Swatanter Kumar, J.
1. By this judgment we would dispose of above two writ petitions WP(C) Nos. 2803/88 and 1063/88) as somewhat identical questions of law on similar facts arise for consideration of the court in both the petitions.
2. The petitioners claim to be owners of the agricultural land comprised within and forming part of Mustatil No. 54 Killa Nos. 22, 23, 24 measuring about 12 bighas and 9 bids was situated in the revenue estate of Village Bhartal, in the Union Territory of Delhi. The appropriate Government issued a notification under Section 4 of the Land Acquisition Act (hereinafter referred to as 'Act') intending to acquire large tracts of land in the revenue estate of village Bhavthal. The petitioners claim to have raised certain constructions on the land in question and according to them they were duly entered in the Khasra Girdawari for the year 1988.
3. Earlier, number of notifications were issued acquiring lands within the revenue estate of village Bhavtal in the Union Territory of Delhi and the appropriate Government then issued another notification on 4.2.88 acquiring the lands for a public purpose namely expansion of Bijwasan Oil Terminal of Bharat Petroleum Corporation Ltd under the planned development of Delhi. This notification was not only issued under Section 4 of the Act but as well as under Section 17 of the Act, and it was directed that the provisions of Sub-Section 5(a) are dispensed with. In pursuance to this notification, declaration under Section 6 was issued on 16.2.88. According to the petitioners the possession of the land in furtherance to this notification has not been taken and they pray for quashing of the acquisition proceedings as well as declaring that the petitioner's land is free from any acquisition proceedings and that the respondents ought not to interfere in the actual physical and peaceful possession of the land which is subject matter of these writ petitions. According to the petitioners, the notification dated 4.2.88 and the acquisition proceedings in furtherance thereto, are liable to be quashed for the reason that the entire area is a built up area having been developed as farm house. As such, the public purpose of acquisition cannot be achieved. There was no directive of the appropriate authority under Section 17(4) of the Act dispensing with recourse to the provisions of Section 5A of the Act. There being no order of the competent authority, the entire acquisition proceedings have been vitiated. The petitioners are, thereforee, entitled to have their lands free from the acquisition proceedings. The constructed area could not be acquired as per the policy of the Government itself.
4. This claim of the petitioners was contested by the respondents who filed a short affidavit stating that the petition of the petitioners is liable to be dismissed as the notification has been issued in accordance with law and a collective notification was issued under Sections 4, 6 and 17 of the Land Acquisition Act. After the compliance of the provisions of the Act and its publication in the newspapers, the acquisition proceedings have been completed. It is stated that a notification under Section 17(1) of the Act was also issued and the appropriate authority had dispensed with compliance to the provisions of Section 5A of the Act. The possession of the larger area acquired under the notification was taken on 16.5.88, however, some portion which was built up, the possession was not taken. A stay order was granted by the court on 25.5.88 restraining the respondents from dispossessing the petitioners. The respondents intend to take possession of the land to be developed by the company in terms of the purpose for which the land was acquired.
5. On the basis of the above pleadings, various submissions have been made and lengthy arguments addressed by the learned Counsel appearing for the respective parties which we would prefer to deal as follows:- Point No.1 :
6. The first contention on behalf of the petitioner is that the land had been acquired for the use and benefit of Bharat Petroleum Corporation Limited (hereinafter referred to as 'BPCL'), a company which had to pay the compensation to the claimants for acquisition of the land and as the respondents have failed to act in accordance with the provisions of Part-VII of the Land Acquisition Act, the acquisition proceedings are vitiated. In this regard they have relied upon the judgment of the Supreme Court in the case of State of West Bengal and Ors. v. P.N. Talukdar : AIR1965SC646 . Vide notification dated 4.2.1988, issued under Section 4 of the Act, the land was acquired for the 'Planned Development of Delhi'. Along with this term of wide connotation, it was further specified that it was for expansion of Bijwasan Oil Terminal of BPCL. There is no dispute before us that the Company was to pay the amount of compensation as the land had been acquired exclusively for the benefit of the company. On the plain reading of these facts, prima facie, the judgment of the Supreme Court in case of P.N. Talukdar (supra) would be applicable. But when the matter is examined in its proper perspective and in reference to the records produced before us during the course of hearing, it is clear that at the relevant time i.e. in the year 1988, the company was a government company and thus the principle enunciated in the judgment of the Supreme court where the beneficiary was a Rama Krishna Mission, which directly or indirectly was neither a company nor a department of the government, and in fact, the Government had no interest in the affairs of the Mission. The correspondence between the company and the Collector and other authorities are on the letter head of the Company, which clearly indicates that it was 'A GOVERNMENT OF INDIA ENTERPRISE'. In other words, the company was part of the government or its instrumentalities and the land was being acquired for the company, which was not an independent company wherein the Government had no interest whatsoever. The expression 'Company' has been defined in Section 3(e) of the Act and it excludes a Government Company as defined in Section 3(cc). Under Section 3(cc), a company would be a government company or society, in which not less than 51% of the paid-up share capital is held by the Central or the State Government. BPCL is entirely a Government of India enterprise and its management and control at the relevant time was with the government. The averments made are not in compliance to the pre-requisites of the provisions of Part-VII of the Act and it is a vague plea which has been taken by the petitioners in their grounds without any specific averments. The petitioners could raise the plea of violation of Part-VII of the Act only if they had made an averment in the writ petition that BPCL was not a Department or a Government owned company or that the government was not a equity share holder in excess of 51% share capital. Unless definite averments are made, the petitioners cannot take advantage on the basis of a vague plea. In any case, it has come on the record that at the relevant time, the beneficiary company was a Government of India enterprise.
7. The learned Counsel appearing for the respondent has relied upon a Full Bench judgment of the Punjab High Court in the case of Jhandu Lal v. State of Punjab to contend that wherever the purpose is a public purpose, the same cannot be equated to a private purpose and thus, the necessity to follow the provisions of Part-VII would not be necessary if the acquisition is for a public purpose (a company of the Government). The Court in the said judgment held as under:-
Article 31 of the Constitution prohibits compulsory acquisition of property for anything except a public purpose. thereforee, acquisition for anything which is not a public purpose cannot now be done compulsorily, but before the Constitution came into force land could be acquired compulsorily by Government for a purpose which was not public. There is nothing in the Land Acquisition Act to warrant the assumption that the embargo placed by Article 31 of the Constitution found place in the Act. The Land Acquisition Act contemplates two categories of acquisition, namely, acquisition for a public purpose and acquisition for a private purpose of a restricted type, viz., acquisition for companies when the purposes are those mentioned in S. 40. This distinction is maintained throughout the Act. There is nothing in the Act to say that when land is required for a company it must also be for a public purpose. If the company requires land for any purpose other than those mentioned in S. 40, then no compulsory acquisition under the Land Acquisition Act is possible, but Ss. 38 and 40 make it quite clear that land in these cases is not being acquired for a public purpose. Part VII is intended to cover those cases where the purpose of acquisition is private but for a company and where such purpose is similar to what are known as public purposes. Whenever land is required for a public purpose, even though the Company is to bear all the expenses and use the land, there is no need to comply with the provisions of Part VII, in the matter of execution of an agreement as contemplated by Ss. 39 and 41. The declaration under s. 6 would be made only after the Government is satisfied that the compensation is to be paid by the company where land is required for the benefit of the company.
