TMI Blog2012 (1) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 bighas 15 biswas including 21 bighas 3 biswas belonging to the appellants for a public purpose, namely, establishment of electric sub-station by Delhi Transco Limited (for short, `DTL') at village Mandoli and whether the Division Bench of the Delhi High Court had rightly negatived the appellants' challenge to the acquisition of their land. 2. For deciding the aforesaid questions, it will be useful to notice the events which led to the issue of notification dated 13.10.2009 under Section 4(1) read with Section 17(1) and (4) of the Act and declaration dated 9.11.2009 under Section 6(1) of the Act. 2.1 It is not clear from the pleadings of the parties and the record produced before the High Court and this Court as to when the decision was taken to establish 400/220 KV sub-station at East of Loni Road but this much is evident that by a communication sent in August, 2004, the DTL requested the Delhi Development Authority (for short, `the DDA') for allotment of land. For the next about 10 months nothing appears to have happened. Between June and October, 2005 different functionaries of DTL made some correspondence inter- se in the matter of establishment of the sub-station. On 5/6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Section 17, i.e., for the public utility. Earlier it was proposed to construct an outdoor 400/200 KV Grid Station but keeping in view the paucity and availability of land DTL has now proposed to establish a GIS indoor type sub-station which could be accommodated in a space of about 200 x 125 meters. It shall be appreciated if appropriate directions are issued to the concerned officers for doing the needful expeditiously. (underlining is ours) 2.3 After about one month, Joint Secretary (Power) sent communication dated 9.9.2008 to the Principal Secretary, Land and Building Department with the request that action may be initiated for the acquisition of the identified piece of land by invoking Section 17 of the Act. The relevant portions of that letter are extracted below: Hon'ble Prime Minister of India has laid the foundation for 1500 KV gas based power plant at Bawana on 24.03.2008 being constructed by Pragati Power Corporation Limited, a company owned by Govt, of NCT of Delhi in order to evacuate and utilize the generation from this plant for the benefit of Delhi, a study was conducted by Central Electricity Authority which has recommended the establishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitiation of the acquisition proceedings. 2.6 In September, 2009, the Land and Building Department of the Government of NCT of Delhi prepared proposal for the acquisition of land measuring 200 x 125 sq. mts. by invoking Sections 4 and 6 read with Section 17(1) and (4) of the Act. This is evident from the notings recorded in paragraphs 56 to 61 and 63 to 65 of file bearing No. F.S(11)/08/L B/LA, which are extracted below: 56. A requisition was received from Joint Secretary (Power) Department of Power for acquisition of land measuring 200 x 125 Sq. m. identified in East Delhi for construction of 400 x 200 KV grid station (Village Mandoli) vide their letter No. F.11(88)/2008/Power/2186 dated 09.09.2009 (P-6/C). Accordingly, the ADM/LAC (NE) was requested for draft notifications and other revenue records vide letter dated 30.09.2008 (P-7/C). 57. The ADM/LC (NE) vide his letter dated 31.01.2009 (P- 28/C) forwarded draft notification u/s 4 6 (P-26 27/C) for acquisition of land measuring 80 Bigha 15 Biswa. Copy of Joint Survey Report (P-23/C), copy of Field Book (P-20/C), copy of Asks Sizra (P-19/C) and Calculation Sheet for estimated compensation amount (P-25/C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Pragati Power Corporation Limited, a company owned by Govt., of NCT of Delhi. It has been also mentioned in the proposal that to evacuate and utilize the generation from this plant for the benefit of Delhi, a study was conducted by Central Electricity Authority which has recommended the establishment of a 220 KV sub-station in East Delhi for evacuation of power. The Power Department has requested that the acquisition of the above said land may be proceeded with under the emergency provisions of the Land Acquisition Act because 1500 MW power at Bawana is scheduled to be commissioned before the Commonwealth Games, 2010. 64. The Land Acquisition Collector (N/E) has prepared a draft notification under section 4 6 (page 26 27/C) after conduction the Joint survey report along with concerned department and copy of the same is available at page 23/C along with relevant records. As per the joint survey available at page 22/C and 23/C it appears that entire land is laying vacant except to Bhattas (Brick Kiln) and boundary walls in 3 Khasras. The DDA has also provided no objection for acquisition subject to certain conditions as mentioned in letter dated 07-09-09, which is avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants filed Writ Petition No. 13376 of 2009 for quashing of notifications dated 13.10.2009 and 9.11.2009. The main plank of their challenge was that there was no urgency for the acquisition of land which could justify invoking of Section 17(1) and (4) of the Act. They pleaded