UNION OF INDIA AND ANOTHER versus MOHIUDDIN MASOOD AND OTHERS

[2019] 10 S.C.R.

UNION OF INDIA AND ANOTHER

MOHIUDDIN MASOOD AND OTHERS

(Civil Appeal No. 6419 of 2019)

AUGUST 19, 2019

[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]

Land Acquisition Act, 1894: ss.5A, 6, 17 – Request made byITBP for acquisition of land for establishing Battalion Headquarterof ITBP in view of increase in counter Insurgency Operations, LawCand Order duties of ITBP, VVIP security duties and DisasterManagement Operations – Urgent acquisition of land – High Courtheld that there were no justifiable reasons to invoke the urgencyclause and to dispense with the enquiry u/s.5A of the Act – Onappeal, held: For establishing Battalion headquarter, large chunkDof land approximately 72 to 75 acres of land was required – Such ahuge land was required to be first identified at suitable places –Some time is bound to be consumed between the proposal andissuance of the notification under s.4 of the Act – The said aspectwas not at all considered by the High Court – Therefore, merelythat some time was taken in identifying the land and in issuing actualEs.4 notification, High Court was not justified in observing that therewas no urgency at all and/or there were no grounds to invoke theurgency clause – There was real urgency and, therefore, urgencyclause and s.17 was rightly invoked dispensing with the enquiryunder s.5A of the Act.

Land Acquisition Act, 1894: Acquisition of large chunk ofland for establishing ITBP Battalion Headquarters – So far asrespondent nos.1 and 2 original writ petitioners were concerned,out of the total land acquired, they were the owners/tenure holdersof area 1.138 hectares, 1.2800 hectares and 0.2970 hectare only –GThe total land acquired was 28.1398 hectares and other land ownersdid not question the acquisition – Therefore, High Court ought notto have set aside the notifications under ss.4 and 6 respectivelywhich were not under challenge by the other land owners exceptrespondent nos.1 and 2.

Land Acquisition Act, 1894: s.17(4) – Non-compliance ofs.17(4) alleged – In the counter affidavit of Tehsildar, it wasspecifically stated that after the notification under s.4 of the Actwas issued, the ITBP deposited the estimated amount of compensationin the year 2009/2010 itself and the land owners/tenure holderswere served with the notice to withdraw and/or take 80% of theestimated amount of compensation but they refused to take thecompensation – Therefore, thereafter it was not open for the originalwrit petitioners to make the grievance that they were not paid anycompensation – Therefore, it cannot be said that there was non-compliance of s.17(4) of the Act.

Allowing the appeal, the Court

HELD: 1. The High Court failed to appreciate and considerthe fact that there was time gap of only three months betweenthe notification under Section 4 and notification under Section 6respectively of the Act. There was not much delay in consideringthe request made by the ITBP to acquire the land. Right fromthe very beginning the ITBP requested to acquire the landurgently as the land was urgently required by the ITBP to establishBattalion headquarter due to increase in Counter InsurgencyOperations, Law and order duties of ITBP and DisasterManagement Operations. For establishing such Battalionheadquarter, large chunk of land approximately 72 to 75 acresof land was required. Such huge land was required to be firstidentified at suitable places. Therefore, some time is bound tobe consumed between the proposal and issuance of thenotification under Section 4 of the Act. Therefore, merely thatsome time was taken in identifying the land and in issuing actualSection 4 notification, the High Court was not justified inobserving that there was no urgency at all and/or there were nogrounds to invoke the urgency clause. [Paras 6.1, 6.2] [704-D-G]2. On the land in question total admeasuring 28.1398hectares, there was development on 90 to 95% of the landacquired and 90 to 95% of the land has been put to use by theITBP. So far as respondent nos. 1 and 2 were concerned, out ofthe total land acquired, they were the owners/tenure holders of

Aplot nos. 2348 area 1.138 hectares, 2353 area 1.2800 hectaresand 2354 area 0.2970 hectare only. The total land acquired was28.1398 hectares and other land owners have not questioned theacquisition. Therefore also, the High Court ought not to haveset aside the notifications under Sections 4 and 6 respectively ofthe Act which were with respect to the acquisition of large chunkBof land admeasuring 28.1398 hectares, which was not underchallenge by the other land owners except respondent nos. 1and 2 original writ petitioners. [Para 6.3] [705-C-E]

