Swatanter Kumar, J.
1. By this judgment I would dispose of the above three writ petitions as a common question of law in regard to application of mind for dispensation of the provisions of Section 5A of the Land Acquisition Act by the appropriate authority while exercising the powers vested in it, under Section 17(4) of the Land Acquisition Act (hereinafter referred to as 'the Act') on somewhat similar facts and circumstances.
2. It is not really necessary for me to refer to the facts of each writ petition in greater detail and for the purposes of brevity, I would be referring to the facts stated in W.P.(C) No. 4789/1985. Petitioner no.1 is stated to be a registered welfare society under the Society Registration Act, 1860 of which petitioners no.2 to 38 are stated to be the members. They claim to be the owners of the land situated in Revenue Estate of Village Malikpur Kohi @ Rangpuri. Notification bearing no. F-9/(12)/95/Land/LA/8432 dated 1.6.1995 under Section 4 of thmae Act was issued by the appropriate Government intending to acquire 75 bigas 5 bids was of land for a public purpose namely construction of staff quarters for the Government of NCT of Delhi. Section 6 notification in that regard was issued on 17.11.1995. The administration had invoked the urgency provision contained in Section 17(1) of the Act and had also dispensed with the provisions of Section 5A vide the same notification. After the issuance of corrigendum, the notification is stated to have been issued in relation to Khasra No. 1497, 1498 changing the purpose of acquisition from 'Development of Vasant Kunj, Phase-IV' to 'Development of Staff Quarters for National Capital Territory of Delhi.' According to the petitioners they have interest in the property and are plot owners of the acquired lands.
3. The petitioners challenge in the present writ petition under Article 226 of the Constitution of India the legality, validity and correctness of the notification issued under Section 4, 6, 17(1) and 17(4) of the Act dated 1.6.1995 and 17.11.1995 respectively on the following grounds:-
1. There was no material whatsoever before the authorities, much less any enquiry-based record, on the basis of which the competent authority could justifiably invoke the provisions of Section 17(1) of the Act. In fact, there was no emergent public purpose.
2. There was no justification whatsoever before the competent authority to take recourse to the provisions of Section 17(4) of the Act. In fact, there was no material and no order existed on the file of the respondents in that regard. As such the notifications are vitiated in law.
3. The notifications are a result of colourable exercise of powers by the respondents and suffer from the vice of malafides; and
4. The public purpose sought to be achieved by acquisition of the disputed land is in violation to the Master Plan of Delhi, prepared by the DDA, and as such the acquisition itself is disputed.
4. With the purpose of examining the merits or otherwise of these contentions, it will be desirable for the Court to refer to the stand taken in the pleadings as well as during the course of arguments by the learned Counsel appearing for the respective parties in this writ petition.
5. The purpose of acquisition is repugnant to the approved and notified master and zonal plans, and delays and infringes the provisions of the Delhi Development Authority Act, as such the very purpose of acquisition is against law and is, thus, liable to be quashed.
6. In the petition while referring to certain provisions of Delhi Development Act (hereinafter referred to as 'the DDA Act') the petitioners have emphasized that the plans have been approved by the Central Government and are operative, as such they cannot be taken for a public purpose, which is not in confirmity with the master plan. Under the plan, the acquired lands are stated to be green areas. As they are already green areas, thus no purpose is achieved by acquiring these lands. The Vasant Kunj Enclave Housing Society, petitioner no.1 was intending to make houses and thus, area should have been exempted from the notification. It is also stated in the grounds of the writ petition that the Society vide its letter dated 21.5.1994, addressed to the Secretary, Land and Building Department, had requested that the area of the society in Village Malikpur Kohi @ Rangpuri be declared as a heavily built-up area and out of the purview of acquisition of Vasant Kunj Enclave. There are averments in the writ petition that the authorities started mass demolition in the built-up areas of the Society in April 1994, but there was some confusion on that behalf. It is also alleged that a delegation of the Society met the Governor on 20.5.1994 and explained the situation but, despite all their efforts, the area was not excluded compelling the petitioners to file the present writ petition in the year 1995.
