(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. We have heard Mr.Anshin Desai, learned counsel for the petitioner, Mr.Devnani, learned AGP for respondent Nos. 1 and 2 and Mr.Prashant Desai with Mr.Pandya, learned advocate for respondent No.3.
2. It appears that the petitioner has preferred the present petition for quashing and setting aside the Notification under Section 4 of the Land Acquisition Act (herein after referred to as 'the Act'), dated 30th January, 2008 and the Notification under Section 6 of the Act dated 29.4.2008; whereby, the land of the petitioner Page 1 of 11 C/SCA/1326/2010 ORDER bearing original Survey No.25/2 and 25/3-4 (now final plot No.50) is proposed to be acquired. Since the matter was at the final disposal stage, we had also called for the original file from the State Government. It appears from the original file of the State Government that after the proposal was received by the Government, there were various correspondences. Other aspects may not be more relevant but the most important aspect is that State Government had called for the details about actual use of the land which was already acquired earlier ad-measuring 1,03,447 Sq.Mtrs. In the original file, when ultimate decision was to be taken by the highest authority, namely, concerned Hon'ble Minister, the decision was as under:-
(English Translation) "(1) The sanction may be granted to publish the notification.
(2) Earlier for the same purpose, land was acquired. Whether its use or not? Considering the purpose is served or not?
28.1.2008".
3. The aforesaid shows that the State Government before examining the aspects as to whether the land already acquired for the same purpose is in actual use or not and whether the purpose of earlier acquisition is served or not, the decision has been taken to grant sanction for publication of the notification. As per the scheme of the Act, subjective satisfaction of the State Government is required before taking decision to acquire any particular land. Subjective satisfaction means the Government on the basis of the material supplied before it, has been Page 2 of 11 C/SCA/1326/2010 ORDER satisfied for the requirement of the land. The noting in the original file shows that from the very beginning, when the proposal was received by the Government, the information about actual use of the land which was already acquired was called for and it appears from the correspondences that such information were not supplied to the Government and before the said aspect is considered as to whether the land which was acquired earlier for the very purpose is used or not and whether the purpose was served or not, the decision is already taken for publication of the notification. The aforesaid would apply with more vigor in a case where the Government has taken decision to apply urgency clause under Section 17 of the Act which would mean that inquiry under Section 5-A of the Act is to be dispensed with and possession of the land is to be taken away.
4. In our, prima-facie, view there is material available in the original file of the State Government which shows that the proposal was moved by the Corporation for acquisition of the land as back as from 13.10.2004 onwards and the copy of the said correspondence is also produced with the affidavit-in-reply filed on behalf of the respondent No.3-Corporation. It is true that initially, no objection certificate was applied by the Corporation for the land in question since it was under Urban Agglomeration and the time was consumed therein but even if it is considered from the date of final decision of the District Collector, the same was on 13.12.2006 as per Annexure-VIII produced with the said affidavit-in- reply. Thereafter, the Government has ultimately taken final decision on 22.1.2008. Under the circumstances, Page 3 of 11 C/SCA/1326/2010 ORDER when this much time was consumed in processing the proposal for acquisition at various level and at-least about a year time consumed, after the District Collector was satisfied for acquisition of the land and proposal forwarded to the State Government, we may, prima-facie, find that dispensation of the inquiry under Section 5-A was not called for and the acquisition, if undertaken in normal course without applying urgency clause under Section 17, it could have served the purpose. Prima- facie, it appears that powers under Section 17 are to be utilized only when there is genuine and urgent need and the Government is satisfied that the inquiry under Section 5-A, if held would further delay the acquisition and the purpose may be frustrated. Such power, in our, prima-facie, view, may not be available if the proposal is moved from 1994 onwards for acquisition and the Government at its own level has also taken about a year time to decide as to whether acquisition should take place or not. At this stage, we may refer to the decision of the Apex Court in case of RADHY SHYAM (DEAD) THROUGH LRS. AND OTHERS V/S. STATE OF UTTAR PRADESH AND OTHERS reported in (2011) 5 SCC 553; wherein, the Apex Court has culled out the following principles at paragraph No.77 of the judgment which reads as under:
77. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out:
(i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use.
To put it differently, the sovereign is Page 4 of 11 C/SCA/1326/2010 ORDER 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. Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal Chowdhuri v. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat (1995) Supp. (1) SCC 596.
(ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana (2003) 5 SCC 622; State of Maharashtra v. B.E. Billimoria (2003) 7 SCC 336 and Dev Sharan v. State of U.P., Civil Appeal No.2334 of 2011 decided on 7.3.2011.
(iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one's property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner is likely to become landless and deprived of the only source of his livelihood and/or shelter.
agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of Page 5 of 11 C/SCA/1326/2010 ORDER real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the land owner or other interested persons.
(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 few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority 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 concerned authorities did not apply 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) 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 Page 6 of 11 C/SCA/1326/2010 ORDER 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 Section 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 Section 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 Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition.
