C.A. No. 6387 of 2012 (Arising out of SLP (C) No. 20831 of 2008). Case: Bharat Sewak Samaj Vs LT. Governor and Ors.. Supreme Court (India)

Case NumberC.A. No. 6387 of 2012 (Arising out of SLP (C) No. 20831 of 2008)
JudgesG.S. Singhvi and Gyan Sudha Misra, JJ.
IssueSocieties Registration Act, 1860; Land Acquisition Act, 1894 - Sections 3, 4, 4(1), 5A, 5A(1), 5A(2), 6, 6(1), 9, 11, 16, 17, 17(1), 17(1)A, 17(2), 17(4); Industries (Development and Regulation) Act, 1951 - Section 18AA; Constitution of India - Articles 13, 14, 19, 300A
Citation2012 (9) SCALE 3, 2012 (12) SCC 675
Judgement DateSeptember 10, 2012
CourtSupreme Court (India)

Judgment:

  1. Leave granted.

  2. This is an appeal for setting aside the order passed by the Division Bench of the Delhi High Court whereby the writ petition filed by the Appellant for quashing the acquisition of its land was dismissed.

  3. The Appellant is a Society registered under the Societies Registration Act, 1860. It purchased 12 bighas 5 biswas land comprised in khasra Nos. 301 and 493/302, Village Ladha Sarai, Delhi vide sale deed dated 22.2.1962, which was registered on 10.4.1962. After purchasing the land, the Appellant constructed Night Shelter, Mahila Shilp Kala Kendra, Balwari, Charitable Medical Dispensary, Ashram, Library etc.

  4. In January 1969, the Central Government initiated proceedings for the acquisition of the Appellant's land. For this purpose, Notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, 'the Act') was issued on 6.1.1969. After the issue of declaration under Section 6(1), the Land Acquisition Collector passed an award sometime in 1975. The Appellant challenged the acquisition proceedings in Suit No. 274/1975 which was decreed by the learned Single Judge of the Delhi High Court vide judgment dated 7.5.1993. The learned Judge held that the Notifications issued under Sections 4 and 6 of the Act were illegal and without jurisdiction and the same did not affect the Appellant's right to remain in possession of the suit property. The operative portion of the judgment reads as under:

    I accordingly pass a decree in favour of the Plaintiff and against the Defendants declaring that the acquisition of the suit land under the provisions of the Land Acquisition Act of 1894, as stated above, was illegal and without jurisdiction, and did not affect the rights of the Plaintiff to continue in possession of the said property consisting of the land and superstructures raised thereon. No order as to costs.

  5. After 11 years and 2 months, the Government of NCT of Delhi issued Notification dated 6.7.2004 under Section 4(1) read with Section 17(1) and (4) of the Act for the acquisition of the Appellant's land for the specified public purpose, i.e., development of Mehrauli Heritage Zone under the planned development of Delhi. The declaration issued under Section 6(1) was published vide Notification dated 12.8.2004. On the same day, another notification was issued authorising Land Acquisition Collector (South), Delhi to take possession of the land. For the sake of reference, Notification dated 6.7.2004 is reproduced below:

    GOVERNMENT of THE
    NATIONAL CAPITAL TERRITORY
    OF DELHI LAND & BUILDING
    DEPARTMENT

    Vikas Bhawan, New Delhi.

    No. F9(60)/2003/L&B/LA/6084 Dated:
    6.7.2004

    NOTIFICATION

    Whereas it appears to the Lt. Governor, Delhi that land is likely to be required to be taken by Government at the public expense for a public purpose namely for development of Mehrauli Heritage Zone under Planed Development of Delhi. It is hereby notified that the land in the locality described below is likely to be acquired for the above purpose. The notification is made, under the provisions of Sub-Section 1 of Section 4 of Land Acquisition Act, 1984, to all whom it may concern. In exercise of the powers conferred by the aforesaid section, the Lt. Governor, Delhi is pleased to authorize the officers for the time being engaged in the undertaking with their servants and workmen to enter upon and survey the land in the locality and to all other acts required or permitted by that section.

    The Lt. Governor, Delhi is satisfied also that provisions of Sub-section (1) of the Section 17 of the said Act are applicable to this land and is further pleased under Sub-section (4) of the said section to direct that all the provisions of Section 5(A) shall not apply.

    SPECIFICATION

    Village

    Total Area

    (Bigha-Biswa)

    Khasra No.

