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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6392 OF 2003
Laxman Lal (Dead) Through LRs. and Anr. …… Appellants
Vs.
State of Rajasthan and Ors. …… Respondents
JUDGMENT
R.M. LODHA, J.
The compulsory acquisition of the land admeasuring 4 bigha
and 2 biswa comprised in Khasra no. 1013 at Dungarpur (Rajasthan) is the
subject matter of this appeal by special leave.
The appellants were
unsuccessful in challenging the acquisition of the above land in the High
Court. They failed before the Single Judge as well as the Division Bench.
2. The two questions that arise for consideration are :
(i) Whether preliminary notification under Section 4 of the
Rajasthan Land Acquisition Act, 1953 (for short, “1953
Act”) issued on 01.05.1980 has lapsed since declaration
under Section 6 of that Act was made on 19.03.1987
after the expiry of two years from the commencement of
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the Rajasthan Land Acquisition (Amendment and
Validation) Act, 1981 (for short, “1981 Amendment
Act”).
(ii) Whether invocation of power of urgency and
dispensation of inquiry under Section 5-A after 7 years
of issuance of preliminary notification under Section 4 of
the 1953 Act are legally sustainable?
3. The above two questions arise from these facts: on
01.05.1980, the state government issued a preliminary notification under
Section 4 that the subject land was needed or likely to be needed for a
public purpose, namely, construction of bus stand. The state government
required and authorised Land Acquisition Officer (SDO), Dungarpur to
enter upon, do survey and all other acts necessary to ascertain whether
land was suitable for such public purpose and enquire into and ascertain
the particulars of the persons interested in such land.
4. On 19.03.1987, a notification was issued under Section 6 of
the 1953 Act. By that notification the state government also invoked its
powers conferred under Section 17(1) read with Section 17(4) of the 1953
Act and dispensed with the provisions of Section 5-A.
5. An important event occurred between 01.05.1980 and
19.03.1987. The State Legislature following the Ordinance promulgated by
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the Governor amended the 1953 Act by the 1981 Amendment Act.
Effective from 27.06.1981, by the 1981 Amendment Act, Section 6 of 1953
Act was amended and the following proviso in Section 6 was inserted:
“Provided that no declaration in respect of any particular land
covered by a notice under section 4, sub-section 5, given
after the commencement of the Rajasthan Land Acquisition
(Amendment and Validation) Act, 1981, shall be made after
the expiry of three years from the date of giving of such
notice:”
6. Section 5 of the 1981 Amendment Act provides for validation
of certain acquisitions. Sub-sections 1(b) and (2) thereof, which are
relevant for the present controversy, read as follows :
“S. 5. Validation of certain acquisitions.—
(1) (a) xxx xxx xxx
(b) any acquisition in pursuance of any notice given
under sub-section (5) of section 4 of the principal Act before
the commencement of this Act may be made after such
commencement and no such acquisition and no action taken
or thing done (including any order made, agreement entered
into or notice given), whether before or after such
commencement, in connection with such acquisition shall be
deemed to be invalid merely on the grounds referred to in
clause (a) or any of them.
(2) Notwithstanding anything contained in clause (b) of
sub-section (1) no declaration under section 6 of the
principal Act in respect of any land for the acquisition of
which notice under sub-section (5) of section 4 of the
principal Act has been given before the commencement of
this Act, shall be made after the expiry of two yeas from the
commencement of the said Act.”
7. The above acquisition was challenged in three writ petitions
before the High Court. One of these writ petitions was filed by Laxman Lal
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and Manohar Lal. Both these petitioners are dead and now represented by
their legal representatives who are appellants herein. The challenge to the
acquisition was laid on diverse grounds but none of the grounds
persuaded the Single Judge and all the three writ petitions were dismissed
by a common order dated 11.05.1999.
8. The order of the Single Judge was challenged in intra-court
appeal by the writ petitioners. Before the Division Bench, the following
three points were raised in support of the appeal:-
I) Proceedings could not be continued because
notification under Section 6 of the Act was issued after a
lapse of about 7 years. This was in view of the provisions of
sub-section (2) of Section 5 of the Rajasthan Land
Acquisition (Amendment and Validation) Act, 1981. The said
provisions provided a limitation of two years from the date of
commencement of the Validation Act for issuing the
declaration under Section 6. Since the declaration was
issued much beyond this period of limitation the same was
liable to be quashed. It was further contended that Section
17(4) notification could not be used to validate the
proceedings.
