HAMID ALI KHAN (D) THROUGH LRS. & ANR. versus STATE OF U.P. & ORS.

Citation: [2021] 11 S.C.R. 198 · Decided: 23-11-2021 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 11 S.C.R.
HAMID ALI KHAN (D) THROUGH LRS. & ANR.
v.
STATE OF U.P. & ORS.
(Civil Appeal No. 1267 of 2012)
NOVEMBER 23, 2021
[K. M. JOSEPH AND S. RAVINDRA BHAT, JJ.]
Land Acquisition Act, 1894:
ss. 5A and 17(4) – Special powers in case of urgency –
Invocation of – Dispensing with hearing of objections u/s. 5A –
Justification of – On facts, issuance of Notifications to acquire land
for construction of a residential colony – Invocation of power u/s.
4 and 17(4) in regard to the propertyof the appellant-land owners
– Writ petition by the appellants challenging the notifications –
Dismissed by the Division Bench – On appeal, held: There was no
urgency at all associated with the need to acquire the land
immediately which constitutes the foundation for invoking the
urgency clause – Notificationu/s. 17(4) issued after more than two
years of the proposal sent – Declaration u/s. 6 issued almost one
year after the issuance of notification u/s. 4 – Having regard to the
nature of the scheme, the delay with which s. 6 declaration was
issued, possession taken and the nature of the material on the basis
of which the proposal was processed, the appellants justified in
contending that the notification u/s. 17(4) dispensing with the inquiry
u/s. 5A was not justified – Meanwhile, the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 has taken the place of 1894 Act – Thus,
no question of the matter being considered for an inquiry being
held u/s. 5A – Order passed by the Division Bench set aside –
Impugned notifications and proceedings based on the same are
quashed and property to be returned to the appellant.
s. 5A – Hearing of objections under, of the person interested
in the property – Held: s.5A guarantees a right to the person
interested in the property which was the only statutory safeguard to
prevent a compulsory acquisition of his property – Invaluable right
given to a person to ventilate his grievances against the acquisition
is not to be unjustifiably extinguished – Authority must apply his
[2021] 11 S.C.R. 198
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mind to the relevant material before it and its action must not be
malafide – Merely because the purpose of the acquisition is found
to be a public purpose, the duty of the authority does not end –
Authorities must remain alive and alert to the precious right created
in favour of the citizens which is not meant to be a mere empty ritual
– Furthermore, the power u/s 17 (4) being discretionary, must be
exercised with due care – If there is relevant material however meagre
it may be and the authority has without being guided by extraneous
considerations applied his mind and taken a decision, then the court
would adopt a hands-off approach.
s. 17(4) – Special powers in case of urgency – Invocation of
– Held: When a challenge is made to the invocation of power
u/s.17(4) the writ applicant cannot succeed on bare and bald
assertions – Fact specifically within the exclusive knowledge of the
State must be laid before the court on the basis of the principle in
s. 106 of the Evidence Act – Existence of the exceptional
circumstances justifying invoking of s.17(4) must be established in
the wake of a challenge – On an appreciation of the evidence made
available by all the parties it is open to the court to conclude that
no occasion arose for resorting to the power u/s.17 (4) which indeed
must be read as an exception to the general rule that the acquisition
of property is made after affording an opportunity the person
adversely affected to demonstrate that the acquisition was
unjustified.
Allowing the appeal, the Court
HELD: 1.1 The authority is required to form a subjective
opinion. This does not mean that the opinion can be whimsical or
capricious. There must be materials before the authority. The
materials must be relevant. The authority must apply his mind to
the material. This is apart from the requirement that action must
not be malafide. Undoubtedly the purpose must be a public
purpose. But merely because the purpose of the acquisition is
found to be a public purpose, the duty of the authority does not
end. He must be satisfied that there is real urgency such that the
invaluable right vouchsafed to a person to ventilate his
grievances against the acquisition is not unjustifiably
extinguished. Section 5A of the Land Acquisition Act guarantees
a right to the person interested in the property which was th

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