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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2557 OF 2013
M/s. Usha Stud and Agricultural Farms
Private Limited and others …Appellants
versus
State of Haryana and others …Respondents
WITH
CIVIL APPEAL NO.2576 OF 2013
CIVIL APPEAL NO.2577 OF 2013
CIVIL APPEAL NO.2578 OF 2013
CIVIL APPEAL NO.2580 OF 2013
CIVIL APPEAL NO.2582 OF 2013
CIVIL APPEAL NO.2583 OF 2013
CIVIL APPEAL NO.2584 OF 2013
J U D G M E N T
G. S. Singhvi, J.
1. Whether the acquisition of the appellants’ land is vitiated due to
violation of Sections 5-A and 6(1) of the Land Acquisition Act, 1894 (for
short, ‘the Act’) and
whether the State Government resorted to
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discrimination in the matter of release of the acquired land
are the questions
which arise for consideration in these appeals filed against order dated
27.1.2012 passed by the Punjab and Haryana High Court.
2. By notification dated 13.11.1981 issued under Section 4(1), the State
Government proposed the acquisition of 1005.30 acres land of three
villages, namely, Mullahera, Dundahera and Daulatpur Nasirabad
(Carterpur) for the development of Sectors 21, 22, 23 and 23A of Gurgaon.
The appellants, whose land measuring 52.74 acres situated in village
Daulatpur Nasirabad (Carterpur) was included in the notification, filed
objections under Section 5-A(1).
The Land Acquisition Collector
submitted report under Section 5-A(2) and recommended the acquisition of
702.37 acres land.
As regards the appellants’ land, the Land Acquisition
Collector opined that Stud Farm cannot be allowed to remain in the
residential zone and, therefore, the entire land may be acquired except the
portion on which residential building had been constructed.
The State
Government accepted the recommendations of the Land Acquisition
Collector and issued five separate declarations under Section 6(1).
For
91.98 acres land of village Daulatpur Nasirabad (Carterpur), the declaration
was published in the Official Gazette dated 15.11.1984.
3. The appellants challenged the acquisition of their land in Writ
Petition No.5623/1984 which was dismissed by the High Court along with
other similar petitions.
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4. The appellants then filed Special Leave Petition (C) No.2302/1986.
During the pendency of the matter before this Court, the State Government released the land belonging to
M/s. Jawala Textiles Ltd.,
M/s. Rani Shaver Poultry Farm Ltd.,
M/s. Enfilco Ltd.,
M/s. Indo Swiss Time Limited and
M/s. Omega Commercial (Pvt.) Ltd.
5. On 13.7.1986, the Chief Town Planner, Haryana submitted a note for
release of the appellants’ land subject to the condition that they should
withdraw the Special Leave Petition.
The appellants did the needful.
Thereafter, the Commissioner and Secretary, Town and Country Planning
Department sent communication dated 21.8.1986 to the appellants
incorporating therein the terms on which the land was released.
As a
sequel to this, agreement dated 8.6.1987 was executed between the
appellants and Haryana Urban Development Authority (HUDA) for release
of 47.74 acres land.
6. In furtherance of the agreement, the appellants deposited
Rs.1,00,000/- which, according to them, were towards the first instalment
of the development charges.
However, before the other terms of agreement
could be acted upon, the State Government issued fresh notification dated
7.12.1988 under Section 4(1) for the acquisition of 55.10 acres land
including the land owned by the appellants.
They filed detailed objections
dated 4.1.1989, the salient features of which were:
(i) they had established Stud Farm on the acquired land by spending
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substantial amount for breeding, rearing and exporting horses and were
doing other activities like animal husbandry, agriculture, horticulture,
nursery and dairy farming;
(ii) they had grown 5,000 trees on the land and also constructed ‘A’
class buildings worth several crores of rupees;
(iii) the purpose of acquisition was vague;
(iv) the notification issued under Section 4(1) was not published in two
newspapers and was not affixed in the vicinity of the acquired land, and
(v) the decision of the State Government to acquire their land was
discriminatory and violative of Article 14 of the Constitution.
7. Land Acquisition Collector, Urban Estate, Gurgaon submitted report
dated 17.11.1989 with the recommendation that the land of the appellants
may not be notified because the same had already been released from
acquisition.