II) Notice under Section 17(4) was void ab initio because
the respondents failed to tender payment of 80 percent of
compensation as envisaged under sub-section (3)(a) of
Section 17 of the Land Acquisition Act.
III) The action of the respondents is highly arbitrary. By
issuing a notification under Section 4 of the Act in the year
1980 the appellants were being pegged down for purposes
of payment of compensation although effectively the
acquisition was being made in the year 1987.
9. Dealing with the first point, the Division Bench held as under:
It will be seen from the above that a declaration under
Section 6 in respect of the land can be made at any time
after the publication of the notification under Section 4(1). In
view of this specific statutory provision which is admittedly
applicable, it cannot be said that a declaration under Section
6 could not have been issued after a lapse of 7 years or
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more. Learned counsel for the appellants fairly conceded
that Section 17 is a Code in itself. It contains complete
procedure for acquisition made under the said provision.
Section 17 is a provision to be resorted to in cases of
urgency. Notification under Section 4 of the Act already
stood issued with respect to the land in question as far back
as the year 1980. The Government felt the urgency for the
acquisition and, therefore, Section 17(4) notification, read
with Section 6, was issued on 19.03.1987. We find no
illegality in the procedure following in the facts of the case.
10. It is not necessary to deal with the second ground urged
before the Division Bench as it has not been pressed before us. As
regards the third ground, the Division Bench held as under:
“Lastly, the learned counsel raised an argument suggesting
arbitrariness on the part of the respondents. As already
noted, Section 17 permits the Government to invoke its
provisions at any time, therefore, there is no statutory bar so
far as the action is concerned. If the action of the
respondents results in some hardship to the landowners
normally, the provision regarding payment of interest takes
care of the hardship. The power of compulsory acquisition of
land is in the nature of a power of eminent domain which the
State is entitled to exercise keeping in view the larger public
interest as against individual interest.”
11. We shall deal with the second question first. Two basic facts
are not in dispute, namely, one, preliminary notification under Section 4
showing intention to acquire the subject land for a public purpose, namely,
construction of bus stand was issued by the state government on
01.05.1980 and two, the declaration under Section 6 of the 1953 Act was
made on 19.03.1987 and by means of that very notification the state
government exercised its power of urgency under Section 17(1) read with
Section 17(4) and dispensed with enquiry under Section 5A. Thus, the
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power of urgency was invoked for the first time by the state government
after seven years of issuance of the preliminary notification under Section
4.
12. Section 4 of the 1953 Act is identical to Section 4 of the Land
Acquisition Act, 1894 (for short, “1894 Act”). It provides that whenever the
state government considers it necessary or expedient to acquire land in
any locality, needed or likely to be needed for a public purpose, it shall, by
an order published in accordance with the provisions of sub-section (4) of
Section 45, require any officer subordinate to it and generally or specially
authorised in this behalf, to enter upon or into any land in such locality
accompanied by his servants and workmen for the purpose stated therein.
Sub-section (5) of Section 4 empowers the Collector to issue notice to the
persons interested of the proposed acquisition and also issue a public
notice to that effect at convenient places on or near about the land
proposed to be acquired.
13. Section 5A enables the person interested in any land in
respect of which notice has been issued under Section 4 (5) to object to
acquisition of that land.
14. Section 6 is also similar to Section 6 of the 1894 Act. Inter alia,
it provides that when the state government is satisfied after considering the
report, if any, made under Section 5-A that any particular land is needed
for a public purpose, a declaration shall be made to that effect. Such
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declaration is conclusive evidence that the land is needed for a public
purpose and after making such declaration the state government may
acquire the land in the manner provided in sub-section (4) thereof. As
noticed above, Section 6 came to be amended by the 1981 Amendment
Act and, inter alia, limitation of three years for issuance of notification
under Section 6 was fixed from the date of issuance of notice under
Section 4(5). As regards the notice issued under Section 4(5) prior to the
1981 Amendment Act, limitation of two years from coming into force of the
1981 Amendment Act was fixed.
15. Section 17 of the 1953 Act gives special powers to the state
government in the cases of urgency and emergency. To the extent it is
relevant, Section 17 reads as under:
“S. 17. Special powers in case of urgency.—In cases of
urgency, whenever the State Government so directs the
Collector though no such award has been made may, on the
expiration of fifteen days from the publication of the notice
mentioned in section 9, sub-section (1), take possession of
any waste or arable land needed for public purposes or for a
company. Such land shall thereupon vest absolutely in the
State Government free from all encumbrances.
