JUDGMENT <NAME>, J.

1. In this case, the petitioner <NAME> has moved <ORG> for the issue of a writ in the nature of certiorari to quash an order of <ORG> dated 23-7-1953 discharging the petitioner from <ORG> service as Probationary Sub-Deputy Collector.

2. The petitioner <NAME> was appointed as a temporary Sub-Deputy Collector in the year 1944 and in 1946 the petitioner was vested with the powers of a first class Magistrate. On 8-12-1947 the petitioner was appointed to a Substantive post in <ORG> and was placed on probation. On 4-11-1952 <ORG> issued a notice to the petitioner asking him to show cause why his services should not be terminated. The notice is annexure 'A' to the application. In this notice the <ORG> say that the petitioner had earned notoriety as a corrupt officer while he was posted at Jamshedpore, and that his judicial work was carefully scrutinized by the <ORG> and in eight criminal cases the orders of acquittal passed by the petitioner were found to be perverse. The notice further states that from May 1949 to March 1951 the petitioner was posted at Nawada and there also his reputation was bad. The petitioner was transferred later on to Gaya and his work at Gaya was also found unsatisfactory. The petitioner made a representation to the <ORG> in response to the notice. The petitioner denied the charges of corruption and bribery and requested the permission of the <ORG> to inspect the records of the cases which he had decided at Jamshedpore.

The petitioner also prayed for an opportunity to cross-examine the Collector and the Commissioner who had sent adverse reports against him. The petitioner further submitted that he should be given a copy of the confidential reports of the Collector and the Commissioner upon which the notice of the Government was based. But <ORG> permitted the petitioner only to examine the records of the criminal cases which he had tried at Jamshedpore. The Government did not permit the petitioner to inspect the confidential reports sent by the Collector and the Commissioner and the Government also declined the request of the petitioner that he should be permitted to lead evidence or to cross-examine the Collector and the Commissioner upon whose report the Government had taken action. On 23-7-1953 <ORG> passed an order terminating the services of the petitioner as a Probationary Sub-Deputy Collector.

It was alleged on behalf of the petitioner that the <ORG> of Bihar had no justification for withholding the confidential reports from being shown to the petitioner during the proceedings. It is further alleged that the procedure contemplated by Article 311(2) of the Constitution was not followed by the <ORG> and the petitioner was entitled to a second notice in terms of the language employed in that article. It was also submitted that the petitioner should have been allowed to examine witnesses on his behalf and also to cross-examine the Collector and the Commissioner upon whose confidential reports the notice of discharge was based. It was stated on petitioner's behalf that Rule 55 of the Civil Services (Classification, Control and Appeal) Rules applied to his case and the full procedure contemplated by that article should have been followed. It was therefore argued that the order of discharge passed by the <ORG> dated the 23rd July 1953 was illegal and ultra vires on the ground of all these irregularities of procedure. (3) The first submission made on petitioner's behalf is that the procedure contemplated by Rule 55 has not been followed and the order of discharge passed by the <ORG> was therefore illegal and void. In support of his argument Mr. <NAME> referred to Rule 55 which states--

"Without prejudice to the provisions of the Public Servants Inquiries Act , 1850, no order of dismissal, removal or reduction shall be passed on a member of a Service (other than an order based on facts which have led to his conviction in a criminal Court) unless he has been informed in writing of the grounds on which it is proposed to take action, and has been afforded an adequate opportunity of defending himself. The ground on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires to be heard in person. If he so desires or if the authority concerned so direct, an oral inquiry shall be held. At that inquiry, oral evidence shall be heard as to such of the allegations as are not admitted, and the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reasons to be recorded in writing, refuse to call a witness. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof........"

Counsel submitted on the basis of this rule that the petitioner should have been heard in person, that the allegations should have been reduced to the form of definite charge or charges and that oral evidence should have been taken on behalf of the Government and the petitioner should have been given opportunity to cross-examine the Collector or the Commissioner or the other persons who made confidential reports. In my opinion the argument addressed on behalf of the petitioner is not well founded. Rule 55 was amended on 15-11-1947 by notification No. 8184-A of the Government of Bihar. Rule 49 was also amended by the same notification. Before the amendment Rule 55 did not apply to the case of a probationer for the explanation of Rule 49 stated that the discharge of a person appointed on probation would not amount to removal or dismissal within the meaning of that rule. But Rule 49 was amended on 15-11-1947 by the notification, already referred to, and an explanation was added to Rule 49 to the following effect:

"The discharge of a probationer, whether during or at the end of the period of probation, for some specific fault or on account of his unsuitability for the service, amounts to removal or dismissal within the meaning of this rule."

At the same time, the following sub-paragraph was added to Rule 55:

"The full procedure prescribed in this rule need not be followed in the case of a probationer discharged in the circumstances described in explanation II to Rule 49. In such cases, it will be sufficient if the probationer is given an opportunity to show cause in writing against the discharge after being apprised of the grounds on which it is proposed to discharge him and his reply duly considered before orders are passed."

It is clear in view of the amendments of Rules 49 and 55 that the petitioner was not entitled to a full inquiry as contemplated by the first paragraph of Rule 55. The argument of Mr. <NAME> on this point must therefore be rejected.

4. The next submission made by the learned counsel for the petitioner is that in any event the confidential reports upon which the notice of discharge was made should have been given to the petitioner. It was contended that the petitioner should have been given a fair opportunity of meeting the allegations before the government decided to pass the orders of discharge. It was argued that there was a violation of natural justice in this case and the order of discharge must therefore be quashed by a writ of certiorari. In my opinion the argument addressed by the counsel is correct It appears from Annexure "A" of the application that the notice of discharge was based upon certain reports received by the Government while the petitioner was employed as Sub-Deputy Collector at Jamshedpur. Annexure "C" also states that "confidential enquiries were made and it was found that while employed at Jamshedpur Mr. <NAME> had the reputation of being a corrupt officer". It was argued by the Government Pleader on behalf of the respondent that the annual confidential reports for the years 1949 to 1952 were communicated to the petitioner and in support of his contention the Government Pleader referred to annexure 'D'.

It may be true to say that the annual confidential reports were communicated to the petitioner bat the notice of discharge dated 4-11-1952 is not based merely on the annual confidential Deports but also on certain inquiries made at Jamshedpur and the confidential reports submitted by the officers making these inquiries. The complaint of the learned counsel for the petitioner is that these special confidential reports were not made available to the petitioner before he was asked to show cause against the notice of discharge. The <ORG> Pleader produced during the hearing of this case the original record of the proceedings in the <ORG>. It appears from these proceedings that the order of discharge was passed by the <ORG> not merely upon the annual confidential reports of the Collector and the Commissioner but also upon two special reports made by the Commissioner of Chotanagpur Division dated 31-5-1952 and by the Deputy Inspector General, <ORG>, dated 16-6-1951.

These two special reports contain matters which are highly relevant and prejudicial to the petitioner and in my opinion, these reports should have been shown to the petitioner or their contents communicated to him before he was asked to show cause against the notice of discharge. It is a matter of general principle that a person should not be condemned on ex parte statements and no order of removal or discharge should be passed against a Government servant unless he has been given a real and effective opportunity of refuting the statements upon which his notice of discharge is based. This follows from the principle of law embodied in the maxim 'audi alteram partem'. It is true that the final order of discharge of a probationer is an administrative act but the proceedings leading to that final order are quasi judicial in character, and the principle embodied in the maxim 'audi alteram partem' therefore applies to such proceedings. This view is borne out by the judgment of Lord <NAME> in -- ' <CITATION> ', (1911) AC 179 (A).

"Comparatively recent statutes have extended if they have not originated, the practice of imposing upon departments or officers of <ORG> the duty or deciding or determining questions of various kinds. In the present instance as in many others, what comes for determination is sometimes a matter to be settled by discretion involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases <ORG> will have to ascertain the law and also to ascertain the facts, I need not add that in doing either they must act in good faith and fairly listen to both sides, for that it is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view."