Similar recommendation was made by the Chief Town and
Country Planner.
However, the State Government did not accept their
recommendations and issued a declaration under Section 6(1), which was
published in the Official Gazette dated 6.12.1989.
8. The appellants challenged notifications dated 7.12.1988 and
6.12.1989 in Writ Petition Nos. 3820-3823/1991.
During the pendency of
those petitions, the Land Acquisition Collector passed award dated
5.12.1991, which was followed by supplementary award dated 25.8.1993.
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Thereupon, the appellants filed Writ Petition Nos. 1152-1155/1994 and
prayed for quashing of the awards.
9. While the writ petitions filed by them were pending, the appellants
made an application to the competent authority for permission to use the
acquired land for group housing. The Additional Director, Urban Estates
recommended the release of 37.906 acres land in favour of the appellants
but no final decision was taken in the matter apparently because the writ
petitions filed by them were pending.
10. M/s. Rani Shaver Poultry Farm Ltd., M/s. Indo Swiss Time Ltd., and
M/s. Kanodia Petro Products Ltd., successor of M/s. Jawala Textile Mills,
whose lands were acquired in 1981 but were released by the State
Government and were re-acquired vide notification dated 11.9.1990 filed
Writ Petition Nos. 11679/1993, 10456/1993 and 3942/1992 for quashing
the same. After receiving the notices issued by the High Court, the State
Government/HUDA executed separate agreements with them and released
substantial portion of their land. As a sequel to this, the writ petitions were
dismissed as withdrawn. However, the writ petition filed by M/s. Enfilco
Ltd. was dismissed by the High Court. When the matter was carried to this
Court (Civil Appeal No.4359/1994) an agreement was executed between
HUDA and M/s. Enfilco Ltd. and major portion of its land was released.
11. In the writ petitions filed by them, the appellants highlighted the
discrimination practiced against them. They pleaded that the Stud Farm
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established by them is covered by the term ‘agriculture’ defined in Section
2(1) of the Punjab Scheduled Roads and Controlled Areas (Restriction of
Unregulated Development) Act, 1963 (for short, ‘the 1963 Act’) and they
had raised constructions in consonance with the provisions of that Act.
The appellants further pleaded that even though the Land Acquisition
Officer and the Chief Town Planner had recommended the release of their
land, the State Government arbitrarily issued the declaration under Section
6(1) by wrongly assuming that the entire land was lying vacant.
12. In the counter affidavits filed on behalf of the respondents, it was averred that the objections filed by the appellants were duly considered and final decision to acquire their land was taken by the highest political functionary of the State, i.e., the Chief Minister.
It was further averred that
the construction made by the appellants was contrary to the provisions of
the 1963 Act because they had not obtained permission from the competent
authority.
The respondents also pleaded that rearing and breeding of
horses is a commercial activity, which could not have been undertaken by
the appellants without obtaining sanction from the competent authority for
change of land use.
13. The Division Bench of the High Court rejected the contentions raised
on behalf of the appellants and dismissed the writ petitions.
While dealing
with the question whether the acquisition of the appellants’ land was
vitiated due to violation of Section 5-A(2), the Division Bench observed as
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under:
“As regards the contention of the counsel for the petitioners that since the
Land Acquisition Collector has not made any recommendation in his report
while considering the objections filed by the petitioners under Section 5-A
of the Act, the same only requires to be noted and rejected for the simple
reason that the Collector is not the competent authority to decide the objections under Section 5-A of the Act raised by the land owners against the acquisition.
He is required to submit his report as it existed on the spot as he
is required to enquire into the objections, record the statements of the
parties, inspect the sites and send his report to the State Government.
Along with his report he may make recommendation or may not do so because it has no bearing as the competent authority to take decision on the
objections is the State Government.
Thus, for the failure to make any recommendation by the Collector, acquisition proceedings cannot be quashed on the ground that it violates the procedure or deny the rights conferred on
the land owners under Section 5-A of the Act.”
14. The Division Bench of the High Court also negatived the appellants’
plea of discrimination in the following words:
“A ground of discrimination has been raised by the petitioners
alleging that
in an earlier acquisition in the year 1981,
petitioners and other similarly
placed Companies, namely, M/s Rani Shaver Poultry Farm, M/s Omega
Commercial Pvt. Ltd., Anand Purifier (now M/s Enfilco Ltd.), Indo Swiss
Time Ltd., M/s Jawala Textile Mills, had challenged the said acquisition by
filing independent writ petitions.