that more than 4 years time spent in the correspondence exchanged between the DTL, the State Government and the DDA clearly shows that there was no urgency in the establishment of the sub-station and the cause put forward by the DTL in 2008-2009, namely, the requirement of power for Commonwealth Games did not warrant invoking of Section 17(1) and (4) which resulted in depriving them of their property without being heard. The appellants further pleaded that the Lieutenant Governor had not applied mind on the issue of urgency and approved the proposal prepared by the Land and Building Department, Government of NCT of Delhi without satisfying himself that there was emergent need for the acquisition of land for the purpose for which the proposal had been initiated prior to August, 2004. The appellants also claimed that other parcels of land including waste land belonging to the public authorities and the Gaon S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de to the decision taken by the Government to construct 1500 MW Pragati III Power Plant at Bawana IPGCL; 2 x 490 MW Thermal Power Stations at Dadri and 1500 MW Thermal Station at Jhajjar and also to establish grid sub- stations for evacuation of power from different plants. According to the DTL, as per the Master Plan of Delhi-2021, the minimum land required for establishment of a conventional outdoor 400/220/66 KV sub-station is 60 acres but because of scarcity of land, it was decided to establish an indoor GIS sub-station and for that purpose 80 bighas land was required. It was also the pleaded case of the DTL that the appellants' land was identified after inspections carried out by the officers of the DDA, Land and Building Department, Land Acquisition Collector, Government of NCT of Delhi and its own officers. In paragraphs 13, 14 and 15 of the counter affidavit of the DTL, the following averments were made: 13. That proposed 400KV sub-station cannot be established in the 30 bighas of Gram Sabha land. The said Gram Sabha land does not fulfill the complete purpose of the answering respondent because 80 bighas are required for the establishment of the proposed sub- station. Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residents of this city. This is an urgent need keeping in view the wide gap between the demand and supply. No doubt, the plans were to commission it before Common Wealth Games. That has not happened also because of the reason that stay was granted in these proceedings. Be as it may, it cannot be argued that merely because Common Wealth Games are over, the respondent authorities can now set up the sub-station leisurely. These are the aspects which are to be gone into by the Competent Authority while exercising powers under Section 17 (4) of the Act. Once it is seen that all relevant factors were taken into consideration and the Competent Authority was not influenced by any irrelevant consideration or the power exercised was not the result of malafide, the subjective satisfaction of the Competent Authority, based on those objective considerations namely the purpose of invocation of urgency clause to acquire continued to exist the Court would be loa the to interfere with such discretion exercised by the Competent Authority dispensing with the enquiry under Section 5A of the Act. 8. The Division Bench of the High Court then referred to the judgments of this Court in First Land Acqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants of the right to be heard before being deprived of their property, Shri P.P. Malhotra, learned Additional Solicitor General argued that the time consumed in the exchange of correspondence between the functionaries of the Government, the DTL and the DDA cannot be made a ground for nullifying the exercise of the State's power of eminent domain. In support of his argument, Shri Malhotra relied upon the judgments of Deepak Pahwa v. Lt. Governor of Delhi (1984) 4 SCC 308 and Chameli Singh v. State of U.P. (1996) 2 SCC 549. Shri Waziri, learned counsel for the DTL, supplemented the argument of learned Additional Solicitor General and submitted that the Court may not quash the acquisition of the appellants' land because the work for establishing the sub-station has been completed to a large extent. Learned counsel submitted that the appellants' land cannot be left out because the same is needed for construction of project road. Shri Waziri also submitted that the sub-station is required for evacuation of power which will be made available from the Dadri Power Plant and no other suitable land was available for the sub-station. 10. We have considered the respective arguments/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... desirable to lay down any straight jacket formula which can be applied to each and every case involving challenge to the acquisition of land by invoking the urgency provision, it will be profitable to notice two recent judgments in which several judicial precedents including some of the judgments referred to in the impugned order have been considered and some concrete propositions have been laid down which could supply guidance for deciding such matters. In Anand Singh v. State of U.P. (supra), this Court considered the question whether the State Government could invoke Section 17(4) for the acquisition of land for a residential colony to be constructed by Gorakhpur Development Authority, Gorakhpur. After noticing factual matrix of the case and about 16 judgments, the Court held: 43. The exceptional and extraordinary power of doing away with an enquiry under Section 5-A in a case where possession of the land is required urgently or in an unforeseen emergency is provided in Section 17 of the Act. Such power is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The guideline is inbuilt in Section 17 itself for exercise of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpleted expeditiously. 