8. Thus, the question of taking recourse to the provisions of Part-VII of the Act would not arise and the judgment of the Supreme Court on facts may not have any application to the present case. This contention, thereforee, is without any merit. POINT- 2
9. The respondents have then contended that the respondents had not taken possession and wherever they had taken possession of the acquired land, the requisite payment of 80% in accordance with the provisions of the Act was neither tendered nor offered to the claimants, and as such the acquisition proceedings are vitiated and would have to be declared ineffective and inconsequential in relation to the lands of the petitioners.
10. At the very outset it may be noticed that it is not in dispute before us that in W.P.(C)No. 2803/1988, the possession of the land has been taken, while in W.P.(C) No. 1063/1988, even according to the respondents they have not taken the possession of the acquired land as yet. Thus, in the later case, the argument raised is not even available. Coming to the facts of W.P.(C) No. 2803/1988, according to the respondents they have taken possession of the land in question. Some attempt was made on behalf of the petitioners to show that part possession of the acquired land has not been taken. We have perused the original records which were produced before us during the course of hearing. The kabza karwai report dated 16.5.1988 clearly shows that different officers of various departments had gone to the site and had taken possession of the land in dispute. In fact, in the counter affidavit filed on behalf of the respondents, it has specifically been stated that the land had been acquired for expansion of Bijwasan Oil Terminal of BPCL under the scheme of 'Planned Development of Delhi' and notifications had been issued under Sections 4, 6 and 17 of the Act. They have also averred that the provisions of the Land Acquisition Act were duly complied with and Section 4 notification was duly publicized. In W.P.(C) No. 1063/1988, the respondents themselves have stated in paragraph 'N' of the counter filed by them, that possession of the land in question could not be taken over on 16.5.1988 due to built-up areas, while the possession of the remaining notified land was taken over, and thereafter the possession could not be taken because of stay granted by the Court vide order dated 26.5.1988, in the present case. Where the respondents are still to take possession of the lands, their liability to pay 80% of the compensation would arise only at that stage. Where the possession has been taken and it is duly established on record by kabza karwai report dated 16.5.1988, the respondents were under obligation to pay the amount to the claimants in accordance with the provisions of the Act. According to the petitioners, there was a default on the part of the respondents on record to show that the payment of 80% as contemplated under law was made on or before, and/or immediately thereafter to the claimants. The award was pronounced on 18.8.1988 where after notices were issued by the respondents to the claimants requiring them to receive the payment payable to them in terms of such award. What has to be seen is whether such non-payment would vitiate the land acquisition proceedings or would it be a mere irregularity. The scheme of the provisions of the Land Acquisition Act as well as the provisions of Section 17(3A)(a) do not indicate or spell out any consequence in law or otherwise which would lead to frustration of the acquisition proceedings only for default of payment of 80% of the compensation. The prejudice to the petitioner can be avoided by payment of appropriate interest if the Court ultimately comes to that conclusion. All these provisions do not indicate such legislative intent nor can that be inferred by necessary implication. It is required and expected of the acquiring authority to pay compensation to the land owners in terms of the Act. The various provisions of the Act provide for consequence of a default, wherever the legislature desired to do so. For example, the provisions of Section 11 and 11A directly deals with the effect of not pronouncing an award within the prescribed period of limitation. The non-payment of 80% of the compensation, thus, is an irregularity and not an illegality which would vitiate or frustrate the acquisition proceedings itself. The delayed possession also would in no way affect the acquisition proceedings once the award has been made and compensation payable determined. Mere delay in taking possession of the land, thus, cannot constitute a valid ground for setting aside a notification issued under the provisions of the Act. Reference in this regard can be made to the judgment of this Court in the case of W.P.(C)No. 1687/1986 and other Connected matters, titled as Shri Balwant v. Union of India and Ors. reported as 2005 (119) Dlt 458 decided on March 03, 2005, where the Court held as under:-
The Land Acquisition Collector took the proceedings and issued notice to the interested persons. However, such notices were issued under Section 9 & 10(1) of the Act on 29.7.86. Various awards were made by the concerned authorities including Award No.81/8687 dated 19.9.86. It is stated by the Petitioners that more than 20 years had passed from issuance of the notification under Section 4 of the Act but no award was passed and the Petitioners were served with notices under Section 9 & 10 of the Act in July, 1986. Relying upon certain judgments including the judgments of different High Courts in the cases of Patel Shankerbhai Mahijibhai and etc. etc. v. State of Gujarat and Ors. AIR 1981 Guj 67 , P. Appalamurthy and Ors. v. State of Andhra Pradesh and Ors. : AIR1981AP278 , and Radhey Sham Gupta and Ors. v. State of Haryana and Ors. 1982 P&h; 519 , it is contended that the interests of the Petitioners is being seriously jeopardised inasmuch as the possession of their land would be taken now and they would be paid the value of the land on the basis of the prevalent market value of 20 years back. Main emphasis of the Petitioners while challenging the action of the Respondents is that it would be inequitable, unfair and the notices issued to them suffer from serious delay and they would be paid no damages for their property. In substance the only challenge raised in these petitions is that the delay of more than 17 years in issuance of such notifications/notices would vitiate the acquisition proceedings and as such the possession of their lands cannot be taken by the Respondents. However, according to the Petitioners, the notifications in question have died/expired by efflux of time and the State has become functus officio. The action of the State thus stated to be arbitrary and not an honest discharge of official duties assigning to the Respondents.
3. Another contention raised before us is that the statutory period for which the Master Plan had been prepared had since expired and in view of the provisions of Section 55 of Delhi Development Act, 1957 there be automatic release of the acquired land as there is no public purpose in existence.