These writ petitions were dismissed and during the pendency of the Special Leave Petitions before the Supreme Court, an agreement was entered into and the land of the petitioners as also
these Companies were released from acquisition.
Thereafter, while notification for acquisition of the land of the petitioners was issued, land of other companies was not re-acquired.
This objection was raised under Section 5-A of the Act, which led to the issuance of the notifications for acquiring the land of other companies also. As the petitioners challenged, similarly other companies also challenged the notifications.
During the pendency of the
writ petitions, agreements were entered into between these companies and
respondents and on the basis of these agreements, writ petitions were withdrawn by these companies as their lands stood released from acquisition
except that in the case of M/s Enfilco.
This contention of the petitioners can
also not be accepted as it is not in dispute that the acquisition, through
which the lands of these companies were acquired, was different from the
notifications issued for acquisition of the land of the petitioners.
The judgments relied upon by the counsel for the petitioners in the case of Hari Ram
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and another (supra), M/s Aggarwal Paper Board and Allied Industries
(supra), Chandu Singh (supra) and Anil Kakkar (supra) would not be applicable to the facts of the present case for the reason that in those cases,
the land, which was being acquired and discrimination qua which was
raised by the land owners, was the same whereas the notifications for acquisition are different in the present case.”
15. Shri Soli Sorabjee and Shri Pallav Shishodia, learned senior counsel
appearing for the appellants, argued that the impugned order is liable to be
set aside because the finding recorded by the High Court on the issue of
discrimination is ex-facie erroneous.
Learned senior counsel emphasized
that the lands belonging to the appellants and those of M/s. Rani Shaver
Poultry Farm Ltd. and others were acquired for developing different sectors
of Gurgaon and, therefore, the State Government was not at all justified in
adopting different yardsticks in the matter of release of the acquired land.
Shri Sorabjee submitted that if the lands of M/s. Rani Shaver Poultry Farm
Ltd. and others were released on the ground that the same had already been
utilised for establishing industrial units, the same treatment should have
been accorded to the appellants because they had not only established Stud
Farm for rearing and breeding of horses but also started agricultural,
horticulture, animal husbandry, nursery and dairy farming and planted
5,000 trees. Learned senior counsel criticized the view expressed by the
High Court on the issue of compliance of Section 5-A and argued that the
same is contrary to the law laid down by this Court in Raghbir Singh
Sehrawat v. State of Haryana (2012) 1 SCC 792 and Kamal Trading (P)
Ltd. v. State of West Bengal (2012) 2 SCC 25.
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16. Shri Neeraj Jain, learned senior counsel appearing for the
respondents, supported the impugned order and argued that the High Court
did not commit any error by dismissing the writ petitions. Shri Jain
submitted that the appellants cannot seek invalidation of the acquisition
proceedings on the ground of violation of Section 5-A because final
decision to acquire the land was taken by none other than the Chief
Minister. He submitted that the role of the Land Acquisition Collector
ended with the making of recommendations and it was for the State
Government to decide whether or not the particular piece of land should be
acquired for the specified public purpose. Shri Jain further argued that the
State Government cannot be accused of practicing discrimination because
while the lands belonging to M/s. Rani Shaver Poultry Farm Ltd. and others
had already been used for industrial, commercial and other purposes, those
owned by the appellants were lying vacant.
17. We have considered the respective arguments. We shall first
consider
whether the reason recorded by the High Court for rejecting the
appellants’ plea of discrimination is legally correct.
It is not in dispute that
the lands owned by the appellants and M/s. Rani Shaver Poultry Farm Ltd.
and four others were acquired for one and the same purpose i.e. the
development of Sectors 21, 22, 23 and 23A of Gurgaon. Therefore, once
the State Government took a conscious decision to release the lands of
M/s. Rani Shaver Poultry Farm Ltd. and four others, albeit by executing
agreements with them, there could be no justification whatsoever for not
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according similar treatment to the appellants. As will be seen hereafter, the
solitary reason put forward by the respondents for not releasing the
appellants’ land, namely, that most of it was lying vacant was ex-facie
erroneous.