xxx xxx xxx
2. xxx xxx xxx
3. xxx xxx xxx
4. In the case of any land to which in the opinion of the
State Government the provisions of sub-sections (1) or subsection (2) are applicable the State Government may direct
that the provisions of section 5-A shall not apply and, if it
does so direct a declaration may be made under section 6 in
respect of the land at any time after the publication of the
order under sub-section (1) of section 4.
5. xxx xxx xxx
6. xxx xxx xxx
7. xxx xxx xxx”
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16. The statutory provisions of compulsory acquisition contained
in the 1953 Act are not materially different from the 1894 Act. This Court
has explained the doctrine of eminent domain in series of cases. Eminent
domain is the right or power of a sovereign state to appropriate the private
property within the territorial sovereignty to public uses or purposes. It is an
attribute of sovereignty and essential to the sovereign government. The
power of eminent domain, being inherent in the government, is exercisable
in the public interest, general welfare and for public purpose. 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.
17. Article 300-A of the Constitution mandates that no person
shall be deprived of his property save by authority of law. Though right to
property is no longer a fundamental right but the constitutional protection
continues in as much as without the authority of law, a person cannot be
deprived of his property. Accordingly, if the state intends to appropriate
the private property without the owners’ consent by acting under the
statutory provisions for compulsory acquisition, the procedure authorised
by law has to be mandatorily and compulsorily followed. The power of
urgency which takes away the right to file objections can only be exercised
by the state government for such public purpose of real urgency which
cannot brook delay of few weeks or few months. This Court as early as in
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1964 said that the right to file objections under Section 5-A is a substantial
right when a person’s property is being threatened with acquisition; such
right cannot be taken away as if by a side wind (Nandeshwar Prasad &
Ors. v. U.P. Govt. & Ors.1
).
18. In Munshi Singh & Ors. v. Union of India2
, this Court explained
the importance of Section 5-A in the following terms:
“7. Section 5-A embodies a very just and wholesome
principle that a person whose property is being or is intended
to be acquired should have a proper and reasonable
opportunity of persuading the authorities concerned that
acquisition of the property belonging to that person should
not be made. We may refer to the observation of this court in
Nandeshwar Prasad v. The State of U.P. [AIR 1964 SC
1217] that the right to file objections under Section 5-A is a
substantial right when a person's property is being
threatened with acquisition and that right cannot be taken
away as if by a side wind. Sub-section (2) of Section 5-A
makes it obligatory on the Collector to give an objector an
opportunity of being heard. After hearing all objections and
making further inquiry he is to make a report to the
appropriate Government containing his recommendation on
the objections. The decision of the appropriate Government
on the objections is then final. The declaration under Section
6 has to be made after the appropriate Government is
satisfied, on a consideration of the report, if any, made by
the Collector under Section 5-A(2). The legislature has,
therefore, made complete provisions for the persons
interested to file objections against the proposed acquisition
and for the disposal of their objections. It is only in cases of
urgency that special powers have been conferred on the
appropriate Government to dispense with the provisions of
Section 5-A: [See Section 17(4) of the Acquisition Act.]”
1
AIR 1964 SC 1217
2
(1973) 2 SCC 337
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19. In Hindustan Petroleum Corporation Ltd. v. Darius Shapur
Chenai & Ors.3
, it was reiterated by this Court that Section 5-A confers a
valuable right in favour of a person whose lands are sought to be acquired.
20. We do not think it is necessary to multiply the authorities. In a
comparatively recent judgment, this Court speaking through one of us
(R.M. Lodha, J.) in Anand Singh and Another v. State of Uttar Pradesh
and Others4 explained the importance of Section 5-A in the following
words:
“41.……That Section 5-A of the Act confers a valuable right
to an individual is beyond any doubt. As a matter of fact, this
Court has time and again reiterated that Section 5-A confers
an important right in favour of a person whose land is sought
to be acquired.