3. In the counter affidavit filed by the Tehsildar before theHigh Court, it was specifically stated that after the notificationCunder Section 4 of the Act was issued, the ITBP has deposited10% of estimated compensation amounting to Rs. 3026675.00by treasury challan dated 17.06.2009, 70% of estimatedcompensation amounting to Rs. 23674225.00 by treasury challandated 05.01.2009 and rest of 20% of estimated compensationDamounting to Rs. 6053350.00 by treasury challan dated22.01.2010. In the counter affidavit, it is also stated that noticedated 16.03.2010 was issued to the tenure holders to take 80%of the estimated amount of compensation but they did not cometo take the compensation. [Para 6.4] [705-F-H; 706-A]

ERadhy Shyam v. State of U.P. (2011) 5 SCC 553 : [2011]8 SCR 359 ; Sahara India Commercial CorporationLimited v. State of Uttar Pradesh (2017) 11 SCC 339 ;Prabhawati v. State of Bihar (2014) 13 SCC 721 – heldinapplicable.

Case Law Reference

From the Judgment and Order dated 10.04.2017 of the HighCourt of Judicature at Allahabad in Civil Misc. Writ Petition bearingWrit-C No. 2069 of 2010.

Ms. Madhavi Divan, ASG, Ms. Manjula Gupta, Ms. Ranjeeta,Ms. Pooja Dhar, B. V. Balaram Das, Ms. Ranjeeta Rohatgi, Advs. forthe Appellants.

Ajit Kumar Sinha, Sr. Adv., Yunus Malik, Ms. Khushali,Ms. Rajeeta Raj, Samir Malik, Murari Kumar, Pradeep Kumar Sharma,Ms. Garima Prashad, Advs. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Delay condoned. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 10.04.2017 passed by the High Court of Judicature atAllahabad in Writ Petition No. 2069 of 2010, by which the High Courthas allowed the said writ petition and has quashed and set aside thenotifications issued under Sections 4 & 6 respectively of the LandAcquisition Act, 1894 (hereinafter referred to as the ‘Act’) with respectto the land in question on the ground that the urgency clause was illegallyand wrongly invoked, the Union of India and the acquiring body, i.e.,Director General of ITBP have preferred the present appeal.

3. That request for providing about 75 acres of land forestablishing one Battalion Headquarter of ITBP at Kanpur Nagar wasmade to the Government of Uttar Pradesh by the Director, PoliceFinance, ITBP as due to increasing Counter Insurgency Operations, Lawand order duties of ITBP, VVIP security duties and Disaster ManagementOperations, it was decided to establish Battalion headquarter of ITBP atKanpur Nagar, Uttar Pradesh and it was requested to urgently acquirethe land by finding out suitable pieces of land. It appears that thereafteron 5.2.2009, the Special Secretary, State of Uttar Pradesh wrote letterto the District Magistrate, Kanpur Nagar and Lucknow for identifying72 to 75 acres of land for being provided for establishment of the Battalionheadquarter of ITBP.3.1 That thereafter, notification under Section 4 of the Act cameto be issued on 2.9.2009 for urgent acquisition of the land in order tofacilitate the accommodation of the troops and for ITBP headquarter.That immediately on issuance of notification under Section 4 of the Act,respondent nos. 1 & 2 herein filed writ petition No. 54836 of 2009 beforethe Allahabad High Court challenging the Section 4 notification. The

Aaforesaid petition came to be dismissed by the High Court as pre-maturevide order dated 3.11.2009. That thereafter the State Government issuednotification under Section 6 of the Act invoking the urgency clause andinvoking Section 17 of the Act, vide notification dated 11.12.2009 anddirected the Collector to take possession of the land. That thereafteragain and on issuance of notification under Section 6 of the Act onB11.12.2009, respondent nos. 1 & 2 herein filed another writ petition No.2069 of 2010 before the Allahabad High Court. Before the High Court,number of submissions were made on merits as well as on invoking theurgency clause and dispensing with the procedure under Section 5A ofthe Act. The said writ petition was opposed by the appellants justifyingCthe invocation of urgency clause. It appears that thereafter the StateGovernment acquired the land in the month of December, 2010 byadjudging the amount of compensation to the tune of Rs.6,33,09,176.41inclusive of solatium for the land in question. 3.2That by the impugnedjudgment and order and following and relying upon the decision of this