7. The respondents filed a counter affidavit on 10.9.1997 praying for dismissal of the writ petitions. The stand taken on behalf of the Land and Building Department is that the petitioner society had no right to construct the colonies in contravention of the Delhi Land Reforms Act, Delhi Development Act and Master Plan of Delhi. It was stated that the said persons do not reside there, nor carry any agricultural activity. The society is stated to be developing unauthorised colonies which is against the government policy and planned development of Delhi. It was denied that the notifications are repugnant to the provisions of Delhi Development Act and the Master Plan for Delhi Perspective 2001 read with zonal plan. It is specific case of the respondents in the counter affidavit that the planned development and construction of quarters etc. for which the land was acquired would be taken only after the change in land user is agreed by the competent Authorities in accordance with law. It is also denied that there has been violation of principles of natural justice or non-application of mind in issuing the said notifications. Another additional affidavit was filed by the respondents dated 4.11.1997 wherein additional pleas were taken stating that the land had been acquired for a public purpose namely for construction of staff quarters for the Government of National Capital Territory of Delhi which was an emergent public purpose. The notifications had been issued taking into consideration various aspects. The competent authority was satisfied about the urgency of the matter. After due application of mind, it was directed that order under Section 17(4) of the Act be passed dispensing with the requirements of Section 5A of the Act. In fact, by notification dated 1.6.1995, the land measuring about 306.02 acres have been acquired for construction of staff quarters in different villages. The land belonged to Gaon Sabha, Village Rangpuri @ Malikpur Kohi and not to the petitioners, and as such the requisition for the said land was received vide letter dated 4.4.1995 from the DDA and thereupon the land measuring 75.02 bighas which was adjacent and contiguous to the area sought to be acquired by the DDA for 'Planned Development of Delhi' was ordered to be acquired. In its affidavit specific averments has been made that there are more than 1,00,000 (one lakh) employees entitled for allotment of staff quarters and the Government has only 6,537 houses for allotment and the normal waiting period for allotment of a house to an employee was somewhere between 20-25 years. The selections are made on all India basis and thereforee a very urgent need to provide staff quarters. Planning of a town is stated to be an ongoing process and plan prepared by the DDA is required to be amended from time to time according to the exigencies of the scheme and in accordance with the prevalence of the laws. Earlier, the land which was sought to be acquired for planned development including the above purpose was approximately 3, 84 bighas covered under the notification no. 8474 dated 1.6.1995. Because of various intervening events, one being the judgment of the Supreme Court in the case of M.C. Mehta v. Union of India as well as the fact that the above notification had lapse, another notification was also issued on 17.11.1995 being no. 8685, particularly for construction of the staff quarters. The notification 8431 dated 1.6.1995 was issued under Section 4 read with Section 17(1) of the Act for 75 bighas 5 biswas. For this purpose, another notification of the same date being notification no. 81388 was also issued and upon lapse of the notification, another notification dated 16.11.1995 was issued under Section 4 read with Section 17(1) of the Act for the same land and after expiry of the requisite period notification under Section 9(1) was also issued including a corrigendum in relation to Khasra No. 1497 and 1598. On these facts according to the respondents the pleas taken by the petitioners are inconsequential and deserve to be rejected.
8. In the light of the above pleadings of the parties, now I can proceed to discuss the merit of the contentions which have been raised before me.
MERITS
9. The first submission raised by the respondents before me raises a simple but a pertinent question of law as to whether the application of mind as contemplated under Section 17(4) of the Act can be at any stage prior to the issuance of notification under Section 6 of the Act or it is a condition precedent to the issuance of the notification under Section 4 contemplating such a term.
10. In the pleadings as well as during the arguments, a reference was made to number of notifications. Thus, I feel that in order to put the matters beyond ambiguity, I may specifically notice that in this judgment I am concerned with three writ petitions bearing no. W.P.(C) No. 4789/1995, W.P.(C) No. 2345/1996 and W.P.(C) No. 2328/1996 and notification under Section 4 bearing no. F.9(12)/95/LandB/LA/8431 dated 1.6.1995 only for the land measuring about 75.05 bighas acquired for the construction of staff quarters under the 'Planned Development of Delhi' and notification under Section 6 bearing no. F.9(1L)/95/LandB/LA/8685 dated 17.11.95 was issued.
11. The notification under Section 4 was issued on 1.6.1995 and from the records produced before me by the respondents, it is clear that the proposal in this regard had commenced somewhere on 10.4.1995 with reference to the letters received from the DDA to acquire the land for a public purpose and emergently. This has been so stated at 1/N and a proposal was made by the Under Secretary, LA at 3/N clearly stating that the Hon'ble Lt. Government to accord his approval of notifications under Sections 4, 6 and 17(1) of the Act. This matter was processed at different levels as far as emergency for acquisition of land for public purpose is concerned. I shall shortly proceed to discuss the same, but here I am concerned with the process adopted by the respondents for according approval of the Lt. Governor and application of mind by him in consonance with the provisions of Section 17(4) of the Act. Vide order dated 4.5.1995 emphasis was made on approving the notifications under Section 4, 6 and 17(1) for the land measuring about 361 bighas and 2 bids was in the same village. Revised drafts containing the clause under Section 17(4), thus were to be put for approval which are relatable to page 49C of the same file. This draft notification was prepared for approval of the Lt. Governor on 3.5.1995 which contained a specific stipulation that the Lt. Governor being of the opinion that provisions of sub-Section 1 of Section 17 of the said Act are applicable to this land and is further pleased under sub-section 4 of the said Section to direct that the provisions of Section 5A was not complied. From the records produced before me and even from the counter affidavit filed by the respondents in Court, there is no indication that the Lt. Governor had actually directed the decision making process for invoking his powers under Section 17(4) of the Act. No noting refers to Section 17(4) and no specific order of the Lt. Governor except the above clause in the notification which was then finally published on 1.6.1995, lakes a reference to these provisions.
12. The learned Counsel appearing for the respondents argued that this Court could infer due application of mind by the Lt. Governor as the notification issued contained a specific direction under Section 17(4) of the Act which was gazetted and published in accordance with law.
