Chattisgarh High Court
Kamal Chand Jain vs State Of Chhattisgarh And Ors on 30 April, 2026
Digitally signed
by ASHISH
ASHISH TIWARI
TIWARI Date:
2026.04.30
21:20:07 +0530
1
Judgment reserved on 09.01.2026
Judgment pronounced on 30 .04.2026
Judgment uploaded on 30 .04.2026
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 402 of 2014
Kamal Chand Jain S/o Shri Manik Chand Jain, aged about 57 years R/o
5, South Avenue, Choubey Colony, Raipur, CG, Chhattisgarh
... Petitioner
versus
1. State Of Chhattisgarh Through The Secretary, Department of
Urban Development, Mantralaya, Mahanadi Bhawan, Naya Raipur,
Chhattisgarh
2. Commissioner, Raipur Division and Secretary, Department of
Revenue, Government of Chhattisgarh Mantralaya, Mahanadi Bhawan,
Naya Raipur, Chhattisgarh
3. Collector (Revenue) Raipur, District : Raipur, Chhattisgarh
4. Sub Divisional Officer-Cum-Land Acquisition Officer, Arang-
Abhanpur, Head Quarter District Office, District : Raipur, Chhattisgarh
5. Naya Raipur Development Authority, Rajdhani Parisar, Sector-19,
Naya Raipur, through Its Chief Executive Officer, Naya Raipur,
Chhattisgarh
... Respondents
For Petitioners : Shri Ashish Shrivastava Sr. Advocate, Shri
Udit Khatri, Shri Rohishek Verma, Shri Rahul
Ambast, Ms. Shotabdi Bagchi, Shri Ashutosh
Shrivastava and Shri Ishaan Singh Rathore,
Advocates
For Respondents/State : Ms. Shailja Shukla, Dy. GA
For R-5 Shri Pravin Das, Advocate
2
(Hon’ble Shri Justice Sachin Singh Rajput)
C A V Order
First the petitioner had filed the Writ Petition on 19.02.2014
challenging the letter/order dated 13.12.2013 (Annexure P-1) rejecting
his representation and refusing to release his land from the acquisition
proceedings, for quashing/setting aside the entire land acquisition
proceedings initiated in pursuance of notification dated 09.08.2011
(Annexure P-2), as also to quash the notification dated 14.08.2012
(Annexure P-3). Subsequently, by filing amended petition on 14.12.2023
under the order of this Court dated 06.12.2023, the petitioner also
challenged the award dated 25.11.2013 and 03.07.2014 (Annexures P-
12 and P-13 respectively).
2. By this amended petition under Article 226 of the Constitution of
India, the petitioner seeks the following reliefs:-
“10.1 It is prayed that this Hon’ble Court may kindly be pleased
to call for the entire records pertaining to issuance of impugned
order of transfer of the petitioner for its kind perusal.
10.2 That, this Hon’ble Court may kindly be pleased to issue an
appropriate writ quashing and setting aside the impugned letter
dated 13.12.2013 (Annexure P/1) rejecting the representation of
the petitioner and further refusing to release the land of the
petitioner from the land acquisition proceedings for NRDA
projects in so far as petitioner’s land bearing Khasra No.105 &
388 area admeasuring 1.12 & 1.42 hectares, PH 74/13, situated
at Village Chhatauna, in Raipur District is concerned, by
declaring the same to be illegal and inoperative in law.
10.3 That, this Hon’ble Court may kindly be pleased to issue an
appropriate writ quashing and setting aside the entire land
acquisition proceedings pursuant to issuance of impugned
Notification dated 09.08.2011 (Annexure P/2) and Notification
dated 14-08-2012 (Annexure P/3) in so far as petitioner’s land
bearing Khasra No.105, 388 area admeasuring 1.12 & 1.42
hectares, PH 74/13, situated at Village Chhatauna, in Raipur
District is concerned, by declaring the same to be illegal and
inoperative in law.
10.4 That, this Hon’ble Court may kindly be pleased to issue an
appropriate writ commanding the respondents not to acquire the
land of the petitioner’s bearing Khasra No. 105 & 388 area
admeasuring 1.12 & 1.42 hectares, PH 74/13 situated at Village
3Chhatauna, in Raipur District for the purpose of NRDA projects
and refraining and forbearing them from interfering with peaceful
cultivation of the land in question.
10.5 Any other relief/reliefs, which this Hon’ble Court may think fit
and proper in the facts and circumstances of the case, with cost
of the petition, may also please be granted to the petitioner.
10.6 This Hon’ble Court may kindly be pleased to issue
appropriate writ quashing and setting aside the impugned
awards dated 25.11.2013 (Annexure P/12) and 03/07/2014
(Annexure P/13) issued by the respondent No.4 being arbitrary,
illegal and inoperative in law”.
3. The facts involved in the case are culled out in brevity as
hereunder:-
3.1 That the petitioner herein is the owner, title-holder and in cultivating
possession of the land bearing Khasra No. 105 area 1.12 Hectare and
Khasra No.388 area 1.42 Hectare situated at P.H.No.73/14, Revenue
Circle Mandir Hasaud, Tahsil Arang, District Raipur (Chhattisgarh). The
petitioner has been in peaceful cultivating possession of the said land for
last more than 20 years. Moreover, plantation over the said land was
being carried out for last more than 15 years and by now many of the
trees have grown up to more than fifteen feet of height.
3.2 That, respondent No.5, Naya Raipur Development Authority (for
short “NRDA”) issued letter dated 14.03.2011 to Respondent Nos. 3 and
4 for acquiring various lands including the land of the petitioner
particularized above in order to develop various projects in and around
the Capital city Raipur, under the provisions of Section 4 (1) read with
section 17 (1) of the Land Acquisition Act, 1894 (for short the “Act of
1894”) invoking the urgency clause to avoid issuance of notice and giving
opportunity of hearing to the landowners u/s 5A of the Act of 1894.
3.3 That the Collector sent its proposal dated 29.07.2011 to the
Commissioner/Designated Secretary, Department of Revenue,
Government of Chhattisgarh, Raipur for necessary approval/permission,
which has been duly granted vide order dated 30.07.2011 (Annexure P-
6). Notification dated 09.08.2011 invoking the urgency clause was issued
and published in Chhattisgarh Rajpatra on 26.08 2011 for acquisition of
land under the provisions of Section 4 (1) read with Section 17 (1) of the
4
Act of 1894 followed by issuance of declaration under Section 6 of the
Act of 1894 vide notification dated 14.08.2012 (Annexure P-3) which was
published in Chhattisgarh Rajpatra on 24.08.2012 requiring the aforesaid
land of the petitioner to be acquired for public purpose.
3.4 That, having received the said documents, the petitioner made a
representation to the Chief Executive Officer, NRDA, Raipur on
29.11.2012 (Annexure P-7) not to make acquisition of his land referred to
above as it was not suitable for the project sought to be undertaken.
Further stand of the petitioner is that if acquisition of the said land was
that much essential, he would provide some other piece of land in the
same area. Since the petitioner did not receive any communication from
the NRDA, he made another representation dated 20.11.2013 (Annexure
P-8) stating that the aforesaid land sought to be acquired by NRDA may
be allowed to remain as it is for the reason that such acquisition would be
in violation of the development rules and regulation of NRDA itself.
3.5 That when the representations submitted by the petitioner did not
fetch any response from the aforesaid authorities, he applied for supply
of certain documents with respect to the entire land acquisition
proceedings to Respondent No.4 on 08.01.2014 (Annexure P-9) under
the Right to Information Act, 2005 (hereinafter referred to as “RTI Act,
2005“). However, in a most arbitrary and illegal manner, respondent No.
4 has denied such information vide memo dated 15/16.01.2014
(Annexure P-10) on the ground that the entire land acquisition
proceedings had already been referred to the Divisional Commissioner
(the respondent No.2) for approval of award. Petitioner made yet another
representation to the concerned authorities on 22.01.2014 (Annexure P-
11) reiterating his request for cancelling/excluding his land from the
acquisition proceedings, however, the same did not evoke any response.
Hence this petition.
4. Learned Senior counsel for the petitioner makes the following
submissions in support of his case:-
4.1 The impugned letter dated 13.12.2013 issued by respondent
No.5/NRDA rejecting the representation of the petitioner and further his
request for releasing the aforesaid land from the acquisition proceedings
5initiated by the State Government and its officers pursuant to the
impugned Notification dated 09-08-2011 and dated 14-08-2012 is not
only bad, illegal and arbitrary in nature but in serious violation of
principles of natural justice, Section 5A and Section 17 of the Act of 1894.
