Case: Darshan Lal Nagpal (Dead) By L.Rs Vs. Government of Nct of Delhi &amp; Other

26, 1968, the Government wrote to one of the promoters of the project, Shri H.L. Somany asking him to complete the ?arrangements for the import of capital equipment and acquisition of land in Haryana State for setting up of the proposed factory?. It was further stated in that communication that the Government was pleased to extend the time for completing the project up to April 30, 1969. Under those circumstances it had become necessary for the State of Haryana to take immediate steps to acquire the required land. It was under those circumstances the Government was constrained to have recourse to Section 17 of the Act. The Government denied the allegation that the facts of this case did not come within the scope of Section 17(2)(c). It was also denied that the acquisition in question was not made for a public purpose.There is no denying the fact that starting of a new industry is in public interest. It is stated in the affidavit filed on behalf of the State Government that the new State of Haryana was lacking in industries and consequently it had become difficult to tackle the problem of unemployment. There is also no denying the fact that the industrialisation of an area is in public interest. That apart, the question whether the starting of an industry is in public interest or not is essentially a question that has to be decided by the Government. That is a socio-economic question. This Court is not in a position to go into that question. So long as it is not established that the acquisition is sought to be made for some collateral purpose, the declaration of the Government that it is made for a public purpose is not open to challenge. Section 6(3) says that the declaration of the Government that the acquisition made is for public purpose shall be conclusive evidence that the land is needed for a public purpose. Unless it is shown that there was a colourable exercise of power, it is not open to this Court to go behind that declaration and find out whether in a particular case the purpose for which the land was needed was a public purpose or not: see Smt. Somavanti v. State of Punjab and Raja Anand Brahma Shah v. State of U.P. On the facts of this case there can be hardly any doubt that the purpose for which the land was acquired is a public purpose.Now coming to the question of urgency, it is clear from the facts set out earlier that there was urgency. The Government of India was pleased to extend time for the completion of the project up to April 30, 1969. Therefore urgent steps had to be taken for pushing through the project. The fact that the State Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the Notification was issued, there was urgency or not. The conclusion of the Government in a given case that there was urgency is entitled to weight, if not conclusive.? There is nothing in the aforesaid judgment which can possibly support the cause of the respondents. The scheme for setting up an industry by a company known as Pilkington Tiles Ltd. of which one H.S. Somany was a promoter was finalized on 26.11.1968 and the Notification was issued on 14/17.3.1969. This shows that the time gap between finalization of the scheme and the issue of preliminary Notification was less than four months. Therefore, the judgment in Jage Ram?s case could not have been relied upon for taking the view that pre Notification delay cannot be considered while deciding legality of the State?s action to invoke the urgency provisions. That apart, we have serious reservation whether the Court could have approved the invoking of urgency provisions for the acquisition of land on behalf of a private company ignoring that there is a separate Chapter for such acquisition. 25. In Kasireddy Papaiah v. Government of A.P., AIR 1975 AP 269 to which reference has been made in the judgment of Deepak Pahwa?s case, the learned Single Judge (Chinnappa Reddy, J., as he then was) rejected the challenge to the acquisition of land under Section 4(1) read with Section 17(4). The facts of that case show that Notification under Section 4(1) read with Section 17(4) was issued on 19.5.1970 and was published in the Official Gazette dated 24.9.1970. The declaration under Section 6 was published in Official Gazette dated 25.2.1971. The writ petition was filed on 16.9.1971. The High Court held that the time gap of six months was not fatal to the invoking of the urgency provisions because the land was acquired for providing house sites to the Harijans. There is nothing in that judgment which merits serious consideration by this Court.26. In Chameli Singh v. State of U.P. (supra) this Court simply followed the observations made by the learned Single Judge of the Andhra Pradesh High Court in Kasireddy Papaiah?s case and held that the acquisition of land for providing housing accommodation for Harijans did warrant invoking of the urgency provisions and delay by the officials cannot be made a ground to nullify the acquisition. There is no particular discussion in the judgment about the time lag between the proposal for the acquisition of land and the issue of Notification under Section 4(1) read with Section 17(1) and (4). Therefore, that judgment is also of no assistance to the respondents. 27. It is also appropriate to mention that in paragraph 48 of the judgment in Anand Singh v. State of UP (supra), this Court did take cognizance of the conflicting views expressed on the effect of pre-Notification and post-Notification delay on the invoking of urgency provisions and observed that such delay will have material bearing on the question of invocation of urgency power, particularly, when no material is produced by the appropriate Government to justify elimination of the inquiry envisaged under Section 5A.