13. I am unable to agree with this contention. This condition, I have dealt with at great length in the judgment of 3rd February, 2005 passed in W.P.(C) No. 7446/2002. In any case the decision of the appropriate government would relate back to the date of the notification issued by the Administration under Section 4 of the Act. Despite the fact that no specific grounds have been taken, with definite averments, still keeping in view the scope of the writ petition, I have dilated on all the issues that rise in these writ petitions. Zone-II - reference to the land under acquisition where said orders had been granted by the Courts while the lands in question related to Zone-II which are subject matter of the present writ petitions. As such they were clearly distinguishable from the other pieces of land.
14. However, an additional and very important aspect of this case is that subsequent to the publication of the notification which contained a direction under Section 17(4) of the Act, the matter was put up before the Lt. Governor by the concerned authorities amongst others specifically in regard to invoking of the provisions of Section 17(4) of the Act. The matters were directly related to grant or non-grant of hearing to the land owners as postulated under Section 5A of the Act. The factual matrix of he case in this regard, as it appears from the records produced before me, can be usefully referred to at this stage. After issuance of the notification under Section 4 on 1.6.1995, the matter was dealt with by the concerned authorities and again placed before the Lt. Governor. As alleged by the petitioners themselves, they had met the Lt. Governor and it appears that somewhere on 30.6.1995, the Lt. Governor had called for the files. In the detailed note dated 7.10.1995, the OSD had specifically recorded that land was urgently required and the matter was being delayed unnecessarily. He also referred to the several representations made by various sections. It was stated that the declaration under Section 6 was being delayed and also recommended that in order as contemplated under sub-section 17(4) of the Act should be enforced. Reference to pending cases where the said orders had been granted was also made in this very note. The relevant extract of this note reads as under:-
Apart from above we have received several representations for reconsideration of the invoking of emergency clause under LA Act 1894 in connection with land proposed to be acquired Village Malikpur Kohi in revenue estate of Rangpuri through notification dated 1.6.1995. They say that declaration u/s 6 has been delayed and not issued even after 2 months after issue of notification u/s 4(1). thereforee, there is no justification for invoking emergency clauses hence emergency clauses may be withdrawn.
The representations are placed in the linked file of the D.C. Office for perusal (page 1 to 12/C).
The stand taken by the the Dep. invoking emergency clauses is with the approval of L.G. i.e. The Appropriate Govt. The appropriate Govt. has judicially exercised this power by issuing notification u/s 4(1) and applying 17(1) and (4) of the Act. There is no question of any delay. Invoking the provisions of S. 17(4) does not preclude the right of the Govt. to invoke the provision of Section 17(1). The declaration u/s 6 can be issued at anytime after the issue of notification u/s 4(i) and not later than one year from the date of notification under Secy. 4(1). So we have grounds to contest these writ petitions and pray the court to vacate the stay or interim stay passed by the Court.
JS(LandB) (on leave)
Secy (LandB) 7.10.95
OSD
(emphasis applied by us)
15. On the basis of this note another detailed note was put up by the higher hierarchy in the Government Department with the following proposal:-
We should take possession of areas not under stay, which mainly appear to be zones I (Gaon Sabha 368) and II (Private 75) Zone III which has farm houses sanctioned etc. by MCD will have to wait. In those cases we should be prepared to allow a S.5 (i) inquiry and hearing subject to the writ petitions, i.e. those that have applied for hearing would be heard. But those who have filed writs have to await court orders.
We discussed today.
17.10
16. From the further nothings in the file as well as the correspondence, it appears that great concern was shown for expeditious conclusion of the matter and in the note dated 20.10.1995 it was specifically recorded 'No delay please.' However, the matter and nothings went on for sometime and finally the following note was put up to the Lt. Governor on which he passed the order recorded hereinbelow:-
May kindly see notes from pre page 24/N and approve foll. course of action:
a) Issue of notification u/s 6 and 17(i) for Zone I and II (gaon sabha land and Vacant private land in small portion for PWD)
b) Taking over of possession of area not covered by court stay in Zone I and II.
c) Issue of corrigendum in respect of Zone III, covering 39 farm houses and land appurtenant, affording the owners an opportunity for filing objections under Sec. 5A of the LA Act.
d) Instructions may also issue to DDA to ensure that no further construction comes up in the area being acquired in Zone III, during the period of acquisition and hearing of objections. This area already stands declared as a development area.
LG 8.11.95
a) and b) approved.
c) The opportunity may be given to all those owning land.
d) As proposed.
Secy. Land B 9.11.95
17. Thereafter, the notification under Section 6 was issued on 16/17.11.1995, as already noticed. Now I have to examine whether this entire process, even after issuance of the notification under Section 4 could justify in law passing of a direction under
Section 17(4) of the Act.
18. At this stage, I may refer to certain provisions of the Act. Section 4 of the Act contemplates issuance of a notification to be published in the official gazette whenever it appears to the appropriate government that land in any locality is needed for any public purpose. Under Section 5A of the Act, there is an obligation upon the State to consider and decide the objections filed by any person interested in the land which has been notified under Section 4(1) of the Act within the stipulated period.
Decision on the objection of the Objector have to be taken on due application of mind and then Section 6 contemplates publishing of a declaration in relation to the land which the Government finally decides to acquire for that public purpose. Section 6 requires the declaration to be made under the signature of the Secretary to such Government or such persons in relation to the parcel/parcels of land acquired and report under Section 5A has been received and considered by the authorities. Provisions of Section 9 of the Act requires the Collector to cause public notice to be given at the convenient place or near the land to be taken, stating that the government intends to take the possession of the land and claims for compensation of interested persons in such lands may be made to him. The Collector is expected to make the award at the earliest and give compensation in terms of its award after completing the enquiry as contemplated under Section 11 of the Act against which the owners of the land have remedies available in law with particular reference to Section 18 of the Act.
