RAKHI RUGHWANI Vs. UNION OF INDIA

JUDGEMENT

(1.) In these petitions a challenge has been laid to the acquisition of large tracts of land in Delhi stated to be required for Rohini Residential Scheme. The Principal Secretary (PWD/LandB), in her Note dated 15.10.1999 had requested the Hon. Lt. Governor to approve issuance of a Notification under Sections 4, 6 and 17 of the Land Acquisition Act, 1894 (hereinafter referred to as `the Act') . An order, also invoking the urgency clause was forwarded for the Lt. Governor's signature. On 27th October, 1999 the Lt. Governor , Delhi passed an order in these words - "I have gone through the records and requirements of the Delhi Development Authority and the draft notification prepared by LAC. I am fully satisfied that the land measuring 2673-07 Bigha in village Shahbad, Daulatpur, 2975-09 Bigha in village Pehladpur Banger, 1178-11 Bigha in village Khera Kalan, 345-02 Bigha in village Khera Khurd, 1223-06 Bigha in village Pansali, is urgently required for a valid purpose, namely for Rohini Residential Scheme under Planned Development of Delhi. In view of the urgency of the scheme, I order that notifications under Sections 4, 6 and 17(1) of the Land Acquisition Act, 1894 be issued immediately". The Notification in question inter alia states that - "The Lt. Governor, Delhi is satisfied also that provisions of sub-section (1) of 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". Accordingly, the following Notifications/Declarations were also issued from time to time: 1]. Notification u/s 4 No. F10(29)/96/LandB/LA/11394 dated 27.10.1999. Declaration u/s 6 No.F10(29)/96/LandB/LA/20 dated 3.4.2000. 2]. Notification u/s 4 and 17 No. F(II)(17)/91-LandB/LA/6518 dated 28.4.1995. Declaration u/s 6 No.F(II)(17)/91-LandB/LA/7085 dated 26.4.1996 3].Notification u/s 4 and 17 No.F19(29)/96-LandB/LA/UOI/III/14-7-2000. 4].Notification u/s 4 and 17No.F11(76)/2000/LandB/LA/dated 25-1-2002. Declaration u/s 6 dated 3-12-2002. All these Notifications/Declarations are sought to be quashed in these writ petitions.

(2.) The contention of the Petitioners is that the Lt. Governor had not specifically authorised invocation of Section 17(4) of the stridently Land Acquisition Act and that this is all the more significant since the draft of the Notification placed before him adverts to Section 17(4). According to the Petitioners, the only inference that can be drawn is that the Lt. Governor did not approve of dispensing with the Petitioners valuable rights to object to the acquisition. The further contention is that since the Petitioners have not been permitted to avail of their rights to file objections under Section 5A and have not been given an opportunity of being heard the entire acquisition should be struck down. It has also been argued on behalf of the Petitioners that even assuming that Section 17(4) need not in terms have to be mentioned by the Lt. Governor while granting his approval to the Scheme and that reference only to Section 17(1) would suffice, the Lt. Governor has not properly exercised his mind in approving the waiver and withdrawal of the Petitioners valuable right under Section 5A of the Act. In other words it is their stance that resort to the emergency provisions contained in Section 17 of the Act were unwarranted and unjustified in the facts of the present case. It will be relevant to record at the threshold that acquisition proceedings stand completed in respect of an overwhelming portion (stated by Mr. Poddar to be as much as 80 per cent) of the subject land, i.e. its possession has been taken over by the Government which has tendered compensation to the erstwhile owners.

(3.) The interplay between the various provisions of the Land Acquisition Act with which we are presently concerned have been dealt with in minute detail in a plethora of precedents. The following passage from Nandeshwar Prasad -vs- The State of U.P., [1964] 3 SCR 425 (followed one year later in Sarju Prasad Sinha -vs- The State of U.P., AIR 1965 SC 1763) perspicuously encapsulates the law on the subject, holding that the State Government ought not to have dispensed with adherence to Section 5A in the Notification under Section 4 of the Act: The proceedings for acquisition start with a preliminary notification under s. 4. By that notification the Government notifies that land in any locality is needed or is likely to be needed for any public purpose. On that notification certain consequences follow and authority is conferred on an officer either generally or specially by Government and on 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 so on. Then s. 5-A provides that any person interested in any land which has been notified in s. 4, may within thirty days of the issue of the notification object to the acquisition of the land or of any land in the locality as the case may be. Every such objection shall be made to the Collector in writing and the Collector has to give the objector an opportunity of being heard. After hearing all objections and after making further inquiry if any, as he thinks fit, the Collector has to submit the case for the decision of the Government together with the record of the proceedings held by him and the report containing his recommendations on the objections. The decision of the Government on the objections is final. Then comes the notification under s. 6, which provides that when the appropriate government is satisfied after considering the report, if any, made under s. 5-A that any particular land is needed for a public purpose, a declaration shall be made to that effect and published in the official gazette. After such a declaration has been made under s. 6, the Collector has to take order for acquisition of land. It is marked out, measured and planned under s. 8 if necessary and notice is given under s. 9 to persons interested. The Collector then holds inquiry under s. 11 and makes an award. After the award is made the Collector has got the power to take possession of the land under s. 16 and the land then vests absolutely in the Government free from all encumbrances. It will be clear from this scheme that compliance with the provisions of s. 5-A is necessary before a notification can be issued under s. 6. As soon as the preliminary notification is issued under s. 4, the officer authorised by Government may enter upon the land to survey it and to do all other necessary acts to ascertain whether the land is adapted for the purpose for which it is to be acquired, and this action, if taken, will give sufficient notice to those interested to object. If objections are made the Collector will consider those objections and make his recommendation thereon in his report to Government. If no objections are made the Collector will report that no objection has been made and the Government then proceeds to issue a notification under s. 6. In either case however, the Collector has got to make a report with his recommendations on the objections if they are filed or inform the Government that there are no objections filed in pursuance of the notification under s. 4 and it is thereafter that the Government is empowered under s. 6 to issue a notification. This, as we have said, is the usual procedure to be followed before the notification under s. 6 is issued. To this usual procedure there is however an exception under s. 17, and that is why in s. 6 we find the words "if any" in the clause "after considering the report, if any, made under s. 5A". When action is taken under s. 17(4), it is not necessary to follow the procedure in s. 5-A and a notification under s. 6 can be issued without a report from the Collector under s. 5-A. It will be seen that s. 17(1) gives power to the Government to direct the Collector, though no award has been made under s. 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken under s. 17(1), taking possession and vesting which are provided in s. 16 after the award under s. 11 are accelerated and can take place fifteen days after the publication of the notice under s. 9. Then comes s. 17(4) which provides that in case of any land to which the provisions of sub-s. (1) are applicable, the Government may direct that the provisions of s. 5-A shall not apply and if it does so direct, a declaration may be made under s. 6 in respect of the land at any time after the publication of the notification under s. 4(1). It will be seen that it is not necessary even where the Government makes a direction under s. 17(1) that it should also make a direction under s. 17(4). If the Government makes a direction only under s. 17(1) the procedure under s. 5-A would still have to be followed before a notification under s. 6 is issued, though after that procedure has been followed and a notification under s. 6 is issued the Collector gets the power to take possession of the land after the notice under s. 9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all encumbrances. It is only when the Government also makes a declaration under s. 17(4) that it becomes unnecessary to take action under s. 5-A and make a report thereunder. It may be that generally where an order is made under s. 17(1), an order under s. 17(4) is also passed; but in law it is not necessary that this should be so.