4.2 As per the requirement of Section 17 of the Act of 1894, in case of
urgency, whenever the appropriate Government so desires, the Collector
may on the expiration of fifteen days from the publication of the notice
mentioned in Section 9 (1) take possession of any land needed for public
purpose. However, as regards the case in hand he submits that
respondent No.5/ NRDA at the first instance on its own has proposed for
invoking urgency clause without there being any instructions/direction by
the appropriate Government in this regard to the concerned Collector,
and therefore the entire land acquisition proceedings excluding
application of Section 5A of the Act of 1894 and invoking the urgency
clause under Section 17 of the Act of 1894 is tainted with colourable
exercise of power with mala fide intention and oblique motive.
4.3 This apart, it is submitted that the notifications dated 09.08.2011 and
14.08.2012 are in gross violation of Articles 14, 19 and 300A of the
Constitution of India inasmuch as the fact that the petitioner has been
denied the opportunity of hearing in the land acquisition proceedings as
no notice of hearing was served on the petitioner before initiation of such
land acquisition proceedings in respect of petitioner’s land i.e. bearing
Khasra No.105, area 1.12 Hectare and Khasra No.388 area 1.42 Hectare
P.H. No.73/14 situated at village Chhatauna district Raipur though the
petitioner had been in peaceful cultivating possession thereof.
4.4 It is submitted that the provision of Section 17 of the Act of 1894
has been invoked by the respondents to acquire the land of the petitioner
ignoring the fact that he is in peaceful cultivating possession of the same
for last more than 20 years and has developed a farm house thereon by
growing plants including the fruit trees, and in these circumstances the
acquisition of the land in question to be carried out by the respondent
No.5/NRDA would adversely affect the constitutional rights of the
petitioner.
4.5 It is submitted that the action of respondent No.5/NRDA apart from
being in serious violation of section 5A and 17 of the Act of 1894 and
6Articles 14, 19 and 300A of the Constitution of India, is also against the
spirit of the judicial pronouncement of the Supreme Court in the matter of
Bharat Sevak Samaj Vs. Lt. Governor, reported in (2012) 12 SCC 675
as the State Government and its officers have completely failed to lead
any evidence to establish that the task of development of New Rajdhani
at Naya Raipur under NRDA project was being executed on emergency
basis and that for the said public purpose an opportunity of hearing was
given to the petitioner.
4.6 It is submitted that the respondents/State as well as the
respondent No.5/NRDA have fallen in serious legal error in invoking
urgency clause contained in Section 17 (1) and thereby dispensing with
compliance of Section 5A of the Act of 1894. According to the Sr. counsel
for the petitioner, the action of the respondents/State and also the
NRDA/respondent No. 5 in mechanically invoking the urgency clause
enshrined in Section 17 (1) of the Act of 1894 without realizing the fact
that such action would result in deprivation of petitioner of his own land,
was fraught with grave consequences adversely impinging upon
constitutional protection envisaged under Article 300A of the Constitution
of India.
4.7 It is submitted that the development of NRDA project was not so
urgent that respondent No.5/NRDA could not have waited for a few more
months for complying with the requirement of Section 5A of the Act of
1894. He submits that it is well settled principle of law laid down by the
Supreme Court of India in the matter of Lakshmanlal Vs. State of
Rajasthan, reported in (2013) 3 SCC 764 that unless circumstances
warrant immediate possession, there cannot be any justification in
dispensing with an enquiry under Section 5A and further that the
elimination of enquiry under Section 5A must only be in deserving and in
cases of real urgency. The action of the respondent No.5/NRDA is also
argued to be in violation of the decision of the Supreme Court in the
matter of Ram Dhari Jindal Memorial Trust Vs. Union of India,
reported in (2012) 1 SCC 370 where it has been held that in the cases
involving invocation of urgency clause, it has first to form an opinion that
the land for public purpose was urgently needed, and that urgency was
7such that it necessitated dispensation of enquiry under Section 5A of the
Act of 1894.
4.8 According to Sr. counsel for the petitioner, invocation of urgency
power for public purpose like planned development of city or
development of residential scheme is prima facie unsustainable in the
eye of law. According to him, invocation of urgency power for public
purpose as residential scheme cannot be invoked as a rule but has to be
by way of exception, and that the burden lies on Government to prove
that use of urgency power was justified, and dispensation of enquiry was
an inevitable requirement. It is submitted that mere mention of
phraseology “urgency clause” by the respondents in this case in the
notification would not suffice. It is submitted that the notification under
Section 4 as well as Section 17 of the Act of 1894 invoking urgency
clause with regard to land acquisition proceedings for NRDA projects was
issued on 09.08.2011 but even after sufficient long period having rolled
by, the land acquisition proceedings have not been completed. Meaning
thereby, the issuance of notice under Section 4 and exercise of special
power for invoking urgency clause under Section 17 was in colourable
exercise of the power tainted with oblique motives and mala fide
intention. It is submitted that in fact, there was no urgency for the
respondents/State as well as respondent No.5 NRDA for dispensing with
providing an opportunity of hearing and making an enquiry with regard to
objection under Section 5A of the Act of 1894, therefore, the State
Government as well as the respondent No.5 have miserably failed to
show that power of urgency and dispensation of enquiry was a valid
exercise.
4.9 Relying upon the decision of the Supreme Court in the matter of
Darshan Lal Nagpal Vs. Government NCT of Delhi reported in (2012)
2 SCC 327 counsel for the petitioner submits that long time gap with
regard to proposal for acquisition of land and further issuing notification
and establishment of project is unsustainable in the eye of law with
regard to invocation of urgency clause under Section 17 and dispensing
with enquiry under Section 5A of the Act of 1894. He submits that the
respondents have also failed to show any tangible reason for invocation
8of urgency clause under Section 17 and dispensing with enquiry under
Section 5A of the Act of 1894.
4.10 It is further submitted that as per New Raipur Development Plan
2031 published by respondent No.5/NRDA under its 18th Chapter which
deals with “Development Code” and its sub-head 18.9 “Urban Design
Control”, Notes Point Serial No.2, which states that “Already sanctioned
Building Plans and/or layout Plans in NRDA planning area by the
competent authority as per law shall be allowed to remain, and that
further development would be within the framework of the given
development code”. Thus, since the aforesaid urban design control is
applicable to the petitioner’s land as it is being in NRDA planning area
and satisfies the condition parameters, as stated above, and since the
said land has been sanctioned by the competent authority as per the law,
therefore, deserves to be allowed by NRDA to remain as it is and further
to be excluded from NRDA project acquisition plan.
4.11 Sr. counsel for the petitioner submits that impugned award dated
25.11.2013 and 03.07.2014 passed by the SDO-cum-Land Acquisition
Officer is further not only illegal and arbitrary in nature but in serious
violation of the provisions of Section 24 of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation And
Resettlement Act, 2013 (for short the “Act of 2013”) but also in violation
of the law laid down by the Five Judges Bench of Hon’ble Supreme Court
in the matter of Indore Development Authority Vs. Manoharlal and
Ors., reported in (2020) 8 SCC 129, and as such, deserves to be
quashed.
4.12 It is further submitted that consequential awards passed by the
SDO-cum-Land Acquisition Officer is impermissible in law as two awards
were passed for the same land acquisition proceedings. It is submitted
that the Respondent No.5/NRDA brought on record the award dated
25.11.2013 along with its reply which was passed under the old Act. It is
submitted that the petitioner herein had obtained certified copy of the
award dated 03.07.2014. It is submitted that both the awards are passed
for the same land and same proceedings and the latter one being dated
03.07.2014 does not even mention about the former award passed in
the same proceedings.
9
4.13 It is submitted by the Sr. counsel for the petitioner that the
authorities have acted with mala fide intention as two awards were
passed for the same land acquisition proceedings and interestingly
award passed on 03.07.2014 under the new act does not even mention
about the earlier award dated 25.11.2013 passed under the old Act.
4.14 It is submitted that no compensation has been paid nor the
possession of the acquired land has been taken by the respondents.
4.15 It is submitted that the initial notification under Section 4(1) read
with Section 17(1) of the Act of 1894 was issued on 09.08.2011 whereas
the declaration under Section 6 of the Act of 1894 was issued on
14.08.2012 i.e. after expiry of the period of more than one year, which
shows that there was no urgency for acquisition of the land mentioned
above.