19. Part 2 of the Act contains the provisions right from the stage of preliminary investigation for acquisition and intention of the Government to acquire lands for public purpose, till inquiry to be conducted by the Collector on that behalf, publication of award and compensation to be paid to the land owners in terms thereof, including taking possession of the land even by invoking emergency provisions under Section 17 of the Act. The scheme under these provisions illustrates a complete code in itself, providing the procedure and remedies available to the owner of the land in regard to acquisition of his parcel of land. What is of significance is the language used by the Legislature in Section 4, 6 and 9 of the Act and right of the owner to object to acquisition under Section 5A of the Act. Under Section 4, the appropriate Government has to publish 'in the official gazette a notification', which has to be published in two daily newspapers circulating in that locality, and at least one of them shall be in the regional language. In Section 6 of the Act, the Government after considering the report of the Collector under Section 5A has to make a declaration 'a declaration to the effect that different parcels of land covered under the notification under section 4 are required'. Such declaration has to be made in the official gazette as well as in two daily newspapers circulating in the locality in which the land is situated in terms of sub-section 2 of Section 6. Under sub-section 3, the declaration shall be the conclusive evidence that land is needed for a public purpose. The provisions of Section 9 place an obligation upon the Collector to cause 'public notice to be given at convenient places or near the land to be taken possession of, stating that the Government intends to take possession of the land and claim of compensation for all interests in such land may be made to the Collector. The provisions of Section 17(1) as well as Section 17(4) requires a direction that appropriate Government may 'direct' that in case of emergency, despite the fact that no award has been made, but on the expiration of 15 days from the publication of the notice under Section 9(1) it may take possession, while under Section 17(4) the appropriate Government may 'direct' that provisions of Section 5A shall not apply and in the event the appropriate Government so directs, a declaration under Section 6 in respect of the land can be made at any time after the date of publication of the notification under Section 4(1) of the Act. In clear contra-distinction to the provisions of Section 4, 6 and 9, the provisions of Section 17(1) and 17(4) uses the expression 'directs'. In other words, Section 17(1) does not contemplate the provisions of Section 17(4), issuance of a notification or declaration and its publication in the official gazette, but requires the appropriate Government to apply its mind and direct that in its opinion provisions of Section 17(1) and 17(4) of the Act should be invoked. Consequent upon such direction a declaration under Section 6 of the Act can be made at any time and after the date of publication of the notification under Section 4(1) of the Act. The scheme of the Act, thus, empowers the appropriate Government to dispense with compliance of the statutory provisions of Section 5A. Once such dispensation is directed, the obvious result thereof is that declaration as contemplated under Section 6 shall be issued which would be a conclusive evidence in terms of Section 6(3) of the Act.
20. By catena of the judgments of the Supreme Court it has now been well established that directions, as envisaged under Section 17(1) and 17(4) of the Act are different and independent of each other. The authority concerned is required to apply its mind to both these aspects whether in its opinion it is appropriate to direct an emergency invocation of provisions contained in the Section as well as despite such invocation whether in its opinion dispensation of compliance to the provisions of Section 5A should also be directed. There is apparently no prohibition in issuing a notification under Section 4 of the Act which in turn contains both the clauses as postulated under Section 17(1) and 17(4) of the Act. Equally true is that they could be invoked an any stage prior to issuance of the declaration under Section 6 of the Act and obviously for good and valid reasons. I have not been able to trace any language in the statue which directly or even impliedly prohibits issuance of direction in terms of Section 17(4) of the Act post notification under Section 4 of the Act. The application of mind by the appropriate Government could be at any stage but before issuance of declaration under Section 6 of the Act. The Courts normally would not be inclined to amply any restrictive meaning to the expression of a language of a section particularly when the legislature has used terms of wider amplitude. The expressions 'direct' and 'at any time' appearing in Section 17(4) of the Act should be given its true meaning and to restrict its interpretation so as to contend that such application of mind has to be pre-issuance of notification under Section 17(4) of the Act, would amount to completely destroying the legislative intent behind these provisions. When the larequires application of mind at different stages and allows that these stages could appear at different places of acquisition of proceedings, then, even on first principle of interpretation they should be permitted to operate distinctly and independent if each other to the subjective satisfaction of the authority concerned.