The principle has been reiterated by <ORG> in--'Errington v. Minister of Health', (1935) 1 KB 249 (B). In that case a local authority had made a clearance order under Section 1 of the Housing Act, 1930, and had submitted the order to the Minister of Health for confirmation. Objections were made by the owners. The Act required that a public inquiry should be held and the Minister should consider the objections made by the owners and the report of the person who held the inquiry before he passed the order of confirmation. It was held by <ORG> that in deciding whether or not he shall confirm the clearance order the Minister occupied a quasi judicial function and must not take into consideration any matters other than those mentioned in paragraph 4 of the first schedule of the Act, If the Minister holds a private inquiry to which the owners are not invited or takes into consideration ex parte statements with which the owners have had no opportunity of dealing he was not acting in accordance with correct principles of justice and his confirmation of the clearance order would be ultra vires and the owners would be entitled to get the confirmation order quashed by a writ of certiorari.

To the same effect also is the decision of <ORG> in -- 'R. v. Architects' Registration <ORG>', (1945) 2 All ER 131 (C). <ORG> has also laid down a similar principle in -- ' <CITATION> ', AIR 1955 SC 65 (D). It was observed by <NAME> in that case that the <ORG> had violated the fundamental rule of justice firstly by not disclosing to the assessee what information had been supplied to it by the Departmental representative, and secondly by not giving an opportunity to the assessee to rebut the material furnished to it by the <ORG>. It was held for these reasons that the assessee had not obtained a fair hearing, and the assessment made by the Income-tax authorities and affirmed by the <ORG> should be set aside. It is clear in the present case that the petitioner was not shown the special reports of the Commissioner of Chotanagpur Division and of the Deputy Inspector General, <ORG> and there has been a violation of the principle of natural justice. It follows that the order of discharge made by the <ORG> dated 23-7-1953 is illegal and ultra vires.

5. The next question presented for determination is whether the petitioner should have been given a second notice under Article 311(2) of the Constitution before the final order of discharge was passed against him. It was argued on behalf of the petitioner that even though the amended Rule 55 contemplated only a summary inquiry in the case of a probationer officer, the provision of Article 311 (2) of the Constitution required that a second notice should be given before the final order of discharge was made. It was however pointed out on behalf of the respondents that a probationer was always liable to be discharged in case his conduct was not satisfactory and there was no necessity of giving a second notice as contemplated by Article 311 (2) of the Constitution. The point is not free from difficulty but upon the whole I am satisfied that the petitioner is entitled to a second notice after summary inquiry had been made into the allegations of bribery and corruption made in the first notice. This view is based upon the interpretation placed by <ORG> upon the language of Section 240(3) of the Government of India Act in --'High Commr. for <CITATION> ', AIR 1948 PC 121 (E). Section 240(3) of the Government of India Act was in the following terms:

"(1) Except as expressly provided by this Act, every person who is a member of <ORG> in India, holds office during His Majesty's pleasure............. (3) No such person as aforesaid shall be dismissed................until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him..........."

It should be noticed that Section 240(3) of the Government of India Act was couched in the same language as Article 311(2) of the Constitution. It was held by <ORG> in <NAME> case (E) that no action was proposed within the meaning of Section 240(3) until the authority had come to a definite conclusion upon the charges brought against a civil servant and the actual punishment to follow was provisionally determined upon. Before that stage was reached, the charges were unproved and the suggested punishments were merely hypothetical. It was on that stage being reached that the Act gave the civil servant the opportunity for which Sub-section (3) made provision. At page 242 of the report Lord <NAME> states:

"Their Lordships agree with the view taken by the majority of <ORG>. In their opinion, Sub-section (3) of the Section 240 was not intended to be, and was not a re-production of Rule 55 which was left unaffected as an administrative rule. Rule 55 is concerned that the civil servant shall be informed of the grounds on which it is proposed to take action', and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing; this is in marked contrast to the statutory provisions of 'a reasonable opportunity of showing cause against the action proposed to be taken in regard to him'. In the opinion of their Lordships, no action is proposed within the meaning of the sub-section until a definite conclusion has been come to on the charges, and the actual punishment to follow is provisionally determined on. Before that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which Sub-section (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage.

If the civil servant has been through an inquiry under Rule 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry."

It was pointed out by the Government Pleader in this case that a probationer was not entitled to a full inquiry contemplated by the first paragraph of Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. I do not think that the argument has any bearing on the interpretation of Article 311(2). In the case of a probationer the inquiry contemplated by Rule 55 is a summary inquiry but nevertheless Article 311(2) of the Constitution applies to the case for the explanation to the amended Rule 49 states that "the discharge of a probationer for some specific fault or on account of his unsuitability for the service, amounted to removal or dismissal within the meaning of this rule."

Article 311(2) of the Constitution therefore applies to this case and a probationer is entitled under that article to a second notice requiring him to show cause against the action to be taken, viz., against the order of discharge from Government service. A similar view of the law has been expressed by a Division Bench of <ORG> in --'Tribhuwannath v. Govt. of <ORG>', AIR 1953 Nag 138 (F) and -- '<NAME> v. State of Madhya Pradesh', AIR 1954 Nag 229 (G). In my opinion, the petitioner was entitled to a second notice after the Government had reached the finding that the allegations were proved against the petitioner, and in the absence of such a notice it must be held that the final order of discharge passed on 23-7-1953 is void and inoperative.

6. In view of these considerations I hold that a writ in the nature of certiorari should be issued to quash the order of <ORG> dated 23-7-1953 discharging the petitioner from Government service. I would accordingly allow this application.

<NAME>, J.

7. The question whether two notices have to be given to a probationer before he can be discharged is one of considerable difficulty. A view that can reasonably be taken is that two notices need not be given to such an officer.

8. As my learned brother has pointed out, Rules 49 and 55 of the Civil Services (Classification, Control and Appeal) Rules were amended by Notification No. 8184-A, dated 15-11-1947. Before this amendment, the explanation to Rule 49 provided that the discharge of a person during the period of probation did not amount to removal or dismissal within the meaning of the rule. Rule 55, as it then stood, did not, therefore, apply to a person on probation. By the amendment, the explanation to Rule 49 has been renumbered as explanation I and Explanation II has been added. This explanation provides that the discharge of a probationer even during the period of probation "for some specific fault or on account of his unsuitability for the service" amounts to removal or dismissal within the meaning of this rule. The third sub-paragraph which has been added to Rule 55 by the amendment lays down that the full procedure prescribed in the first sub-paragraph of that Rule need not be followed in the case of a probationer, and that in the case of a probationer who is to be discharged in the circumstances described in explanation II to Rule 49, "it will be sufficient if the probationer is given an opportunity to show cause in writing against the discharge after being apprised of the grounds on which it is proposed to discharge him......."

9.AIR 1948 PC 121 (E) was the case of a confirmed officer. Their Lordships of <ORG> were concerned in that case with Section 240 (3) of the Government of India Act, and what is now the first sub-paragraph of Rule 55. The language in Article 311(2) of the Constitution is the same as used in Section 240(3) , Government of India Act, 1935. he present sub-paragraph 1 of Rule 55 clearly Contemplates the issue of a notice to an officer and aft open enquiry in his presence after he has put in a written statement of his defence. Such a notice was given to <NAME>. Their Lordships held m view of the words used in Section 240(3) of the Government of India Act that a second notice was necessary after the enquiry had been concluded and, the charges having been proved, dismissal of the officer had been provisionally decided upon.

There is no doubt that even under Article 311(2) of the Constitution, a notice has to be given to an officer when it is provisionally decided that he should be dismissed or removed. It may be argued with considerable force, however, that the notice contemplated under the third sub-paragraph of Rule 55 as added by the notification referred to above is also a notice which has to be given after the discharge of the probationer has been provisionally decided upon. This appears to follow from the fact that sub-paragraph (3) of Rule 55 requires a notice to be given "to show cause in writing against the discharge." The words "after being apprised of the grounds on which it is proposed to discharge him" as used in that sub-paragraph strongly tend to show that discharge of the probationer must be provisionally decided upon before notice is given. It may, therefore, be reasonably concluded that the notice has to be issued under both the provisions at the same stage and that one notice will, therefore, be sufficient.

(10) I consider it unnecessary, however, to discuss this point any further and to give my final conclusion, because I entirely agree with my learned brother that there has been a violation of the principles of natural justice as the petitioner was not allowed to see the special reports of the Commissioner of Chotanagpur Division and the Deputy Inspector General, <ORG>, two of the important materials upon which <ORG> decided to discharge him.

