Acquisition of land

Challenge to -- If the acquisition is intended to benefit private person(s) and the provisions contained in Section 17(1) and/or 17(4) are invoked, then scrutiny of the justification put forward by the State should be more rigorous in cases involving the challenge to the acquisition of land, the pleadings should be liberally construed and relief should not be denied to the petitioner by applying the technical rules of procedure embodied in the Code of Civil Procedure and other procedural laws. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Challenge to -- In cases where the acquisition is made by invoking Section 4 read with Section 17(1) and/or 17(4), the High Court should insist upon filing of reply affidavit by the respondents and production of the relevant records and carefully scrutinize the same before pronouncing upon legality of the impugned notification/action -- A departure from this rule should be made only when land is required to meet really emergent situations like those enumerated in Section 17(2). Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Challenge to -- Pleadings – A reading of the averments contained in the writ petition coupled with the appellants’ assertion that the acquisition of their land was vitiated due to discrimination inasmuch as land belonging to influential persons had been left out from acquisition, but their land was acquired in total disregard of the policy of the State Government to leave out land on which dwelling units had already been constructed, show that they had succeeded in making out a strong case for deeper examination of the issues raised in the writ petition -- High Court committed serious error by summarily non-suiting them. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Challenge to -- While examining the land owner’s challenge to the acquisition of land in a petition filed under Article 226 of the Constitution, the High Court should not adopt a pedantic approach, and decide the matter keeping in view the constitutional goals of social and economic justice and the fact that even though the right to property is no longer a fundamental right, the same continues to be an important constitutional right and in terms of Article 300-A, no person can be deprived of his property except by authority of law. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Compensation of land -- Land Acquisition Act, 1894 -- A person whose land is acquired is entitled to: (a) Compensation determined u/s 23(1) of the Act (comprising the market value of the land referred to as the first factor and any damages/expenses referred to as the second to sixth factors under the said sub-section), (b) Solatium at 30% on the market value determined as the first factor under section 23(1) of the Act, (c) Additional amount at 12% per annum of the market value of the land referred to as the first factor under Section 23(1) of the Act, for the period specified in Section 23(2), (d) Interest on the aggregate of (a), (b) and (c) above for the period between the date of taking possession to date of payment/deposit at the rate of 9% per annum for the first year and 15% per annum for the remaining period. State of Punjab v. Amarjit Singh & Anr., 2011(2) L.A.R. 181 (SC).

Delay in challenge – Locus standi -- Power of compulsory acquisition has been used fraudulently, all objections concerning delay in challenging acquisition and locus standi are not sustainable as it is well settled that all actions taken fraudulently are vitiated in law. Harkishan v. Union of India and others, 2011(2) L.A.R. 371 (P&H DB).

Industrial purpose -- Urgency provisions – Objection – Right of --  It is neither the pleaded case of the respondents nor any evidence has been produced before the Court to show that the State Government and/or agencies/instrumentalities of the State are intending to establish industrial units on the acquired land either by itself or through its agencies/instrumentalities – Even if planned industrial development of the district is treated as public purpose within the meaning of Section 4, there was no urgency which could justify the exercise of power by the State Government under Section 17(1) and 17(4) – Time required for ensuring compliance of the provisions contained in Section 5-A cannot, by any stretch of imagination, be portrayed as delay which will frustrate the purpose of acquisition. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Release of land -- Court cannot ignore the releases/wrongs which has become final and the persons have been benefited immensely on accounts of such wrongs by retaining those benefits illegally and this may have to be undone -- To prevent illegal benefit being retained, the Court may quash release or withdrawal from acquisition if the same is held to be vitiated by fraud -- The Court may require the State to recall such release and also to ascertain whether release was for any extraneous consideration and how wrongful gain or wrongful loss can be readjusted -- Released land may be restored to the State or sold in public auction -- State itself may recall its illegal actions -- It may not be possible to lay down any rigid rule as to how relief can be moulded by Court in an individual fact situation -- If order of release is to be cancelled, it may be necessary to hear the affected party by the Court or the authority passing the order. Harkishan v. Union of India and others, 2011(2) L.A.R. 371 (P&H DB).