4. We find no merit in either of the contentions raised before us. As already noticed, the main emphasis of arguments of the Petitioners is that the acquisition proceedings are vitiated because of extraordinary delay in issuance of the notices under Section 9 & 10 of the Act and particularly when they would not be paid any damages for such delayed period. This argument does not take the case of the Petitioners any further inasmuch as it is no more rest integra and is squarely answered by a Full Bench judgment of this Court in the case of Roshanara Begum v. Union of India and Ors. : 61(1996)DLT206 , where the Bench was considering large number of writ petitions wherein the land has been acquired under notification issued under Section 4 of the Act dated 13.9.59. The Award was passed in the year 1977-78 and the Petitioners had approached the Court with similar prayers amongst other reliefs. The Full Bench while declining to quash the acquisition proceedings defined certain benefits which the Petitioners would be entitled to. Reference can be made to the judgment of the Supreme Court in the case of Bhagat Singh v. State of U.P. and Ors. : AIR1999SC436 . The judgment of the Full Bench of this Court was upheld by the Supreme Court with somewhat modifications in the case of Murari and Ors. v. Union of India and Ors. : (1997)1SCC15 , where the Court held as under :
A half-hearted argument was also advanced to the effect that the life span of the master plan was 20 years but the acquisition proceedings are not yet complete and, thereforee, the notifications issued for acquisition of the land for planned development of Delhi have lost their value and the acquisition proceedings should be quashed. This argument is also without any merit for the simple reason that Delhi is the capital of the largest democratic country of the world. There is inflow of more than one lakh of people every year to this city. It is an ever-expanding, cosmopolitan, commercial and industrial city with multifarious national and international activities. The city of Delhi is confronted with serious housing problems due to enormous growth and ever-expanding population. Consequently Delhi development is a continuous unending process for which no terminal point for the completion of such process can be visualised. In these facts and circumstances simply because there is a delay which in the facts and circumstances of the present case was bound to occur, it cannot justifiably be contended that the notifications issued were rendered ineffective. As pointed out by the High Court, and in our opinion rightly so, that large tracts of land were sought to be acquired for the purpose of constructing huge residential colonies and commercial areas and, thereforee, the delay was bound to occur in completing the acquisition proceedings. After overall consideration of the issues involved in these transfer cases and the appeals we find no ground to take a different view than the one taken by the High Court in the impugned judgment. Consequently, the acquisition proceedings could not be quashed on any grounds. We also find ourselves in respectful agreement with the view taken by this Court in the case of Ram Chand. Consequently, the appeals fail and are hereby dismissed. The transfer cases are allowed in terms of the order made in the case of Ram Chand directing that the transfer petitioners and the appellants shall be paid an additional amount of compensation to be calculated at the rate of 12 per cent per annum, after the expiry of two years from the date of decision of Aflatoon case i.e. 23.8.1974 till the date of making of the awards by the Collector, to be calculated with reference to the market value of the land in question on the date of notification under Section 4(1) of the Act. In the facts and circumstances of the case we make no order as to costs.5. As is clear from the above judgment of the Full Bench of this Court and as approved by the Supreme Court there is no reason for us to grant any relief to the Petitioners other than the one which has been granted to the Petitioners in those cases. There is delay in issuance of such notices but the same would not vitiate the acquisition proceedings and the notifications issued are not liable to be set aside.
11.The delay in taking possession or not making payment of 80% at the time of taking over possession of the lands in question per se would not vitiate the acquisition proceedings particularly when the petitioners have hardly suffered any prejudice as their properties were in their possession and they had been enjoying the rights and fruits of possession of the said properties. The consistent view taken in various judgments as afore-referred by us, supports this view and, thus, we find no merit even in this contention of the petitioners.
POINT - 3
12. The main thrust of the arguments on behalf of the petitioners is that there is no order passed by the Lieutenant Governor dispensing with compliance of the provisions of Section 5-A as contemplated under Section 17(4) of the Act.
13. In order to examine the merits of this contention besides pleadings of the parties, reference to the records which have been produced by the respondents before the court during the course of hearing, would be necessary. After seeing the original record, we had directed the respondents to place on record the photocopy of the relevant records i.e. Kabza Karwahi, notification and the nothings leading to the issuance of the notification under Sections 4, 6 and 17(1) of the Act. These records show that a detailed note was prepared on 14.2.1986 after a letter had been received from Bharat Petroleum Corporation Ltd. for acquisition of the land. In this note, it was stated that what steps need to be taken. After some process, vide note dated 6.1.87, the Under Secretary (LA) on 7.1.87 submitted the file to the higher authorities for its submission to the Lieutenant Governor for according his approval for notifying the land under Sections 4, 6 and 17(1) of the Act. The file was processed through different offices and thereafter a final note was again submitted on 28.1.88 to the Lieutenant Governor with the same request for notifying the land measuring 64 bigha 07 bids was in village Bhavtal for the purpose referred therein. This note was approved by the Lieutenant Governor while recording the following order:-
I have gone through the records and the requirements of the Bharat Petroleum Corporation Ltd. And also the draft notification. I am fully satisfied that the land in question is urgently required for a valid public purpose namely providing security and protection to the existing oil installation. I order that in view of the urgency of the scheme notification under Section 4, 6 and 17(1) of the LA Act may be issued immediately.
14. After the note was approved, the notification was issued on 4.2.88 under Section 4 and 17(1) of the Act, copy of which has even been filed by the petitioners on record.
15.On this premise, the contention on behalf of the petitioners is that the provisions of Section 17(4) require independent application of mind by the Lieutenant Governor and a separate order or a direction is required to be specifically recorded dispensing with the compliance to provisions of Section 5-A of the Act. As there is no note even requesting the Lieutenant Governor to apply his mind to that aspect of the case, the entire acquisition proceedings are vitiated.
16.On the other hand, the learned Counsel appearing for the respondents have argued that the draft notification which was submitted before the Lieutenant Governor in terms of the note, contained a specific clause in regard to dispensation of the provisions of Section 5-A. As such, there has to be presumption for application of mind as well as issuance of a direction by the Lieutenant Governor in accordance with the provisions of Section 17(4) of the Act. This contention is no more rest integra and has already been settled by the Supreme Court in the case of Union of India and Ors. v. Mukesh Hans case : AIR2004SC4307 and on identical facts arising in other cases where the Lieutenant Governor had passed the similar order as in the present case, a Division Bench of this Court in the case of Shanti India (P) Ltd. v. Lt. Governor and Ors. WP(C) No. 7446/1999 decided on 3.2.2005, had dealt with the contention at great length and while following the judgment of the Supreme Court in the Mukesh Han's case, held as under:-
22. Now, we would refer to discuss the merit of the second contention raised on behalf of the petitioners. While relying upon the judgment of the Supreme Court in the cases of Union of India and Ors. v. Mukesh Hans : AIR2004SC4307 ; Union of India and Ors. v. Kirshan Lal Arneja and Ors. : AIR2004SC3582 and a recent judgment of a Division Bench of this Court in the case of M/s. Sri Ballabh Marbles & 26 Ors. v. Kawaljeet Singh and Anr. (W.P.(C) No. 4933/1999, decided on 17.12.2004) argued that 'in fact' and 'in law' there is no notification, directions as contemplated under Section 17(4) of the Act. In any case, the notification dated 11.11.1999 which contained such a stipulation that provisions of Section 5-A have been dispensed with, is liable to be quashed as it has been issued without application of mind, any material much less sufficient material in support of such directions and is patently an arbitrary exercise of power. In order to substantiate this argument the learned Counsel further relied upon the records produced by the respondents themselves which according to him did not even remotely indicate any application of mind by the competent authority. On the other hand, the learned Counsel appearing for the respective respondents contended that the case of Mukesh Hans (supra) is distinguishable on facts and case of Shri Kishan (supra) has no direct bearing on the questions involved in the present case. While referring to page 5/N, 7/N, 9/N, 13/C, 14/C, 16/C, 18/C and 35/C of the record produced before us contended that there is apparent and proper application of mind by the Lt. Governor to substantiate issuance of a direction under Section 17(4) of the Act. With some emphasis it is argued on behalf of the respondents that the satisfaction of the authority under Section 17(1) and 17(4) of the Act is a subjective satisfaction and is not open to judicial review. It is also the argument that the placement of notification dated 11.11.1999 containing the clauses of Section 17(1) and 17(4) of the Act, would by itself be a sufficient compliance of the provisions and the very fact that there was sufficient material for invoking the emergency clause, the requirements of Section 17(4) would also stand automatically satisfied. Reference to the record produced before us in its terms would be necessary to examine this aspect of the case. We have already noticed that vide its letters dated 10.3.1998 and 31.3.1998, the DDA had requested the Land and Building Department of the Govt. of NCT of Delhi for acquisition of the land in question and invoke the emergency provisions. In furtherance to this, a note was prepared appearing at page 4/N of the file where it was stated that the request of issuance of notifications under Sections '4, 6 and 17(1)' in respect of the land was initiated. On 30.12.1998, the following note was submitted to the Secretary to the Lt. Governor:- of Secretary, to L.G. enclosing herewith the Note of Commissioner (Land Management) DDA. In the note it is stated that this Land forms part of Vasant Kunj Sector-D, Pocket-A, earmarked for housing this land for DDA under Emergent provision in the note letter of V.C. DDA dt. 10.3.98 pointed out A D.O. Letter dt. 10.3.98 from V.C. DDA has been received. In the letter has been forwarded to SDM/LAC (Hauz Khas) vide letter No. 9 (9)/98/L&B;/LA/1368-69 dt. 23-4-98, copy of letter has also been forwarded to Vice Chairman, DDA for information. Subsequent reminder has also been send to SDM/LAC on dt. 18.6.98, 4.8.98 & 26.10.98, but draft notification along with Joint Survey Report, Field Book, other relevant document & estimated 80% cost of acquisition has not been received yet.