47. The special provision has been made in Section 17 to eliminate enquiry under Section 5-A in deserving and cases of real urgency. The Government has to apply its mind on the aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5-A. We have already noticed a few decisions of this Court. There is a conflict of view in the two decisions of this Court viz. Narayan Govind Gavate and Pista Devi. In Om Prakash this Court held that the decision in Pista Devi must be confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate. We agree. 48. As regards the issue whether pre-notification and post- notification delay would render the invocation of urgency power void, again the case law is not consistent. The view of this Court has differed on this aspect due to different fact situation prevailing in those cases. In our opinion such delay will have material bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the appropriate Government befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 real urgency, can the State invoke the urgency provisions and dispense with the requirement of hearing the landowner 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 a few weeks or months. Therefore, before excluding the application of Section 5-A, the authority concerned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gree 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. 15. In the light of the above, it is to be seen whether there was any justification for invoking the urgency provisions contained in Section 17 (1) and (4) of the Act for the acquisition of the appellants' land. The Division 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that `natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances'. The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise. (emphasis supplied) 18. In Mohinder Singh Gill v. Chief Election Commr.(1978) 1 SCC 405, Krishna Iyer, J. speaking for himself, Beg, C.J. and Bhagwati, J. observed as under: 43. Indeed, natural justice is a pervasive facet of secular law where a sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which empowers the Central Government to authorise taking over of the management of industrial undertaking. Sarkaria, J. speaking for himself and Desai, J. referred to the development of law relating to applicability of the rule of audi alteram partem to administrative actions, noticed the judgments in Ridge v. Baldwin (1964) AC 40, A.K. Kraipak v. Union of India (1969) 2 SCC 262, Mohinder Singh Gill v. Chief Election Commr. (supra), Maneka Gandhi v. Union of India (supra) and State of Orissa v. Dr. Binapani Dei (1967) 2 SCR 625 and quashed the order passed by the Central Government for taking over the management of the industrial undertaking of the appellant on the ground that opportunity of hearing has not been given to the owner of the undertaking and remanded the matter for fresh consideration and compliance with the rule of audi alteram partem. 20. In Munshi Singh v. Union of India (1973) 2 SCC 337, the three-Judge Bench of this Court emphasised the importance of Section 5-A in the following words: 7. ... Sub-section (2) of Section 5-A makes it obligatory on the Collector to give an objector an opportunity of being heard. After hearing all objections and maki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Singh (supra): it is 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 admin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alhotra, 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 court observed: The other ground of attack is that if regard is had to the considerable length of time spent on inter-departmental discussion before the notification u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph 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 14/17.03.1969 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 following observations: The allegations 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition 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 concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round 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. 28. In the result, the appeal is allowed and the impugned order is set aside. As a corollary, the writ petition filed by the appellants is allowed and the acquisition of their land is quashed. However, it is made clear that this judgment shall not preclude the competent authority from issuing fresh notification under Section 4(1) and taking other steps necessary for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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