In this context, it will be apposite to take cognizance of the
notings recorded by the officers and the Special Secretary to the Chief
Minister of the State on the objections filed by the appellants:
(i) 09.10.1989
“For acquiring pie land of Usha stud farm and Agricultural farms, Gurgaon,
Sector-4 notification dated 7.12.88 was advertised in national newspaper
the Tribune on 14.12.88 and in The NAV BHARAT Times on 17.12.88. It
was issued in the vicinity on 9.12.88. Section 5-A objections were received
from four persons which are put in the file.
The report of the land acquisition collector is marked on page "K".
I have studied the objections. The details of the development on this land
before section 4 has been made which can be seen on page B . On the
shajra plan this development has also been marked which is at page " kh".
Out of the total land of 55 Acres A class construction is on 1K-11M, Class
B construction is on 18 Marias and class C and D construction is on 6 k. In
my view the class A construction of residential accommodation should not
be acquired while the rest of the land should be acquired.
One of the objections raised by the objectors is that earlier when the land of
the objectors was released land of other land owners like Rani Shaver
Farm, Jwala Textile Mills, and Indo-swiss Times ltd and others land was
also released. But now only the land of the objectors is being re acquired
while not of the others. In order to get to get a solution to this objection, it
is my suggestion that before we issue Section 6 notification in respect of
the land of the objectors, we should issue Section 4 notification to re acquire the land of the others so that the objectors do not have the ground of
discrimination available.
The objectors have also written that when their land was released
earlier they had deposited the development charges. My view on this may
be seen on page 65 whereby it is clear that the objectors had sent a cheque
of 1 lakh of Rupees to the Estate Officer, HUDA, Gurgaon without being
asked to do so. In my view, in case this cheque has already not been returned then the Estate Officer should be instructed to return the cheque immediately.
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Sd/-
Additional Director Urban Estates
9-10-1989”
(ii) 09.11.1989
“The objection of M/s Usha Stud and Agricultural Farm, Gurgaon whose
lands are now to be notified, u/s 6 of the LA. Act have clearly stated the aspect of discrimination since, lands in respect of M/s Rani Shaver, Jawala
Textile Mills Indian Swiss Time Ltd. notified for acquisition in Nov., 1981
along with Usha Stud simultaneously and subsequently all these were released.
However, now only lands of M/s Usha Stud and Agricultural Farms are
proposed to be acquired leaving the other lands.
The ADUE has therefore proposed that to remove any plea of discrimination the lands of M/s Rani Shaver, Jawala Textile Mills and Indo Swiss
time should also now be acquired and therefore notified simultaneously.
To my mind this would not a practicable proposition since all these are
functioning enterprises and to disturb and disrupt them through acquisition
would not be appropriate.
Therefore keeping into consideration the aspect of discrimination and the
report of ADUE the Government may take an appropriate view regarding
notifying this land u/s 6 which should have to be done prior to 6.12.89.
Sd/-
D. U. E.
9-11-89”
C.T.C.P.
(iii) 17.11.1989
“In view of the position explained by the DUE, we need not issue the notification under Section 6 for this land. This land was earlier released from
acquisition on the grounds mentioned on Pages 13 to 17 (LFII) (Noting
portion), There is no change in the situation even now.
Dy. CM(I)/CM may kindly see for approval.
Sd/- C.T.C.P.
17.11.89
Dy.C.M.(l)
Sd/-Dy. CM
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27.11.89”
CM.
(iv) 05.12.1989
“Reg. Acquisition of land of M/S Usha Stud Agricultural Farm,
Gurgaon.
C.M. has ordered that the notification under section 6 for the acquisition of
land of M/S Usha Stud Agricultural Farm may be issued because it is
mostly lying vacant. He has further ordered that vacant lands belonging to
M/S Rani Showers Farm and Jawala Textiles may also be notified for acquisition.
Sd/-SSCM
5.12.89.”