21. It is true that there is really not any material on record before me which could demonstrate that there was definite noting, application of mind and the direction issued by the appropriate authority for dispensation of provisions of Section 5A in terms of Section 17(4) of the Act. Of course, in the draft as well as final notification published under Section 4 of the Act, showing that the appropriate authority has exercised its powers under Section 17(4) of the Act, was included. This by itself may not be sufficient to show reasonable and proper application of mind by the appropriate authority even in recording its subjective satisfaction which is conspicuous by its very absence on the record. For the reasons stated in our judgment dated February 0, 2005 in WP(C) NO. 7446/1999, I am of the view that this was not sufficient compliance of the provisions of Section 17(4) of the Act. But the question that really requires serious consideration in view of what I have stated above is the application of mind and recording of subjective satisfaction by the appropriate Government post notification, under Section 4. I have no doubt in my mind after looking into the records which were produced before me and on the basis of which lengthy arguments were addressed that post Section 4 notification, there is sufficient material to show that the Lt. Governor had applied his mind and even recorded reasons for the need to dispense with the provisions of Section 5A of the Act and requiring publication of a declaration under Section 6 of the Act. After publication of the notification on 1st June, 1995, the file was re-submitted and called by the Lt. Governor and unambiguous nothings were recorded with regard to the need for invoking the provisions of Section 17(4) of the Act. In the note dated 17th October, 1995, it was stated that possession of the areas which were not in stay orders from the Court should be taken. Zones 1, 2 and 3 were dealt with differently by giving plausible reasons for such distinction. The superior authorities in the hierarchy of the State then considered the various pros and cons of this aspect of the matter. Particular reference can be made to the note of the Joint Secretary, Land and Building at Pg. N/24-27 which was considered by Secretary, Land and Building and then finally, as is clear from the nothings afore referred, that the Lieutenant Governor upon due consideration of the matter had directed approval of the proposal and noted in his own hand writing as to which class of persons should be given hearing. The apparent reasoning in support thereof was relatable to the land and the owners in whose favor there were stay orders, constructed areas falling in different zones, land of the Gaon Sabha and other private lands which were vacant and could be taken possession of without any unnecessary delay.
22. These are the reasons recorded by the authorities on which the decision was taken where after a declaration under Section 6 of the Act was published in accordance with the provisions of the Act. Thus, it could hardly be disputed that there has been application of mind by the appropriate Government in invoking the provisions of Section 17(4) of the Act prior to issuance of a declaration under Section 6 of the Act. The public/owners of the land in any case would put a notice as the original notification dated 1.6.1995 issued under Section 4 of the Act contain a stipulation with regard to dispensation of provision of Section 5A of the Act. Thereafter, also a clause in the original notification read in conjunction with the subsequent proceedings substantially justify rectification in law as it was not an illegality inasmuch as the decision by the competent authority was taken prior to the issuance of notification under Section 6 of the Act and apparently none has suffered the prejudice, as the direction of the authority was known to the public including the owners of the land. Subjective satisfaction of the appropriate Government can be examined by this Court within the defined limited judicial review of such orders. It would have been certainly more appropriate if the authorities would have applied their mind right at the initial stage rather than carrying this defect by virtue of subsequent application of mind but within the time frame specified under the provisions of the Act. It could be safely aid that the foundation of the opinion was led at the initial stages but specific direction upon due subjective satisfaction of the matter was issued at a later stage. Such later stage being permissible in law would not invalidate the invoking of powers by the appropriate Government under Section 17(4) of the Act. I have already noticed that the intent of the Legislature in requiring the appropriate authority, only to issue a direction invoking emergency in terms of Section 17(1) of the Act or dispensation of provisions of Section 5A in terms of Section 17(4) is illustrative that its an act different and distinct from the notification as contemplated under Section 4, declaration under Section 6 and public notice under Section 9 of the Act. All these provisions read in conjunction with the comprehension in Section 17(1) and 17(4) leaves no doubt in my mind that recording of subjective satisfaction by the appropriate Government as to the pre-notification under Section 17(4) needs to be rejected.
Point no.2
23. Having answered the main controversy in the present case as above, now I would proceed to discuss whether the provisions of Section 17(1) of the Act were invoked by the authorities upon due application of mind and in consonance with law and whether the land was acquired for an accepted public purpose. In the present case, it could safely be concluded that the appropriate government for proper and valid reasons and due application of mind had invoked the provisions of Section 17(1) of the Act and that too for a public purpose, namely 'Planned Development of Delhi.'
24. The very first note which was initiated on the file which has been produced before me shows that after conducting survey of the land sought to be acquired for 'Planned Development of Delhi', a definite pointer was made towards the exigencies for construction of residential houses for the employees of Delhi Government as about 50,000 (fifty thousand) applications were stated to be pending for allotment of government accommodation. This note was initiated on 17.4.1995 by the Under Secretary (LA) who recommended invoking of the emergency clause in terms of Section 17(1) of the Act. This noting, in fact, was apparently based upon the letter dated 4.4.1995 written by the Vice Chairman, DDA to the Commissioner-cum-Secretary, Land and Building Department. It will be appropriate to refer to the relevant portion of this letter emphasizing on the emergent need of the administration.
6. There is a shortage of about 4 lakhs housing units Delhi. There is an incremental shortage of 80,000 dwell units every year. thereforee, DDA has to take up project, on a war footing so that sufficient dwelling units are built up the DDA. In the above circumstances, emergency clause has to be invoked for acquisition of the above land.
With regards,
Yours sincerely,
(K. J. ALPHONS)
Encl : As above.
Smt. Suman Swarup,
Commissioner -cum-Secretary (LandB),
GNCTD, Vikas Bhawan,
New Delhi.