4.16 In support of the arguments advanced, learned Sr. counsel for the
petitioner placed reliance on the decisions of the Supreme Court in the
matter of Noida Industrial Development Authority v. Ravindra Kumar
and others reported in (2022) 13 SCC 468, in the matter of Darshan Lal
Nagpal (supra), in the matter of Ram Dhari Jindal Memorial Trust
(supra), in the matter of Garg Woolen Pvt. Ltd. vs State of U.P. rep
orted in (2012) 11 SCC 784, in the matter of Bharat Sevak Samaj
(supra), in the matter of Radhe Shyam (Dead) through Lrs and others
v. State of UP and others reported in (2011) 5 SCC 553, in the matter of
Om Prakash v. State of UP reported in (1998) 6 SCC 1, in the matter of
State of UP v. Rajeev Gupta reported in (1994) 5 SCC 686, in the
matter of Indore Development Authority (supra), in the matter of
Aligarh Development Authority v. Megh Singh and others reported in
(2016) 12 SCC 504, in the matter of Vijay Lakra and another v. State
of Haryana reported in (2016) 12 SCC 487 and in the matter of
Lakshmanlal (supra).
5. On the other hand, learned counsel appearing for the
respondents/State makes the following submissions:-
5.1 The submissions made by the petitioner are without any sum and
substance and the petition is liable to be dismissed. It is submitted that
for the purpose of establishment of New Capital City of the State of
Chhattisgarh, various lands including that of the petitioner have been
10
acquired. State counsel submits that the land in question in the present
petition falls within the Layer I of the Project and that is why it was
desirable that the project has to be completed on an emergent basis
therefore the urgency clause was invoked and notification for doing the
needful was issued. It is further submitted that the Naya Raipur
Development Plan 2031 is a Development Plan only and such scheme
has been formulated for the purpose of development of the area. It is
submitted by the State counsel that though the sub-head 18.9 of Urban
Design & Control of New Raipur Development Plan 2031 provides that
“Serial No. 2 already sanctioned building plans and/or layout plans in
NRDA Planning Area by the competent authority as per the law shall be
allowed to remain”, this provision is applicable only in a case when the
building, plan or the layout plan has been approved by the competent
authority. However, In the present case it is the stand of the petitioner
himself that on the subject land there is no building rather he has raised a
Farm House and plantation over the subject land. It is submitted that the
petitioner has not filed any document to show that any building plan or
layout was approved by the competent authority, and therefore, the
rejection of the application of the petitioner made to respondent no. 5
was justified. State counsel further submits that petition is not
maintainable in view of the fact that the award in the case has already
been passed on 25.11.2013 whereas the instant petition has been filed
on 18.02.2014 i.e. after passing of the award and the petitioner has not
explained the delay in filing the petition. It is thus submitted that in view
of the fact that the award has already been passed and there is an
inordinate delay to challenge the Land Acquisition Proceedings, the
petition is liable to be dismissed.
5.2. In the return filed by the State, it has been vehemently denied that
while conducting the land acquisition proceedings the answering
respondents had taken any arbitrary or illegal decision. On the contrary,
the proceedings have been initiated as per legal parameters and that the
invocation of the Urgency Clause was made due to the fact that the land
was to be acquired for the purpose of establishment of New Raipur/the
Capital City and that the subject land has fallen within the Layer-1.
5.3 It is submitted that the land in question was acquired by the
answering respondents for the purpose of establishment of Capital City
11
(New Raipur) and as the land in question and other lands which were
notified fell within the Layer 1 and it was found that the acquisition of
these lands was emergent, concurrence was recorded by the appropriate
government to invoke the Urgency Clause, and thereafter the Notification
U/s 4(1) of the Act of 1894 was issued.
5.4 It is submitted that surrender of some land by the petitioner to the
NRDA/respondent No.5 does not give him a right of claiming exclusion of
his land from the Project as the said surrender was made under the
Scheme of NRDA after receiving appropriate compensation.
5.5 It is submitted that under the Naya Raipur Development Plan 2031,
Chapter 18, sub-head 18.9 which deals with Urban Design & Control,
certain notes are appended. Note no. 2 is reproduced as under:-
“2. Already sanctioned building plans and/or layout plans in
the NRDA Planning Area by the competent authority as per
law shall be allowed to remain. Further development would
be within the frame work of the given development code”
It is thus submitted that the aforesaid note itself provides that the
sanctioned building plans or the layouts approved by the competent
authority can be allowed to remain as per law but in this case the
petitioner has not filed even a single document to show that he was
having any sanctioned building plans or layout from any competent
authority. On the contrary, he himself had made an averment that on the
subject land he had developed a Farm House and heavy plantation,
which is not a sanctioned building plan or layout. Thus the so-called
exemption as prayed by the petitioner harping on sub-head 18.9 of Naya
Raipur Development Plan 2031 is not available to him.
5.6 It is submitted that the award in this case was already passed on
25.11.2013 and that the petitioner had received an information from
respondent No. 4 to the effect that the entire proceedings have been
referred to the Divisional Commissioner, which itself shows that the
petitioner was having the knowledge that the award in the instant case
was already passed.
5.7 It is further submitted that the respondent No. 5 has already
deposited the compensation amount and after that the answering
respondents are proceeding with taking possession of the land. It is
12
further submitted that once the acquisition proceedings are initiated, the
land cannot be released or excluded from the acquisition proceedings.
5.8 It is submitted that the appropriate government after going through
the entire records gave its concurrence for invoking the Urgency Clause,
and therefore the action of the answering respondent is not arbitrary in
nature. It is further submitted that since Urgency Clause is invoked, the
submission of the petitioner that right of a citizen guaranteed under
Articles 14, 19 and 300A of the Constitution of India is violated, is wholly
misconceived. It is submitted that whenever a development is made,
certain difficulties may arise to some persons but only on the basis of
hardship to one person the Society at large cannot be placed at a
disadvantageous position.
5.9 It is submitted that rejection of the representation of the petitioner
as made to the respondent No. 5 is wholly justified as he did not make
out any specific reason for exclusion of his land. However, the State
counsel submits that once a decision is taken for acquisition of certain
land and the same is notified U/s 4 (1) of the Act of 1894, the subject land
cannot be excluded from the acquisition proceedings. It is further
submitted that as the subject land falls within the Layer-1 of the Project,
urgency clause was invoked and as such the action of the answering
respondents cannot be termed as unjustified. It is further submitted that
as per Layer-I the Project was to be constructed within a stipulated
period, it led to the invocation of Section 17 (1) of the Act of 1894. It is
reiterated by the State counsel that as the appropriate government had
formed its opinion that the land was urgently required to be acquired, it
necessitated the dispensation of the enquiry U/s 5(A) of the Act of 1894.
State counsel therefore submits that the submission of the Sr. counsel
that the action of the respondents is in colourable exercise of power and
driven by oblique motive, is without any substance and liable to be
brushed aside, with dismissal of the petition.
5.10 As regards contention of the petitioner with respect to passing of
two awards, it is submitted by the counsel for the respondents/State that
after the award being passed on 25.11.2013 it was sent for approval to
the Commissioner and as the approval could not be granted and in the
meanwhile the Act of 2013 came into force which necessitated passing of
13
the subsequent award dated 03.07.2014 recalculating the compensation,
and being all this there is no illegality in the two awards being passed.
5.11 Further, as regards the possession aspect of the matter, it is
submitted on behalf of the respondents/State that after passing of the
award, the possession of the subject land has been handed over to
respondent No.5 on 16.06.2015 vide document of Annexure R-2. It is
further submitted by the State counsel that since the condition prescribed
under Section 24 of the Act of 2013 has been fully taken care of, the
acquisition proceedings cannot be said to have lapsed.
5.12 In support of her submissions, reliance is placed on the decision of
the Supreme Court in the matter of Kali Charan and others v. State of
UP and others reported in 2024 SCC Online SC 3472 and in the matter
of Indore Development Authority Vs. Manoharlal and Ors. reported in
(2020) 8 SCC 129.
6. While adopting the submission of the State Counsel,learned
counsel for respondent No.5/NRDA makes the following submissions:-
6.1 That the land bearing Khasra No. 105 and 388 area 1.12 and 1.42
hectares respectively situated at village Chhatauna were required to be
acquired under the NRDA Project in Layer-1 Scheme, which however the
petitioner wanted to have excluded from the acquisition proceedings for
the reasons not tenable looking to the public purpose involved in such
acquisition. It is submitted that vide the impugned order the respondent
No. 5/NRDA has informed the petitioner that the land bearing Khasra No.