11. therefore, agree that a writ of certiorari should issue in this case as proposed by my learned brother.


CASE NO.: Appeal (civil) 2735 of 2004 PETITIONER: <ORG>. RESPONDENT: <NAME> & <ORG>. DATE OF JUDGMENT: 28/04/2004 BENCH: <NAME> & <NAME>. JUDGMENT:

J U D G M E N T WITH CIVIL APPEAL NOS.2736, 2738 AND 2739 OF 2004 (Arising out of S. L. P. (C) Nos. 9264/2003, 9263/2003 and 9265/2003) (Arising out of S. L. P. (C) NO. 5451/ 2003) SHIVARAJ V. PATIL J.

Leave granted.

In these appeals, common order dated 22.3.2002 passed in Letters Patent Appeals by <ORG> of <ORG> of Delhi, is under challenge. The facts leading to the filing of these appeals, in brief, are that:

In all, 14 properties including the properties in question in these appeals, were notified for acquisition on 6th March, 1987 under the provisions of Section 4 and Section 17(1)&(4) of the Land Acquisition Act , 1894 (for short `the Act'). Earlier these properties were requisitioned by the appellants under the Defence of India Rules. The provisions of the Requisitioning and Acquisition of Immovable Property Act, 1952 (for short `1952 Act') were going to lapse on 10th March, 1987. These properties were occupied either for offices or for providing residential quarters to the officers. Out of these 14 properties, <ORG> and <NAME> had questioned the validity of acquisition proceedings pertaining to property no. 6, Ansari Road, Dariyaganj, New Delhi and property no. 2, Underhill Road, Delhi, respectively by filing separate writ petitions. The writ petitions were allowed and acquisition proceedings were quashed including the above-mentioned notification of 6th March, 1987. These matters attained finality having reached this Court. The respondents in these appeals filed writ petitions challenging the acquisition of their properties under the very notification. Learned Single Judge of <ORG> allowed the writ petitions. The appellants questioned the correctness and validity of the orders made by learned Single Judge in <ORG>, which were dismissed by the impugned order mainly following earlier judgments in the cases of <ORG> and <NAME>.

The learned senior counsel for the respondents raised a preliminary objection as to the very maintainability of these appeals on the ground that the controversy raised and the contentions sought to be urged in these appeals are fully covered against the appellants by the judgment of this Court in <CITATION> ) by Lrs. []. The learned senior counsel for the appellants, however, did not agree and sought to argue these appeals on merits raising various contentions stating that the decisions in <NAME> (supra) and <CITATION> 1991 (Suppl) 317] are distinguishable on facts and that certain questions of law, which go to the root of the matter, were neither urged nor decided in the aforementioned two cases. Hence, we heard the learned counsel for the parties on either side at length.

The contentions advanced on behalf of the appellants were: (1) that <NAME> case was wrongly decided and further it was on its own facts being property specific; <NAME> case was not a precedent as no reasoned order was made by this Court inasmuch as the petition was dismissed at the SLP stage itself; (2) Non-mentioning of the nature and existence of urgency in the notification issued under Sections 4 and 17 of the Act does not vitiate the notification; subjective satisfaction as regards urgency could not be determined solely on the basis of the expressions used in the notification and such urgency could be gathered looking to the surrounding circumstances and the records which would show the urgency for the acquisition; (3) pre and post notification delay would not affect the notification on account of lethargy of the officers and such delay would not render the exercise of power to invoke urgency clause invalid where there was a grave urgency on account of shortage of Government housing; (4) <ORG> committed a serious error in appointing the arbitrator to determine the damages in the absence of any arbitration agreement and there being no prayer in that regard in the writ petition; (5) correctness of the order in <NAME> case was not considered in <NAME> case; paras 11, 12 and 15 in <NAME> case in review must be read together to understand the correct legal position; (6) alternatively, notification as regards Section 17(1) , could be quashed sustaining it only to the extent of Section 4(1) of the Act. The learned senior counsel for the respondents made submissions supporting the impugned judgment. They contended that <NAME> case was correctly decided. The orders of this Court in <NAME> affirm the legal position stated in <NAME>. Hence the same result rightly followed in the writ petitions filed by the respondents in these appeals. <ORG> was right and justified in passing the impugned common judgment affirming the order of the learned Single Judge having regard to the decision already rendered in <NAME> case in regard to the same common notification; if a different view is taken at this stage, particularly after the decision in <NAME> case in the main appeal as well as in review, it will lead to anomalous result leading to conflict of decisions, i.e., the very same notification stands quashed in respect of some writ petitioners which has attained finality by virtue of affirmation of the said order by this court in <NAME> and <NAME> and in regard to other writ petitions filed by the present respondents, it will have to be sustained. If that be so, it will result in treating similarly placed persons differently on same set of facts. The learned senior counsel further urged that non-compliance of Section 17(3A) is yet another ground for quashing notification; strict compliance of sub- section (3A) of Section 17 is mandatory. According to them, in these cases even on the facts and circumstances found, there was neither material nor justification to invoke urgency clause; they made submissions distinguishing decisions relied on behalf of the appellants having regard to the facts of those cases and the points that arose for consideration. It was also their contention that the appellants having been in possession of the properties, there was no reason to invoke urgency clause to take immediate possession; at best, after the expiry of the 1952 Act as amended by Act No. 20 of 1985, the appellants continuing in unauthorized possession, could be made to pay damages or compensation for the period during which they unauthorisedly continued to be in possession. They also submitted that this Court sustained the appointment of arbitrator to determine the damages made in earlier decisions and having taken note of the same, as can be seen from the impugned common judgment in these appeals; almost after 17 years, it may not be just and equitable to direct the parties to approach civil court for claiming damages. The learned counsel submitted that <NAME> case is concluded on facts and in law in relation to the very same notification against the appellants. In SLP No. 9264/2003, the ground of delay in filing writ petition is not raised; the learned Single Judge did not find delay as a good ground for rejecting the writ petition on the facts and circumstances. <ORG> in the LPA agreed with the learned Single Judge.

In reply, the learned counsel for the appellants submitted that non-compliance of sub-section (3A) of Section 17 may affect the possession and not the acquisition; on account of such non-compliance, party may be entitled for interest under Section 23A of the Act; it would also not lead to returning possession of the property.

We have carefully considered the respective submissions made by the learned counsel for the parties. The notification issued on 6.3.1987 which was the subject matter of challenge in the writ petitions reads:

"NOTIFICATION Dated 5.3.1987 No. F.7(9)/86-L&B: (1) Whereas it appears to the Governor Delhi that the lands/properties are likely to be required to be taken by the government at the public expense for the following public purposes. It is hereby notified that the land in the locality described below is likely to be required for the above purpose.

This notification is made under the provisions of Section 4 of the Land Acquisition Act, to all whom it may concern.

In exercise of the powers conferred by the aforesaid section, the Lt. Governor is pleased to authorize the officers for the time being engaged in the undertaking with their servants and workmen to enter upon and survey any land in the locality and do all other acts required or permitted by that section.

The Lt. Governor, being of the opinion that the provisions of sub-section (1) of section 17 of the said Act are applicable to this land is further pleased under sub- section 4 of the said section, to direct that the provisions of section 5A shall not apply.

SPECIFICATION

--------------------------------------------------------------------------------------------------- Sl. Property Total Area Field or Purpose of No. boundaries No. acquisition

1 2 3 4 5

1. 95, Lal Kothi 321 sq. mts. East Kutab Road, Residential use Jatwara Mohalla West Hosue of of <ORG>.

<NAME>, servants <ORG>, <ORG>.