    Area

    (Bigha-Biswa)

    Ladha

    12-05

    301

    8-04

    Sarai

    493/302

    4-01

    By order and in the name of the Lt. Governor of Delhi.

    Sd/-
    (LAL SINGH)
    DY. SECRETARY (LA)

  6. The Appellant questioned the legality of Notifications dated 6.7.2004 and 12.8.2004 in Writ Petition (C) No. 14609/2004 on several grounds including the following:

    i) There was no urgency which could justify invoking of Section 17(1) and (4) and dispensing with the application of Section 5A.

    ii) The exercise of power by the Government was vitiated by arbitrariness and mala fides.

  7. In the counter affidavit filed on behalf of Respondent Nos. 1 and 2, it was pleaded that the Appellant's land was acquired for a public purpose i.e. development of Mehrauli Heritage Zone and, therefore, it cannot be said that the exercise of power by the competent authority is vitiated by arbitrariness and mala fides. On the issue of invoking of urgency provisions, the following averments were made:

    In reply to grounds mentioned in the writ petition paras A to I, it is submitted that no just, tenable ground has been taken by the Petitioners, challenging the notifications, issued under Sections 4, 6 and 17(1) of the Land Acquisition Act. It is submitted that the Hon'ble Supreme Court has in cateena of decision has held that the government is within its jurisdiction to issue notification again for the same purpose in respect of the same land. There is no bar in issuing a fresh notification for acquisition of the land in case earlier notification has lapsed or has been struck down. It is stated that there is no colourable exercise of power as the Government is in its jurisdiction to issue a fresh notification in respect of the land which was invited earlier and has lapsed for one reason or the other.

    That the preservation and protection of Heritage Area is of utmost importance hence, in order to implement the scheme of planned development of Delhi, the planned Development of Mehrauli Heritage area is of utmost public importance hence, the land was urgently required which led to invocation of urgency clause of Section 17(1) after due satisfaction and proper application of mind by the competent authority. The aforesaid notification was issued invoking Section 17(1) only after the competent authority considered the urgency and applied its mind with due consideration.

  8. Similar affidavit was filed on behalf of Respondent No. 5.

  9. The Division Bench of the High Court did not advert to the principal grounds on which the Appellant had questioned the acquisition of its land and dismissed the writ petition by simply observing that the quashing of the earlier proceedings did not denude the appropriate Government of its jurisdiction to acquire the land and that the time gap of 10 years between the quashing of the earlier proceedings and the issuance of notifications in 2004 did not vitiate the subsequent acquisition.

  10. We have heard learned Counsel for the parties. The questions which require consideration by this Court are whether the public purpose for which the Appellant's land was acquired warranted invoking of Section 17(1) of the Act and whether the High Court was justified in dismissing the writ petition without examining the Appellant's plea that the enquiry envisaged under Section 5A could not have been dispensed with.

  11. In our view, the decision of Lieutenant Governor, Delhi to invoke the urgency provisions was ex-facie illegal apart from being wholly arbitrary and unjustified. It was neither the pleaded case of Respondent Nos. 1 and 2 before the High Court nor any material was produced to show that the task of developing Mehrauli Heritage Zone under planned development of Delhi was being executed on an emergency basis. It was also not the pleaded case of Respondent Nos. 1 and 2 that the public purpose specified in Notification dated 6.7.2004 would have been defeated if the Appellant was given an opportunity to file objections under Section 5A(1) and its representative was given an opportunity of personal hearing in terms of Section 5A(2). Therefore, there was no justification, legal or otherwise, for invoking Section 17(1) of the Act. Lieutenant Governor, Delhi who sanctioned the invoking of urgency provisions was duty bound to keep in mind that the acquisition of one's land is a serious matter and, except in the cases of real urgency, no person can be deprived of his property without being afforded an opportunity to file objection under Section 5A(1) and without the sanction of law and without complying with the basics of natural justice. Section 5A represents the statutory embodiment of the rule of audi alteram partem and unless there are compelling reasons, the State cannot invoke the urgency provision contained in Section 17(1) and dispense with the application of Section 5A. The amplitude, ambit and width of the rule of audi alteram partem was lucidly stated by the three-Judge Bench in Sayeedur Rehman v. State of Bihar (1973) 3 SCC 333 in the following words:

    ...This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties.

  12. In Mohinder Singh Gill v. Chief Election Commr. (1978) 1 SCC 405, Krishna Iyer, J. speaking for himself, Beg, C.J. and Bhagwati, J. highlighted the importance of the rule of hearing in the following...

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