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]22. A recapitulation of the facts would show that the idea of establishing 400/220 KV sub-station was mooted prior to August, 2004. For next almost three years, the officers of the DTL and the DDA exchanged letters on the issue of allotment of land. On 28.7.2008 Secretary (Power), Government of NCT of Delhi-cum-CMD, DTL made a suggestion for the acquisition of land by invoking Section 17 of the Act. This became a tool in the hands of the concerned authorities and the Lieutenant Governor mechanically approved the proposal contained in the file without trying to find out as to why the urgency provisions were being invoked after a time gap of five years. If the sub-station was to be established on emergency basis, the authorities of the DTL would not have waited for five years for the invoking of urgency provisions enshrined in the Act. They would have immediately approached the Government of NCT of Delhi and made a request that land be acquired by invoking Section 17 of the Act. However, the fact of the matter is that the concerned officers/functionaries of the DTL, the DDA and the Government of NCT of Delhi leisurely dealt with the matter for over five years. Even after some sign of emergency was indicated in letter dated 9.9.2008 of the Joint Secretary (Power), who made a mention of the Commonwealth Games scheduled to be organised in October, 2010, it took more than one year and two months to the competent authority to issue the preliminary Notification. Therefore, we are unable to approve the view taken by the High Court on the sustainability of the appellants? challenge to the acquisition of their land.23. Before concluding we deem it appropriate to notice the judgments relied upon by the learned Additional Solicitor General. A cursory reading of the judgment in Deepak Pahwa v. Lt. Governor of Delhi (supra) (3-Judge Bench) gives an impression that the proposition contained therein supports the argument of Shri Malhotra, that pre-Notification delay is not relevant for deciding legality of the exercise of the State?s power of eminent domain and invoking of the urgency provisions contained in the Act but careful reading of the judgment along with the precedents referred to in paragraph 8 makes it clear that nothing contained therein can be relied upon for overlooking the time gap of five years between the initiation of proposal for establishment of the sub-station and the issue of Notification under Section 4(1) read with Section 17 (1) and (4) of the Act. That case involved challenge to the acquisition of land for construction of ‘New Transmitting Station for the Delhi Airport?. The High Court dismissed the writ petition in limine. The special leave petition was also dismissed at the threshold. While dealing with the argument that there was no justification to invoke Section 17(4) of the Act and to dispense with the inquiry under Section 5A because eight years time was spent in inter-departmental discussions, this Courtother ground of attack is that if regard is had to the considerable length of time spent on inter-departmental discussion before the Notification under Section 4(1) was published, it would be apparent that there was no justification for invoking the urgency clause under Section 17(4) and dispensing with the enquiry under Section 5-A. We are afraid, we cannot agree with this contention. Very often persons interested in the land proposed to be acquired make various representations to the concerned authorities against the proposed acquisition. This is bound to result in a multiplicity of inquiries, communications and discussions leading invariably to delay in the execution of even urgent projects. Very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition. It is, therefore, not possible to agree with the submission that mere pre-Notification delay would render the invocation of the urgency provisions void. We however wish to say nothing about post-Notification delay. In Jage Ram v. State of Haryana,(1971) 1 SCC 671 , this Court pointed out the fact that the State Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the Notification was issued, there was urgency or not. In Kasireddy Papaiah v. Government of Andhra Pradesh, AIR 1975 AP 269 it was held, ?… delay on the part of tardy officials to take the further action in the matter of acquisition is not sufficient to nullify the urgency which existed at the time of the issue of the Notification and to hold that there was never any urgency?. In the result both the submissions of the learned Counsel for the petitioners are rejected and the special leave petitions areis ours)In making the aforesaid observation, the Court appears to have been unduly influenced by what was perceived at the relevant time as pulling of strings in the power corridors by the interested persons which resulted in frustration of the public oriented projects. The general observations made in Deepak Pahwa?s case cannot supply basis for approving the impugned order and the Notifications challenged by the appellants because it is neither the pleaded case of the respondents nor it has been suggested that the delay was caused due to the representation made by the appellants or that they brought extraneous pressure to prevent the acquisition of their land.24. We may now notice the two decisions referred to in paragraph 8 of the judgment in Deepak Pahwa?s case. In Jage Ram v. State of Haryana, (1971) 1 SCC 671 , the acquisition of land for setting up a factory for the manufacture of China-ware, Porcelain-ware including wall glazed tiles, etc., at the instance of a private industrialist by invoking Section 17(2)(c) of the Act (as amended by Haryana Legislature) was