OS (LA)
DS (LA)
27. Thus the question that really needs to be answered by the Court, where in the facts and circumstances afore noticed there is or not, due application of mind by the competent authority for invoking the provisions of Section 17(4) of the Act? It cannot be disputed that Section 5A of the Act provides a definite protection to the owner of the land, which is sought to be acquired by the Government and at the same time places an obligation upon the State to consider the objections filed by the owners in accordance with law. It is only after rejection of objections filed by the owner under Section 5A upon due application of mind that the authorities could issue declaration under Section 6 of the Act and proceed with the acquisition proceedings further in accordance with law. The owner of the land has a substantive and valuable right under Section 5A to object to the acquisition of his land on varied reasons. These objections could be personal to the land and the owner or could be of general nature as well. The complete procedure is provided under the Act as to how the objection of this nature are to be invited, dealt with and decided by the authorities. The only exception from taking recourse to these provisions which are mandatory, is provided under Section 17(4) of the Act. The Legislature in its wisdom has thus provided for definite exception to the basic and pre-dominant concept of eminent domain of the State.
28. Under those provisions the competent authority could pass an order directing that in the emergent process of acquisition of land it will be necessary to dispense with the procedure provided under Section 5A of the Act. Such direction essentially must be based upon proper application of mind. It was a commonly admitted position before us that there could be cases where emergency provisions of Section 17(1) are invoked still the competent authority may decide to comply with the requirements of the statutory provisions of Section 5A of the Act. While in other cases the authority may consider it appropriate to invoke the emergency provisions of Section 17(1) as well direct dispensation of provisions of Section 5A of the Act in exercise of powers under Section 17(4) of the Act.
29. The provisions of Section 17(1) and 17(4) would operate distinctly and on different premises. Emergency for acquiring a land would be a decision at the first instance and then the authority would have to apply its mind on the cumulative effect of various factors as to whether it would like to pass direction as contemplated under Section 17(4) of the Act or not. Of course in both events the decision of the authority is based on a subjective satisfaction and would be open to judicial review within a narrow compass. But it is certainly a matter which would require proper application of mind by the concerned authority based upon some material, data or suggestions in the public interest. A decision which is not taken on the file as a fact or is not supported by any material whatsoever would certainly call for judicial intervention by the Courts in appropriate cases. In the case of Praveen Gupta (supra) the Supreme Court did observe that administrative decisions are matter of subjective satisfaction of the appropriate Government and they need not pass reasoned orders to reach at the conclusion. However, it is equally an accepted precept of administrative law that there should be due application of mind by the authorities and such application of mind should be apparent from the record. The Administrative orders need not record lengthy reasons like judgments to arrive at a conclusion. However, some rationale or basis should be explicit in the decision-making process of the authorities. May be not the detailed reasons, but something akin to reasoning should be apparent from the face of the record of the Government. The consistent view of the Supreme Court has been that the subjective satisfaction of the government would not be disturbed by the court unless it finds that power has been exercised unlawfully or is not founded on any material or reason even on the records of the government. On the bare reading of the provisions of Sections 5A, 17(1) and 17(4) of the Act it is clear that there is element of application of mind involved by the appropriate authority at two stages. The application of mind under Section 17(1) would by itself not take into its ambit automatic issuance of a direction in terms of Section 17(4) of the Act. This distinction ex facie emerges from the fact that application of provisions under Section 17(1) did not imply that there would be dispensation of the right of a person under Section 5A. It is only when the authorities specifically decides to take recourse to its powers under Section 17(4) of the Act that it can dispense with the provisions of Section 5A., Now we may refer to the recent judgment of the Supreme Court in the case of Mukesh Hans (supra) where their Lordships of the Supreme Court after discussing the scheme of this Act held as under:-
30. Sub-section (2) of Section 17 contemplates a different type of urgency inasmuch as it should be an unforeseen emergency. Under this section if the appropriate Government is satisfied that there is such unforeseen emergency the authorities can take possession of the land even without waiting for the fifteen-day period contemplated under Section 9(1). thereforee, in cases, where the Government is satisfied that there is an unforeseen emergency, it will have to in the normal course, issue a Section 4(1) notification, hold Section 5-A inquiry, make Section 6 declaration, and issue Section 9(1) notice and possession can be taken immediately thereafter without waiting for the period of 15 days prescribed under Section 9(1) of the Act.
31. Section 17(4) as noticed above, provides that in cases where the appropriate Government has come to the conclusion that there exists an urgency or unforeseen emergency as required under Sub-section (1) or (2) of Section 17, it may direct that the provisions of Section 5-A shall not apply and if such direction is given then Section 5-A inquiry can be dispensed with and a declaration may be made under Section 6 on publication of Section 4(1) notification and possession can be made.
32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of the Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 5-A inquiry. If that was not the intention of the legislature then the latter part of Sub-section (4) of Section 17 would not have been necessary and the legislature in Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. But then that is not the language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5-A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does not mean that in each and every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5-A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5-A inquiry is inherent in the two types of urgencies contemplated under Sections 17(1) and (2) of the Act.