2. 8 A.Kamla Nagar 285 sq. mtrs. East Road, West Housing the Delhi G.T. Road, North govt. offices Property No. 7A South Property No.9-A

3. 301, Okhla New 106 sq. mtrs. East Gali West Setting up of Delhi Hosue No. 76/1, dispensary Dispensary, North Road, South House NO. 301-A

4. 15, Alipur Road Big - Bis Khasra No. 537 <ORG>, 7 - 12 Min. 7 bigha 610 govt. offices Min. 12 Biswas

5. 1 Rajpur Road 10 - 13 981/500 big-bis Housing the Civil Station 0 - 05 govt. office & 10-08 govt. servants

6. 15 Rajpur road 475 11 - 10 Housing the Civi Station govt. offices

7. 2, Under Hill 11-740 sq. mts. East Kothi No. 16, Housing the Road, Delhi Alipur Road, West govt. office K. No. 4 Road, Under Hill Road

8. 60/21, Ramjas 475 sq. mts. East Ramjas Raod Residential use Road, Delhi West 60/2, North of govt. servant Street, South Road

9. 30, Rohtak Road 1087 sq. mts. East Plot No. 29 Residential use 1087 Delhi West Plot No. 31 of govt.

North Road South servants.

<NAME>

10. 11, Lencer Road 1125 sq. mts. East K. No. 1 Housing the Delhi West K. No. 10-A govt. offices North service Land . South Road

11. 3, Tilak Marg East Old Qila East Old Qila Road Housing the Road, West West Tilak Marg Road govt. offices North Police Station, South Rajdootawas

12. 6 Ansari Road, 5592 sq. yds. East Land, West Residential use Daryaganj, <ORG>.

Station and Ansari servants Road, North Masjid Ghat Road, South

13. 97, Daryaganj 320 sq. yds. Eat Road, West for residential Delhi. Sham Lal Road use of govt.

North-Kothi No. 96 servants.

South - Kothi No. 98

14. M.C. No. 500 to 1595 sq. yds East-House, West Housing the 507, Ward No. IX/6062, Gali, <ORG>. offices Gandhi Nagar (4 set of South - Gali Old Police Station, Gandhi Nagar, Seelampur)

------------------------------------------------------------------------------------------------------------ By order Sd/-

(Mrs. <NAME>) Joint Secretary (<ORG>) <ORG>, Delhi".

Under this notification, 14 properties were sought to be acquired.

<ORG> filed writ petition No. 2385/88 seeking quashing of the aforesaid notification in respect of property 6, Ansari Road, Darya Ganj, Delhi. The purpose of acquisition of this property was mentioned as for "residential use of government servants". This property No. 6 Ansari Road, Dariya Ganj measures 5592 sq. yds., with built up area of about 6,000 sq. ft. It is situated in the main commercial centre of Delhi and was being used all along for commercial purpose by <ORG> and then by <ORG> for running <ORG>. On 27.9.1950, four flats out of the said building were acquisitioned by <ORG> under the provisions of Requisitioning and Acquisition of Immovable Property Act, 1952. Further on 13.3.1959, remaining building along with the garages, warehouses and other structures was requisitioned by the <ORG> under the same Act. The building continued under the requisition till the said Act lapsed on 10.3.1987. It may be recalled that notification under Section 4 read with Section 17(1) &(4) of the Act was issued on 6.3.1987 for acquiring 14 properties including this building, 6 Ansari Road, Darya Ganj, Delhi. On 10.3.1987, Delhi <ORG> issued notification under Section 6 of the Act and issued a letter to the Collector to take possession of the property within 15 days. Thereafter the <ORG> proposed to the writ petitioners that the building be given on lease and the negotiations for lease were continued for long. The officers of the <ORG> continued to stay in the building for over 20 months. Suddenly, the <ORG> decided to proceed with land acquisition after a period of 20 months. At that stage, the above- mentioned writ petition was filed. On 25.11.1988, <ORG> directed that the possession of the building was not to be taken by the <ORG> under Section 17 of the Land Acquisition Act but the acquisition proceedings could go on. Thereafter, award was passed fixing compensation at Rs. 77,11,230.60. Petitioners were ready to receive the compensation under protest but the <ORG> did not make the payment. It also did not offer the payment of 80% of the proposed compensation under Section 17(3A) of the Act. Mainly three grounds were urged in the writ petition : (1) the notification issued under Section 4 and Section 17 did not indicate the urgency for taking possession and, therefore, the same was vitiated in law; petitioners were illegally deprived of their right to raise objections and inquiry under Section 5A of the Act; (2) the <ORG> could not acquire commercial building for residential purpose; (3) that the whole exercise of acquisition of the building was a fraud on the powers under the Act. On behalf of the <ORG>, it was contended that the building was urgently needed for the residence of the officers, the building was being used for residential purpose for a long time and for payment of amount under sub-section (3A) of Section 17 , steps had been taken for securing the sanction. <ORG> dealing with the contentions raised in the said writ petition held that there was no whisper in the notification as to what was the urgency to take immediate possession and to deny the right of raising objections under Section 5A of the Act; the building was already in occupation of the officers of <ORG> and the <ORG> knew that the Requisitioning and Acquisition of Immovable Property Act, 1952 was to lapse on 10.3.1987; they had sufficient time to make alternate arrangements for the residence of the officers and that there was no urgency whatsoever for invoking the provisions of Section 17(1) &(4) of the Act. The court also held that Section 17(1) could not be utilized to cover up the laxity and lethargy of the <ORG> in taking appropriate steps for securing alternate accommodation for its officers. The notification was also held bad in law for non- compliance of the requirement of Section 17(3A) of the Act, in that the Collector did not tender 80% of the compensation of the land as estimated by him before taking possession of the land and that <ORG> had no explanation for the non- compliance of Section 17(3A) except saying that process of sanction had been initiated by them. The High court also held that issuing of notification under Section 17(1) was a fraud on the powers. In that view, the notification was quashed and direction was given to hand over the peaceful physical possession of the building to the petitioner. An arbitrator also was appointed to determine the damages payable by <ORG> having taken note of the facts and to avoid further delay. <ORG> filed SLP No. 4458/91, aggrieved by this order of <ORG> dated 4.2.1991 made in the writ petition. The SLP was dismissed on 21.3.1991 by passing the following order:-

"In the facts and circumstances of the case, we do not find any good ground to interfere with the impugned order of <ORG>. The Special Leave Petition is accordingly dismissed.

Although we have dismissed the petition but having regard to the fact that public servants are residing in the premises in dispute and their immediate dispossession may cause injury to public interest, we allow the petitioners to continue in possession till 31.3.1993 provided the petitioners file an undertaking in this Court within three weeks with usual conditions to hand over the vacant possession of the premises including the servant quarters on or before 31.3.1993, we further make it clear that the Arbitrator appointed by <ORG> may give award and the same may be filed before <ORG> for appropriate orders."

(emphasis supplied) <NAME> filed writ petition No. 894 of 1987 inter alia raising similar contentions as were raised in <NAME> case (supra). <ORG> allowed the said writ petition and quashed the notification following the order made in the case of <NAME> and <ORG> aforementioned. <ORG> filed Civil Appeal No. 518 of 1998 before this Court by special leave. This Court disposed of the said appeal on 14.11.2000 observing thus:-

"<ORG> quashed the impugned notification by following its earlier decision in <CITATION> decided on 4th February, 1991 in which this very notification was quashed. It is not in dispute that subject matter including the notification under Land Acquisition were the same except that in Banwari Lal it was the government housing for the officers while in the present case it is housing for the offices. The said decision of <ORG> stood confirmed when this Court dismissed the SLP filed by <ORG>. We do not find any sustainable ground raised in the present appeal to make any distinct or difference from the one in the case of <ORG>.

Accordingly, there is no error committed by <ORG> in making the decision and dismissing the same. Accordingly the present appeal has no merits and it is dismissed."

Further <ORG> and <ORG>. filed a review petition

(c) No. 74 of 2001 in aforementioned appeal No. 518/98. The review petition was disposed of on 27.8.2002 by a considered order in the light of contentions urged and arguments advanced extensively. The said order is reported as <CITATION> ) by Lrs. [].