challenged. The State Government had issued Notification dated 14/17.3.1969 under Section 4 of the Act. Simultaneously, a direction was given for taking action under Section 17(2)(c) and it was declared that the provisions of Section 5A shall not apply. On 8.4.1969 the appellants filed writ petition, which was dismissed by the High Court. This Court negatived the challenge to the invoking of the urgency provisions by making the followingallegations in the writ petition include the assertion that there was no urgency in the matter of acquiring the land in question and therefore there was no justification for having recourse to Section 17 and thus deprive the appellants of the benefit of Section 5-A of the Act. It was further alleged therein that the acquisition in question was made for the benefit of a company and hence proceedings should have been taken under Sections 38 to 44(B) of the Act and that there was no public purpose involved in the case. It was further pleaded that the land acquired was not waste and arable land and that Section 2(c) of the Act did not confer power on the Government to dispense with the proceedings under Section 5-A. In the counter-affidavit filed by the Deputy Director of Industries (Administration), Government of Haryana on behalf of the State of Haryana, the above allegations were all denied. Therein it is stated that at the instance of the State of Haryana, Government of India had issued a letter of intent to a company for setting up a factory for the manufacture of Glazed Tiles, etc. in village Kasser. That project was to be started with the collaboration of a foreign company known as Pilkington Tiles Ltd. The scheme for setting up the project had been finalised and approved by the concerned authorities. On November 26, 1968, the Government wrote to one of the promoters of the project, Shri H.L. Somany asking him to complete the ?arrangements for the import of capital equipment and acquisition of land in Haryana State for setting up of the proposed factory?. It was further stated in that communication that the Government was pleased to extend the time for completing the project up to April 30, 1969. Under those circumstances it had become necessary for the State of Haryana to take immediate steps to acquire the required land. It was under those circumstances the Government was constrained to have recourse to Section 17 of the Act. The Government denied the allegation that the facts of this case did not come within the scope of Section 17(2)(c). It was also denied that the acquisition in question was not made for a public purpose.There is no denying the fact that starting of a new industry is in public interest. It is stated in the affidavit filed on behalf of the State Government that the new State of Haryana was lacking in industries and consequently it had become difficult to tackle the problem of unemployment. There is also no denying the fact that the industrialisation of an area is in public interest. That apart, the question whether the starting of an industry is in public interest or not is essentially a question that has to be decided by the Government. That is a socio-economic question. This Court is not in a position to go into that question. So long as it is not established that the acquisition is sought to be made for some collateral purpose, the declaration of the Government that it is made for a public purpose is not open to challenge. Section 6(3) says that the declaration of the Government that the acquisition made is for public purpose shall be conclusive evidence that the land is needed for a public purpose. Unless it is shown that there was a colourable exercise of power, it is not open to this Court to go behind that declaration and find out whether in a particular case the purpose for which the land was needed was a public purpose or not: see Smt. Somavanti v. State of Punjab and Raja Anand Brahma Shah v. State of U.P. On the facts of this case there can be hardly any doubt that the purpose for which the land was acquired is a public purpose.Now coming to the question of urgency, it is clear from the facts set out earlier that there was urgency. The Government of India was pleased to extend time for the completion of the project up to April 30, 1969. Therefore urgent steps had to be taken for pushing through the project. The fact that the State Government or the party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on the date on which the Notification was issued, there was urgency or not. The conclusion of the Government in a given case that there was urgency is entitled to weight, if notis nothing in the aforesaid judgment which can possibly support the cause of the respondents. The scheme for setting up an industry by a company known as Pilkington Tiles Ltd. of which one H.S. Somany was a promoter was finalized on 26.11.1968 and the Notification was issued on 14/17.3.1969. This shows that the time gap between finalization of the scheme and the issue of preliminary Notification was less than four months. Therefore, the judgment in Jage Ram?s case could not have been relied upon for taking the view that pre Notification delay cannot be considered while deciding legality of the State?s action to invoke the urgency provisions. That apart, we have serious reservation whether the Court could have approved the invoking of urgency provisions for the acquisition of land on behalf of a private company ignoring that there is a separate Chapter for such acquisition.It is also appropriate to mention that in paragraph 48 of the judgment in Anand Singh v. State of UP (supra), this Court did take cognizance of the conflicting views expressed on the effect of pre-Notification and post-Notification delay on the invoking of urgency provisions and observed that such delay will have material bearing on the question of invocation of urgency power, particularly, when no material is produced by the appropriate Government to justify elimination of the inquiry envisaged under Section 5A.