Court in the case of Radhy Shyam v. State of U.P., reported in (2011)D5 SCC 553, the High Court has observed and held that the StateGovernment was not justified in invoking the urgency clause anddispensing with the enquiry under Section 5 of the Act. The HighCourt has observed and held that there was no immediate urgency andno facts existed before the State Government for invoking the powerEunder Section 17(1) and Section 17(4) of the Act and consequently hasheld the notifications under Section 4 & 6 of the Act respectively as bad.However, taking note of the development of the acquired land andinvestment of public money for development of acquired land runninginto crores of rupees, subsequent to the acquisition notifications, afterconsidering and following the decision of this Court in the case of SaharaFIndia Commercial Corporation Limited v. State of Uttar Pradesh,reported in (2017) 11 SCC 339, the High Court has observed and heldthat the notifications under Section 4 & 6 respectively of the Act arebad. The acquiring body should not return the possession of the land inquestion, however, the High Court has directed that the land owners beGpaid the compensation under the provisions of the Right to FairCompensation and Transparency in Land Acquisition & Rehabilitationand Re-Settlement Act, 2013 (hereinafter referred to as the ‘2013 Act’)and compensation to be determined on the basis of the date of the orderpassed by the High Court as the date of the acquisition notification, i.e.,22.12.2016.H

3.3 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court, holding and declaring Sections 4 &6 notifications with respect to the land in question as bad by holding thatthe invocation of the urgency clause and the provisions of Section 17(1)and 17(4) of the Act were bad, the Union of India and another – ITBPhave preferred the present appeal.

4. Ms. Madhavi Divan, learned Additional Solicitor General hasappeared on behalf of the appellants and Shri Ajit Kumar Sinha, learnedSenior Advocate has appeared on behalf of respondent nos. 1 & 2herein – original writ petitioners.

4.1 Ms. Madhavi Divan, learned Additional Solicitor General hasvehemently submitted that in the facts and circumstances of the caseand considering the purpose for which the land in question was acquired,the High Court has materially erred in observing and holding that thereexisted no facts before the State Government for invoking the powersunder Section 17(1) and Section 17(4) of the Act.

4.2 It is further submitted by Ms. Madhavi Divan, learnedAdditional Solicitor General that there was no delay at all in invoking theurgency clause and issuance of the notification under Section 4 of theAct by the State Government invoking the urgency clause.

4.3 It is further submitted by Ms. Madhavi Divan, learnedAdditional Solicitor General that the High Court has failed to appreciatethat the land was urgently required by the appellants, due to increase inCounter Insurgency Operations, Law and order duties of ITBP, VVIPsecurity duties and Disaster Management Operations, there was urgentneed to establish Battalion headquarter of ITBP at Kanpur Nagar. It issubmitted that for establishing such Battalion headquarter approximately72 to 75 acres of land was required and therefore it might have takensome time in identifying the land, preparing the plan and thereafter issuingthe notification under Section 4 of the Act. It is submitted that the HighCourt has held the invocation of the urgency clause bad on the groundthat there was much time gap between the proposal by the ITBP andissuance of the notification under Section 4 of the Act. It is submittedthat while holding so, the High Court has not properly appreciated thetrue and correct facts, more particularly the time taken from the proposaltill the issuance of the notification under Section 4 of the Act.

A4.4 It is further submitted by Ms. Madhavi Divan, learnedAdditional Solicitor General that the High Court has failed to appreciatethe fact that between notifications under Sections 4 & 6 respectively,the time gap was only three months, which clearly indicates that therewas an urgency in the matter requiring dispensing with the enquiry underSection 5A of the Act. It is submitted that had the Section 5A complianceBnot been dispensed with, it would not have been possible to publish Section6 notification within three months.

4.5 It is further submitted by Ms. Madhavi Divan, learnedAdditional Solicitor General that from the very beginning the land wasrequired urgently for the aforesaid public purpose, more particularly forCestablishment of the Battalion headquarter of ITBP and in the facts andcircumstances of the case, there was no delay/inordinate delay in issuanceof the notification under Section 4 of the Act. It is submitted that thereforethe finding recorded by the High Court that no facts existed for invocationof the urgency clause cannot be sustained as the same is contrary to theDmaterial on record.

4.6 It is further submitted by Ms. Madhavi Divan, learnedAdditional Solicitor General that even the High Court has also wronglyobserved in the impugned judgment and order that so far no award hasbeen made by the Special Land Acquisition Officer with reference toEthe notification under challenge. It is submitted that as such and in factthe adjudgment of the compensation was pronounced after the sanctionof the District Magistrate on 27.12.2010 by the Land Acquisition Officer.

