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JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 138 of 19710/21/2011"38. ..... The mind of the officer or authority concerned has to be applied to the question whether there is anurgency of such a nature that even the summary proceedings under s. 5A of the Act should be eliminated. It is notjust the existence of an urgency but the need to dispense with an inquiry under s. 5A which has to be considered.40. In the case before us, the public purpose indicated is the development of an area for industrial and residentialpurposes. This in itself, on the face of it, does not call for any such action, barring exceptional circumstances, asto make immediate possession, without holding even a summary enquiry under section 5A of the Act, imperative.On the other hand, such schemes generally take sufficient period of time to enable at least summary inquiriesunder section 5A of the Act to be completed without any impediment whatsoever to the execution of the scheme.Therefore, the very statement of the public purpose for which the land was to be acquired indicated the absenceof such urgency, on the apparent facts of the case, as to require the elimination of an enquiry under section 5A ofthe Act.41. Again, the uniform and set recital of a formula, like a ritual or mantara, apparently applied mechanically toevery case, itself indicated that the mind of the Commissioner concerned was only applied to the questionwhether the land was waste or arable and whether its acquisition is urgently needed. Nothing beyond that seemsto have been considered. The recital itself shows that the mind of the Commissioner was not applied at all to thequestion whether the urgency is of such a nature as to require elimination of the enquiry under section 5A of theAct. If it was, at least the notifications gave no inkling of it at all. On the other hand, its literal meaning was thatnothing beyond matters stated there were considered.42. All schemes relating to development of industrial and residential areas must be urgent in the context of thecountry's need for increased production and more residential accommodation. Yet, the very nature of suchschemes of development does not appear to demand such emergent action as to eliminate summary enquiresunder section 5A of the Act. There is no indication whatsoever in the affidavit filed on behalf of the State that themind of the Commissioner was applied at all to the question whether it was a case necessitating the elimination ofthe enquiry under section 5A of the Act. The recitals in the notifications, on the other hand, indicate thatelimination of the enquiry under section 5A of the Act was treated as an automatic consequence of the opinionformed on other matters. The recital does not say at all that any opinion was formed on the need to dispense withthe enquiry under section 5A of the Act....."The Apex Court in the aforesaid case has clearly laid down that public purpose, namely, development of an areafor industrial and residential purpose does not call for any such action, barring exceptional circumstances, fordispensation of summary inquiry under Section 5A.Justice V.R. Krishna Iyer in the case of State of Punjab and another vs. Gurdial Singh and others reported in(1980)2 S.C.C. 471 had laid down that authority should not invoke the provisions of Section 17(4) unless there isreal urgency. Following was laid down in paragraph 16:-"16. The fourth point about the use of emergency power is well taken. Without referring to supportive case-law it isfundamental that compulsory taking of a man's property is a serious matter and the smaller the man the moreserious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, anddenial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgencywhere public interest does not brook even the minimum time needed to give a hearing land acquisition authoritiesshould not, having regard to Arts. 14 (and 19), burke an enquiry under Sec. 17 of the Act. Here a slumberingprocess, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty ofemergency power."Justice Krishna Ayer further observed , "... At times, natural justice is the natural enemy of intolerant authority..."A two Judge Bench of the Apex Court had occasion to consider invocation of Section 17(4) of the Act in context ofMeerut Development Authority in the case of State of U.P. vs. Pista Devi reported in (1986)4 S.C.C. 251. In theaforesaid case the Apex Court observed that provision of housing accommodation in these days has become amatter of national urgency and judicial note of that can be taken. The three Judge bench judgment in NarayanGovind Gavate's case (supra) was referred to but was distinguished on the premise that the said matter related tothe year 1963 and due to increase of population it is no longer possible for the Court to take a view that schemefor development of residential areas do not appear to demand such emergent action as to eliminate summaryinquiries under Section 5-A of the Act. Following was observed in paragraph 5 of the said judgment:-"5. .....The provision of housing accommodation in these days has become a matter of national urgency. We may