105 is to be allotted to one Mahanadi Educational Society on certain
terms and conditions, process for which had also begun by the
appropriate Government. It is further submitted that as the public purpose
of ensuring better education facilities is involved behind acquisition of the
aforesaid lands including that of the petitioner, the request of the
petitioner for setting-aside the entire acquisition proceedings is not
justifiable as the plea taken by the petitioner is not supported by any
substantive material. It is submitted that the award was already passed
on 25.11.2013, notification under Act of 1894 has been made,
proceedings have been finalized and pursuant to invocation of urgency
clause the process of taking the possession of the land acquired was
14underway, and being all this, the instant petition is rendered without any
substance and thus liable for dismissal.
6.2 It is submitted by the counsel for respondent No.5/NRDA that as
the lands referred to above including that of the petitioner were required
for being acquired urgently looking to the purpose involved, the
proceedings were initiated in accordance with the provisions of Section
17 of the Act of 1894.
6.3 That the land acquisition proceedings were carried out on behalf of
the answering respondent for Naya Raipur Development Projects and
therefore owing to the integral location of lands referred to above
including that of the petitioner a notification was published u/s 4 and
section 17 of the Act of 1894 invoking the urgency clause as specified
under law. He submits that the application made by the petitioner to the
respondent No. 5 seeking exemption of his land is absolutely baseless
and no document to substantiate his claim for exclusion of his land from
such acquisition proceedings has been produced. He further submits that
respondent No. 5 after due consideration of the requirement of the
project to be installed and also keeping in mind the location of the
petitioner’s land, has rejected his request for exclusion of the land, which
according to the answering respondent is just and proper and cannot be
interfered with, in this petition.
6.4 It is thus submitted on behalf of respondent No. 5/NRDA that the
action of the respondent No.5 is well within the permissible limit of the
Constitution of India and is not violative of any of its postulates, and
being so the petition needs dismissal.
7. Heard counsel for the parties and perused the documents on
record.
8. From the recapitulation of fact in a chronological manner it gets
crystallized that Chief Executive Officer, NRDA wrote a letter dated
14.03.2011 to the Collector (Land Acquisition Branch) District Raipur and
also to the Sub Divisional Officer (Revenue) – cum – Land Acquisition
Officer, Arang, Abhanpur, District Raipur, CG requesting for initiating the
land acquisition proceedings in respect of various lands pertaining to total
52 different khasra numbers, including those of the petitioner. Petitioner’s
land however pertains to Khasra Nos. 105 and 388 area being 1.12 and
1.42 hectare respectively. This acquisition, as is evident from the letter
15dated 14.03.2011 was for the development of New Capital at Raipur, for
which the necessary approval from the Central Government and the
State Government is already stated to be granted. Proposal of the
Collector was forwarded to the Commissioner/ex officio Secretary,
Revenue Department on 29.07.2011. Thereafter, on 30.07.2011
Commissioner/ex officio Secretary treating the matter to be of extreme
urgency and keeping in view the notification No. 354 dated 3.12.2009 of
the Revenue and Disaster Management Department, granted approval
for acquisition of the land as proposed by the Collector, and accordingly
notification dated 09.08.2011 was issued under Section 4(1) read with
17(1) of the Act of 1894 invoking the urgency clause for acquisition of the
land of the petitioner. Subsequently, another notification dated
14.08.2012 was also issued under Section 6 of the Act of 1894 declaring
the land of the petitioner bearing Khasra Nos. 105 and 388 required to be
acquired for a public purpose which was published in Gazette dated
24.08.2012. After this declaration, the petitioner made a representation to
the Chief Executive Officer of NRDA on 29.11.2012 requesting for
exemption of his land from acquisition proceedings as the subject land
was lawfully owned by him and that he was in peaceful cultivating
possession thereof for last more than 20 years. The petitioner’s
representation also states that the said land was being used by him for
Farm House even prior to existence of Catchment Area Development
Authority, and that he has also developed a dense plantation over the
said piece of land and most of the trees have gone beyond 15 ft of
height. All this is stated to have been made with the prior approval of the
Concerned Gram Panchayat. The petitioner has also asserted in the
representation that he had voluntarily tendered around 9 acres of land
situated at village Chhatouna for NRDA’s Cargo Hub Project. Citing all
these reasons, the petitioner has stated in the representation that the
land sought to be acquired by the NRDA is not suitable for installing any
project because if the NRDA moves forward with such implementation,
the number of grown up trees are likely to be uprooted causing an
irreversible damage to the environment. Since this representation did not
evoke any response from the NRDA, the petitioner made another
representation on 20.11.2013 emphasizing the sanctioned status of
existing building plans as protected under the NRDA Development Plan
162031 and reasserting his claim for exemption. In this representation, it
was thus requested that the aforesaid pieces of land may be excluded
from its acquisition plan proposed to be carried out by the NRDA. On
25.11.2013 the Land Acquisition Officer/Sub Divisional Officer, Arang
(Abhanpur) stating the proceedings undertaken by it in detail, passed an
award under the Act of 1894 regarding acquisition of the subject land. In
the said award it is stipulated that the compensation with regard to
house, trees or any other structure existing on the subject land shall be
paid separately. This award also states that according to the guidelines
obtained from Sub Registrar, Arang for the year 2011-12 the market rate
of non-irrigated land on the date of publication of notification under
Section 4(1) and 17(1) was 17,00,000/- per hectare, whereas the market
rate of the land situate by the main road is Rs. 53,00,000/- per hectare.
As per the provisions of Section 23(1) of the Act of 1894, the interest at
the rate of 12% was also awarded from the date of notification till the
award being made under Section 4(1) and 17(1) of the Act of 1894. The
award, in addition to the market value of the land, also prescribes that
thirty per cent of the award amount was also granted under the
provisions of 23(2) of the Act of 1894. Since the advance possession of
the subject land was not taken by the NRDA before the award being
passed, as per the award, no interest under section 34 of the Act of 1894
was awarded. Eventually, the award of Rs. 06,13,43,040/- came to be
passed. Since the award has been passed within two years from the date
of notification under Section 6 of the Act of 1894, an incentive of 10%
was also awarded which led the total compensation to Rs.
06,74,77,344/-. Out of the total compensation determined, the petitioner
was awarded Rs. 1,01,04,120/- i.e (4455360 + 5648760). The material
available on record further goes to show that on 13.12.2013 a letter
(Annexure P-1) was issued by the NRDA rejecting the request of the
petitioner for exclusion of his land from acquisition. Thereafter, on
08.01.2014 the petitioner filed an application under the RTI Act, 2005
(Annexure P-9) before the SDO/Land Acquisition Officer seeking copies
of the documents pertaining to the land acquisition proceedings,
however, by order dated 15.01.2014 (Annexure P-10) the concerned
authority refused to supply the same on the ground that the proceedings
were referred to the Divisional Commissioner for approval. Subsequently,
17
on 22.01.2014, the petitioner made another representation (Annexure P-
11) for exclusion of his land from acquisition proceedings to the
Divisional Commissioner. Eventually, on 03.07.2014 the second award
(Annexure P-13) came to be passed by the SDO/Land Acquisition Officer
for the same piece of land under the Act of 2013.
9. Having thus traversed the factual background of the case in a
concise and composite manner, this Court now undertakes to deal with
the issues involved, in a chronological order.
10. The first question which this Court wishes to proceed with is the
legality and validity of invocation of urgency clause as per Section 17(1)
of the Act of 1894.
11. It is not in dispute that the petitioner herein is the owner, title-holder
and in cultivating possession of the subject land bearing Khasra No. 105
area 1.12 hectare and Khasra No.388 area 1.42 hectare falling Raipur
district of Chhattisgarh. His peaceful possession over the same for last
more than 20 years is also not in dispute. On 14.03.2011 NRDA wrote a
letter (Annexure P-5) to the State authorities, to be precise to
Respondent Nos. 3 and 4 herein to acquire the land of the petitioner
among others for establishing various projects in and around the Capital
City of Raipur under the provisions of Section 4 (1) read with section 17
(1) of the the Act of 1894. The Collector sent its proposal dated
29.07.2011 to the Commissioner/Designated Secretary, Department of
Revenue, Government of Chhattisgarh, Raipur for necessary
approval/permission, which was granted vide order dated 30.07.2011.
