According to the Hon’ble Court, the authorities must respect the precious right of citizens under Section 5A of the Land Acquisition Act, which is not a mere right of passage

By: Rashi Jain, SOA National Institute Of law

Having resolved an old dispute of 12 years, the Hon’ble Supreme Court, in Hamid Ali Khan v. State of Uttar Pradesh, ruled that an individual’s inalienable right to voice their grievances against land acquisition cannot be unjustly terminated. 

A Bench of Justices KM Joseph and Ravindra Bhat held, “…merely because the purpose of the acquisition is found to be a public purpose, the duty of the authority does not end. He must be satisfied that there is real agency such that the invaluable right vouchsafed to a person to ventilate his grievances against the acquisition is not unjustifiably extinguished.”

In the case at hand, the Hon’ble Court heard a challenge against the Bulandshahar-Khurja Development Authority and the Kalindi Kunj residential/commercial scheme.

The appellants had claimed that an inquiry under Section 5A (hearing of objections) of the Land Acquisition Act, 1894 was waived after the land was acquired under Section 17(4) of the Act. It was stated by the appellants in their pleading that the land sought was used for running a cattle market, which they derived income from.

The Governor was convinced of the necessity of the land because of the urgent provisions in the Act. The appellants couldn’t argue that the ‘possibility of delay may be abandoned’ because of the necessity for acquiring the land under Section 5A.

TheHon’ble Supreme Court discussed dispensation with Section 5A process in its judgment under Section 17(4) of the Act. The judgment stated, “The power under Section 17(4) is discretionary. Being a discretion, it must be exercised with due care. It is true that if there is relevant material however meagre it may be and the authority has without being guided by extraneous considerations applied his mind and taken a decision, then the Court would adopt a hands-off approach…The authorities must remain alive and alert to the precious right created in favour of the citizens which is not meant to be a mere empty ritual.”

The Bench acknowledged that the apex court has delivered conflicting verdicts on the matter but noted a certain amount of consensus on certain fundamental principles. “The dichotomy essentially has to be resolved by carefully attending to the facts of each case,” the Bench stated.

Furthermore, Section 17(4) was advised against frivolous challenges to the actions of authorities, noting, “When a challenge is made to the invocation of power under Section 17(4) the writ applicant cannot succeed on bare and bald assertions. The facts which are specifically within the exclusive knowledge of the state must be laid before the Court on the basis of the principle in Section 106 of the Evidence Act. Existence of the exceptional circumstances justifying invoking of Section 17(4) must be established in the wake of a challenge.”

As the Court noted in the present case, the project for which the land was sought was not purely residential in nature. The total residential area shown on the plan constituted 38.57% of the total plot area. The commercial portion of the scheme was to account for 4.9% of its total area.

In its determination that it was unable to find relevant materials for deciding Section 17(4) of the Act, the Court held that “…on an appreciation of the evidence made available by all the parties it is open to the court to conclude that no occasion arose for resorting to the power under Section 17(4) which indeed must be read as an exception to the general rule that the acquisition of property is made after affording an opportunity the person adversely affected to demonstrate that the acquisition was unjustified.”

Upon quashing the notifications at issue, the top court noted that it had finally taken nearly 12 years to dismiss the case. The Land Acquisition Act was repealed, and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has replaced it. Therefore, the Bench determined that the matter was ineligible for an inquiry under Section 5A.

The court concluded that the appellants were correct in asserting that the exemption under Section 17(4) dispensing with the investigation under Section 5A was unjustified. The property was returned to them.