The learned counsel for the respondents heavily relied on this decision and contended that it fully covers the case against the appellants; in view of the same, it is not open to the appellants particularly being the parties to the said decision, to re-agitate on the same issue again when the notification being composite one in respect of all 14 properties sought to be acquired under it and when the ground of urgency was also common in respect of all the 14 properties. But according to the learned counsel for the appellants, the correctness of decision in <NAME> is not decided in this case and it is clearly distinguishable in applying to the facts of the cases in these appeals. In other words, the decision in <NAME> is confined to its own facts. In the light of these submissions and that this decision will have great bearing on the question in deciding these appeals whether urgency clause could be invoked under Section 17(1) &(4) of the Act, the notification being composite one in respect of all 14 properties including the properties which are the subject matter of these appeals, we will refer to the decision in greater details. In the case of <NAME>, part of the premises known as <ORG> situated at No. 2, Underhill Road, Delhi, had been requisitioned on 3.4.1980 under the Requisition and Acquisition of Immovable Property Act, 1952, which lapsed on 10.3.1987. On 6.3.1987, the very same notification, which is also the subject matter of these appeals, was issued under Section 4 read with Section 17(1) and (4) of the Act. In this notification, 14 properties were specified to which it applied. This notification also indicated purpose for which each property was sought to be acquired, the purpose being either "housing the <ORG>. office" or "for residential use of <ORG>. servants".

<NAME> challenged the notification issued under Section 4 read with Section 17(1) &(4) as well as the declaration made under Section 6 of the Act under Article 226 of the Constitution of India before <ORG>. As already stated above, <NAME> and <ORG>, the owner of one of the 14 properties specified in the notification, also filed writ petition in <ORG> impugning the same notification inter alia urging that there was no urgency to dispense with the right of the owner to file objections and inquiry under Section 5A of the Act. <NAME>'s writ application was allowed on 4.2.1991 quashing the impugned notification upholding the contentions urged on behalf of <NAME> including the issue of urgency. The SLP filed against the decision of <ORG> in <NAME> case was dismissed by this Court on 21.3.1991. The appellants vacated the <NAME>'s premises pursuant to the order of this Court made on 21.3.1991. <ORG> of <ORG> disposed of <NAME>'s writ petition following <NAME>'s case quashing the impugned notification. In the SLP filed against the said order by the appellants, leave was granted on 19.1.1998 and hearing of the appeal was expedited. The appeal was duly listed for hearing from time to time and ultimately on 14.11.2000, the appeal was disposed of by a reasoned order, relevant portion of which is already extracted in the earlier paragraph. Later the appellants made an application for recalling the order dismissing the appeal on the ground that it was disposed of without hearing them. On 10.1.2001, accepting the request of the appellants, the application made for recalling the order dated 14.11.2000 was treated as a review petition and the review petition was accordingly heard. In support of the review petition, relying on the decisions of this Court in <CITATION> . [], <CITATION> . [], <CITATION> . [] and <CITATION> . [], it was urged that the principles of law enunciated in <NAME>'s case no longer held the field. On that basis, it was contended that the decision of <ORG> quashing the impugned notification by following <NAME>'s decision was erroneous. Opposing the review petition, it was urged that the review petition itself was not maintainable as there was no error apparent on the face of the record; the same notification stood quashed in <NAME>'s case; since the impugned notification had been quashed on a general ground which did not specifically relate to a particular petitioner, the quashing of the notification must enure to the benefit of all persons affected by that notification. In support of this, reliance was placed on <NAME> (Dead) by <CITATION> . [] and <CITATION> . []. The review petition was disposed of on 27.8.2002 since reported in []. To appreciate the rival submissions as to the implication and understanding of this judgment, it is necessary to reproduce paras 12, 13 and 15 of the judgment which read:-

"12. The matter has been argued extensively. We therefore do not propose to reject the application on the ground that the review application should not at all be entertained. It is also not necessary to consider whether the decision in Banwari Lal ( <CITATION> 1991 Supp 317) correctly enunciates the principles of law as to acquisitions under Section 17 of the Act as we are of the view that the order of this Court dated 14-11-2000 was, in the circumstances of the case, correct.

13. It appears that the petitioners have proceeded on the basis that the acquisition sought to be effected by the impugned notification under Section 4 had been invalidated in respect of other specified properties by the decision of this Court in <NAME> case. The statement in the respondent's affidavit that several of the properties covered by the same notification have since been returned by the petitioners to the original owners has not been disputed by the petitioners. Furthermore, <ORG> in the decision impugned before us has also noted:

"It is also not disputed that under the impugned notifications neither an award has been made nor any compensation is determined and paid. The reason being that the impugned notifications were quashed and set aside in <NAME> case.

14 .......................................

15. In any event the order dated 14-11-2000 was not legally erroneous. The notification under Section 4 was a composite one. The "opinion" of the Lt. Governor that the provisions of Section 17(1) of the Act were applicable, as expressed in the last paragraph of the impugned notification, was relatable in general to the 14 properties specified in the notification. The impugned notification was quashed in <NAME> case ( <CITATION> 1991 Supp 317) inter alia on the ground that the "opinion" of the Lt. Governor as expressed in the notification was insufficient for the purpose of invoking the provisions of Section 17(1) of the Act. This ground was not peculiar to the premises in <NAME> case ( <CITATION> 1991 Supp 317) but common to all fourteen properties. The urgency sought to be expressed in the impugned notification cannot be held to be sufficient for the purposes of Section 17(1) in this case when it has already been held to be bad in <NAME> case. ( <CITATION> , ; Delhi Admn. v. <NAME>, ). The expression of urgency being one cannot be partly good and partly bad like the curate's egg. It must follow that the acquisition in respect of the respondent's premises as mentioned in the notification which were sought to be acquired on the basis of such invalid expression of "urgency" cannot be sustained."

(emphasis supplied) It is needless to repeat that a judgment need not be read and interpreted as a statute and that a judgment should be read and understood in the context of the facts of case and looking to the ratio. The sentence in paragraph 12, extracted above, that "It is also not necessary to consider whether the decision in <NAME> correctly enunciates the principles of law as to acquisitions under Section 17 of the Act as we are of the view that the order of this <ORG> dated 14.11.2000 was, in the circumstances of the case, correct", has reference to enunciation of principles of law in relation to Section 17 as to the expression of urgency as stated in <NAME>, i.e., to whether the existence of urgency and expression of urgency must be specifically stated in the notification issued under Section 4(1) read with Section 17(1) of the Act and if not whether the notification is vitiated. In view of the later decisions of this <ORG>, even in the absence of stating as to the existence of urgency or express statement as to urgency, the issue of urgency could be justified on the basis of the surrounding circumstances and the records available at the time of subjective satisfaction of authorities to invoke the aid of Section 17(1) &(4). It is in that context that the statement is made in para 12 not with regard to the validity of the impugned common notification in respect of all the 14 properties which fact is abundantly clear from what is stated specifically in para 15 of the judgment extracted above in relation to sustainability of the impugned notification or otherwise in respect of one or other property. On this basis, the court had held that the expression of urgency in the common notification being general to all 14 properties could not be sustained in respect of any particular property, on the ground that the expression of urgency being one and the same cannot be partly good and partly bad. In the same para, the decision in <NAME> that the impugned common notification was bad, is accepted. As is evident from paragraph 13 that pursuant to the impugned notification, neither any award was passed nor any compensation was determined and paid on the ground that the impugned notification was quashed and set aside in <NAME> case. This only indicates that even the appellants understood the impugned notification as a common and composite notification in respect of all the 14 properties. The ground of urgency also being common, it is not possible to accept that the decision rendered in the cases of <NAME> or <NAME> on the question of urgency was properties specific. The decision in <NAME> and <NAME> of this <ORG> in relation to the same notification may not be binding on principle of res judicata. The argument, however, cannot be accepted that those decisions are not binding being 'properties specific' in those cases. In our considered opinion, the decisions are binding as precedents on question of validity of the notification, which invokes urgency clause under Section 17 of the Act. We find ourselves in full agreement with the ratio of the decisions in those cases that urgency clause, on the facts and circumstances, which are similar to the present cases, could not have been invoked. The two decisions are, therefore, binding as precedents of this <ORG>. We are not able to find any distinction or difference as to the ground of urgency in regard to the properties covered by these appeals.