33. An argument was sought to be advanced on behalf of the appellants that once the appropriate Government comes to the conclusion that there is an urgency or unforeseen emergency under Sections 17(1) and (2), the dispensation with inquiry under Section 5-A becomes automatic and the same can be done by a composite order meaning thereby that there is no need for the appropriate Government to separately apply its mind for any further emergency for dispensation with an inquiry under Section 5-A. We are unable to agree with the above argument because Sub-section (4) of Section 17 itself indicates that the Government may direct that the provisions of Section 5-A shall not apply. which makes it clear that not in every case where the appropriate Government has come to the conclusion that there is urgency and under Sub-section (1) or unforeseen emergency under Sub-section (2) of Section 17, the Government will ipso facto have to direct the dispensation of the inquiry. For this we do find support from a judgment of this Court in the case of Nandeshwar Prasad v. State of U.P. : [1964]3SCR425 wherein considering the language of Section 17 of the Act which was then referable to waste or arable land and the U.P. Amendment to the said section, this Court held thus: (SCR pp. 436-37)
It will be seen that Section 17(1) gives power to the Government to direct the Collector, though no award has been made under Section 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken under Section 17(1), taking possession and vesting which are provided in Section 16 after the award under Section 11 are accelerated and can take place fifteen days after the publication of the notice under Section 9. Then comes Section 17(4) which provides that in case of any land to which the provisions of Sub-section (1) are applicable, the Government may direct that the provisions of Section 5-A shall not apply and it if does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under Section 4(1). It will be seen that it is not necessary even where the Government makes a direction under Section 17(1) that it should also make a direction under Section 17(4). If the Government makes a direction only under Section 17(1) the procedure under Section 5-A would still have to be followed before a notification under Section 6 is issued, though after that procedure has been followed and a notification under Section 6 is issued the Collector gets the power to take possession of the land after the notice under Section 9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all encumbrances. It is only when the Government also makes a declaration under Section 17(4) that it becomes unnecessary to take action under Section 5-A and make a report there under. It may be that generally where an order is made under Section 17(1), an order under Section 17(4) is also passed; but in law it is not necessary that this should be so. It will also be seen that under the Land Acquisition Act an order under Section 17(1) or Section 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand.34. A careful reading of the above judgment shows that this Court in the said Nandeshwar Prasad case : [1973]1SCR973 has also held that there should be an application of mind to the facts of the case with special reference to this concession of Section 5-A inquiry under the Act.
37. We will now refer to the facts of the present case. We make it clear that this consideration of facts by us is not for the purpose of finding out whether stated public purpose is in reality a public purpose or not, nor is it for the purpose of finding out whether there was an urgency as contemplated under Section 17(1) of the Act, but limited to the question of whether there was any material available before the Lt. Governor pursuant to whose order Section 4(1) notification stated that Section 5-A inquiry is dispensed with. Since formation of an opinion and application of mind cannot be assessed except by looking into the proceedings which culminated in the impugned order, we intend considering only such facts as are necessary for this limited purpose.
30. The dictum of the Supreme Court in the above case clearly rejects an argument that application of mind can be presumed by the mere fact that notification issued by the Government contained different clauses under Section 17(1) and 17(4) of the Act, and thus, there is obvious application of mind by the competent authority. Dispensation of the provisions of Section 5A amounts to diverting a land owner of a valuable right and as such order under Section 17(4) of the Act should be passed upon due application of mind which must appear from the record itself. Invoking of the provisions of Section 17(1) and 17(4) of the Act is a decision which requires recording of some reasons on the file which would apparently show that the appropriate authority has objectively considered the matters in issue to give a subjective decision. The onus lies upon the appropriate government to show from its record application of mind by the competent authority. This shall be more so where there is not even a mention in the entire noting of the file produced that provisions of Section 17(4) of the Act need to be invoked in the facts and circumstances of the case. The argument of the respondent that such application of mind could be inferred is further demolished by their own records as the order put up for signatures of the Lt. Governor did not even contain reference to Section 17(4) of the Act, even brief mention, much less in terms of the section.
31. In face of the above order it can hardly lie in the mouth of the respondent who argued that there was due application of mind by the Lt. Governor for invoking the provisions of Section 17(4) of the Act. A Division Bench of this Court in the case of Kawaljeet Singh (supra) took the same view and held as under:-
It is, thus, clear that application of mind has to be of different consideration while issuing Notification under Section 17(1) and issuing Notification under Section 17(4) of the Act. thereforee, it is clear that when the Lt. Governor passed order dated 4th March, 1998 specifically ordering issuance of Notifications under Sections 4, 6 & 17(1) of the Act with no reference to Section 17(4), it cannot be said that he applied his mind and passed the order also for Section 17(4). Such an order cannot be inferred by implication as was sought to be suggested by learned Counsel for the respondents. We may point out at this stage that there have been various decisions on this point and observations made in some of the cases gave rise to the speculations about the correctness of the aforesaid view and, in any case, giving rise to the argument by the Government that the aforesaid case should be treated as dealing with arable land (it was the unamended provision) or Section 17(1A) of the Act (it was an amendment by the State of U.P.) However, all these cases were taken note of and discussed by the Supreme Court in the case of Om Prakash and Anr. v. State of U.P. and Ors. reported in : [1998]3SCR643 and about the judgment in Nandeshwar Prasad (supra) the court made the following observations:
Para 22: We may now refer to the decision of a three-Judge Bench of this Court in the case of Nandeshwar Prasad v. U.P. Govt. : [1964]3SCR425 to which our attention was invited by learned counsel, Shri Dutta appearing for the appellants, in some of the appeals. Therein, Wanchoo,J. speaking for the court observed to the effect that just as Sections 17(1) and 17(4) are independent of each other, Section 17(1-A) and Section 17(4) are independent of each other and an order under Section 17(1-A) would not necessarily mean that an order under Section 17(4) must be passed. There cannot be any dispute on this legal position. However, the question with which we are concerned is entirely different. It is to the effect whether on the facts of these cases, thee was any relevant material before the State authorities to invoke powers under Section 17 Sub-section (4).20. The court in that case did no find any relevant material before the said authorities to invoke powers under Section 17(4) of the Act and came to the following conclusion:
Para 25: In the light of the aforesaid discussion, thereforee, the conclusion becomes inevitable that the action of dispensing with inquiry under Section 5-A of the Act in the present cases was not based on any real and genuine subjective satisfaction depending upon any relevant date available to the State authorities at the time when they issued the impugned notification under Section 4(1) of the Act and dispensed with Section 5-A inquiry by resorting to Section 17 Sub-section (4) thereof. The first point is, thereforee, answered in the negative, in favor of the appellants and against the contesting respondents. 21. In so far reliance on some of the cases by the respondents herein to project the theory of inference to be drawn or that urgency clause could be invoked by the very nature of purpose is concerned, it may be best to refer to paras 23 and 24 of this judgment which have given suitable answer and interpretation to those judgments which are sought to be relied by the respondents:
Para 23: It is now time for us to refer to certain latter decisions of this Court to which strong reliance was placed by Shri Mohta, learned Senior Counsel for NOIDA. In the case of A.P. Sareen v. State of U.P. : [1997]1SCR210 a two-Judge Bench of this Court consisting of Ramaswamy,J. And G.T. Nanavati, J., had to consider the question whether the need for urgent possession underlying acquisition proceedings could cease to exist only because of bureaucratic inadvertence. It was held on the facts of that case that urgency continued so long as the scheme was not initiated, action taken and process completed. It is, of course, true that while deciding this question, it is observed that it is a well-settled legal position that urgency can be said to exist when land proposed to be acquired is needed for planned development of the city or town etc. The said observation clearly shows that in appropriate cases when acquisition is needed for planned development of any city or town, the urgency provisions can be invoked. This aspect is legislatively recognised by enactment of Section 17(1-A) by the U.P. Legislature. But the said observations cannot be read to mean that in every case of planned development of city or town, necessarily and almost automatically the urgency clause has to be invoked and inquiry under Section 5-A is to be dispensed with. It will all depend upon the facts and circumstances of each case. The aforesaid observations cannot be held to be laying down any absolute proposition that whenever any acquisition is to take place for planned development of city or town, Section 5-A should be treated to be almost otiose or inoperative. Such is not the ratio of the aforesaid decision and nothing to that effect can even impliedly be read in the aforesaid observation which is of a general nature. It only suggests that in appropriate cases, the urgency clause can be invoked when the land is proposed to be acquired for planned development of city or town.