18. A reading of the above reproduced notings makes it clear that while
the Additional Director and the Director, Urban Estates Department had
treated the appellants’ case as similar to M/s. Rani Shaver Poultry Farm
Ltd. and others, the Chief Minister ordered the issue of notification under
Section 6(1) in respect of the land of appellant No.1 by assuming that
major portion of it was lying vacant. Of course, he also ordered that the
vacant lands belonging to M/s. Rani Shaver Poultry Farm Ltd. and Jawala
Textiles may also be notified for acquisition. It is a different thing that in
the second round also the lands owned by M/s. Rani Shaver Poultry Farm
Ltd. and four others were released during the pendency of the writ petitions
and the civil appeal filed by them. It is intriguing that while ordering the
issue of notification under Section 6(1), the Chief Minister did not even
advert to the objections filed by the appellants and the report made by the
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Land Acquisition Collector under Section 5-A(2). He was totally oblivious
of the fact that the appellants had already utilised substantial portion of
their land for establishing Stud Farm and for other activities, like, animal
husbandry, agriculture, horticulture, nursery and dairy farming and had also
constructed a large number of buildings by spending crores of rupees and
planted 5,000 trees. Be that as it may, the direction given by the Chief
Minister for the issue of notification under Section 6(1) without considering
the objections of the appellants and other relevant factors must be held as
vitiated due to non application of mind.
19. What is most surprising is that not only the Chief Minister, but the
High Court also overlooked the fact that after the Chief Minister had
ordered acquisition of vacant land belonging to M/s. Rani Shaver Poultry
Farm Ltd. and others and notification dated 11.9.1990 was issued, the State
Government and/or HUDA executed agreement with them and released the
acquired land leaving out the appellants’ land and in this manner they were
subjected to hostile discrimination.
20. We also find merit in the argument of the learned senior counsel for
the appellants that the declaration issued by the State Government was
vitiated due to violation of Section 5-A (2) read with Section 6(1). For the
sake of reference,
Sections 4, 5-A and 6 of the Act are reproduced below:
“4. Publication of preliminary notification and powers of officers
thereupon.—
(1) Whenever it appears to the appropriate Government that
land in any locality is needed or is likely to be needed for any public pur-
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pose or for a company, a notification to that effect shall be published in the
Official Gazette and in two daily newspapers circulating in that locality of
which at least one shall be in the regional language and the Collector shall
cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication
and the giving of such public notice, being hereinafter referred to as the
date of the publication of the notification).
(2) Thereupon it shall be lawful for any officer, either generally or specially
authorised by such Government in this behalf, and for his servants and
workmen,—
to enter upon and survey and take levels of any land in such locality;
to dig or bore into the sub-soil;
to do all other acts necessary to ascertain whether the land is adapted for
such purpose;
to set out the boundaries of the land proposed to be taken and the intended
line of the work (if any) proposed to be made thereon;
to mark such levels, boundaries and line by placing marks and cutting
trenches; and,
where otherwise the survey cannot be completed and the levels taken and
the boundaries and line marked, to cut down and clear away any part of any
standing crop, fence or jungle:
Provided that no person shall enter into any building or upon any enclosed
court or garden attached to a dwelling house (unless with the consent of the
occupier thereof) without previously giving such occupier at least seven
days' notice in writing of his intention to do so.
5-A. Hearing of objections.—
(1) Any person interested in any land which
has been notified under Section 4, sub-section (1), as being needed or likely
to be needed for a public purpose or for a company may, within thirty days
from the date of the publication of the notification, object to the acquisition
of the land or of any land in the locality, as the case may be.
(2) Every objection under sub-section (1) shall be made to the Collector in
writing, and the Collector shall give the objector an opportunity of being
heard in person or by any person authorised by him in this behalf or by
pleader and shall, after hearing all such objections and after making such
further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, sub-section (1),
or make different reports in respect of different parcels of such land, to the
appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on
the objections shall be final.
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(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if
the land were acquired under this Act.
6. Declaration that land is required for a public purpose.—
(1) Subject
to the provisions of Part VII of this Act, when the appropriate Government
is satisfied, after considering the report, if any, made under Section 5-A,
sub-section (2), that any particular land is needed for a public purpose, or
for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised
to certify its orders, and different declarations may be made from time to
time in respect of different parcels of any land covered by the same notification under Section 4, sub-section (1), irrespective of whether one report or
different reports has or have been made (wherever required) under Section
5-A, sub-section (2):
Provided that no declaration in respect of any particular land covered by a
notification under Section 4, sub-section (1)—
(i) * * *
(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of
the publication of the notification:
Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or
wholly or partly out of public revenues or some fund controlled or managed
by a local authority.