Notification dated 09.08.2011 (Annexure P-2) invoking the urgency
clause was issued and published in Chhattisgarh Rajpatra on 26.08 2011
for acquisition of the subject land under the provisions of Section 4 (1)
read with Section 17 (1) of the Act of 1894 followed by issuance of
declaration under Section 6 of the Act of 1894 vide notification dated
14.08.2012 (Annexure P-3) published in Chhattisgarh Rajpatra on
24.08.2012. The said declaration says that the subject land was to be
acquired for a public purpose. Petitioner then made a representation to
the Chief Executive Officer, NRDA, Raipur on 29.11.2012 (Annexure P-7)
seeking exclusion of his land from acquisition followed by another one
dated 20.11.2013 (Annexure P-8). One of the reasons assigned by the
petitioner seeking exclusion was that he had already offered another 09
18
acres of land in the same area. These representations however did not
evoke any response and this non-responsive attitude of the NRDA drove
the petitioner to apply under document of Annexure P-9 for supply of
certain documents with respect to the entire land acquisition proceedings
to Respondent No.4 on 08.01.2014 under RTI Act, 2005 but those
documents were not made available to him on the ground that entire
land acquisition proceedings were already been referred to the Divisional
Commissioner (the respondent No.2) for approval of award. However,
when no award in respect of the said land was made for a considerable
period of time, petitioner made yet another representation (Annexure P-
11) to the concerned authorities on 22.01.2014, but the same also did not
evoke any response. Thus it is apparent that ever since the petitioner
came to know in the year 2011 that the proceedings regarding acquisition
of the subject land under Section 17(1) of the Act of 1894 were to be
initiated, he moved three representations to the authorities concerned
seeking exclusion thereof but they all remained un-responded to. Even
his request under the RTI Act, 2005 for supply of certain documents did
not yield the desired result on the ground that the matter was already
sent to the Commissioner, Raipur for approval of the award. Of course,
from the perusal of the record it is manifest that the acquisition of the
land by NRDA was for development of Capital City at Raipur and the
same can be treated to be a public purpose within the meaning of
Section 4 of the Act of 1894 but that by itself does not justify the exercise
of the power by the government under Section 17(1) and/or 17(4).
Meaning thereby, the State has not been in a position to demonstrate
that it was the dire urgency which became an impelling factor to move
ahead with the acquisition proceedings in hot haste. The State in this
case thus appears to have taken away this valuable right of the petitioner
enshrined in Section 5A of the Act of 1894 by invocation of the urgency of
clause under provided under Section 17 thereof in a mechanical manner
without application of mind and without properly justifying the actual
urgency to it. It has been held by the Supreme Court in catena of
decisions that once the State seeks to invoke the urgency clause under
Section 17 of the Act of 1894, burden lies on it to establish the actual
urgency for the project sought to be installed at Raipur. Furthermore, the
documents on record including the approval accorded by the
19
Commissioner do not contain anything from which it can be inferred that
a conscious decision was taken to dispense with the application of
Section 5A of the Act of 1894 which represents two facets of the rule of
hearing i.e. the right of the land owner to file objection against the
proposed acquisition of the land and that of being heard in the inquiry
required to be conducted by the Collector. In the cases involving
invocation of urgency power under Sections 17 for the public purpose like
development of the New Capital City at Raipur as is the position in the
present case, or for the “development of residential area” or the
“residential scheme”, the initial presumption in favour of the State does
not arise and the burden lies on it to prove that the invocation of urgency
clause was justified necessitating the evasion of inquiry under Section 5-
A of the Act of 1894. Here in the present case, the respondents appear to
have miserably failed to show to the satisfaction of the Court that power
or urgency and dispensation of enquiry under Section 5A has been
exercised with optimum justification. It is worthwhile to mention here that
power of urgency by the State under Section 17 for a public purpose for
like in the present case, cannot be invoked as a rule but has to be made
by way of exception. So in the present case also no material has been
brought on record to show any justification on the part of the State in
dispensing with the enquiry under Section 5A of the Act of 1894. The
respondents have also failed to demonstrate that the planned
development of the Capital City at Raipur was of such an extreme
urgency that it could not wait for some more time within which inquiry
under Section 5A could have been undertaken. There is no doubt that
acquisition of land for residential, commercial, industrial or institutional
purposes can be treated as an acquisition of public purposes within the
meaning of Section 4 of the Act of 1894 but that by itself does not justify
the exercise of power by the Government under Sections 17. Such a pell-
mell approach in acquiring the private property for the purpose
purportedly pre-planned development of Capital City at Raipur invoking
the urgency provision contained in Section 17 of the Act of 1894 for the
reason that such a hurried invocation of urgency power renders the rule
of audi alteram partem embodied in Section 5A thereof a nugatory one.
Invocation of urgency provisions by the State in this case, keeping in
mind the object which it wanted to achieve and looking to the material
20
produced by it, seems to be not only ex facie illegal but wholly arbitrary
and unjustified. No material much less the clinching one has been
produced in this case either by the State or the NRDA that the task of
establishment of New Capital City at Raipur an emergent one that there
was no time to seek objection from the affected party and ensure their
participation in the inquiry under Section 5A of the Act of 1894. The
Commissioner, Raipur Division who sanctioned the invocation of urgency
provisions was duty- bound to keep in mind that the acquisition of one’s
land is a serious matter and except in the cases of real urgency no
person can be deprived of his property without being afforded an
opportunity to file objection under Section 5A of the Act of 1894. Section
5A represents the statutory embodiment of the rule of audi alteram
partem and unless there are compelling reasons, the State cannot invoke
the urgency provision contained in Section 17(1) and dispense with the
application of Section 5A of the Act of 1894. The record also shows that
the initial notification invoking urgency clause published in Gazette dated
26.08.2011 for acquisition of land under the provisions of Section 4(1)
read with Section 17(1) of the Act of 1894 was issued on 09.08.2011, but
the notification under Section 6 of the Act of 1894 was issued on
14.08.2012 which was published in the Gazette on 24.08.2012. Meaning
thereby, the Section 6 notification was issued after more than a year of
the issuance of notification under Section 4(1) read with Section 17(1) of
the Act of 1894, which establishes that there was no need to invoke the
urgency clause.
12. Dealing with the situation where the provisions of urgency power
enshrined under Section 17 of the Act of 1894 are to be resorted to, it
has been held by the Supreme Court in the matter of Darshan Lal
Nagpal (supra) as under:-
29. 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
21
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/L&B/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.
30. The scope of the rule of hearing, i.e., audi alteram partem
was highlighted by the three-Judge Bench in Sayeedur
Rehman v. State of Bihar (1973) 3 SCC 333 in the following
words:
“11. … This unwritten right of hearing is fundamental to
a just decision by any authority which decides a
controversial issue affecting the rights of the rival
contestants. This right has its roots in the notion of fair
procedure. It draws the attention of the party
concerned to the imperative necessity of not
overlooking the other side of the case before coming
to its decision, for nothing is more likely to conduce to
just and right decision than the practice of giving
hearing to the affected parties.
31. In Maneka Gandhi v. Union of India (1978) 1 SCC 248
Bhagwati, J. speaking for himself and Untwalia and Fazal Ali,
JJ. observed:
“14. … The audi alteram partem rule is intended to
inject justice into the law and it cannot be applied to
defeat the ends of justice, or to make the law `lifeless,
absurd, stultifying, self- defeating or plainly contrary to
22the common sense of the situation’. Since the life of
the law is not logic but experience and every legal
proposition must, in the ultimate analysis, be tested
on the touchstone of pragmatic realism, the audi
alteram partem rule would, by the experiential test, be
excluded, if importing the right to be heard has the
effect of paralysing the administrative process or the
need for promptitude or the urgency of the situation
so demands. But at the same time it must be
remembered that this is a rule of vital importance in
the field of administrative law and it must not be
jettisoned save in very exceptional circumstances
where compulsive necessity so demands. It is a
wholesome rule designed to secure the rule of law
and the court should not be too ready to eschew it in
its application to a given 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.”
13. Dealing with the invocation of same urgency clause it has been
held by the Supreme Court in the matter of Ram Dhari Jindal Memorial
Trust (supra) as under:-
“19. Where the government invokes urgency power under
Section 17(1) and (4) for the public purpose like ‘planned
development of city’ or ‘development of residential area’ or
‘Residential Scheme’, the initial presumption in favour of the
government does not arise and the burden lies on the
government to prove that the use of power was justified and
dispensation of enquiry was necessary. In the present case, the
respondents have miserably failed to show to the satisfaction of
23the Court that power of urgency and dispensation of enquiry
under Section 5A has been exercised with justification. The
action of the Lt. Governor, Delhi, in the facts of the case
whereby he directed that the provisions of Section 5A shall not
apply, if allowed to stand, it would amount to depriving a person
of his property without authority of law.