42. When the Government proceeds for compulsory
acquisition of a particular property for public purpose, the
only right that the owner or the person interested in the
property has, is to submit his objections within the prescribed
time under Section 5-A of the Act and persuade the State
authorities to drop the acquisition of that particular land by
setting forth the 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,
the right conferred on the owner or person 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.”
21. This Court has dealt with the scope, extent and ambit of the
power of the state government under Section 17(1) and (4) of the 1894 Act
from time to time. Narayan Govind Gavate & Ors. v. State of Maharashtra
3
(2005) 7 SCC 627
4
(2010) 11 SCC 242
10Page 11
& Ors.5
, Deepak Pahwa & Ors. v. Lt. Governor of Delhi & Ors.6
, State of
U.P. v. Smt. Pista Dev & Ors.7
, State of U.P. & Anr. v. Keshav Prasad
Singh8
, Chameli Singh & Ors. v. State of U.P. & Anr. 9
, Meerut
Development Authority & Ors. v. Satbir Singh & Ors.10, Om Prakash &
Anr. v. State of U.P. & Ors.11, Union of India & Ors. v. Mukesh Hans12
,
Union of India & Ors. v. Krishan Lal Arneja & Ors.13, Mahadevappa
Lachappa Kinagi & Ors. v. State of Karnataka & Ors.14, Babu Ram & Anr.
v. State of Haryana & Anr.15 and Tika Ram & Ors. v. State of U.P.16 have
been referred to in Anand Singh4
and the legal position in paragraphs 43
to 48 of the Report (pgs. 265-266) is culled out as follows :
“43. The exceptional and extraordinary power of doing away
with an enquiry under Section 5-A in a case where
possession of the land is required urgently or in an
unforeseen emergency is provided in Section 17 of the Act.
Such power is not a routine power and save circumstances
warranting immediate possession it should not be lightly
invoked. The guideline is inbuilt in Section 17 itself for
exercise of the exceptional power in dispensing with enquiry
under Section 5-A. Exceptional the power, the more
circumspect the Government must be in its exercise. The
Government obviously, therefore, has to apply its mind
before it dispenses with enquiry under Section 5-A on the
aspect whether the urgency is of such a nature that justifies
elimination of summary enquiry under Section 5-A.
44. A repetition of the statutory phrase in the notification that
the State Government is satisfied that the land specified in
the notification is urgently needed and the provision
contained in Section 5-A shall not apply, though may initially
raise a presumption in favour of the Government that
5
(1977) 1 SCC 133
6
(1984) 4 SCC 308
7
(1986) 4 SCC 251
8
(1995) 5 SCC 587
9
(1996) 2 SCC 549
10 (1996) 11 SCC462
11 (1998) 6 SCC 1
12 (2004) 8 SCC 14
13 (2004) 8 SCC 453
14 (2008) 12 SCC 418
15 (2009) 10 SCC 115
16 (2009) 10 SCC 689
11Page 12
prerequisite conditions for exercise of such power have 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 under Section 17,
the Government must produce appropriate material before
the Court that the opinion for dispensing with the enquiry
under Section 5-A has been formed by the Government after
due application of mind on the material placed before it.
45. It is true that power conferred upon the Government
under Section 17 is administrative and its opinion is entitled
to due weight, but in a case where the opinion is formed
regarding the urgency based on considerations not germane
to the purpose, the judicial review of such administrative
decision may become necessary.
46. As to in what circumstances the power of emergency can
be invoked are specified in Section 17(2) but circumstances
necessitating invocation of urgency under Section 17(1) are
not stated in the provision itself. Generally speaking, 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
enquiry as contemplated under Section 5-A may not be held
and objections of landowners/persons interested may not be
considered. In many cases, on general assumption likely
delay in completion of enquiry under Section 5-A is set up as
a reason for invocation of extraordinary power in dispensing
with the enquiry little realising that an important and valuable
right of the person interested in the land is being taken away
and with some effort enquiry could always be completed
expeditiously.