25. Thereafter every noting on the file has with some emphasis referred to invoking the emergency clause and it is not necessary for me to refer to each of the noting, suffices it to note that the material produced before me clearly indicates that the appropriate authority as well as various officers in the hierarchy of the Government Administration had applied their minds in this aspect and detailed nothings were made. Finally the notification dated 1.6.1995 was approved by the Lt. Governor on 23.5.1995 and the note immediately preceding approval of the Lt. Governor in detail dealt with this aspect of the notification. As such there is no merit in the contention raised on behalf of the petitioners that there was no material or that the notification under Section 4 of the Act invoking the provisions of Section 17(1) of the Act suffers form vice of non-application of mind.
26. The other plea raised by the petitioners to challenge the validity of the notifications in question is that the power has been invoked under Section 17(1) and 17(4) of the Act arbitrarily, unfairly and without any proper need of the land. In the writ petition there are no specific averments and preferably substantiated by some record. Whether the land was capable of being utilised for the purposes for which it was acquired is a matter which squarely falls within the jurisdiction of the competent authority. Which land would be better and whether any other land was available for acquisition rather than the land of the petitioners again is no ground on the basis of which the notification under Section 4 of the Act could be quashed. The claim of the societies as well as the owners was considered by the authorities and had been duly referred to in the file, particularly at pages 14/N to N/16 as well as N/25 to N/30 of the file.
27. It is a settled canon of law that adequacy or inadequacy of material is an aspect beyond the scope of judicial review in such matters. The Court is only concerned with the fact that there was some material before the authority and it had applied its mind before issuance of such a notification. In this regard, we may also refer to the judgment of the even date in the case of W.P.(C) No. 7446/2002 decided on February 03, 2005.
28. In the case of Chameli Singh and Ors. vs. State of U.P. and Anr. : AIR1996SC1051 the Supreme Court stated that in any organized Society right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assure of all facilities to develop himself and is freed from restrictions which enhance his growth. Right to shelter thereforee, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. Their Lordships of the Supreme Court further held that town planning, slum clearance and building of houses to dalit, tribals and poo would be an urgent need and would continue to be so to subsist till their housing problem is solved. In the case of Rajasthan Housing Board and Ors. vs. Shri Kishan and Ors. : [1993]1SCR269 the Supreme Court clearly held that where on verification the Government finds acute scarcity of land and heavy pressure for construction of houses, invoking of emergent provisions would be fully justified. The above principles are reiteration of the law stated by the Supreme Court in its earlier judgments with definite approval. In the case of State of U.P. Etc. vs. Smt. Pista Devi and Ors. : [1986]3SCR743 the Court held as under:-
The letters and the certificates submitted by the Collector and the Secretary of the Meerut Development Authority to the State Government before the issue of the notification under section 4(1) of the Act clearly demonstrated that at that time there as a great urgency felt by them regarding the provision of housing accommodation at Meerut. The State Government acted upon the said reports, certificates and other material which were before it. In the circumstances of the case, it cannot be said that the decision of the State Government in resorting to section 17(1) of the Act was unwarranted. The provision of housing accommodation in these days has become a matter of national urgency. We may take judicial notice of this fact. Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is unnecessary to invoke section 17(1) of the Act and to dispense with the compliance with section 5A of the Act. Perhaps, at the time to which the decision in Narayan Govind Gavate etc. vs. State of Maharashtra, (1977) (1) S.C.R. 768 related the situation might have been that the schemes relating to development of residential areas in the urban centres were not so urgent and it was not necessary to eliminate the inquiry under section 5A of the Act. The acquisition proceedings which had been challenged in that case related to the year 1963. During this period of nearly 23 years since then the population of India has gone up by hundreds of millions and it is no longer possible for the Court to take the view that the schemes of development of residential areas do not 'appear to demand such emergent action as to eliminate summary inquiries under section 5A of the Act.
29. The above enunciated principles of law clearly demonstrate that in the present day there is dire need for a expeditious conclusion of development process with a definite emphasis on the project relating to residential schemes. The need for residential accommodation is increasing day-by-day and has practically satisfied all the ingredients for it to be termed as a national emergency. The State within its limitations is expected to meet this urgent need by applying all its resources in a right direction and expeditiously. The delay resulting from administrative functioning may not be fatal to such notifications but certainly the expression 'delay' per se is opposed to the expression 'urgent'. From the records produced before me and the law afore-referred I have no hesitation in rejecting the contentions raised on behalf of the petitioners that the need of residential schemes cannot be termed as an emergent public purpose particularly in the facts and circumstances of the case.
30. Forming of subjective opinion is subject to a limited judicial review, unless it offends the basic rule of law and the onus upon the respondents to show subjective satisfaction is not discharged. Their Lordships of the Supreme Court in the case of
Narayan Govind Gavate and Ors. vs. State of Maharashtra and Ors. : [1977]1SCR763 :-
Sufficiency of evidence to discharge the onus probandi is not, apart from instances of blatant perversity in assessing evidence, examined by the Supreme Court as a rule in appeals by special leave granted under Article 136 of the Constitution. Question whether an onus probandi has been discharged is one of fact.
31. Administrative decisions falling in that clause would be saved from the canon of judicial review in the event they do not fall within the exceptions afore-indicated. The materials on the noting file as well as on the correspondence file clearly indicate that note itself was initiated in furtherance to the letter dated 31.3.1998 making a reference to the emergent need for acquisition of the land in question. On the basis of the material produced before me it is not possible for me to accept the contentions of the petitioners that invoking of the provisions of Section 17(1) of the Act by the Lt. Governor is result of non-application of mind and/or is not based on any material whatsoever.