20. The power of urgency by the Government under Section 17
for a public purpose like Residential Scheme cannot be invoked
as a rule but has to be by way of exception. As noted above, no
material is available on record that justifies dispensation of
enquiry under Section 5A of the Act. The High Court was clearly
wrong in holding that there was sufficient urgency in invoking
the provisions of Section 17 of the Act.”
14. Dealing with the situations where in the acquisition proceedings of
a private land invoking the provisions of Section 17 of the Act of 1894 it
has been held by the Supreme Court in the matter of Garg Woolen Pvt.
Ltd. (supra) as under:-
10. The question whether the urgency clause embodied in
Section 17 can be invoked for the acquisition of land for
planned industrial development was recently considered in
Radhy Shyam v. State of U.P. [(2011) 5 SCC 553 : (2011) 3
SCC (Civ) 1] In that case, the Government of Uttar Pradesh had
acquired 205.0288 ha land of Village Makaura, Pargana
Dankaur, Tehsil and District Gautam Budh Nagar for planned
industrial development of the district. Radhy Shyam and others
challenged the acquisition on the ground that there was no
justification to invoke the urgency provisions and to dispense
with the application of Section 5-A because planned industrial
development of the district was not something which could not
wait for few months’ time within which inquiry under Section 5-A
could have been held. Their writ petition was dismissed by the
High Court by observing that the averments contained therein
were not sufficient to call upon the respondents to place before
the Court material to justify the exercise of power under
Sections 17(1) and 17(4) of the Act.
11. This Court examined the scheme of the Act, referred to
various judicial precedents including the judgments in Narayan
Govind Gavate v. State of Maharashtra [(1977) 1 SCC 133 :
1977 SCC (Cri) 49], Munshi Singh v. Union of India [(1973) 2
SCC 337], State of Punjab v. Gurdial Singh [(1980) 2 SCC 471],
Union of India v. Mukesh Hans [(2004) 8 SCC 14], Hindustan
Petroleum Corpn. Ltd. v. Darius Shapur Chenai [(2005) 7 SCC
24627] and Anand Singh v. State of U.P. [(2010) 11 SCC 242 :
(2010) 4 SCC (Civ) 423] and laid down the following
propositions: (Radhy Shyam case [(2011) 5 SCC 553 : (2011) 3
SCC (Civ) 1], SCC pp. 602-03, para 77)
(i) to (vii) … … …
(viii) The acquisition of land for 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
Sections 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 Sections 5-A(1) and
(2) is not at all warranted in such matters.”
15. In the matter of Bharat Sevak Samaj (supra) it has been held by the
Supreme Court as under:-
“11. In our view, the decision of the Lieutenant Governor, Delhi
to invoke the urgency provisions was ex facie illegal apart from
being wholly arbitrary and unjustified. It was neither the pleaded
case of Respondents 1 and 2 before the High Court nor was
any material produced to show that the task of developing the
Mehrauli Heritage Zone under planned development of Delhi
was being executed on an emergency basis. It was also not the
pleaded case of Respondents 1 and 2 that the public purpose
specified in the Notification dated 6-7-2004 would have been
defeated if the appellant was given an opportunity to file
objections under Section 5-A(1) and its representative was
given an opportunity of personal hearing in terms of Section 5-
A(2). Therefore, there was no justification, legal or otherwise,
for invoking Section 17(1) of the Act. The Lieutenant Governor,
Delhi who sanctioned the invoking of urgency provisions was
duty-bound to keep in mind that the acquisition of one’s land is
a serious matter and, except in the cases of real urgency, no
person can be deprived of his property without being afforded
an opportunity to file objections under Section 5-A(1) and
without the sanction of law and without complying with the
basics of natural justice. Section 5-A represents the statutory
25embodiment of the rule of audi alteram partem and unless there
are compelling reasons, the State cannot invoke the urgency
provision contained in Section 17(1) and dispense with the
application of Section 5-A.
30. In conclusion, we hold that Respondents 1 and 2 were not
at all justified in invoking Section 17(1) read with Section 17(4)
and dispensing with the application of Section 5-A for the
acquisition of the appellant’s land. It is needless to say that
development of Mehrauli Heritage Zone under planned
development of Delhi was not so urgent that it could not wait for
the few months’ time likely to be consumed in giving opportunity
to the appellant to file objections under Section 5-A(1) and
holding of inquiry under Section 5-A(2). Unfortunately, the High
Court dismissed the writ petition without examining the main
ground on which the appellant had challenged the acquisition
proceedings. Therefore, the impugned order [Bharat Sewak
Samaj v. Lt. Governor, ILR (2009) 1 Del 207 : (2008) 155 DLT
453] is legally unsustainable.”
16. Thus as regards the acquisition of the subject land of the petitioner by
invoking the urgency clause incorporated in Section 17 of the Act of 1894
this Court is of the opinion that the respondents/State have not been able
to substantiate the ingredients required to be attracted for this purpose.
Further, the pace at which the respondents have moved with the
proceedings of acquisition starting from issuing the initial notification
dated 09.08.2011 under Section 4 read with Section 17(1) of the Act of
1894, then issuing the declaration under Section 6 thereof on 14.08.2012
involving the period of more than one year in between, and then the time
taken in passing the awards dated 25.11.2013 under the Act of 1894
followed by the other award dated 03.07.2014 passed under the Act of
2013 which comes to be the period of more than two years, clearly
speaks that the invocation of urgency clause under Section 17 of the Act
of 1894 is against the intent of the legislature behind such enactment, and
also in contravention of the decisions of the supreme Court referred to
above. That apart, since the project sought to be developed by the
respondents on the subject land was for the development of new Capital
City at Raipur, it cannot be said that the respondents could not have
waited for some more time before passing the award, and thereby
providing an opportunity of hearing after inviting objection from the
26
petitioner irrespective of the fact that such acquisition was for a public
purpose as is provided under Section 5-A of the Act of 1894.
17. The legal position holding the ground in this regard is that in the
matter of compulsory acquisition of the land, the authorities are required
to pay the compensation to the land owner, and there is no question of
the land owner “coming and getting”, rather the law requires the
acquisitioning authority to “go and give” the same. Dealing with this issue
in the matter of Aligarh Development Authority (supra) it has been held
by the Supreme court as under:-
“7. In that view of the matter, it is not necessary to go into
various other aspects. Having regard to the factual matrix of the
residential colony having been set up, which fact is not
controverted also, it cannot be said that there was an urgency
for the acquisition. Therefore, the approach made by the High
Court is not correct. However, the stand of the Authority that it
had deposited 80% of the compensation with the land
acquisition officers and hence it was for the owner to collect the
money, cannot be appreciated. That is a matter between the
Requisitioning Authority and the Acquisitioning Authority. There
is no question of `come and get’ the compensation while
compulsorily acquiring the land; the approach required under
law is `go and give’. In this case, no award has been passed
and the land value has not been given to the owner. The
impugned order is hence set aside. The appellant and the
Acquisitioning Authority are directed to complete the acquisition
proceedings by passing an award under the provisions of the
2013 Act. This shall be done within a period of six months and
needless also to say that the entire compensation due to
respondent No.1 would be calculated in terms of the 2013 Act
and the same shall either be deposited with the Land
Acquisition Collector or disbursed to the respondent No.1 within
one month thereafter. ”
18. Further, in the matter of Vijay Latka (supra) it has been held by the
Supreme court as under:-
“4. Under Section 24(2) of the 2013 Act, where an Award under
Section 11 of the 1894 Act has been passed and in case
compensation has not been paid to the land owner or deposited
before the Court in terms of the requirements under the 1894
Act, the acquisition proceedings get lapsed. In case
compensation has not been paid, the land acquisition
27proceedings in respect of that acquisition will stand lapsed, as if
there is no acquisition.
5. The contention of the learned counsel appearing for the
respondents is that whoever approached the Haryana Urban
Development Authority or the competent authority has been
paid compensation and since the appellants failed to approach
the quarters concerned for the compensation, they cannot be
granted any relief. We find this contention difficult to appreciate.
When a land is compulsorily acquired, it is for the Requisitioning
Authority to make the payment and does not require the land
owner to come and receive the payment.