47. The special provision has been made in Section 17 to
eliminate enquiry under Section 5-A in deserving and cases
of real urgency. The Government has to apply its mind on
the aspect that urgency is of such nature that necessitates
dispensation of enquiry under Section 5-A. We have already
noticed a few decisions of this Court. There is a conflict of
view in the two decisions of this Court viz. Narayan Govind
Gavate [(1977) 1 SCC 133] and Pista Devi [(1986) 4 SCC
251]. In Om Prakash [(1998) 6 SCC 1] this Court held that
the decision in Pista Devi [(1986) 4 SCC 251] must be
confined to the fact situation in those days when it was
rendered and the two-Judge Bench could not have laid down
a proposition contrary to the decision in Narayan Govind
Gavate [(1977) 1 SCC 133]. We agree.
48. As regards the issue whether pre-notification and postnotification delay would render the invocation of urgency
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power void, again the case law is not consistent. The view of
this Court has differed on this aspect due to different fact
situation prevailing in those cases. In our opinion such delay
will have material bearing on the question of invocation of
urgency power, particularly in a situation where no material
has been placed by the appropriate Government before the
Court justifying that urgency was of such nature that
necessitated elimination of enquiry under Section 5-A.”
22. Anand Singh4 has been referred to in later cases, one of such
decisions is Radhy Shyam (Dead) Through LRs & Ors.. v. State of Uttar
Pradesh and Others17 wherein this Court in paragraph 77 (v) to (ix) of the
Report stated as follows:
“77(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 5-A.
These provisions can be invoked only when the purpose of
acquisition cannot brook the delay of even a few weeks or
months. Therefore, before excluding the application of
Section 5-A, the authority concerned must be fully satisfied
that time of few weeks or months likely to be taken in
conducting inquiry under Section 5-A 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 authorities concerned did not apply
their 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 5-A
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 5-A
would not apply to the cases covered under sub-section (1)
17 (2011) 5 SCC 553
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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 Sections 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 Sections 5-A(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 Sections 17(1) and/or 17(4)
with suspicion and carefully scrutinise the relevant record
before adjudicating upon the legality of such acquisition.”
23. In light of the above legal position which is equally
applicable to Section 17(1) and (4) of the 1953 Act, we may turn to the fact
situation of the present matter. Section 4(5) notice under the 1953 Act was
issued by the state government in 1980. For almost seven years, no
steps were taken in taking the acquisition proceedings pursuant to the
Section 4(5) notice to the logical conclusion. Even inquiry under Section
5-A was not commenced, much less completed. Abruptly on 19.03.1987,
without following the procedure contemplated in Section 5-A,
the declaration under Section 6 was made and in that
notification the state government stated that it has invoked its power of
urgency under Section 17(1) and dispensed with inquiry under Section 5-A
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in exercise of its power under Section 17(4). Can it be said that
an inquiry under Section 5-A could not have been completed in all
these years? We think that it could have been done easily and
conveniently in few months leave aside few years. There were not
large number of owners or persons interested in respect of the subject
land. Section 5-A, which gives a very limited right to an owner/person
interested, is not an empty formality. The substantial right under Section
5-A is the only right given to an owner/person interested to object to the
acquisition proceedings. Such right ought not to be taken away by the
State Government sans real urgency. The strong arm of the government
is not meant to be used nor it should be used against a citizen in
appropriating the property against his consent without giving him right to
file objections as incorporated under Section 5-A on any ostensible
ground. The dispensation of enquiry under Section 17(4) has to be
founded on considerations germane to the purpose and not in a routine
manner. Unless the circumstances warrant immediate possession, there
cannot be any justification in dispensing with an enquiry under Section 5-A.
As has been stated by this Court in Anand Singh4
, elimination of enquiry
under Section 5-A must only be in deserving and in the cases of real
urgency. Being an exceptional power, the government must be
circumspect in exercising power of urgency.
15Page 16
24. In Anand Singh4
, dealing with the issue whether the prenotification and post-notification delay would render the invocation of
urgency power void, this Court said that such delay would have material
bearing on the question of invocation of urgency power, more so, in a
situation where no material has been placed by the appropriate
government before the Court justifying that urgency was of such nature
that necessitated elimination of inquiry under Section 5-A.
