NEW DELHI, Apr 1:
Urgency clause can be invoked by the Government only in exceptional cases after “applying its mind”, the Supreme Court has ruled while quashing acquisition of land by the Delhi administration for a housing project in Rohini.
The apex court said the burden of justifying acquisition by invoking the urgency clause under Section 17(1)(4) of Land Acquisition Act solely rests on the Government as otherwise it amounts to depriving a person of his or her property.
A bench of justices R M Lodha and H L Gokhale found fault with Delhi’s Lt Governor for acquiring the land at Rohini in April 2000 by dispensing with Section 5A of the Act which mandated that the aggrieved land owners shall be given an opportunity to be heard before their land is acquired.“Where the Government invokes urgency power under Section 17(1) and (4) for the public purpose like ‘planned development of city or development of residential area’ or ‘residential scheme’, the initial presumption in favour of the Government does not arise and the burden lies on the Government to prove that the use of power was justified and dispensation of enquiry was necessary.
“In the present case the respondents have miserably failed to show to the satisfaction of the court that the power of urgency and dispensation of enquiry under Section 5 A has been exercised with justification,” Justice Lodha writing the judgement said.
The apex court upheld an appeal filed by Ram Dhari Jindal Memorial Trust challenging acquisition of their land along with others. The trust had contended that it was running a school at the premises.
“The action of the Lt Governor, Delhi, in the facts of the case whereby, he directed that the provisions of Section 5A shall not apply, if allowed to stand, it would amount to depriving a person of his property without authority of law,” the bench said.
The Delhi High Court had on July 9, 2007, dismissed the Trust’s plea along with several other petitions, following which it appealed in the apex court.
The apex court said the power of urgency by the government under Section 17 for a public purpose like residential scheme cannot be invoked as a rule but has to be by way of exception.
“No material is available on record that justifies dispensation of enquiry under Section 5A of the Act. The high court was clearly wrong in holding that there was sufficient urgency invoking the provisions of Section 17 of the Act.
“The exercise of power by the Lt Governor, Delhi under Section 17(1) and (4) has to be held bad in law. Except the statement in the notification, there is no other material available on record which indicates that there has been application of mind by the Lt Governor Delhi on the aspect that urgency was of such nature that necessitated dispensation of enquiry under Section 5A of the Act,” the bench said.
According to the apex court, the government “miserably failed” to show that the stated purpose Rohini Residential Scheme could not have brooked the delay of a few months and the conclusion of the inquiry under Section 5A of the Act would have frustrated the said public purpose.
“If the government seeks to invoke its power of urgency, it has to first form the opinion that the land for the stated public purpose is urgently needed.
“Such opinion has to be found on the need for immediate possession of the land for carrying out the purpose for which land is sought to be compulsorily acquired. The use of power of urgency under Section 17(1)and (4) of the Act ipso facto does not result in elimination of enquiry under Section 5A and therefore, if the government intends to eliminate enquiry, then it has to apply its mind on the aspect that urgency is of such nature that necessitates elimination of such enquiry,” the apex court said. (PTI)
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