6. As and when land is taken over by way of acquisition, the
land owner has to be compensated with the amount of
compensation duly determined under the Act. In case there is
any dispute as to who is to be paid the amount, the same is to
be deposited in Court in terms of Section 31 of the 1894 Act. In
this case before us, the stand of the Requisitioning Authority,
namely, Haryana Development Authority is that the money is
ready with them and it is for the land owner to come and
receive the payment. This stand is not permissible under the
law. It is for the authorities concerned to pay the money and
take the land and in case there is any dispute as to whom the
money should be paid, then the same has to be deposited in
Court.
7. As admittedly no compensation has been paid to the
appellants in terms of the above mentioned Award passed in
the year 2005, the appellants are entitled to succeed.
Accordingly, the appeal is allowed.
8. The proceedings for acquisition of land of the appellants and
covered by the Notification issued under Section 4(1) of the
Land Acquisition Act, 1894 and leading to the Award referred to
above stand set aside as having been lapsed.”
19. This issue lately came before the Constitution Bench of the
Supreme Court in the matter of Indore Development Authority (supra)
where it has been held as under:-
“365. Resultantly, the decision rendered in Pune Municipal
Corporation & Anr. (supra) is hereby overruled and all other
decisions in which Pune Municipal Corporation (supra) has
been followed, are also overruled. The decision in Shree Balaji
Nagar Residential Association (supra) cannot be said to be
laying down good law, is overruled and other decisions following
the same are also overruled. In Indore Development Authority v.
28
Shailendra (Dead) through L.Rs. and Ors., (supra), the aspect with
respect to the proviso to Section 24(2) and whether ‘or’ has to be
read as ‘nor’ or as ‘and’ was not placed for consideration.
Therefore, that decision too cannot prevail, in the light of the
discussion in the present judgment.
366. In view of the aforesaid discussion, we answer the
questions as under:
366.1 Under the provisions of Section 24(1)(a) in case the
award is not made as on 1.1.2014 the date of commencement
of Act of 2013, there is no lapse of proceedings. Compensation
has to be determined under the provisions of Act of 2013.
366.2 In case the award has been passed within the window
period of five years excluding the period covered by an interim
order of the court, then proceedings shall continue as provided
under Section 24(1)(b) of the Act of 2013 under the Act of 1894
as if it has not been repealed.
366.3 The word ‘or’ used in Section 24(2) between possession
and compensation has to be read as ‘nor’ or as ‘and’. The
deemed lapse of land acquisition proceedings under Section
24(2) of the Act of 2013 takes place where due to inaction of
authorities for five years or more prior to commencement of the
said Act, the possession of land has not been taken nor
compensation has been paid. In other words, in case
possession has been taken, compensation has not been paid
then there is no lapse. Similarly, if compensation has been
paid, possession has not been taken then there is no lapse.
366.4 The expression ‘paid’ in the main part of Section 24(2) of
the Act of 2013 does not include a deposit of compensation in
court. The consequence of non-deposit is provided in proviso to
Section 24(2) in case it has not been deposited with respect to
majority of land holdings then all beneficiaries (landowners) as
on the date of notification for land acquisition under Section 4
of the Act of 1894 shall be entitled to compensation in
accordance with the provisions of the Act of 2013. In case the
obligation under Section 31 of the Land Acquisition Act of 1894
has not been fulfilled, interest under Section 34 of the said Act
can be granted. Non-deposit of compensation (in court) does
not result in the lapse of land acquisition proceedings. In case
of non-deposit with respect to the majority of holdings for five
years or more, compensation under the Act of 2013 has to be
paid to the “landowners” as on the date of notification for land
acquisition under Section 4 of the Act of 1894.
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366.5 In case a person has been tendered the compensation
as provided under Section 31(1) of the Act of 1894, it is not
open to him to claim that acquisition has lapsed under Section
24(2) due to non-payment or non-deposit of compensation in
court. The obligation to pay is complete by tendering the
amount under Section 31(1). Land owners who had refused to
accept compensation or who sought reference for higher
compensation, cannot claim that the acquisition proceedings
had lapsed under Section 24(2) of the Act of 2013.
366.6 The proviso to Section 24(2) of the Act of 2013 is to be
treated as part of Section 24(2) not part of Section 24(1)(b).
366.7 The mode of taking possession under the Act of 1894
and as contemplated under Section 24(2) is by drawing of
inquest report/ memorandum. Once award has been passed on
taking possession under Section 16 of the Act of 1894, the land
vests in State there is no divesting provided under Section
24(2) of the Act of 2013, as once possession has been taken
there is no lapse under Section 24(2).
366.8 The provisions of Section 24(2) providing for a deemed
lapse of proceedings are applicable in case authorities have
failed due to their inaction to take possession and pay
compensation for five years or more before the Act of 2013
came into force, in a proceeding for land acquisition pending
with concerned authority as on 1.1.2014. The period of
subsistence of interim orders passed by court has to be
excluded in the computation of five years.
366.9 Section 24(2) of the Act of 2013 does not give rise to new
cause of action to question the legality of concluded
proceedings of land acquisition. Section 24 applies to a
proceeding pending on the date of enforcement of the Act of
2013, i.e., 1.1.2014. It does not revive stale and time-barred
claims and does not reopen concluded proceedings nor allow
landowners to question the legality of mode of taking
possession to reopen proceedings or mode of deposit of
compensation in the treasury instead of court to invalidate
acquisition.”
20. If a conspectus of the sequence of events taken recourse to by the
respondents in respect of acquisition of the land of the petitioner is
undertaken, it transpires that having come to know about the initiation of
acquisition proceedings by way of notification dated 09.08.2011
published in Chhattisgarh Gazette dated 26.08.2011, and also the
30
notification dated 14.08.2012 (Annexure P-3) issued under Section 6 of
the Act of 1894 published in Chhattisgarh Gazette dated 24.08.2012, in
relation to his land bearing Khasra No. 105 area 1.12 hectare and Khasra
No. 388 area 1.42 hectare, he made a representation to respondent No.5
for releasing the same from the acquisition proceedings, but it came to
be rejected (in fact “filed” as mentioned in the order dated 13.12.2013
(Annexure P-1) itself. The documents on record go to show that in
pursuance of the Naya Raipur project, respondent/authorities included
the subject land in the Development Plan, 2031 and initiated the
acquisition proceedings under Section 4 invoking the urgency clause
provided under Section 17(1) of the Act of 1894. The declaration to the
effect that the land required to be acquired was for public purpose was
made on 14.08.2012 subjected to gazette notification on 24.08.2012. The
petitioner made representations on 29.11.2012 (Annexure P-7). However,
when no communication was received thereto from respondent No.5, he
made another representation on 20.11.2013 (Annexure P-8). Thereafter,
instead of making any response to the said representation, the
respondent No.5 issued the impugned letter dated 13.12.2013 (Annexure
P-1) refusing the release of the petitioner’s land from acquisition
proceedings, but without reflecting any reference of his representation.
Yet again on 22.01.2014 the petitioner made a representation (Annexure
P-11) reiterating his request for releasing and excluding his land from the
acquisition proceedings. The same also did not evoke any response from
the concerned respondent. Petitioner also made an application on
08.01.2014 (Annexure P-9) under the Right to Information Act, 2005 but it
was intimated to him vide letter dated 16.01.2014 (Annexure P-10) that
as the matter was sent to the Commissioner, Raipur Division for approval
of the award, the desired information may be supplied only after the case
being received back. Meanwhile, since the acquisition proceedings
culminated in the consequential award dated 25.11.2013 (Annexure P-
12) which came to be passed under the Act of 1894, so as to challenge
the same the petitioner applied for its certified copy, but to his utter
surprise he was supplied the certified copy of the award dated
03.07.2014 (Annexure P-13) passed under the Act of 2013 for the same
land acquisition proceedings.