25. In the counter affidavit filed on behalf of the respondent nos.
1 to 3 before this Court, in respect of invocation of power of urgency under
Section 17(1) and dispensation of inquiry under Section 17(4), it is stated
as follows:
“…….. Section 17 of the Rajasthan Land Acquisition Act
which is a code containing complete procedure for
acquisition made under the said provision in case of
urgency. In the present petition, urgency of the
acquisition has been shown by the respondent. For the
purpose of public interest, as a bus stand was to be put
up, hence the nature of urgency is quite apparent.
The government issued notification under Section
6 read with 17(4) of the Act on 19.03.1987 under the
compulsory need of the land ……..”.
26. The counter affidavit filed by the respondent no. 4, i.e.,
Rajasthan State Road Transport Corporation is not relevant as Section 17
confers power of urgency only on the state government alone and it is the
state government that has to justify that the urgency was so imminent that
dispensation of inquiry under Section 5-A was necessary.
16Page 17
27. The explanation by the state government unsupported by any
material indicates that the state government feels that power conferred on
it under Section 17(1) and (4) is unbridled and uncontrolled. The state
government seems to have some misconception that in the absence of any
time limit prescribed in Section 17(1) and (4) for exercise of such power
after issuance of notice under Section 4 of the 1953 Act, it can invoke the
power of urgency whenever it wants. We are afraid the whole
understanding of Section 17 by the state government is fallacious. This
Court has time and again said with regard to Section 17(1) read with
Section 17 (4) of the 1894 Act that the provisions contained therein confer
extraordinary power upon the state to appropriate the private property
without complying with the mandate of Section 5-A and, therefore, these
provisions can be invoked only when the purpose of acquisition cannot
brook the delay of even few weeks or months. This principle equally
applies to the exercise of power under Section 17(1) and (4) of the 1953
Act. The state government, therefore, has to apply its mind before it
invokes its power of urgency and dispensation of inquiry under Section 5-
A that the compliance of the mandate of Section 5-A may lead to precious
loss of time which may defeat the purpose for which land is sought to be
acquired. Any construction of building (institutional, industrial, residential,
commercial etc.) takes some time and, therefore, acquisition of land for
such purpose can always brook delay of few months. Ordinarily,
17Page 18
invocation of power of urgency by the state government for such
acquisition may not be legally sustainable.
28. In this case, as noted above, the preliminary notification under
Section 4 was issued on 01.5.1980. After lapse of about 7 years on
19.03.1987, one fine morning the state government issued declaration
under Section 6 without complying with the mandate of Section 5-A and in
that declaration it was stated that it has invoked its powers conferred under
Section 17(1) read with Section 17 (4) of the 1953 Act and dispensed with
the provisions of Section 5-A. Had the state government intended to hold
and complete the inquiry under Section 5-A, it could have been done in
few months. However, no steps for commencement of the inquiry under
Section 5-A were even taken by the state government. We find that a
very valuable right conferred on the land owner/person interested under
Section 5-A has been taken away without any justification. It is so
because the bus stand construction would have taken some time. The
exercise of the power by the state government under section 17(1) read
with Section 17(4) of the 1953 Act and dispensation of inquiry under
Section 5-A can not be legally sustained and has to be declared as such.
29. Now, coming to the first question, it will be seen that
preliminary notification under Section 4 was issued on 01.05.1980. At the
time of issuance of the preliminary notification, the 1953 Act did not
prescribe any time limit for issuance of declaration under Section 6.
18Page 19
However, with effect from 27.06.1981 by the 1981 Amendment Act,
Section 6 was amended and a proviso was inserted that no declaration in
respect of any land covered by notice under Section 4, sub-section (5),
given after the commencement of the 1981 Amendment Act shall be made
after the expiry of three years from the date of giving of such notice. This
proviso is obviously applicable to the acquisition proceedings initiated
after coming into force of the 1981 Amendment Act and has no application
to the present fact situation. As regards the acquisition proceedings which
had already commenced by issuance of preliminary notification before
coming into force of the 1981 Amendment Act, Section 5(1)(b) of the 1981
Amendment Act, inter alia, provides that acquisition pursuant to such
preliminary notification may be completed after commencement of the
1981 Amendment Act and no such acquisition and no action taken or thing
done including any order made, agreement entered into or notice given,
whether before or after such commencement, in connection with such
acquisition shall be deemed to be invalid merely on the grounds referred to
in clause (a) or any one of them. Sub-section (2) of Section 5 of the 1981
Amendment Act, however, provides that notwithstanding anything
contained in clause (b) of sub-section (1), no declaration under Section 6
of the 1953 Act in respect of any land for the acquisition of which notice
under sub-section (5) of Section 4 has been given before the
commencement of the 1981 Amendment Act shall be made after the expiry
19Page 20
of two years from the commencement of the 1981 Amendment Act. Subsection (2) of Section 5 of the 1981 Amendment Act begins with non
obstante clause. Section 5(2) of the 1981 Amendment Act thus mandates
that no declaration under Section 6 in respect of the notice issued under
Section 4(5) before the commencement of the 1981 Amendment Act shall
be made after expiry of two years from the commencement of the said Act.