Para 24: Another decision to which our attention was invited by Shri Mohta, learned Senior Counsel for NOIDA, is reported in Ghaziabad Development Authority v. Jan Kalyan Samiti : [1996]1SCR307 . In that case, a Bench of two learned Judges consisting of K. Ramaswamy and G.B. Pattanaik, JJ. Examined an entirely different question as to whether notification under Section 6 could be issued simultaneously with the notification under Section 4(1) when Section 5-A was dispensed with under Section 17 Sub-section (4). This decision, thereforee, cannot be of any avail to Shri Mohta. In the case of Jai Narain v. Union of India : AIR1996SC697 another Bench of two learned Judges consisting of Kuldip Singh and S. Sagir Ahmad, JJ. had to examine the question whether invocation of urgency provisions under Section 17(4) for acquiring lands for constructing a sewage treatment plant (STP) in Okhla area of this city could be said to be well justified. Upholding the said exercise by the acquiring authority, Kuldip Singh, J. in para 3 of the Report clearly noted the peculiar fact situation under which Section 5-A inquiry was dispensed with in that case. It was noted that this Court itself had issued earlier time-bound directions for procurement of land for STP in various parts of Delhi. In the aforesaid judgment, it was also observed in an earlier decision dated 24-3-1995, this Court had observed that sewage problems were of a grave nature and so far as discharge of effluent in the Yamuna was concerned, the industries were the prime contributors apart from MCD and NDMC which were also discharging sewage directly into River Yamuna and thereafter on 21-4-1995, this Court regarding the construction o STP had observed that the treatment of sewage was of utmost importance for health and for supply of pure water to the citizens of Delhi. Any delay in this respect was a health hazard and could not be tolerated. It was also observed therein that this Court had earlier directed to the authorities to take up the work of land acquisition and sewage on a war footing. In view of the directions of this Court, thereforee, the authorities were bound to apply the urgency clause and invoke urgency powers for dispensing with Section 5-A inquiry so that 'the sewage treatment plant could be established at the earliest and on a war footing. We fail to appreciate as to how the aforesaid fact situation and the direction to the State to move quickly and urgently as issued by this Court which was binding on the State authorities could be legitimately pressed into service by Shri Mohta in the facts of this case which stand on an entirely different footing, as noted earlier.
32. We may also notice that the judgment of the supreme Court in the Mukesh Hans case (supra) affirmed the view taken by this Court in that very case titled Mukesh Hans v. Union of India and Ors. (supra). In the case of Kishan Lal (supra) their Lordships of the Supreme Court held that where the properties remained with the administration for ten years the Land Acquisition Authority did not take any action even thereafter for a period of two years and then without providing opportunity to the owners who filed objections under Section 5-A invocation of provisions of Section 17(4) that notification under Section 4 was not proper and held as under:-
A citizen's property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State Administration. 33. Their Lordships also specifically observed that there was no material to show subjective satisfaction of the authorities in invoking the urgency clause under Section 17(4) of the Act and the notifications were quashed.
34. In the present case before us we have repeatedly noticed that there is no material whatsoever to show a proposal for invoking provisions of Section 17(4) and consequent application of mind and issuance of appropriate directions as contemplated under these provisions by the Lt. Governor of Delhi. We may also notice that the record produced before us even relate to post notification period where various aspects including the points re-agitated by the society, disbursement of compensation and various other objections raised have been dealt with and decisions taken by the appropriate authorities. However, even in this part of the file there is no mention much less a decision to invoke the provisions of Section 17(4) of the Act. This is the conduct of the Department despite the fact that a specific ground in this regard have been taken by the petitioners before the authorities as such in the writ petition.
35. In the case of Krishi Utpadan Mandi Samiti, Muzaffarnagar (U.P.) v. Ratan Prakash Mangal and Ors. : AIR1988SC1459 while referring to its earlier decision, the Supreme Court observed as under:-
The plea raised by them was that there was no urgency and consequently the inquiry contemplated by Section 5-A of the Act could not be dispensed with by invoking Section 17(4) thereof. This plea found favor with the High Court and the two notifications mentioned above were quashed on June 6, 1979 insofar as Plot No. 289 was concerned. This judgment of the High Court was challenged by the Krishi Utpadan Mandi Samiti, Muzaffarnagar before this Court in Civil Appeal No. 2970 of 1979. This Court agreed with the High Court insofar as it had held that the urgency clause had been wrongly applied. But it was held that on that ground even though quashing of the notification under Section 6 of the Act was justified the High Court was not right in quashing the notification under Section 4(1) in its entirely. On this view the appeal was allowed in part and the judgment of the High Court was set aside insofar as it quashed the notification under Section 4(1) of the Act in its entirety. 36. A Division Bench of this Court in the case Mukesh Hans (supra) had also taken the same view and granted 30 days time to the petitioners to file objections under Section 5A of the Act after quashing the notification to the limited extent noticed in that judgment.
37. The provisions of Section 17(1) and 17(4) of the Act has a clear definition and as afore-stated at both stages there is requirement of application of mind. Section 17(1) normally would have to be invoked prior and simultaneous with issuance of notification under Section 4 of the Act, while recourse to provisions of Section 17(4) of the Act can be made at any time prior to issuance of a declaration under Section 6 of the Act. This scheme of the Act shows that there is no legislative requirement that provisions of Section 17(4) should essentially be invoked post Section 4 notification. In the present case there is the entire process adopted by the competent authority in regard to issuance of notification under different provisions of the Act shows that there was not even an iota of material , no reference, much less proper application of mind by the competent authority for invoking the provisions of Section 17(4) of the Act. The authorities had concentrated for all this period only in regard to in regard to invoking the provisions of Section 4 and 17(1) of the Act. The Court cannot ignore the fact that there is a dire need for residential accommodation in private as well as State sector. Mass development of Delhi can only be carried forward by acquisition of land in accordance with law. The present case is a very small segment of the comprehensive plans for development. Quashing of the entire notification under Section 4, particularly when we have held that the acquisition under Section 4 as well as invoking of provisions of Section 17(1) of the Act does not suffer from any infirmity, legal or otherwise, it will not only be unfair to quash the notification issued under Section 4 of the Act, but it would also frustrate the public purpose and public interest.
17. The circumstances leading to the issuance of the notification under Sections 4, 6 and 17(1) of the Act in that case and the present case are quite similar. In that case also, the Lieutenant Governor had passed the same order on similar nothings. There was no specific reference in the note for invoking the provision of Section 17(4) of the Act and the contention raised was that the respondents had understood the law to be that where the Lieutenant Governor has recorded his accord for invoking the provisions of Section 17(1) of the Act, the inevitable consequence is that it would be read and construed as an order under Section 17(4) of the Act leading to the issuance of the notification. This contention in face of the well-enunciated law afore-referred by us cannot be accepted. Consequently the petitioners must succeed on this ground and the notification issued by the respondents would liable to be interfered with in exercise of the powers vested in this Court for judicial review of administrative actions.