Explanation 1.—In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, sub-section (1), is stayed by
an order of a Court shall be excluded.
Explanation 2.—Where the compensation to be awarded for such property
is to be paid out of the funds of a corporation owned or controlled by the
State, such compensation shall be deemed to be compensation paid out of
public revenues.
(2) Every declaration shall be published in the Official Gazette, and in two
daily newspapers circulating in the locality in which the land is situate of
which at least one shall be in the regional language, and the Collector shall
cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication
and the giving of such public notice, being hereinafter referred to as the
date of the publication of the declaration), and such declaration shall state
the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall
have been made of the land, the place where such plan may be inspected.
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(3) The said declaration shall be conclusive evidence that the land is
needed for a public purpose or for a Company, as the case may be; and,
after making such declaration, the appropriate Government may acquire the
land in manner hereinafter appearing.”
21. An analysis of the above-reproduced provisions shows that Section 4
empowers the appropriate Government to initiate the proceedings for the
acquisition of land. Section 4(1) lays down that whenever it appears to the
appropriate Government that land in any locality is needed or is likely to be
needed for any public purpose or for a company, then a notification to that
effect is required to be published in the Official Gazette and two daily
newspapers having circulation in the locality. Of these, one paper has to be
in the regional language. A duty is also cast on the Collector, as defined in
Section 3(c), to cause public notice of the substance of such notification to
be given at convenient places in the locality. The last date of publication
and giving of public notice is treated as the date of publication of the
notification.
22. Section 4(2) lays down that after publication of the notification under Section 4(1), any officer authorised by the Government in this behalf,
his servants or workmen can enter upon and survey and take levels of any
land in the locality, dig or bore into the sub-soil, and to do all other acts necessary for ascertaining that the land is suitable for the purpose of acquisition. The officer concerned, his servants or workmen can fix the boundaries
of the land proposed to be acquired and the intended line of the work, if
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any, proposed to be made on it. They can also mark such levels and boundaries by marks and cutting trenches and cut down and clear any part of any
standing crops, fence or jungle for the purpose of completing the survey,
and taking level, and marking of boundaries and line. However, neither the
officer nor his servants or workmen can, without the consent of the occupier, enter into any building or upon any enclosed court or garden attached
to a dwelling house without giving seven days' notice to the occupier.
23. Section 5-A, which embodies the most important dimension of the
rules of natural justice, lays down that any person interested in any land notified under Section 4(1) may, within 30 days of publication of the notification, submit objection in writing against the proposed acquisition of land or
of any land in the locality to the Collector. The Collector is required to give
the objector an opportunity of being heard either in person or by any person
authorised by him or by pleader. After hearing the objector(s) and making
such further inquiry, as he may think necessary, the Collector has to make a
report in respect of land notified under Section 4(1) with his recommendations on the objections and forward the same to the Government along with
the record of the proceedings held by him. The Collector can make different reports in respect of different parcels of land proposed to be acquired.
24. Upon receipt of the Collector's report, the appropriate Government is
required to take action under Section 6(1) which lays down that if after
considering the report, if any, made under Section 5-A(2), the appropriate
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Government is satisfied that any particular land is needed for a public purpose, then a declaration to that effect is required to be made under the signatures of a Secretary to the Government or of some officer duly authorised
to certify its orders. This section also envisages making of different declarations from time to time in respect of different parcels of land covered by
the same notification issued under Section 4(1). In terms of clause (ii) of
the proviso to Section 6(1), no declaration in respect of any particular land
covered by a notification issued under Section 4(1), which is published
after 24.9.1989 can be made after expiry of one year from the date of publication of the notification. To put it differently, a declaration is required to
be made under Section 6(1) within one year from the date of publication of
the notification under Section 4(1).
25. In terms of Section 6(2), every declaration made under Section 6(1)
is required to be published in the Official Gazette and in two daily newspapers having circulation in the locality in which the land proposed to be acquired is situated. Of these, at least one must be in the regional language.