32. In the case of Shri Kishan (Supra) the Supreme Court held as under:-
If must be remembered that the satisfaction under section 17(4) is a subjective one and that so long as there is material upon which the government could have formed the said satisfaction fairly, the Court would not interfere nor would it examine the material as an appellate authority. This is the principle affirmed by decisions of this Court not under Section 17(4) but also generally with respect to subjective satisfaction.
33. In the case of Bhagat Singh vs. State of U.P. and Ors. : AIR1999SC436 , the Supreme Court also held that recording of such satisfaction as required under these provisions was a subjective one and once material was produced the same cannot be faulted. In the case of Chameli Singh (supra) their Lordships of the Supreme Court emphasising the limitations of judicial review of such administrative action held as under:-
When the Government on the basis of the material, constitutional and international obligation, formed its opinion or urgency, the court, not being an appellate forum, would not disturb the finding unless the court conclusively finds the exercise of the power mala fide. Providing house sites to the Dalits, Tribes and the poor itself is a national problem and a constitutional obligation. So long as the problem is not solved and the need is not fulfillled, the urgency continues to subsist. The State is expending money to relieve the deplorable housing condition in which they live by providing decent housing accommodation with better sanitary conditions.
The opinion of urgency formed by the appropriate Government to take immediate possession, is a subjective conclusion based on the material before it and it is entitled to great weight unless it is vitiated by mala fides or colourable exercise of power
34.The above view has been reiterated by the Supreme Court with approval on various occasions. Even in the case of Narayan Govind Gavate and Ors. vs. State of Maharashtra and Ors. : [1977]1SCR763 , the Supreme Court discussed the extent of judicial review of the subjective opinion formed and the burden of the Government on the principle of 'onus probandi' as under:-
(b) The purpose of Section 17(4) of the Land Acquisition Act is, obviously, nor merely to confine action under it to waste and arable land but also to situations in which an enquiry under Section 5A will serve no useful purpose, or, for some overriding reason, it should be dispensed with. The mind of the officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5A of the Act should be eliminated. It is no just the existence of an urgency but the need to dispense with an inquiry under Section 5A which has to be considered.
The formation of opinion under Section 17(4) is a subjective matter. The mind of the officer or authority concerned has really to be directed towards formation of an opinion on the need to dispense with the inquiry under Section 5A of the Act. Nevertheless, that opinion has to be based upon some relevant materials in order to pass the test which courts do impose. That test basically is: Was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play? Once the court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some material, however meagre, on which it could reasonably base its opinion, the courts should no and will not interfere. There might, however, be cases in which the power is exercised in such an obviously arbitrary or perverse fashion, without regard to the actual and undeniable facts, or, in other words, so unreasonably as to leave no doubt whatsoever in the mind of a court that there has been an excess of power. There may also be cases where the mind of the authority concerned has not been applied at all, due to misunderstanding of the law or some other reason, to what was legally imperative for it to consider.
An order or notification, containing a recital, technically correct on the face of it, raises a presumption of fact under Section 114, illustration(e) of the Evidence Act. It is based on the maxim omnia praesumuntur rite esse acta (i.e. all acts are presumed to have been rightly and regularly done). This presumption, however, is one of fact. It is an optional presumption. It can be displaced by circumstances indicating that the power lodged in an authority or official has not been exercised in accordance with law.
35.In this very judgment their Lordships of the Supreme Court also referred to the principle that the courts would normally go into the sufficiency or otherwise of the material/evidence and specifically held that acquisition of land for development of industrial areas and residential tenements for persons on industrial estate was a public purpose.
36.I have also referred to the circumstances which necessitated the invoking of provisions of Section 17(1) and 17(4) of the Act at two different stages. The purpose for which the land was sought to be acquired was certainly a public purpose and keeping in mind the dire need for residential complex of even the staff of the government was an emergent purpose, which again for valid reasons justify dispensation of the summary procedure prescribed under Section 5A of the Act. In the case of Bhagat Singh (supra), the court clearly accepted establishment of a market yard while shifting it from old place to a new was an emergent purpose and held as under:-
10. In our view, the subjective satisfaction for dispensing with the inquiry under Section 5A is based on sufficient material and cannot be faulted. The photographs as to the filthy state of the present mandi with garbage and stray cattle and pigs show that the place is so loathsome that it will be precarious and perhaps hazardous to store vegetables or foodgrains in the existing market. We are, thereforee, of the view that the urgency clause was rightly invoked by the Government. There are also enough precedents in connection with acquisition of land for markets where Section 5A has been dispensed with and such action was upheld.