The provision leaves no manner of doubt that two years’ time prescribed
for making declaration under Section 6 in respect of the notice issued
under Section 4(5) prior to the commencement of the 1981 Amendment
Act is mandatory and permits no departure. This is clear from the words
“no declaration” and “shall be made” used in Section 5(2). The intention of
the legislature admits of no ambiguity and it is clear that in respect of the
notice issued under Section 4(5) before the commencement of the 1981
Amendment Act, it is obligatory on the state government to make
declaration on or before the expiry of two years from the commencement
of the 1981 Amendment Act. The provision is imperative in nature and has
to be followed as it lays down the maximum time limit within which the
declaration under Section 6 of the 1953 Act can be made in respect of the
notice under Section 4(5) issued before the commencement of the 1981
Amendment Act.
30. On behalf of the respondents, two decisions of the Rajasthan
High Court, one, Indrapuri Grah Nirman Sahakari Samiti Ltd. v. State of
20Page 21
Rajasthan and others18 and the other, Chain Singh and etc., v. State of
Rajasthan and others19 were cited. We are afraid insofar as Indrapuri Grah
Nirman Sahakari Samiti Ltd.18 is concerned, it has no application
whatsoever. As regards Chain Singh19, the Division Bench of the
Rajasthan High Court was concerned with the provisions of the Land
Acquisition (Rajasthan Amendment) Act, 1987 amending the 1894 Act.
The provisions under consideration before the Rajasthan High Court in
Chain Singh19 were materially different and, therefore, that decision is of no
help to the respondents.
31. Learned counsel for the respondents also cited a decision of
this Court in Pesara Pushapmala Reddy v. G. Veera Swamy and Others20
.
In Pesara Pushpamala Reddy20, this Court was concerned with the
questions whether it was mandatory for the special tribunal or the special
court to call for a report of the Mandal Revenue Officer before taking
cognizance of a case under the Andhra Pradesh Land Grabbing
(Prohibition) Act, 1982 (for short, “Land Grabbing Act”) and whether it was
mandatory for the special tribunal or the special court to publish a
notification in the gazette notifying the fact of cognizance of a case under
the Act. This Court considered the provisions of the Land Grabbing Act. In
our view, Pesara Pushpamala Reddy20 is not even remotely relevant for the
present case and has no application at all.
18 2002 (3) WLN 122
19 AIR 1991 Rajasthan 17
20 (2011) 4 SCC 306
21Page 22
32. Having regard to clear and unambiguous mandate of Section
5(2) of the 1981 Amendment Act that no declaration under Section 6 of the
1953 Act in respect of any land for the acquisition of which notice under
Section 4(5) has been given before the commencement of the 1981
Amendment Act shall be made after the expiry of two years from the
commencement of the 1981 Amendment Act, it has to be held and we hold
that preliminary notification dated 01.05.1980, which was followed by
notice under Section 4(5) before the commencement of the 1981
Amendment Act, has lapsed and does not survive since declaration under
Section 6 has been made much beyond the time limit prescribed in law.
33. Civil appeal is, accordingly, allowed. The impugned orders are
set aside. It is declared that preliminary notification dated 01.05.1980 has lapsed and the declaration made on 19.03.1987 is legally unsustainable.
If
possession of the subject land has been taken from the appellants, the same shall be restored to them without any delay. No orders as to costs.
…………………….J.
(R.M. Lodha)
.……………………...J.
(J. Chelameswar)
NEW DELHI
MARCH 1, 2013.
22
