state  to
do so.
18.    While there can be no manner  of  doubt  that  in  the  present  case
compensation under Section 17(3A) was paid (on 18th April, 2006)  after  the
date of taking over of possession (on 17th March, 2006), time and again,  it
has been held by  this  Court  that  the  said  fact  by  itself  would  not
invalidate the acquisition. Reference to Tika Ram and others  vs.  State  of
Uttar Pradesh and others[4] will suffice. Several earlier decisions of  this
Court on the above issue have been  referred  to  in  paragraph  95  of  the
report in Tika Ram (supra), details of which need not be repeated herein.


19.   So far as the taking over of possession without notice  is  concerned,
we do not find the said ground to be substantiated  by  the  records  placed
before the Court in I.A. No.17. Notice to handover possession was issued  on
10th March, 2006 and report of service of such notice(s)  was  submitted  to
the concerned authority on 16th  March,  2006.  Thereafter,  possession  was
taken on 17th March, 2006. From the Possession Certificates, which are  also
on record, we do not find the contention  of  the  land-owners  that  taking
over of such possession was symbolic to  be  substantiated  in  any  manner.
Consequently, the reliance placed on the decision of this Court  in  Raghbir
Singh  Sehrawat  vs.  State  of  Haryana  and  others[5]  is  not   of   any
consequence.


20.         For the aforesaid reasons, we cannot agree with  the  conclusion
of  the  High  Court  that  the  impugned  acquisition  suffers   from   any
fundamental flaw or illegality which would require the  same  to  be  struck
down as has been done by the High Court in  Writ  Petition  No.196  of  2006
(impugned in Civil Appeal No.6900/2009).  Consequently, we allow the  appeal
filed by the State, namely, Civil Appeal No.6900 of 2009 and set  aside  the
order of the High Court dated  1st  March,  2007  passed  in  Writ  Petition
No.196 of 2006. The natural corollary of above would  be  to  dismiss  Civil
Appeal No.6901 of 2009 which we hereby do.


21.         As we have expressed no opinion on the entitlement  of  the  any
of the parties to apportionment of the compensation no order will be  called
for in this regard except that compensation for the acquisition will now  be
determined  in  accordance  with  the  provisions  of  The  Right  to   Fair
Compensation  and  Transparency  in  Land  Acquisition,  Rehabilitation  and
Resettlement Act, 2013.


22.         The appeals as also all the pending applications  including  the
contempt petition are disposed of in the above terms.

                                                           .................
                                                           [RANJAN GOGOI, J]


                                                        ....................
                                                        [PRAFULLA C. PANT,J]


PLACE : NEW DELHI
DATED : 10th AUGUST, 2016.




-----------------------
[1]    (2009) 2 SCC 377
[2]    [AIR 1964 SC 1217]
[3]    [(2004) 8 SCC 14]
[4]    (2009) 10 SCC 689
[5]    (2012) 1 SCC 792

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