18. The next essential corollary is what relief the petitioners would be entitled to. Should the court in exercise of its power under Article 226 of the Constitution of India quash the entire notification, quash it partially and/or mould the relief in such a manner so as to serve the ends of larger public interest? Passing of such an order, in any case, would have to be in conformity to the scheme under the Statute. The High Court while exercising its powers under Article 226 of the Constitution of India is guided primarily by the basic rule of law, equity and the settled can one of law relating to exercise of discretionary powers. Despite the prayer of the petitioners and the contest of the respondents to grant such a prayer, the court can always mould the relief so as to serve the ends of justice and larger public interest. Public interest normally has to be sub-servant to the private interest. Limited interest of an independent can hardly be permitted to frustrate the entire planned development of Delhi and the various projects which the appropriate authorities might have taken to serve the need of a common man. In the present case the land has been acquired for Government company at the relevant time and its expansion and utilisation of the acquired land would be an essential feature of its growth. In any case, the purpose for acquiring a land would squarely fall in the domain of the Government authorities and the discretion so exercised by the Government would normally be beyond the scrutiny of judicial review. The authorities are expected to take into consideration various aspects of acquisition before issuing a notification under the provisions of the Act. In the case of Ramniklal N. Bhutta and Anr. v. State of Maharashtra and Ors. : AIR1997SC1236 , the Supreme Court while dealing with the case where out of the notified land, the award had been made in respect of only one piece of land, permitted the LAO to pass the award and while declining to quash the notification on the ground of malafides held as under:-
10 ...These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of ranting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the manner of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. It wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings.
19. Even in the case of Om Prakash and Anr. v. State of UP and Ors. : [1998]3SCR643 , the Supreme Court while dealing with a case where challenge had been raised to an order passed under Section 17(4) of the Act for dispensing with the inquiry under Section 5-A of the Act after holding that the conclusion was inevitable, the action of dispensing with inquiry under Section 5A of the Act was not based on any real and genuine subjective satisfaction depending upon any relevant date available to the State authorities at the time when they issued the impugned notification under Section 4(1) of the Act and resorting to Section 17(4) was not proper, still declined to quash the proceedings and held as under:-
Now after a passage of more than six years, it would not be feasible to put the clock back and permit the appellants to agitate this contention which appears to be the sole contention for opposing the acquisition proceedings in the facts of the present cases by permitting them to urge this grievance in Section 5-A inquiry which according to them should be held at this stage. We will show presently that this solitary grievance of the appellants could be vindicated before the State authorities themselves by relegating the appellants to proper remedy by way of representation under Section 48 of the Act and when that remedy is available to the appellants and when that is the sole grievance of the appellants, at this stage no useful purpose would be served by striking down the notification under Section 40 qua the appellants so far as invocation of Section 17(4) is concerned and the consequent notification under Section 6. That we cannot permit upsetting the entire apple-cart of acquisition of 500 acres only at the behest of 1/10th of landowners whose lands are sought to be acquired. We may also keep in view the further salient fact that all the appellants have filed references for additional compensation under Section 18 of the Act. Shri Shanti Bhushan, learned Senior Counsel, was right when he contended that the appellants could not have taken the risk of getting their reference applications time-barred during the pendency of these proceedings. thereforee, without prejudice to their contentions in the present proceedings, they have filed such references. Be that as it may, that shows that an award is also made and references are pending. Under these circumstances, for enabling the appellants to have their say regarding release of their lands on the ground that they are having abadi and that the State policy helps them in this connection, the appellants can be permitted to have their grievances voiced before the State authorities under Section 48 rather than under Section 5-A of the Act at such a late stage. Consequently, despite our finding in favor of the appellants on Point 1, we do not think that this is a fit case to set aside the acquisition proceedings on the plea of the appellants about non-compliance with Section 5-A at this late stage. It is also obvious that if on this point, the notifications are quashed for non-compliance of Section 5-A, that would open a Pandora's box and those occupants who are uptil now sitting on the fence may also get a hint to file further proceedings on the ground of discriminatory treatment by the State authorities. All these complications are required to be avoided and hence while considering the question of exercise of our discretionary jurisdiction under Article 136 of the Constitution of India, we do not think that this is a fit case for interference in the present proceedings with the impugned notifications. Point 3, thereforee, is answered in the affirmative against the appellants and in favor of the respondents.
20. In the case of Shanti India (P) Ltd. v. Lt. Governor and Ors. (supra), the view taken by the Division Bench in regard to requiring the claimants to file their objections under Section 5-A within the stipulated time and then for the acquisition proceedings to complete in accordance with law, was followed by another Division Bench of this Court in the case of Siva Apparels (I) (P) Ltd. v. Union of India and Ors. WP(C) No. 1968/1988 decided on 9th March, 2006 where the court held as under:-
20. We see no reason to take a view different than the one expressed by the Division Bench of this Court in the case of Shanti India Private Limited (supra). In fact one would follow the view for the reason stated therein in addition to what we state hereinafter. Section 6 declaration dated 17th August, 1988 has to be quashed in its entirety as the land owners were entitled to file objections under Section 5A of the Act in the absence of any specific order/direction to the contrary under Section 17(4) of the Act. The respondent-State would be entitled to issue a fresh declaration under Section 6 of the Act after disposing of the objections under Section 5A, if any filed by the land owners, if the authorities choose to do so. The period of one year cannot be granted to the State Government afresh by this order of the Court but certainly the respondents would be entitled to exclude the period during which the proceedings were stayed by this Court as contemplated under proviso to Section 6(1) of the Act. The remaining period out of the period of one year prescribed under law would be available to respondents for issuance of such notification/declaration and after exclusion of the time during which the stay was operative. As already noticed, the notification under Section 4 was issued on 18th July, 1988, which was published on 21st July, 1988 and then notified in the official gazette on 24th September, 1988. The stay was granted by the Court vide its order dated 9th September, 1988 and the said order of stay is still in force. The respondents would be entitled to exclusion of the period from 9th September, 1988 till pronouncement of this judgment from the period of one year, to be computed from 21st July, 1988 or even for that matter 24th September, 1988 as the case may be.
