Threat Of Land Encroachment, Proposed Use For Public Purpose Not Enough To Invoke Urgency Clause U/S 17 Of Land Acquisition Act: Allahabad HC

The Allahabad High Court has held reiterated that mere threat of encroachment and stating that the land is to be used for planned development for public purpose will not justify the invocation of urgency clause under Section 17 of the Land Acquisition Act, 1894 and dispensation of the statutory requirement of calling for, hearing and deciding objections of the landowners.While dealing with 2004 acquisition proceedings initiated by Ghaziabad Development Authority, relying on various judgments of the Apex Court the bench of Justice Manoj Kumar Gupta and Justice Anish Kumar Gupta held“acquisition of land for planned development is a public purpose, it has been held time and again that the same itself is not sufficient to warrant exercise of power under Section 17 of the Act.”It was further held that development of residential schemes takes years, and invocation of urgency provision in such cases to dispense with the requirement for objections under Section 5A is not ordinarily warranted. Petitioner had approached the High Court in 2005 challenging the validity of land acquisition notifications dated 16.10.2004 under Section 4 (1) of the Land Acquisition Act, 1894 and the notifications declaring land use for public purpose under Section 6 of the Act. The land was being acquired for 'construction of residential colony under planned development scheme' by the Ghaziabad Development Authority, Ghaziabad. The urgency powers under Section 17 of the Act were subsequently invoked for the same acquisition which led to the dispensation of mandatory requirement of hearing objections of the land owners. Certain land owners approached the High Court against the acquisition. Petitions were allowed and the order of the High Corut was challenged by the GDA before the Supreme Court. The Supreme Court remanded the matter back to the High Court on grounds that certain documents were paced before it for the first time, and the same ought to be placed before the High Court first. Accordingly, the issues before the High Court were that whether the requirement of hearing objections was rightly dispensed with and whether a competent authority had approved the regional plan, sub-regional plan and master plan under provisions of National Capital Region Planning Board Act. 1985.The Court observed that the earlier division bench had observed that since the urgency clause was invoked after 4 years of the notification under Section 4, there was no urgency per se and the substantial right of objecting to the acquisitions could not have been taken away by the Authority. Further, it had been held earlier that the approvals for residential development was not in conformity of the 1985 Act. Regarding the applicability of the urgency clause in Section 17 of the 1984 Act, the bench headed by Justice Gupta held “the power under Section 17 could be invoked only in cases of urgency or unforeseen emergency. As the provision is an exception to the normal procedure and takes away valuable right of the affected person to object to the proposed acquisition, therefore, exercise of power under the said provision requires a greater degree of care and circumspection.”The Court held that though the need for invoking urgency is based on subjective satisfaction, it must not be an empty formality. It held that once notifications through which urgency under Section 17 have been invoked are before the Court, relevant material must be shown to justify the urgency. It further held that merely because public purpose is involved, will not suffice invocation of urgency clause. Based on various judgments of the Apex Court, the Court also held that threat of illegal encroachment would also not be sufficient cause for invoking the urgency clause. Referring to various judgments of the Apex Court, the Court held “The legal principle which thus emerges is that mere existence of public purpose is not sufficient to invest the authority with power to automatically invoke Sections 17(1) and 17(4) of the Act unless urgency is of such amplitude, that the same in itself could form basis to dispense with the enquiry. Even in such a case, there is again need for application of mind by the appropriate government that such an urgency is inherent in the very nature of scheme.”Observing that the only consistent reason for invoking urgency clause was apprehension of illegal encroachment and the use for public purpose, the Court held that they were not sufficient grounds for invoking Section 17. It held that since the development scheme takes considerable time, it was not the case that time could not have been given for filing, hearing and deciding objections under Section 5A of the 1984 Act. “The present Scheme, which pertains the development of a residential colony under planned development programme, was not of such urgency that a few months' delay occasioned by the process of the objections under Section 5-A would have jeopardised the Scheme itself. As already observed, the time...

Threat Of Land Encroachment, Proposed Use For Public Purpose Not Enough To Invoke Urgency Clause U/S 17 Of Land Acquisition Act: Allahabad HC

Upasna Agrawal

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