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21. Admittedly, the task for which the land of the petitioner has been
acquired is shown to be for development of New Capital at Naya Raipur
under the NRDA Project. However, not even a single document has been
placed on record by the respondents to spell out as to whether the said
task involved the urgency of such a magnitude that it was not possible for
them to wait for a few more months to hear the objections of the
petitioner or the persons interested in the land to be so acquired so as to
comply with the requirement of Section 5A of the Act of 1894 as is
provided under Section 5A of the Act of 1894. While deciding this issue in
the matter of Lakshmanial Vs. State of Rajasthan (supra) it has clearly
been mandated by the Supreme Court that unless circumstances warrant
immediate possession, there cannot be any justification in dispensing
with any enquiry under Section 5A of the Act of 1894. The Supreme
Court has further added that elimination of enquiry under Section 5A
must only be in deserving and in cases of real urgency. In the matter of
Ram Dhari Jindal Memorial Trust Vs. Union of India (supra) also the
Supreme Court has clarified that in the cases involving invocation of
urgency clause, the acquiring authority has first to form an opinion that
the land for public purpose was urgently needed, and that urgency was
such that it necessitated dispensation of enquiry under Section 5A of the
Act of 1894. From the documents on record it is manifest that the
petitioner had been in enjoying peaceful possession of the subject land
for over two decades and had also developed a Farm House and grown
plants over a large chunk. In other words, the subject land had been a
support system for the petitioner for years together, and therefore if its
acquisition is needed in public interest, it is expected to be done as per
the procedure prescribed under the relevant legislation by paying the
befitting compensation within the shortest possible time-frame. Sudden
invocation of urgency power for public purpose as residential scheme of
the schemes of allied nature cannot be undertaken as a rule but has to
be by way of exception, and that the burden lies on Government to prove
that use of urgency power was justified, and dispensation of enquiry was
an inevitable requirement. The urgency behind such acquisition must be
real and genuine and mere mention of phraseology “urgency clause” by
the acquisition authority as has been tried in this case would not serve
the purpose. Thus looking to the nature of development proposed to be
32
undertaken by the NRDA/respondent No.5 and the pace and manner in
which it moved forward to achieve the object, Section 17 of the Act of
1894 does not legally seem to be invocable as in fact there was no
urgency for either of the respondents impelling for dispensing with legal
requirement of providing an opportunity of hearing and making an
enquiry with regard to objection under Section 5A of the Act of 1894. This
Court has thus no sense of incertitude to form an opinion that the State
Government as well as the NRDA have deplorably failed to demonstrate
that power of urgency and dispensation of enquiry was a valid exercise.
22. Further, the immediacy of the object of development of New
Capital at Raipur sought to be achieved by the respondents also gets
withered out from the fact that though the order impugned dated
13.12.2013 was the off shoot of the notifications dated 09.08.2011 and
14.08.2012 yet there occurred a yawning gap between these points of
time, the first of issuing the notification and the second and last being the
rejection of the representation by the impugned letter/order. This roll-by of
the long period itself indicates that there was every occasion for the
respondents to hear the objections of the petitioner and other parties
interest in the subject land before passing of the order (Annexure P-1)
which eventually climaxed in the awards subsequently put to assail by
way of amendment vide Annexures P-12 and P-13. In Darshan Lal
Nagpal v. Government of NCT of Delhi (supra) it has been held by the
Supreme Court that long time gap in finalizing the proposal for acquisition
of the land and further issuing notification and establishment of the
project is unsustainable in the eye of law with regard to invocation of
urgency clause under Section 17 and thus dispensing with the enquiry
under Section 5A of the Act of 1894.
23. It is a settled provision of law that Section 5A of the Act of 1894
gives a valuable right to the land owners or the persons interested in the
subject land, and dispensation with the said right requires a real and
genuine urgency, and not just the convenience of the acquiring
authorities. Of course, the notifications published by the authority
concerned depicts the invocation of urgency provisions, but unfortunately
it is in letter alone and not in spirit. The law clearly mandates that mere
33
recital of urgency in the notification is not conclusive and the Courts are
required to examine the records and the timeline fixed for carrying out the
project undertaken. If the facts of the case are taken into consideration, it
unambiguously transpires that the first notification for acquisition of the
land was issued on 09.08.2011 for the New Raipur Development Plan
2031. Since very beginning the petitioner started representing the
authorities concerned for releasing his land from the acquisition
proceedings, but one of his representation came to be rejected whereas
the other two did not evoke any response from the authorities. The plan
to be executed palpably appears to be a long term and a well thought of
one, and no component of immediacy, urgency or emergency is
discernible in this case driving the authorities to adopt a short circuit
approach in the matter. It deserves a mention that a planned
development, residential schemes, master plans and future city
expansion do not constitute urgency at the cost of deprivation of the land
owners who are in peaceful and cultivating possession of the land sought
to be acquired. Here in this case also no tangible reason has been
spelled out by the respondents/authorities as to what impelled them to
take recourse to such invocation of urgency clause depriving the
petitioner and the people interested in the subject land they are deeply
rooted to mentally and sentimentally of their valuable right of being heard
in accordance with Section 5A of the Act of 1894.
24. The next point for consideration is whether in the present fact
situation the acquisition proceedings initiated in pursuance of the
notification issued under Section 4(1) read with Section 17(1) of the Act
of 1894 culminating in the award dated 25.11.2013 and 03.07.2014
would lapse on account of not taking possession of the subject land by
respondent No. 5/NRDA and non payment of full compensation to the
petitioner. From the record it is apparent that till passing of the awards
the possession of the subject land was not taken over by the
respondents. Though from the awards it appears that certain amount was
deposited by the NRDA by way of cheques dated 30.04.2011 and
10.04.2014, there is nothing to show that where it was deposited and
how much was deposited in the account of the petitioner as the
acquisition proceedings pertain to the land comprising of total 52 Khasras
34
belonging to different land owners. It thus remains unestablished that the
petitioner has received full compensation for the land so acquired even
after passing of the award. How and when the compensation in such
cases has to be paid, has been determined in the case of Aligarh
Development Authority v. Megh Singh (supra) where it has been held that
in the cases involving compulsory acquisition of the land, the authorities
are required to pay the compensation to the land owner, and there is no
question of the land owner “coming and getting”, rather the law requires
the acquisitioning authority to “go and give” the same. This issue has
further been clarified in the case of Vijay Latka and another v. State of
Haryana (supra) where the Supreme Court has held that the say of the
acquiring authority that the money is ready with it and it is for the land
owner to come and receive the payment, is not permissible under the
law, rather it is for the authorities concerned to pay the money and take
the land. In case of any dispute as to whom the money should be paid,
the Supreme Court has mandated the same to be deposited in Court.
The Supreme Court in the said matter has further held when the land is
compulsorily acquired, it is for the requisitioning authority to make the
payment and the land owner should not be made to come and receive
the payment.
25. This Court has gone through the decisions sought to be relied
upon by the State counsel validating the acquisition of the land of the
petitioner, but keeping in mind the fact that an enormous project was to
be undertaken such as construction of Yamuna Expressway, the judicial
approval of invocation of urgency clause as contained in Section 17 of
the Act of 1894 therein cannot be stretched to this case where the
development of New Capital at Raipur was proposed to be carried out.
Being this, the decisions cited by the State counsel being distinguishable
on facts are not applicable to the case in hand.
26. Another argument of learned counsel for the State is with regard to
delay and laches. This Court is not impressed by this argument. The
petitioner from the very beginning was cautious for protecting his
property. He made representations and application under RTI Act, 2005
to obtain necessary documents. Even otherwise, after a lapse of more
35
than 10 years. This Court is not inclined to deny relief to the petitioner on
the ground of delay and latches particularly when this Court finds that
there is no inordinate delay in this petition.
27. The State by filing additional return has filed a document as
Annexure R-2 possession certificate to show that possession of the land
has been handed over to respondent No.5/NRDA on 16.06.2015. This
document contains the signature of Additional Tahsildar, Arang, District
Raipur and officer of respondent No.5/NRDA. It does not contain any
signature of the petitioner. This certificate along with the lands of the
petitioner shows that possession of other lands have also been taken. It
appears that it is merely a paper document to show that the possession
has been taken. It also does not contain any signature of any person in
whose presence actual physical possession of the lands mentioned in
the certificate was taken. Thus by this document, this Court is unable to
hold that actual physical possession of the petitioner’s land has been
taken by the respondents. No other document has been placed by the
respondents to show this fact. Even otherwise this document shows that
the possession of the lands of the petitioner was taken in the year 2016.
Before, that this writ petition was already filed in the year 2014 itself.
Thus, this Court is not inclined to accept this document.
33. The summation derived from the aforesaid factual backdrop and
strengthened by the judicial pronouncements referred to, according to the
considered opinion of this Court is that the order (Annexure P-1), awards
(Annexure P-12 and P-13) are not sustainable in law. Accordingly, they
are hereby set aside in respect of the petitioner. However, the State is at
liberty to proceed against the petitioner in accordance with law for
acquisition of lands of petitioner if so desire. The writ petition is allowed
as indicated above. No order as to cost.
Sd/-
(Sachin Singh Rajput)
Judge
Jyotishi/Madhurima/Ashish