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 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 ofDivision Bench of the High Court accepted the explanation given by the respondents by observing that sub-station in East Delhi is needed to evacuate and utilize the power generated from 1500 MW gas based plant at Bawana. While doing so the Bench completely overlooked that there was long time gap of more than five years between initiation of the proposal for establishment of the sub-station and the issue of Notification under Section 4 (1) read with Section 17(1) and (4) of the Act. The High Court also failed to notice that the Government of NCT of Delhi had not produced any material to justify its decision to dispense with the application of Section 5A of the Act. The documents produced by the parties including the notings recorded in file bearing No. F.S(11)/08/LandB/LA and the approval accorded by the Lieutenant Governor do not contain anything from which it can be inferred that a conscious decision was taken to dispense with the application of Section 5A which represents two facets of the rule of hearing that is the right of the land owner to file objection against the proposed acquisition of land and of being heard in the inquiry required to be conducted by the Collector.It is also apposite to mention that no tangible evidence was produced by the respondents before the Court to show that the task of establishing the sub-station at Mandoli was required to be accomplished within a fixed schedule and the urgency was such that even few months time, which may have been consumed in the filing of objections by the land owners and other interested persons under Section 5A(1) and holding of inquiry by the Collector under Section 5A(2), would have frustrated the project. It seems that the Bench of the High Court was unduly influenced by the fact that consumption of power in Delhi was increasing everyday and the DTL was making an effort to ensure supply of power to different areas and for that purpose establishment of sub-station at village Mandoli was absolutely imperative. In our view, the High Court was not justified in rejecting the appellants? challenge to the invoking of urgency provisions on the premise that the land was required for implementation of a project which would benefit large Section of the society. It needs no emphasis that majority of the projects undertaken by the State and its agencies/instrumentalities, the implementation of which requires public money, are meant to benefit the people at large or substantially large segment of the society. If what the High Court has observed is treated as a correct statement of law, then in all such cases the acquiring authority will be justified in invoking Section 17 of the Act and dispense with the inquiry contemplated under Section 5A, which would necessarily result in depriving the owner of his property without any opportunity to raise legitimate objection. However, as has been repeatedly held by this Court, the invoking of the urgency provisions can be justified only if there exists real emergency which cannot brook delay of even few weeks or months. In other words, the urgency provisions can be invoked only if even small delay of few weeks or months may frustrate the public purpose for which the land is sought to be acquired. Nobody can contest that the purpose for which the appellants? land and land belonging to others was sought to be acquired was a public purpose but it is one thing to say that the State and its instrumentality wants to execute a project of public importance without loss of time and it is an altogether different thing to say that for execution of such project, private individuals should be deprived of their property without even being heard. It appears that attention of the High Court was not drawn to the following observations made in State of Punjab v. Gurdial Singhis 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 inquiry 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.In Kasireddy Papaiah v. Government of A.P., AIR 1975 AP 269 to which reference has been made in the judgment of Deepak Pahwa?s case, the learned Single Judge (Chinnappa Reddy, J., as he then was) rejected the challenge to the acquisition of land under Section 4(1) read with Section 17(4). The facts of that case show that Notification under Section 4(1) read with Section 17(4) was issued on 19.5.1970 and was published in the Official Gazette dated 24.9.1970. The declaration under Section 6 was published in Official Gazette dated 25.2.1971. The writ petition was filed on 16.9.1971. The High Court held that the time gap of six months was not fatal to the invoking of the urgency provisions because the land was acquired for providing house sites to the Harijans. There is nothing in that judgment which merits serious consideration by this Court.26. In Chameli Singh v. State of U.P. (supra) this Court simply followed the observations made by the learned Single Judge of the Andhra Pradesh High Court in Kasireddy Papaiah?s case and held that the acquisition of land for providing housing accommodation for Harijans did warrant invoking of the urgency provisions and delay by the officials cannot be made a ground to nullify the acquisition. There is no particular discussion in the judgment about the time lag between the proposal for the acquisition of land and the issue of Notification under Section 4(1) read with Section 17(1) and (4). Therefore, that judgment is also of no assistance to the respondents.