In the order disposing of the appeal on 14.11.2000, it is clearly stated that <ORG> quashed the impugned notification following its earlier decision in <NAME> case; the subject matter including the notification under the Act was the same except that in <NAME> case, it was the <ORG>. housing for the officers while in <NAME> case, it is housing for the offices. No sustainable ground was found in the appeal to make any distinction or difference between the case of <NAME> and <NAME>. In review, this order was not disturbed. In <NAME> case on the facts found and looking to the circumstances in the background of lapsing of the Requisitioning Act and taking note of laxity and lethargy on the part of the officers, the <ORG> concluded that there existed no urgency to invoke Section 17(1) of the Act. This notification was struck down not merely on the ground that the existence of urgency is not stated in the impugned notification. The ground of urgency was common to all 14 properties. It is not the case that the ground of urgency was different in respect of different properties which fact is clear from the composite notification. Further it was also not shown either in <NAME> case or in <NAME>'s case if the ground of urgency was different in respect of different properties. In this view and looking to what is stated in paragraph 15, extracted above, we find substantial force in the preliminary objection raised on behalf of the respondents. However, in the light of arguments advanced at length, we wish to deal with them.

The provisions of the Act, to the extent they are relevant, are reproduced hereunder:-

" Section 4 - Publication of preliminary notification and powers of officers thereupon

- (1) Whenever it appears to the (appropriate Government) that land in any locality (is needed or) is likely to be needed for any public purpose (or for a company) a notification to that effect shall be published in <ORG> ( and in two daily newspapers circulating in that locality of which at least one shall be in the regional language) and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification).

(2) Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government in this behalf, and for his servants and workmen, -

to enter upon and survey and take levels of any land in such locality;

to dig or bore in the subsoil;

to do all other acts necessary to ascertain whether the land is adapted for such purpose;

to set out the boundaries of the land proposed to be taken and the intended line of the work (if any proposed to be made thereon);

to make such levels, boundaries and line by placing marks and cutting trenches; and where otherwise the survey cannot be completed and the levels taken and the boundaries and lines marked, to cut down and clear away any part of the standing crop, fence of jungle;

provided that no person shall enter into any building or upon any other enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so."

" Section 5A - Hearing of objections -

(1) Any person interested in any land which has been notified under Section 4 , sub- section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.

(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorized by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4 , sub- Section (1), or make different reports in respect of different parcels of such land, to the appropriate <ORG>, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that <ORG>. The decision of the Appropriate <ORG> on the objections shall be final.

(3) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act."

" Section 17 - Special powers in cases of urgency -(1) In cases of urgency, whenever the Appropriate <ORG> so directs, the collector, though no such award has been made may, on the expiration of fifteen days from the publication of the notice mentioned in section 9 , sub-section (1), [take possession of any land needed for a public purpose]. Such land shall thereupon vest absolutely in the <ORG>, free from all encumbrances.

(2) Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, [or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity,] the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances;

Provided that the Collector shall not take possession of any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eighty hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such building without unnecessary inconvenience.

(3) ................................

(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3),-

(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and

(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31 , sub-section (2), and where the Collector is so prevented, the provisions of section 31 , sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section.

(3B) ..............................

(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1), or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time [after the date of the publication of the notification under section 4 , sub- section (1)."

These provisions clearly provide protection to a person whose land is to be acquired by providing right to object to the proposed acquisition of any land notified under Section 4 ; opportunity of hearing is also provided to show that the proposal to acquire the land was unwarranted; such opportunity available under Section 5A cannot be denied except in case of urgency. Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the <ORG> to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however, laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a land owner of his right in relation to immoveable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5A of the Act. The <ORG> must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the land owners and the inquiry under Section 5A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen's property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the <ORG> should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the <ORG> Administration.

Life of Requisitioning and Acquisition of Immovable Property Act, 1952 was extended from time to time by various amending Acts. Finally by Act No. 20 of 1985, the period was extended to retain the properties under the said Act for a maximum period of two years which expired on 10.3.1987. The Statement of Objects and Reasons of this Act - No. 20 of 1985 are as follows:-

"According to the provisions of the Requisitioning and Acquisition of Immovable Property Act, 1952 as these existed immediately before the amendment of the Act by ordinance No. 2 of 1985, all the properties, which were requisitioned prior to the amendment of the aforesaid Act in 1970, were required to be released from requisition or acquired by the 10th March, 1985.

However, it was found that some of the properties requisitioned under the above Act are required to be retained by the <ORG>, <ORG> and also some other <ORG> and <ORG> for public purposes<ORG> Although Government is expeditiously implementing the policy of acquiring or releasing from requisition the requisitioned properties, a number of them are expected to be needed by the Government even after the 10th March, 1985, for public purposes<ORG> The <ORG> is taking action for either releasing or acquiring the requisitioned properties (including land)<ORG> Similarly, in the case of <ORG>, the need to continue the properties under requisition beyond the aforesaid date is due to shortage of office accommodation for various <ORG>s and also due to a few cases being under adjudication by courts of law<ORG> The <ORG> has constructed a new office building in Calcutta for the <ORG><ORG> offices located in requisitioned properties and, therefore, most of the requisitioned properties in Calcutta are expected to be released from requisition shortly<ORG> An office building is nearing completion in New Bombay also and the same is likely to be allotted as alternative accommodation to the eligible offices located in requisitioned properties<ORG> It was, therefore, decided to extent the maximum period for which properties could be retained under requisition by a period of two years<ORG>

2. ................................

3. In the circumstances stated above, the Act was amended through the Requisitioning and Acquisition of Immovable Property (Amendment) Ordinance, 1985 (2 of 1985) so as to extend the period for which the properties could be retained under requisition by two years and to provide for revision of the recurring part of the compensation."

(emphasis supplied) This Court in the case of <CITATION> . [1984 (2) SCR 693] dealing with the scope of Requisitioning and Acquisition of Immovable Property Act, 1952 in relation to length of the period for which the properties requisitioned could be continued, has observed thus:-

"The two concepts, one of requisition and the other of acquisition are totally distinct and independent. Acquisition means the acquiring of the entire title of the expropriated owner whatever the nature and extent of that title may be. The entire bundle of rights which was vested in the original holder passes on acquisition to the acquirer leaving nothing to the former. Vide : Observations of <NAME>, J. in <NAME> case ( <CITATION> , 1950 SCR 869 : AIR 1951 SC 41). The concept of acquisition has an air of permanence, and finality in that there is transference of the title of the original holder to the acquiring authority. But the concept of requisition involves merely taking of "domain or control over property without acquiring rights of ownership" and must by its very nature be of temporary duration. If requisitioning of property could legitimately continue for an indefinite period of time, the distinction between requisition and acquisition would tend to become blurred, because in that event for all practical purposes the right to possession and enjoyment of the property which constitutes a major constituent element of the right of ownership would be vested indefinitely without any limitation of time in the requisitioning authority and it would be possible for the authority to substantially take over the property without acquiring it and paying full market value as compensation under the Land Acquisition Act , 1894. We do not think that the Government can under the guise of requisition continued for an indefinite period of time, in substance acquire the property, because that would be a fraud on the power conferred on the government. If the Government wants to take over the property for an indefinite period of time, the Government must acquire the property but it cannot use the power of requisition for achieving that object. The power of requisition is exercisable by the Government only for a public purpose which is of a transitory character. If the public purpose for which the premises are required is of a perennial or permanent character from the very inception, no order can be passed requisitioning the premises and in such a case the order of requisition, if passed, would be a fraud upon the statute, for the Government would be requisitioning the premises when really speaking they want the premises for acquisition, the object of taking the premises being not transitory but permanent in character. Where the purpose for which the premises are required is of such a character that from the very inception it can never be served by requisitioning the premises but can be achieved only by acquiring the property which would be the case where the purpose is of a permanent character or likely to subsist for an indefinite period of time, the Government may acquire the premises but it certainly cannot requisition the premises and continue the requisitioning indefinitely. Here in the present case the order of requisition was made as far back as April 9, 1951 and even if it was made for housing a homeless person and the appellant at that time fell within the category of homeless person, it cannot be allowed to continue for such an inordinately long period as third years. We must therefore hold that the order of requisition even if it was valid when made, ceased to be valid and effective after the expiration of a reasonable period of time. It is not necessary for us to decide what period of time may be regarded as reasonable for the continuance of an order of requisition in a given case, because ultimately the answer to this question must depend on the facts and circumstances of each case but there can be no doubt that whatever be the public purpose for which an order of requisition is made, the period of time for which the order of requisition may be continued cannot be an unreasonably long period such as thirty years. <ORG> was, therefore, in any view of the matter, right in holding that in the circumstances the order of requisition could not survive any longer and the State Government was bound to revoke the order of requisition and derequisition the flat and to take steps to evict the appellant from the flat and to hand over vacant possession of it to the third respondent."

