Merely because land acquisition is for public purpose, duty of authority does not end: Supreme Court

While putting an end to a 12-year-old dispute, the Supreme Court held that the invaluable right of a person to ventilate his grievances against land acquisition should not be unjustifiably extinguished (Hamid Ali Khan v. State of Uttar Pradesh)..A Bench of Justices KM Joseph and Ravindra Bhat held,"...merely because the purpose of the acquisition is found to be a public purpose, the duty of the authority does not end. He must be satisfied that there is real agency such that the invaluable right vouchsafed to a person to ventilate his grievances against the acquisition is not unjustifiably extinguished.".The Court was hearing a challenge to the acquisition of land for the public purpose of the Bulandshehar-Khurja Development Authority and for the Kalindi Kunj residential/commercial scheme.The appellants had contended that an inquiry under Section 5A (hearing of objections) of the Land Acquisition Act, 1894 was dispensed with after the authorities invoked urgency under Section 17(4) of the Act to acquire their land. The appellants had stated that they ran a cattle market, which was their source of income, on the land that was sought to be acquired..It was stated that the Governor was convinced about the great necessity of the land, with the urgency provisions of the Act being applicable. In view of the necessity, the appellants could not air their objections to the acquisition of the land under Section 5A on the basis that ‘possibility of delay may be abandoned’..In its judgment, the Supreme Court discussed the contours of the powers under Section 17(4) of the Act to dispense with the Section 5A process. The judgment stated,"The power under Section 17(4) is discretionary. Being a discretion it must be exercised with due care. It is true that if there is relevant material however meagre it may be and the authority has without being guided by extraneous considerations applied his mind and taken a decision, then the court would adopt a hands-off approach...The authorities must remain alive and alert to the precious right created in favour of the citizens which is not meant to be a mere empty ritual.".While admitting that the apex court has delivered conflicting decisions on the issue, the Bench noted that there is a certain element of consensus on fundamental principles in these verdicts. "The dichotomy essentially has to be resolved by carefully attending to the facts of each case," the Bench stated.It also warned against frivolous challenges to decisions taken by authorities under Section 17(4), noting,"When a challenge is made to the invocation of power under Section 17(4) the writ applicant cannot succeed on bare and bald assertions. The facts which are specifically within the exclusive knowledge of the state must be laid before the court on the basis of the principle in Section 106 of the Evidence Act. Existence of the exceptional circumstances justifying invoking of Section 17(4) must be established in the wake of a challenge.".In the present case, the Court noted that the scheme for which the land was sought to be acquired was not a purely residential scheme. The land which was reserved for the residential area was shown as constituting 38.57% of the area of the scheme. The commercial part of the scheme was to consist of 4.9% of the total area of the scheme.Finding that it was at a loss as regards the material which was relevant to take a decision under Section 17(4) of the Act, the Court held,"...on an appreciation of the evidence made available by all the parties it is open to the court to conclude that no occasion arose for resorting to the power under Section 17(4) which indeed must be read as an exception to the general rule that the acquisition of property is made after affording an opportunity the person adversely affected to demonstrate that the acquisition was unjustified.".While quashing the notifications under challenge, the top court observed that it was nearly 12 years later that the case was finally being disposed of. In the meantime, the Land Acquisition Act was repealed and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has taken its place. Thus, the Bench found that there was no question of the matter being considered for an inquiry being held under Section 5A..Holding that the appellants were justified in contending that the notification under Section 17(4) dispensing with the inquiry under Section 5A was unjustified, the Court directed that the property be returned to the appellants..[Read Judgment]

Merely because land acquisition is for public purpose, duty of authority does not end: Supreme Court

Debayan Roy

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