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 139 of 19710/21/2011take judicial notice of this fact. Now it is difficult to hold that in the case of proceedings relating to acquisition ofland for providing house sites it is unnecessary to invoke section 17(1) of the Act and to dispense with thecompliance with section 5-A of the Act. Perhaps, at the time to which the decision in Narayan Govind Gavate etc.v. State of Maharashtra, [1977] (1) S.C.R. 768 related the situation might have been that the schemes relating todevelopment of residential areas in the urban centres were not so urgent and it was not necessary to eliminatethe inquiry under section 5-A of the Act. The acquisition proceedings which had been challenged in that caserelated to the year 1963. During this period of nearly 23 years since then the population of India has gone up byhundreds of million and it is no longer possible for the Court to take the view that the schemes of development ofresidential areas do not ''appear to demand such emergent action as to eliminate summary inquiries underSection 5-A of the Act'....."Another judgment of the Apex Court which needs to be noted is in the case of Rajasthan Housing Board andothers vs. Shri Kishan and others reported in (1993)2 S.C.C. 84. In the said case also the Government had issueddirection for dispensation of inquiry under Section 17(4). The Apex Court examined materials which were beforethe Government on the basis of which it formed its opinion for directing dispensation of inquiry. The Apex Courtapproved the action of the Government after referring to relevant materials which were found sufficient forinvoking Section 17(4) of the Act. It is useful to quote following observations of the Apex Court which are inparagraph 14 of the judgment:-"14. ..... Secondly, we are satisfied that there was material before the government in this case upon which it couldhave and did form the requisite opinion that it was a case calling for exercise of power under Section 17(4). Thelearned Single Judge has referred to the material upon which the government had formed the said opinion. Thematerial placed before the Court disclosed that the government found, on due verification, that there was an acutescarcity of land and there was heavy pressure for construction of houses for weaker sections and middle incomegroup people; that the Housing Board had obtained a loan of Rs. 16 crores under a time-bound programme toconstruct and utilise the said amount by 31.3.1983; that in the circumstances the Government was satisfied thatunless possession was taken immediately, and the Housing Board permitted to proceed with the construction, theBoard will not be able to adhere to the time-bound programme. In addition to the said fact, the Division Benchreferred to certain other material also upon which the government had formed the said satisfaction viz., that inview of the time bound programme stipulated by the lender, HUDCO, the Board had already appointed a largenumber of engineers and other subordinate staff for carrying out the said work and that holding an inquiry underSection 5-A would have resulted in uncalled for delay endangering the entire scheme and time-schedule of theHousing Board. It must be remembered that the satisfaction under Section 17(4) is a subjective one and that solong as there is material upon which the government could have formed the said satisfaction fairly, the courtwould not interfere nor would it examine the material as an appellate authority. This is the principle affirmed bydecisions of this court not only under Section 17(4) but also generally with respect to subjective satisfaction."A three Judge Bench in the case of Chameli Singh and others vs. State of U.P. and others reported in (1996)2S.C.C. 549, again considered the question as to whether providing housing to the members of schedule caste(Dalit) under the scheme funded by the State, Section 17(4) of the Act can be invoked. In paragraph 14 of thejudgment, relying upon the judgment in the case of State of U.P. vs. Pista Devi (supra) it was observed thathousing accommodation to the Dalits and Tribes is in acute shortage hence invocation of Section 17(4) forproviding shelter cannot be said to be arbitrary. In paragraphs 14 and 15 of the judgment following was laid downby the Apex Court:-"14. What was said by Chinnappa Reddy, J. in the context of provisions of housing accommodation to Harijans isequally applied to the problem of providing housing accommodation to all persons in the country in State of U.P.v. Pista Devi [1986 (4) SCC 251] holding that today having regard to the enormous growth of population, urgencyclause for planned development in urban areas was upheld by a two-Judge Bench. The ratio of KasireddyPapaiah case 1975 AIR(AP) 269 : 1975 (1) APLJ 70] was quoted with approval by a three-Judge Bench inDeepak Pahwa v. Lt. Governor of Delhi [1984 (4) SCC 308 : 1985 (1) SCR 588]. The delay by the officials washeld to be not a ground to set at naught the power to exercise urgency clause in both the above decisions. Itwould thus be clear that housing accommodation to the Dalits and Tribes is in acute shortage and the State hasundertaken as its economic policy under planned expenditure to provide shelter to them on a war footing, incompliance with the constitutional obligation undertaken as a member of the UNO to the resolutions referred tohereinbefore."15. The question, therefore, is whether invocation of urgency cause under Section 17(4) dispensing with inquiryunder Section 5-A is arbitrary or is unwarranted for providing housing construction for the poor. In Aflatoon v. Lt.Governor of Delhi [ 1975 (4) SCC 285 ] (SCC at p. 290), a Constitution Bench of this Court had upheld theexercise of the power by the State under Section 17(4) dispensing with the inquiry under Section 5-A for the
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