11. In connection with a similar acquisition for a market yard, when the Section 5A inquiry was dispensed with on the ground of urgency, the Allahabad High Court in Satyendra Prasad Jain v. State of U.p. 1987 AWC 382 observed:
The question herein is whether the State was justified in dispensing the requirements of enquiry contemplated under Section 5A. It could be taken judicial notice of, that in regard to agricultural produce there were no proper market facilities. The e were innumerable charges, levies and exactions which the agriculturists were required to pay without having any say in the proper utilisation of the amount paid by them. The Government of India and the various committees and commission appointed to study the condition of agricultural markets in the country had stressed the need to provide proper market yards for the sale and purchase of agricultural produce. The Planning Commission also stressed long ago in this regard. The Uttar Pradesh Krishi Upped in Mandi Adhiniyam, 1964 has been enacted to provide for the regulation of sale and purchase of agricultural produce and for the establishment, superintendence and control of markets thereforee, in Uttar Pradesh. The proposed construction of market and market yard by the Mandi Samiti is, thereforee, a step forward to ameliorate the conditions of producers with due representation to them in the Mandi Samiti is for the fair settlement of disputes relating to their transactions. It is a long-felt need which is said to have been included in the Planned Development Scheme.
It was further stated (p.384) as follows :
[I]t cannot be said that there is no urgency in the matter of acquiring the land in question.
18. For the aforesaid reasons, we agree with the High Court that the respondents were amply justified in dispensing with the inquiry under Section 5A by exercising powers under Section 17(4) of the Act.
37. The appropriate Government has dealt with the matter with some delay. However, the delay in issuance of notifications under Section 4 and a declaration under Section 6 is not of such a nature that it could adversely effect the validity of these notifications. The matter was expeditiously dealt with at all relevant levels and stages. In fact, the authorities were emphasizing and re-emphasizing the need for taking urgent decisions. The Government process in dealing with files has resulted in some delay and certainly delay is not of the kind that would, in normal circumstances, invite any judicial intervention to the extent of setting aside the notifications in question. The plea of arbitrariness is without any basis, as is apparent from the very fact that though the authorities had taken a decision to dispense with the provisions of Section 5A of the Act, but still detailed report and minutes of the meeting as well as nothings were recorded on the file to examine various facets of this acquisition and driving a balance between the private and public interest in relation to building of staff quarters, while keeping in mind the present demand of providing accommodation to the Government employees' in Delhi.
38. In Bhagat Singh's case (supra) the plea of delay had been rejected by the Supreme Court and was subsequently followed even in the case of Chameli Singh's case (supra) where the Court held as under:-
Very often the officials, due to apathy in implementation of the policy and programmes of the Government, themselves adopt dilatory tactics to create cause for the owner of the land to challenge the validity or legality of the exercise of the power to defeat the urgency existing on the date of taking decision under Section 17(4) to dispense with Section 5A inquiry.
39. The other contention of the petitioners that the acquisition of the land is not in confirmity with the provisions of Delhi Development Act and/or the Master Plan issued there under would per se be a ground for acquiring the notifications, is also without any merit. The lands were admittedly acquired for 'Planned Development of Delhi.' Under the provisions of the DDA Act, the authorities can, at any time, give permission for change of user as well for altered development of the area than the one indicated in the plan, but in accordance with the provisions of the said Act. The Government had issued these notifications and stated to have prepared zonal development plans. Nothing in law prevents the administration from getting the plans approved for development of Delhi, even subsequent to the issuance of the notification under Section 4 of the Act. As already noticed that Master and Zonal Plans for development of Delhi are to be prepared by the DDA whereupon they are submitted to the Central Government for approval. All these plans are subject to modification in terms of Section 11A of this Act. Section 12 to 14 of the Act demonstrates, beyond ambiguity, that even after coming into operation of the plans, the land should be used in confirmity there with and the competent authority has the power to grant permission for use of the land for a purpose different than the one stated in the plan, but subject to such terms and conditions, as may be enforced by the competent authority.
40. It is true that once the acquisition is upheld, the Government has to make every effort to utilise land for the purpose for which it was acquired. The utilisation of the land can be in a manner which the Government may finalise in terms of the notification even at a subsequent stage. The Delhi Development Authority Act itself postulates grant of permission by the competent authority in relation to change in user as well as the manner of development and as such it will be unfair to pre-determine the issue in that regard at a stage prior to issuance of notification under Section 4, in all events and to bind the State by the same, leaving any leverage for the planned development or amended planned development of Delhi. In this regard reference can be made to the judgment of the Supreme Court in the case of Bhagat Singh (supra), where the court held as under:-
As pointed out in the above judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the Master Plan or Zonal Plan for the said area. Nor will the acquistion be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the master Plan or Zonal Plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is given to the beneficiary. On the principle stated in Aflatoon case 9 : [1998]3SCR643 it is clear that acquisition for a public purpose and obtaining permission from the competent authority under the Development Act concerned for change of land use are different from one another and the former is not dependent upon the latter
41. Unlike in the case of Shanti India (P) Ltd. vs. Lt. Governor and Ors., in the present case, there is sufficient material before the Court to hold that the respondents have exercised their powers fairly and in accordance with the provisions of law, and have taken steps for a public purpose.
42. From the above discussion, it is clear that the exercise of the powers by the respondents does not suffer from the vice of arbitrariness or unfairness. In fact, the respondents have acted in a bonafide manner and for achievement of an object underlining the planned development with definite emphasis on providing staff quarters to the employees of the State Administration. This is just a part of the entire plan and its scope from the record produced before me seems to be of a very wide magnitude and in the larger public interest.
43. For the reasons aforestated, I find no merit in these petitions and the same are dismissed, while leaving the parties to bear their own costs.