The Collector is also required to cause public notice of the substance of
such declaration to be given at convenient places in the locality. The declaration to be published under Section 6(2) must contain the district or
other territorial division in which the land is situate, the purpose for which
it is needed, its approximate area or a plan is made in respect of land and
the place where such plan can be inspected.
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26. Section 6(3) lays down that the declaration made under Section 6(1)
shall be conclusive evidence of the fact that land is needed for a public purpose.
27. After publication of the declaration under Section 6(1), the Collector
is required to take order from the State Government for the acquisition of
land and cause it to be measured and planned (Sections 7 and 8). The next
stage is the issue of public notice and individual notice to the persons interested in the land to file their claim for compensation. Section 11 envisages
holding of an enquiry into the claim and passing of an award by the Collector who is required to take into consideration the provisions contained in
Section 23.
28. In Munshi Singh v. Union of India (1973) 2 SCC 337, this Court emphasised the importance of Section 5-A in the following words:
“ … 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.”
29. In State of Punjab v. Gurdial Singh (1980) 2 SCC 471, the Court
observed as under:
19Page 20
“ … it is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing
him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema
except for good reasons. Save in real urgency where public interest does
not brook even the minimum time needed to give a hearing land acquisition
authorities should not, having regard to Articles 14 (and 19), burke an enquiry under Section 17 of the Act. Here a slumbering process, pending for
years and suddenly exciting itself into immediate forcible taking, makes a
travesty of emergency power.”
30. In Shyam Nandan Prasad v. State of Bihar (1993) 4 SCC 255, this
Court reiterated that compliance of Section 5-A is mandatory and observed:
“ … The decision of the Collector is supposedly final unless the appropriate Government chooses to interfere therein and cause affectation, suo motu or on the application of any person interested in the land. These requirements obviously lead to the positive conclusion that the proceeding
before the Collector is a blend of public and individual enquiry. The person interested, or known to be interested, in the land is to be served personally of the notification, giving him the opportunity of objecting to the acquisition and awakening him to such right. That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That at the time of the enquiry, for which prior notice shall be essential, the objector has the right to appear in person or through pleader and substantiate his objection by evidence and argument.”
31. In Raghbir Singh Sehrawat’s case (supra), this Court referred to the
judgments in Munshi Singh v. Union of India (1973) 2 SCC 337, State of
Punjab v. Gurdial Singh (1980) 2 SCC 471, Shyam Nandan Prasad v. State
of Bihar (1993) 4 SCC 255, Union of India v. Mukesh Hans (2004) 8 SCC
14, Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai (2005)
7 SCC 627, Radhy Shyam v. State of U.P. (2011) 5 SCC 553 and
observed:
20Page 21
“In this context, it is necessary to remember that the rules of natural justice
have been ingrained in the scheme of Section 5-A with a view to ensure
that before any person is deprived of his land by way of compulsory
acquisition, he must get an opportunity to oppose the decision of the State
Government and/or its agencies/instrumentalities to acquire the particular
parcel of land. At the hearing, the objector can make an effort to convince
the Land Acquisition Collector to make recommendation against the
acquisition of his land. He can also point out that the land proposed to be
acquired is not suitable for the purpose specified in the notification issued
under Section 4(1). Not only this, he can produce evidence to show that
another piece of land is available and the same can be utilised for execution
of the particular project or scheme. Though it is neither possible nor
desirable to make a list of the grounds on which the landowner can
persuade the Collector to make recommendations against the proposed
acquisition of land, but what is important is that the Collector should give a
fair opportunity of hearing to the objector and objectively consider his plea
against the acquisition of land. Only thereafter, he should make
recommendations supported by brief reasons as to why the particular piece
of land should or should not be acquired and whether or not the plea put
forward by the objector merits acceptance. In other words, the
recommendations made by the Collector must reflect objective application
of mind to the objections filed by the landowners and other interested
persons.”
32. In Kamal Trading (P) Ltd. v. State of West Bengal (supra), this
Court again considered the scope of Section 5-A and observed:
“13. Section 5-A(1) of the LA Act gives a right to any person interested
in any land which has been notified under Section 4(1) as being needed or
likely to be needed for a public purpose to raise objections to the
acquisition of the said land. Sub-section (2) of Section 5-A requires the
Collector to give the objector an opportunity of being heard in person or by
any person authorised by him in this behalf. After hearing the objections,
the Collector can, if he thinks it necessary, make further inquiry.