21. Learned counsel appearing for the respondents while relying upon the judgment of the Supreme Court in the case of Padmasundara Rao (Dead) and Ors. v. State of T.N. and Ors. : [2002]255ITR147(SC) had argued that the Court has no jurisdiction to grant fresh period of limitation to the State Government for issuing any notification in accordance with the provisions of the Land Acquisition Act. This proposition of law can hardly be disputed. The Court is not granting fresh period of limitation to the State Government but is granting leave to the respondent-Government to act in accordance with law if they so desire, after excluding the period permissible to be excluded in accordance with the provisions of Section 6 of the Act and the judgments of the Supreme Court and this Court. The Supreme Court in paragraphs 5 to 10 of the judgment clearly enunciated the law that declaration under Section 6 has to be issued within specified time and merely because the Court has quashed the concerned notification, extended time period is not to be provided. The Explanationn appended to the section specifically deals with exclusion of period in certain specified cases but the period intended to be excluded under the Explanationn would have to be excluded. In other words, the period of limitation provided is incapable of being extended and extension of limitation is quite different and distinct from exclusion of the period from the prescribed limitation as provided in the provision. Another Division Bench of this Court in the case of Suleman v. Union of India and Ors : 123(2005)DLT206 while dealing with such a situation and where notification was issued after excluding such a period and after relying upon the judgment of Supreme Court in the case of Padma Sundara Rao (supra) held as under :-
22. What remains to be seen is whether or not the declaration in the present case was issued within the stipulated period of one year after exclusion of the period during which the proceedings pursuant to the preliminary notification had remained stayed under orders of this Court. The preliminary notification was issued on 30th June, 1988. The impugned declaration was issued on 8th July, 2002, i.e., 14 years and 8 days later. From the said period, if we MOST IMMEDIATE deduct the period during which there was an interim order from this court, i.e. the period between 12th August, 1988 when the order was issued till 30th August, 2001 when the same was vacated with the disposal of the petitions, what remains is a period of 11 months and 20 days. This implies that the impugned declaration was after giving effect to Explanationn 1 to Section 6(1) issued within a period of one year of the date of preliminary notification was issued. No fault can, thereforee, be found with the said notification on that account. 22. The expression extension of period or limitation has to be understood in discern contradistinction to the expression exclusion of time. This concept can easily be traced under the provisions and scheme of the Limitation Act, 1963. Section 14 provides for exclusion of time while condensation of delay is dealt with under Section 5 of the Limitation Act. What is contemplated under proviso to Section 6(1) of the Act is exclusion of period during which acquisition proceedings were stayed by the Court. The obvious object was that the authorities should do nothing during operation of the stay order granted by the Courts but at the same time also suffer no prejudice on account of pendency of proceedings. The principles enunciated by the Supreme Court in the case of Padmasundara Rao (supra) is based on this distinction as the Courts would not be entitled to grant a fresh period of limitation of one year as contemplated under the provisions of the Act but could certainly direct exclusion of the period during which the orders of stay of the Court were in force and acquisition proceedings could not progress. Keeping in view the fact and circumstances of the case, balancing the equities between the parties, avoiding undue hardship and prejudice to the parties as a result of pendency of the proceedings before the Court and with due compliance to the legislative scheme under the provisions of the Act, it would not be necessary for the Court to quash the acquisition proceedings in every case in their entirety in the absence of appropriate order under the provisions of Section 17(4) of the Act. The petitioners have been in possession of their properties for all this period and have enjoyed benefits thereof. In exercise of its judicial discretion under Article 226 of the Constitution of India, the Court could certainly direct that in the event the respondent-State desires to act in accordance with law and continue its acquisition proceedings it could do so after taking benefit of the exclusion of the period afore-referred. Thus (a) and (b) contentions raised on behalf of the petitioners are rejected while petitioners are entitled to partial relief on the arguments raised under submission (c). One of the known can one of writ jurisdiction is that the balance of equity would normally tilt in favor of public interest rather than private interest. The land has been acquired for the public purpose under the Head `Plan Development of Delhi' and it would be unfair and unjust if the respondents were to be deprived of their legitimate right to continue with acquisition proceedings in accordance with the provisions of the Act just for the reason that the cases have been pending before the Court for years together. The contention of the petitioners that the respondents would not be entitled to any benefit under the proviso Explanationn to Section 6(1) of the Act in the face of judgment of the Supreme Court in Padmasundara Rao case and the judgments of Division Benches of this Court has not merit. The plea of the respondents that the present petitions are barred by principles of rest judicata is without any merit. The Division Bench of this Court while pronouncing its judgment dated 25th April, 1988 passed in CWPs. 7 and 421 of 1986 had set aside the declaration issued by the respondents under Section 6 of the Act but at the same time upheld the validity of the notification under Section 4 and left the question open in relation to issuance of fresh declaration under Section 6 ,in accordance with law. The present notifications under Sections 4 as well as 6 have been issued by the respondents in furtherance to the leave granted by the Division Bench in the said judgment. Notification issued on 18th July, 1988 and declaration dated 17th August, 1988 give a fresh cause of action to the petitioners and thereforee, the present petitions cannot be said to be barred by the principles of res-judicata. However, one pertinent aspect of the case, which the Court has to take note of, is that the notification issued by the Government under Section 4 of the Act on 16th October, 1985 in relation to the same land was upheld by the Court. The Court even at that time found that the said notification does not suffer from any infirmity and upheld its validity. The present notification dated 18th July, 1988 is nothing but is a replica of the earlier notification. The validity of the subsequent notification is challenged on the same ground, which we have already rejected for the reasons stated supra.
21. We have discussed in detail that the notification in so far as it dispense with the compliance to the provisions of Section 5-A of the Act cannot test the scrutiny of law and to that extent the notification is liable to be set aside. The respondents would obviously be at liberty to issue a fresh notification, if permissible and the respondents so desire after excluding the period for which the stay was granted in the present case on 25.5.88 till the pronouncement of this judgment.
22. The petitioners have not been able to bring out any special equities or circumstances on record which would persuade the court to take a contrary view and set aside the notification as a whole. There is no occasion for the court to quash the acquisition proceedings. It cannot be disputed that the major part of the land which was acquired, has already been utilised for the said purpose and possession of the larger portion has already been taken by the respondents and only a small portion of the land still remains in the possession of the petitioners. To hamper the development of the company by quashing the notification would serve no purpose. If, the petitioners have any objections, they would obviously be at liberty to raise such objections in the petition which they may file as required under the provisions of Section 5-A of the Act. For the court to examine and determine these factual controversies as to the utility of the land, would hardly be permissible. The basic object of acquisition is a public purpose and to prevent its achievement by wholly quashing the notification would not serve the ends of justice. Absence of a specific order under Section 17(4) of the Act would per se be not a sufficient ground for quashing the entire notification dehors the facts and circumstances of the case. The respondents were under a bonafide mistaken impression of law that an order of the Lieutenant Governor passed under Section 17(1) of the Act would tantamount to an implied compliance of the provisions of Section 17(4) of the Act as well. The acquisition proceedings cannot be frustrated particularly when the larger object of the acquisition has already been achieved and the lands acquired have been utilized for achievement of that object. It would be unjust and unfair if the acquisition as a whole is set aside by the court keeping in view the facts and circumstances of the present case. Consequently these writ petitions are allowed to a limited extent and while declining to quash the notification issued under Section 4 dated 4.2.88, we issue the following directions:-
(a) The petitioners would be at liberty to file objections under Section 5A of the Act before the competent authority within 30 days from the date of pronouncement of this judgment.
(b) The objections shall be dealt with and disposed of by the authorities in accordance with law and after hearing the parties.
(c) The petitioners during the pendency of this petition were granted protection. Parties shall continue to maintain status quo unless any other appropriate orders are passed by the court of competent jurisdiction.
(d) The respondents shall deal with the objections and proceed with the acquisition proceedings in accordance with law as expeditiously as possible and in any case within six months from today.
23. We dispose of the writ petitions in the above terms, while leaving the parties to bear their own costs.