5. It may also be recorded that the aforesaid decision in case of RADHY SHYAM (DEAD) THROUGH LRS. AND OTHERS (supra) once again, came to be considered by the Apex Court in its recent decision in case of DARSHANLAL NAGPAL (DEAD) BY LRS. V/S. GOVERNMENT OF NCT of DELHI AND OTHERS reported in (2012) 2 SCC 327 and the same principle is reiterated and after considering the above referred principle, in case of RADHY SHYAM (DEAD) THROUGH LRS. AND OTHERS (supra) at paragraph No.28, it was observed by the Apex Court, as under:
"What needs to be emphasized is that although in exercise of the power of eminent domain, the State can acquire the private property for public purpose, it must be remembered that compulsory Page 7 of 11 C/SCA/1326/2010 ORDER acquisition of the property belonging to a private individual is a serious matter and has grave repercussions on his Constitutional right of not being deprived of his property without the sanction of law Article 300A and the legal rights. Therefore, the State must exercise this power with great care and circumspection. At times, compulsory acquisition of land is likely to make the owner landless. The degree of care required to be taken by the State is greater when the power of compulsory acquisition of private land is exercised by invoking the provisions like the one contained in Section 17 of the Act because that results in depriving the owner of his property without being afforded an opportunity of hearing".
6. In our prima-facie view, if the facts of the present case are examined in light of the only aforesaid two aspects, we, prima-facie, find that it could be said that there is non application of mind or when the information which has been called for by the Hon'ble Minister was not before him and prior thereto, the decision taken by publishing the notification, the subjective satisfaction could be said as vitiated. Further, facts of the present case, prima-facie, would not meet with the requirement for applying urgency clause under Section 17 so as to dispense with the inquiry under Section 5-A of the Act.
7. We could have considered the matter further, however, it has been brought to our notice that when the notification under Section 4 of the Act was published but prior to the publication of the notification under Section 6 of the Act which was published on 29th April, 2008 one Special Civil Application No.3639 of 2008 was preferred by the owner of the land bearing Survey No.29/2 before this Court for challenging the notification under Section 4 of the Act dated 30th Page 8 of 11 C/SCA/1326/2010 ORDER January, 2008, which is also challenged in the present petition and the said petition as per the decision dated 14.11.2008 of the another Division Bench of this Court (Coram: J.R.Vora and M.R.Shah, JJ.), the petition was dismissed and no interference was made to the notification under Section 4 of the Act. Learned counsel appearing for the Corporation, Mr.Prashant Desai, fairly conceded that the original file from the State Government was not before the Court nor the Court had called for the original file of the State Government. But Mr.Prashant Desai, learned counsel appearing for the respondent No.3- Corporation submitted that since the very notification under Section 4 of the Act was challenged in the said matter and the petitioner in the present petition has also challenged the notification under Section 4 of the Act, of-course, in addition to challenge to the notification under Section 6 of the Act, we may take the same view since the earlier decision is of the co-ordinate Bench of this Court. Whereas, Mr.Anshin Desai, learned counsel appearing for the petitioner submitted that it was not a petition preferred by the petitioner and therefore, decision as such, could not bind the petitioner. He also submitted that the original file was not before the Court and Hon'ble Court had an occasion to consider the consequences if the Government had taken decision in this manner for issuance of the notification under Section 4 of the Act. He also submitted that after the decision of this Court, in case of RADHY SHYAM (DEAD) THROUGH LRS. AND OTHERS (supra) and DARSHANLAL NAGPAL (DEAD) BY LRS.(supra), the Apex Court has clearly laid down Page 9 of 11 C/SCA/1326/2010 ORDER the law and if the principle as laid down by the Apex Court are considered by applying the facts of the present case, notification under Section 4 or under Section 6 of the Act would not stand in the eye of law. Therefore, he submitted that we may take a different view on account of the present factual scenario and the subsequent law laid down by the Apex Court.
8. However, learned counsel appearing for both the sides fairly concede that if this Court on account of the earlier decision of other cognate Bench of this Court in Special Civil Application No.3639 of 2008, is inclined to refer the matter to the Larger Bench, they have no objection for such purpose.
9. Apart from the consent from the learned advocates appearing for both the sides, we find that if the aforesaid factual aspects which was not there before the division Bench is considered, a different view may be called for and therefore, in view of the aforesaid, prima-facie, observation, we may not be in a position to take the same view as was taken by the Division Bench of this Court in Special Civil Application No.3639 of 2008. Hence, we find that it would be just and proper if the present matter is heard by the Larger Bench of this Court for putting the controversy to rest by deciding the matter in accordance with law.
10. In view of the aforesaid, office to place the matter before the Hon'ble the Chief Justice for appropriate orders and the matter may be placed Page 10 of 11 C/SCA/1326/2010 ORDER before the Larger Bench as may be ordered by the Hon'ble the Chief Justice on administrative side.
11. Office to keep the original file in sealed cover in the safe custody of the Registrar of this Court until further orders.
12. Mr.Anshin Desai shall supply 3rd set within 3 weeks from today. He shall also be at liberty to correct the paging in order to complete the record.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) (ashish) Page 11 of 11