Release of land -- Many parcels of land were released from acquisition because the land owners had already raised constructions and were using the same as dwelling units -- A large chunk of land measuring 4.3840 hectares was not acquired apparently because the same belong to an ex-member of the legislative assembly -- Appellants had also raised constructions on their land and were using the same for residential and agricultural purposes -- Why their land was not left out from acquisition has not been explained in the counter affidavit filed by the respondents -- High Court should have treated this as sufficient for recording a finding that the respondents had adopted the policy of pick and choose in acquiring some parcels of land and this amounted to violation of Article 14 of the Constitution. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Structure thereupon -- Expert witness – Expert has not given any specific evidence as to what was the age of the structure -- Cost of construction of the ground floor is always on the higher side while the cost of construction of first floor and second floor is on the lower side, the expert examined has also ignored the said fact -- Only evidence available is the circular issued by the Chief Engineer, regarding District Schedule Rates in respect of cost of construction with reference to Building and Construction Department of State – Cost of construction, which would be admittedly lower in 1983 than in 1991, must also be juxtaposed with the depreciation that would have accrued to the structures owing to wear and tear over a period of 8 years -- In the year 1991, the cost of construction of residential building was Rs.2,800 per square meter for the ground floor and Rs.2,200 per square  meter for the second and third floors -- Deduction of 60 per cent (approximate) from the said valuation of the cost of construction in 1991 would be appropriate, and accordingly arrive at a compensation of RS.1700 per square meter for the structure -- Decision to deduct the said percentage of 60% is based on the Building Cost Index between 1983 and 1991 published by the Central Public Works Department, which reflects the rise in cost of construction over the said period of time. Prabhakar Raghunath Patil & Ors. v. State of Maharashtra, 2011(2) L.A.R. 654 (SC).

Urgency provisions – Objection – Right of --  Land Acquisition Act, 1894 -- Authorities completed the exercise of survey and preparation of documents in one year and almost three months in issuance of notification u/s read with Section 17(1) and 17(4) – Held, it is not possible to accept the argument that four to five weeks within which the objections could be filed under sub-section (1) of Section 5-A and the time spent by the Collector in making inquiry under sub-section (2) of Section 5-A would have defeated the object of acquisition. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Urgency provisions invoked -- Challenge to – Burdon of proof – Pleadings -- Land Acquisition Act, 1894 -- High Court should not literally apply the abstract rules of burden of proof enshrined in the Evidence Act -- Held, an assertion by the appellants that there was no urgency in the acquisition of land; that the concerned authorities did not apply mind to the relevant factors and records and arbitrarily invoked the urgency provisions and thereby denied him the minimum opportunity of hearing in terms of Section 5-A(1) and (2), should be treated as sufficient for calling upon the respondents to file their response and produce the relevant records to justify the invoking of urgency provisions. Sri Radhy Shyam (Dead) Through L.Rs. and others v. State of U.P. and others, 2011(2) L.A.R. 133 (SC).

Writ jurisdiction – Limitation – In relation to the land acquisition proceedings, the Court should be loathe to encourage stale litigation as the same might hinder projects of public importance – Courts are expected to be very cautious and circumspect about exercising their discretionary jurisdiction under Article 226 or Article 32 of the Constitution if there has been inordinate unexplained delay in questioning the validity of acquisition of land. Tamil Nadu Housing Board, Chennai v. M. Meiyappan & Ors., 2011(2) L.A.R. 284 (SC).

Writ jurisdiction – Limitation -- Writ petition filed 16 years after the award was announced by the Collector, must fail -- It is trite law that delay and laches is one of the important factors which the High Court must bear in mind while exercising discretionary power under Article 226 of the Constitution -- High Court must refuse to invoke its extra-ordinary jurisdiction and grant relief to the writ petitioner. Tamil Nadu Housing Board, Chennai v. M. Meiyappan & Ors., 2011(2) L.A.R. 284 (SC).