Land acquisition: urgency claim viewed with scepticism

By Rohit Jaiswal and Siddharth Dubey, Singhania & Partners
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The right to property is a constitutional right and the government cannot deprive a person of land in an arbitrary manner. Recently, the justifiability of using the urgency provisions in the Land Acquisition Act, 1894, contained in sections 17(1) and 17(4), arose before the Supreme Court in Sri Radhey Shyam (Dead) through LRs and Ors v State of UP and Ors.

Rohit Jaiswal Partner Singhania & Partners
Rohit Jaiswal
Partner
Singhania & Partners

The facts

The Greater NOIDA Industrial Development Authority issued a notification on 12 March 2008 about acquiring 205 hectares of land in Makora, a village in the district of Gautam Budh Nagar in Uttar Pradesh. It was issued under the Land Acquisition Act, i.e. section 4(1), which deals with publication of preliminary notification, read with section 17(1) and 17(4).

The appellants, whose land was included in the notification, unsuccessfully requested the authority to not acquire the land as they were living in a house built 30 to 35 years ago on it. Then, on 19 November 2008, the state government issued a notification declaring the land had been acquired. It was issued under section 6, which deals with land required for a public purpose, read with section 9, which deals with issuing a public notice to the interested persons.

The appellants filed a writ petition in Allahabad High Court questioning the acquisition of their land, but it was dismissed. This prompted them to file a special leave petition at the Supreme Court.

Crux of the matter

The question before the Supreme Court was: is the high court justified in not allowing the petition on the ground that the petitioners had not raised a specific plea, supported by a proper affidavit, to question the decision taken by the state government?

Examining the need for the acquisition in light of the act, the Supreme Court observed that most land owners understand little about their constitutional and legal rights. While some accept the compensation fixed by the state government, a few challenge the acquisition under the act.

Therefore, the apex court held that a high court should not adopt a bookish approach while examining a land owner’s challenge to the acquisition of land in a petition filed under article 226 of the constitution. It should decide the matter keeping in view the constitutional goals of social and economic justice.

Principles established

Considering various judgments relating to the maxim audi alteram partem (no one should be condemned unheard) and the relevancy of the urgency provisions the court set out nine principles including the following:

(i) “Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use … without its owner’s consent provided that such assertion is on account of public exigency and for public good.”

(ii) “The property of a citizen cannot be acquired by the state and/or its agencies/instrumentalities without complying with the mandate of sections 4, 5A and 6 of the act. A public purpose, however laudable it may be, does not entitle the state to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the state can invoke the urgency provisions and dispense with the requirement of hearing the land owner or other interested persons.”

Siddharth Dubey Associate Singhania & Partners
Siddharth Dubey
Associate
Singhania & Partners

(iii) “Section 17(1) read with section 17(4) confers extraordinary power upon the state to acquire private property without complying with the mandate of section 5A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of section 5A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under section 5A will, in all probability, frustrate the public purpose for which land is proposed to be acquired … In any case, exclusion of the rule of Audi Alteram Partem embodied in section 5A(1) and (2) is not at all warranted in such matters.”

The verdict

The court observed that setting up industrial units takes around two to three years to implement. Therefore, there could be no real and substantive urgency that would justify invoking the urgency provisions.

This tells us that if land is acquired for private individuals, the courts will look into the invoking of section 17(1) and 17(4) and the relevant records with care and some scepticism before ruling that the acquisition is legal and valid.

Rohit Jaiswal is a partner and Siddharth Dubey is an associate at Singhania & Partners, which is a full-service national law practice. The firm has offices in New Delhi, Noida, Bangalore, Hyderabad and Mumbai.

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