4.7 Ms. Madhavi Divan, learned Additional Solicitor General hasfurther submitted that in the facts and circumstances of the case, theFdecisions relied upon by the learned counsel appearing on behalf ofrespondent nos. 1 & 2, more particularly the decision of this Court in thecase of Radhy Shyam (supra) shall not be applicable to the facts of thecase on hand, more particularly with respect to the public purpose forwhich the land is acquired.

G4.8 Making the above submissions and further submitting that onthe 95% of the land acquired, by now the development has already takenplace and public money to the tune of crores of rupees have been spent,it is prayed to allow the present appeal.

5. The present appeal is vehemently opposed by Shri Ajit KumarSinha, learned Senior Advocate on behalf of respondent nos. 1 & 2.H

Taking us to various dates and events right from the date of proposal bythe ITBP till the notification under Section 6 of the Act was issued, it isvehemently submitted by Shri Ajit Kumar Sinha, learned Senior Advocatethat in the facts and circumstances of the case, the High Court hasrightly observed and held that the State Government was not justified ininvoking the urgency clause and dispensing with the enquiry under Section5A of the Act.

5.1 It is further submitted by Shri Ajit Kumar Sinha, learned SeniorAdvocate that in fact invoking the urgency clause was not explainedand/or justified by the State Government and therefore considering thematerial on record, the High Court has rightly observed that there wasno real and substantive urgency which could justify invoking the urgencyclause under Section 17(1) of the Act and excluding the application ofSection 5A of the Act.

5.2 It is further submitted by Shri Ajit Kumar Sinha, learned SeniorAdvocate that as held by this Court in catena of decisions that enquiryunder Section 5A of the Act is valuable statutory right available to theland owners and unless there are compelling circumstances warrantinginvocation of the urgency clause under Section 17(1) of the Act, suchstatutory right cannot be taken away. In support of his submission, learnedSenior Advocate appearing on behalf of respondent nos. 1 & 2 hereinhas heavily relied upon the decisions of this Court in the cases of RadhyShyam (supra); Prabhawati v. State of Bihar, reported in (2014) 13SCC 721; and Sahara India Commercial Corporation Limited(supra).

5.3 It is further submitted by Shri Ajit Kumar Sinha, learned SeniorAdvocate that as such in the present case and by passing the impugnedjudgment and order, the High Court has tried to strike the balance andinstead of directing to return the land acquired, the High Court has directedto pay the compensation as per the provisions of the 2013 Act and thecompensation to be determined on the basis of the date of order as thedate of the acquisition notification, i.e., 22.12.2016.

5.4 It is further submitted by Shri Ajit Kumar Sinha, learned SeniorAdvocate that even till date the land owners have not received anycompensation of the land acquired. It is submitted therefore that thereis non-compliance of Section 17(4) of the Act.

A5.5 Making the above submissions, it is prayed to dismiss thepresent appeal.

6. We have heard the learned counsel appearing on behalf of therespective parties at length.

6.1 We have gone through and considered in detail the impugnedBjudgment and order passed by the High Court. We have also consideredthe chronological dates and events leading to the issuance of thenotification under Section 4 of the Act and thereafter issuance of thenotification under Section 6 of the Act invoking the urgency clause. Atthe outset, it is required to be noted that by the impugned judgment andCorder the High Court has held invocation of urgency clause and invocationof Section 17 of the Act as bad by observing that there were no justifiablereasons to invoke the urgency clause and dispensing with the enquiryunder Section 5A of the Act. However, considering the chronologicallist of dates and events and the object and purpose for which the landwas sought to be acquired, we are of the opinion that the High Court hasDmaterially erred in holding that invocation of the urgency clause wasbad. The High Court has failed to appreciate and consider the fact thatthere was time gap of only three months between the notificationunder Section 4 and notification under Section 6 respectively of the Act.