Thereafter, he has to make a report to the appropriate Government
containing his recommendations on the objections together with the record
of the proceedings held by him for the decision of the appropriate
Government and the decision of the appropriate Government on the
objections shall be final.
14. It must be borne in mind that the proceedings under the LA Act are
based on the principle of eminent domain and Section 5-A is the only
protection available to a person whose lands are sought to be acquired. It is
a minimal safeguard afforded to him by law to protect himself from
21Page 22
arbitrary acquisition by pointing out to the authority concerned, inter alia,
that the important ingredient, namely, “public purpose” is absent in the
proposed acquisition or the acquisition is mala fide.
The LA Act being an
expropriatory legislation, its provisions will have to be strictly construed.
15. Hearing contemplated under Section 5-A(2) is necessary to enable
the Collector to deal effectively with the objections raised against the
proposed acquisition and make a report. The report of the Collector
referred to in this provision is not an empty formality because it is required
to be placed before the appropriate Government together with the
Collector’s recommendations and the record of the case. It is only upon
receipt of the said report that the Government can take a final decision on
the objections. It is pertinent to note that declaration under Section 6 has to
be made only after the appropriate Government is satisfied on the
consideration of the report, if any, made by the Collector under Section 5-
A(2). As said by this Court in Hindustan Petroleum Corpn. Ltd., the
appropriate Government while issuing declaration under Section 6 of the
LA Act is required to apply its mind not only to the objections filed by the
owner of the land in question, but also to the report which is submitted by
the Collector upon making such further inquiry thereon as he thinks
necessary and also the recommendations made by him in that behalf.
16. Sub-section (3) of Section 6 of the LA Act makes a declaration
under Section 6 conclusive evidence that the land is needed for a public
purpose. Formation of opinion by the appropriate Government as regards
the public purpose must be preceded by application of mind as regards
consideration of relevant factors and rejection of irrelevant ones. It is,
therefore, that the hearing contemplated under Section 5-A and the report
made by the Land Acquisition Officer and his recommendations assume
importance. It is implicit in this provision that before making declaration
under Section 6 of the LA Act, the State Government must have the benefit
of a report containing recommendations of the Collector submitted under
Section 5-A(2) of the LA Act. The recommendations must indicate
objective application of mind.”
33. The ratio of the aforesaid judgments is that
Section 5-A(2), which
represents statutory embodiment of the rule of audi alteram partem, gives
an opportunity to the objector to make an endeavour to convince the
Collector that his land is not required for the public purpose specified in the
notification issued under Section 4(1) or that there are other valid reasons
for not acquiring the same.
That section also makes it obligatory for the
22Page 23
Collector to submit report(s) to the appropriate Government containing his
recommendations on the objections, together with the record of the
proceedings held by him so that the Government may take appropriate
decision on the objections.
Section 6(1) provides that if the appropriate
Government is satisfied, after considering the report, if any, made by the
Collector under Section 5-A(2) that particular land is needed for the
specified public purpose then a declaration should be made. This
necessarily implies that the State Government is required to apply mind to
the report of the Collector and take final decision on the objections filed by
the landowners and other interested persons. Then and then only, a
declaration can be made under Section 6(1).
34. As a sequel to the above discussion, we hold that the decision taken at the level of the Chief Minister was not in consonance with the scheme of Section 5-A(2) read with Section 6(1).
We further hold that the State
Government’s refusal to release the appellants’ land resulted in violation of
their right to equality granted under Article 14 of the Constitution.
35. In the result, the appeals are allowed, the impugned order is set aside
and the declaration issued by the State Government under Section 6(1) is
quashed. However, it is made clear that this judgment shall not preclude
the State Government from taking fresh decision after objectively
considering the objections filed by the appellants under Section 5-A(1).
36. If the final decision of the State Government is adverse to the
23Page 24
appellants, then they shall be free to challenge the same before an
appropriate judicial forum and urge all legally permissible contentions in
support of their cause.
......... ...............................................J.
(G.S. SINGHVI)
......... ...............................................J.
(RANJANA PRAKASH DESAI)
..........................................................J.
(KURIAN JOSEPH)
New Delhi;
April 02, 2013.
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