(emphasis supplied) In these appeals also, the properties in question had been under requisition for a very long time. It appears, the <ORG> Minister on 28.3.1985 assured <ORG> that the Government would return all requisitioned properties within two years or acquire it permanently after paying compensation. This announcement came at the end of the debate on the Requisitioning and Acquisition of Immovable Property (Amendment) Bill, 1985 which later became Act. From the debate, it is also clear that the National Conference Member mentioned about the difficulties faced by many people whose properties were requisitioned for one purpose or the other. The Minister informed that he had written letter to the concerned for making arrangements for vacating or permanently acquiring the properties within next two years.

The Office Memorandum dated 9.7.1979 reads:-

"<ORG>, Delhi (<ORG>) Vikas Bhawan, New Delhi.

No. F.13/22/79-PWD/Allot/8397 Dated 9.7.1979 OFFICE MEMORANDUM Due to amendment in the Requisitioning and Acquisition of Immovable Property Act, 1952 and as per Decision of <ORG> all the requisitioned/leased houses which are with the <ORG> for more than 10 years are to be released to their owners immediately. As such it has since been decided by the <ORG> to compile a priority list of the occupants of requisitioned/leased houses with a view to allot them alternative accommodation on priority basis. All the occupants of requisitioned/leased houses are requested to furnish the relevant information in the enclosed performa by 16.7.1979 failing which, the officer concerned will be liable for eviction from requisitioned house without provision for alternative accommodation. This may please be noted.

( <NAME>) Under Secretary (PWD) <NAME>, <ORG> 13, Alipur Road, Delhi Despatcher, <ORG>.

<ORG>, N.Delhi-110001"

(emphasis supplied) One more aspect to be noticed is, as observed by <ORG>, that the properties in question continued to be in possession of the appellants; in other words, there was no urgency of taking immediate possession nor there was any immediate threat of dispossessing them from the properties. At the most, after the lapsing of the Requisition Act on 10.3.1987, their possession over the properties would have been unauthorized, may be so long they continued in unauthorized possession of the properties, they were liable to pay damages for their occupation for few months during which period they could have completed acquisition proceedings in the normal course without resorting to provisions of Section 17 (1) & (4) of the Act. During the course of the hearing, we specifically asked the learned counsel for the appellants in this regard, the only answer was that the appellants being <ORG> & others did not want to remain in the unauthorized possession of the properties. We are not convinced by this reply so as to justify invoking urgency clause to acquire the properties. Having regard to the facts and circumstances of the case in these appeals, the authorities could have completed acquisition proceedings in couple of months even after providing opportunity for filing objections and holding inquiry under Section 5A of the Act if they were really serious.

In the Objects and Reasons of Act No. 20 of 1985, it is stated that all the properties which were requisitioned prior to the amendment of the Act in 1970 were required to be released from requisition or acquired by March 10, 1985; although Government is expeditiously implementing the policy of acquiring or releasing from requisition the requisitioned properties, a number of them are expected to be needed by the Government even after the 10th March, 1985 for public purposes; <ORG> is taking action for either releasing or acquiring the requisitioned properties. It was, therefore, decided to extend the maximum period for which the properties could be retained under requisition by a period of two years. Thus, it is clear that the authorities were aware that the properties were to be released or acquired and the maximum period was extended upto two years for the purpose. From 1985 to 1987 they had sufficient time to acquire the properties in question in the usual course. They had enough time to provide opportunity for filing objections and holding inquiry under Section 5A of the Act. There was no need to invoke Section 17 of the Act. The Office Memorandum dated 19.7.1979 extracted above shows that <ORG> took the decision in view of the amendment in the Requisition and Acquisition of Immovable Property Act, 1952 with all the requisitioned/leased houses which were with the <ORG> for more than 10 years were to be released to their owners immediately and all the occupants of requisitioned/leased houses were requested to furnish the relevant information by 16.7.1979 failing which the officer concerned will be liable for eviction from the requisitioned house without provision for alternative accommodation. Here again, it is clear that the authorities were in know of the situation in the year 1979 itself. Further the minutes of the meeting held on 8.4.1985 in the room of Secretary (PWD/L&D), Delhi <ORG>, Delhi show that the position regarding all the requisitioned properties in Delhi which were requisitioned under the 1952 Act was reviewed. The said meeting was attended by (1) Secretary (PWD&L&D), (2) Joint Director (Training), (3) Additional District Magistrate (Registration) and Under Secretary (LA). In the said meeting, it was decided that all the pre-1970 residential buildings which were partially requisitioned and were not in full occupation of Delhi <ORG> should be de-requisitioned in stages.

It was noted that some of the requisitioned buildings which were fully occupied for residential/office purposes by the various departments of <ORG> and which buildings are essentially required for the functioning of such departments should be acquired under the Act.

<NAME> pointed out that in cases where the buildings/properties were to be acquired under the Act, 80% of the compensation was to be given at the stage of notice itself.

In this meeting, cases of requisitioned buildings were reviewed in details and recommendations were made in respect of each property.

It was also noticed that the acquisition of buildings was going to be prolonged affair; initially those properties which have been surveyed by ADM (Requisition) and recommended for acquisition/de- requisitioning vide letter dated 27.3.1985 may be taken up.

Thus, from the Statement of Objects and Reasons of the Act 20 of 1985, Statement by the concerned Minister to <ORG> on 28.3.1985, the Office Memorandum aforementioned and the minutes of meeting dated 8.4.1985, it is sufficiently clear that the appellants were fully aware that they had to make arrangements either for acquiring the properties or de- requisitioning them by making alternate arrangement within a period of two years i.e. upto 10.3.1987 inasmuch as no further extension of the Requisition Act was possible. Further having regard to the observations made by this Court in the case of <NAME> (supra), there would have been no justification for the appellants to continue properties in question under the Requisitioning Act any more. If the appellants were really serious in acquiring the properties in question, they had almost 2 years time even after taking the decision to acquire them or derequisition them within which time, acquisition proceedings could be completed in the usual course without depriving the respondents of their valuable right to file objections for acquisition and without dispensing with inquiry under Section 5A of the Act.

<ORG> was not right in holding that without expression of urgency in the impugned notification itself, it could not be sustained, but then <ORG> did not rest its conclusion only on this. Having examined the facts and circumstances of the case, it was found that there was no material and the circumstances even to have subjective satisfaction by the authorities to invoke urgency clause under Section 17 of the Act. This urgency was common in respect of all the 14 properties as already noticed above in the cases of <NAME> as well as <NAME> aforementioned. The finding of fact that there was no urgency for invoking Section 17 has become final. This finding holds good even for these appeals. Having regard to the facts and circumstances and the material available on record, we are of the view that invocation of urgency clause was without justification and was untenable as held in <NAME> and <NAME>. This Court in <CITATION> . [] as to the use of emergency power under Section 17 of the Act has observed that "it is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency were public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 (and 19), burke an enquiry under Section 17 of the Act. Here a slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes a travesty of emergency power."

<CITATION> . [] referring to <CITATION> (supra), this Court in para 21 has observed that "according to the said decision, inquiry under Section 5A is not merely statutory but also has a flavour of fundamental rights under Articles 14 and 19 of the Constitution though right to property has no longer remained a fundamental right, at least observation regarding Article 14 vis-a-vis Section 5A of the Land Acquisition Act would remain apposite." In the present appeals, the appellants have not been able to show before <ORG> any genuine subjective satisfaction depending upon any relevant material available to the State authorities at the time when they issued the impugned notification under Section 4(1) of the Act and dispensed with Section 5A inquiry taking aid of Section 17(4) of the Act. A bench of three learned Judges of this Court in <ORG> vs. <ORG>. [] has expressed that Section 17(4) cannot be read in isolation from Section 4(1) and 5A of the Act and has expressed that having regard to the possible objections that may be taken by the land owners challenging the public purpose, normally there will be little difficulty in completing inquiries under Section 5A of the Act very expeditiously. In the same judgment, it is also stated that "The mind of the officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an inquiry under Section 5A which has to be considered."