6.2 Even there was not much delay in considering the requestEmade by the ITBP to acquire the land. Right from the very beginningthe ITBP requested to acquire the land urgently as the land was urgentlyrequired by the ITBP to establish Battalion headquarter due to increasein Counter Insurgency Operations, Law and order duties of ITBP andDisaster Management Operations. It is required to be noted that forFestablishing such Battalion headquarter large chunk of landapproximately 72 to 75 acres of land was required. Such huge landwas required to be first identified at suitable places. Therefore, sometime is bound to be consumed between the proposal and issuance of thenotification under Section 4 of the Act. The said aspect has not at allbeen considered by the High Court. Therefore, merely that some timeGhad been taken in identifying the land and in issuing actual Section 4notification, the High Court is not justified in observing that there was nourgency at all and/or there were no grounds to invoke the urgency clause.Therefore, in the facts and circumstances of the case and consideringthe material on record, we are of the opinion that the High Court hasHerred in observing and holding that invocation of the urgency clause was

bad. We are more than satisfied that there was real urgency andtherefore the urgency clause and Section 17 of the Act was rightly invokeddispensing with the enquiry under Section 5A of the Act. Therefore, inthe facts and circumstances of the case, the decisions of this Courtrelied upon by the learned Senior Advocate appearing on behalf ofrespondent nos. 1 & 2, referred to hereinabove, shall not be applicableto the facts of the case on hand, more particularly in the relied uponcases the acquisitions were either for private parties and/or companiesand in the present case the acquisition was for establishing ITBP Battalionheadquarter.6.3 It is also required to be noted that on the land in question totaladmeasuring 28.1398 hectares (19.7548 + 8.3850 hectares = 28.1398hectares) there is development on 90 to 95% of the land acquired and90 to 95% of the land has been put to use by the ITBP. It is alsorequired to be noted that so far as respondent nos. 1 & 2 herein areconcerned, out of the total land acquired, they were the owners/tenureholders of plot nos. 2348 area 1.138 hectares, 2353 area 1.2800 hectaresand 2354 area 0.2970 hectare only. As observed hereinabove, the totalland acquired was 28.1398 hectares and other land owners have notquestioned the acquisition. Therefore also, the High Court ought not tohave set aside the notifications under Sections 4 & 6 respectively of theAct which were with respect to the acquisition of large chunk of landadmeasuring 28.1398 hectares, which was not under challenge by theother land owners except respondent nos. 1 & 2 herein – original writpetitioners.

6.4 Now so far as the submission on behalf of the original writpetitioners that there is non-compliance of Section 17(4) of the Act as80% of the estimated amount of compensation was not deposited isconcerned, at this stage, counter affidavit filed by the Tehsildar beforethe High Court is required to be considered. In the counter affidavit, ithas been specifically stated that after the notification under Section 4 ofthe Act was issued, the ITBP has deposited 10% of estimatedcompensation amounting to Rs.3026675.00 vide treasury challan dated17.06.2009, 70% of estimated compensation amounting to Rs.23674225.00vide treasury challan dated 05.01.2009 and rest of 20% of estimatedcompensation amounting to Rs.6053350.00 vide treasury challan dated22.01.2010. In the counter affidavit, it is also stated that notice dated16.03.2010 was issued to the tenure holders to take 80% of the estimated

Aamount of compensation but they did not come to take the compensation.Therefore, it cannot be said that there is non-compliance of Section17(4) of the Act and the tenure holders/land owners were not paid the

80% estimated amount of compensation as required.

6.5 Considering the aforesaid facts and circumstances of the caseBand in the peculiar facts and circumstances of the case, we are of theopinion that the High Court is not justified in setting aside the notificationsunder Sections 4 & 6 respectively of the Act and/or observing and holdingthat the invocation of Section 17 of the Act and urgency clause was bad.

7. Now so far as submission on behalf of the original writ petitionersCthat they have not been paid any compensation is concerned, it is requiredto be noted and as observed hereinabove, in fact, ITBP had depositedthe estimated amount of compensation in the year 2009/2010 itself andthe land owners/tenure holders were served with the notice to withdrawand/or take 80% of the estimated amount of compensation but theyrefused to take the compensation. Therefore, thereafter it is not openDfor the original writ petitioners to make the grievance that they have notbeen paid any compensation. Still, it will be open to them to withdrawthe amount of compensation. At this stage, it is required to be noted thatin the year 2010 itself, final award directing adjudgment of thecompensation to the tune of Rs.63309176.41 inclusive of solatium wasEpublished before that writ petition was filed and compensation was notaccepted.

8. In view of the above and for the reasons stated above, thepresent appeal is allowed. The impugned judgment and order passed bythe High Court is hereby quashed and set aside. Consequently, the writFpetition filed before the High Court by respondent no. 1 & 2 hereinstands dismissed. There shall be no order as to costs.

Devika Gujral

Appeal allowed.