The various decisions cited on behalf of the appellants in support of their submission that there was justification in invoking urgency clause for acquiring the properties in question were on the facts of those cases where either urgency was made out or where it was shown that relevant material and data was available at the time of issuing notification invoking urgency clause. In the case of <CITATION> . [1984) 4 SCC 308] one of the grounds raised was that long period of 8 years was spent in inter-departmental correspondence which showed that there was no urgency to invoke Section 17(4) of the Act. In that context, the <ORG> observed that "Very often persons interested in the land proposed to be acquired make various representations to the concerned authorities against the proposed acquisition. This is bound to result in a multiplicity of enquiries, communications and discussions leading invariably to delay in the execution of even urgent projects. Very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition." The <ORG> proceeded on the assumption that the pre-notification delay could have been caused by representations made by the aggrieved parties but this case is not an authority to say that in the absence of material to justify urgency clause and long delay in issuing the notification could be ignored or condoned to uphold the validity of such notification. <CITATION> . [], the observations of the <ORG> that larger the delay, greater be the urgency was in the context of the facts of that case having regard to the public purpose involved therein for invoking the urgency clause. In that case, the <ORG> appeared to think that very often the officials due to apathy in the implementation of the policies and programmes of the <ORG> themselves adopt dilatory tactics which leads the aggrieved party to challenge the invocation of urgency. The <ORG> took note of the fact that urgency clause was invoked in that case for providing house sites to the dalits and the poor which is a national problem. This is not an authority to condone or ignore the laxity or lethargy or carelessness on the part of the authorities in invoking urgency clause to exercise special powers under Section 17 of the Act to cover up their delay and laches without there being any justification or material justifying invoking of urgency clause. In the case of <CITATION> [], this <ORG> has taken the view that the notification need not specifically recite the nature of urgency and it is enough if the records disclosed the consideration by the <ORG> on the urgency for taking action under Section 17(1) & (4) of the Act. This position was not disputed before the High <ORG> and is also not contested before us. The view of High <ORG> in this regard that the notification itself must specifically state about the nature of urgency and in its absence the notification gets vitiated, cannot be accepted. But as already observed above, the High <ORG> did not quash the notification only on the ground of non- mentioning of urgency in the impugned notification but it has also independently considered and concluded that no material was placed before the <ORG> to show that material and circumstances were available before the authorities at the relevant time to invoke the urgency clause to exercise powers under Section 17 of the Act. 'Urgency' for invoking of Section 17 of the Act should be one arising naturally out of circumstances, which exist when the decision to acquire the land is taken and not such, which is the result of serious lapse or gross delay on the part of <ORG>. However, the position may be different where the delay is caused or occasioned by the landowner himself. Failure to take timely action for acquisition by the authorities of the Union of India cannot be a ground to invoke the urgency clause to the serious detriment of the right of the landowner to raise objections to the acquisition under Section 5-A .

In Civil Writ Petition No. 229/92 filed by <NAME>, (the respondent in SLP No. 9264/2003), a contention was raised on behalf of the appellants herein that the writ petitioner's case suffered from delay and laches. The learned Single Judge having regard to the facts and circumstances of the case concluded that the writ petition could not be dismissed on the ground of delay holding that the writ petitioner had been pursuing his remedies in the court of law against the proposed action of the appellants. <ORG> of <ORG> in the order under challenge in regard to the delay in filing the writ petition agreeing with the learned Single Judge has stated thus:-

"Before parting, we may however notice that the appellant had raised a question of delay in filing the writ petition by the first respondent in writ petition No. 229/92 which is the subject matter of LPA No. 10/1995. However, the learned single Judge not only accepted the explanation for the alleged delay but also entertained the writ petition and decided the same on merits. We, therefore, are of the opinion that it is not a fit case where this court should interfere with the said judgment on the afore-mentioned ground."

Ground of delay is not raised by the appellants in the SLP. In this view, the contention urged on behalf of the appellants that the writ petition No. 229 of 1992 ought to have been dismissed on the ground of delay and laches cannot be accepted.

The argument advanced by the learned counsel on behalf of the appellants that the arbitrator could not be appointed by <ORG> in the absence of any agreement for appointment of arbitrator to determine the damages and there being no prayer in that regard in the writ petition, cannot be accepted. This Court dismissed the SLP No. 4458 of 1991 filed by the appellants against the order dated 4.2.1991 made by <ORG> in <NAME> case. While dismissing the said SLP on 22.3.1991, may be in the light of the argument made on behalf of the appellants that arbitrator could not be appointed, this Court expressly made it clear that the arbitrator appointed by <ORG> may give award and the same may be filed before <ORG> for appropriate orders. Civil Appeal No. 518 of 1998 filed by the appellants against the order made in the writ petition No. 894 of 1987 filed by <NAME> was disposed of by this Court on 14.11.2000 following <NAME> case which included appointment of arbitrator. In the said order, this Court did not find any sustainable ground raised in the appeal to make any distinction or difference from the case of <NAME> and others. Hence it follows that order of appointment of arbitrator made in <NAME>'s case was also upheld by this Court. The learned Single Judge passed the order in the writ petition appointing arbitrator to determine the damages payable by <ORG> instead of making the petitioners to run to the civil court for that purpose after spending several years in the court. In the impugned order, <ORG> of <ORG> has upheld the same. Since the order appointing arbitrator in the cases of <NAME> and <NAME> is upheld by this Court, we have no good reason to take a different view. On the other hand, we are in respectful agreement with the same having regard to the facts and circumstances of the case.

The alternative argument urged on behalf of the appellants that if the impugned notification suffers from infirmity in relation to invoking urgency clause, it can be quashed only to the extent of invoking the aid of Section 17 and the said notification can be sustained confining it to Section 4 of the Act, cannot be accepted. Otherwise, the same common notification stands quashed in respect of the few parties as in the cases of <NAME> and <NAME> and it stands sustained in respect of others i.e. respondents in these appeals leading to anomalous situation. Added to this, if the argument, as advanced on behalf of the <ORG>, is accepted, the notification under Section 17 of the Act invoking urgency clause would stand quashed but the landowner, would nonetheless be deprived of the possession of the property as also payment of 80% of compensation under Section 17(3A) of the Act. Such an unjust result cannot be allowed to happen by quashing the notification in part only to the extent of Section 17 of the Act and maintaining it for the purpose of Section 4 of the Act. Thus, having regard to the facts and circumstances brought on record in these appeals, it is not possible to accept this argument particularly when the very foundation of invoking Section 17 was invalid and unjustified as upheld by this Court in <NAME> and <NAME>.

Since we are of the view that the decisions in <NAME> and <NAME> cover these appeals against the appellants, we do not consider it necessary to deal with the contention that due to non-compliance of sub-section (3A) of Section 17 of the Act, the entire acquisition proceedings were vitiated. Further when we are upholding the impugned common order on other grounds, we do not wish to deal with this contention.

One more contention urged on behalf of the appellants in SLP (C) No. 5451/2003 namely that the writ petition filed by the respondents being tenants was not maintainable, is required to be dealt with. It does not appear that this contention was urged before <ORG> of <ORG>. In the light of the decision of this Court in <CITATION> . [], it cannot be said that in no case, the tenant of the land which is sought to be acquired under the provisions of the Act can challenge the acquisition proceedings. It is clear from Section 5A(3) of the Act that for the purpose of the said Section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired. In an appropriate case, a tenant having sufficient subsisting interest in the land can challenge the acquisition proceedings. In view of the facts and circumstances of the case, the learned Single Judge did not dismiss the writ petition as not maintainable on the ground that the tenant could not maintain the writ petition. <ORG> of <ORG> also did not disturb the order of the learned Single Judge. This apart, the very same notification being common is quashed at the instance of other writ petitioners. In this view, at this stage, the contention urged on behalf of the appellants that writ petition filed by a tenant was not maintainable cannot be accepted.

Thus, having regard to all aspects and for the reasons stated and discussion made above, we do not find any merit in these appeals. Hence, they are dismissed. No costs.