PETITIONER:
JAI NARAIN & ORS. ETC. ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT29/11/1995
BENCH:
KULDIP SINGH (J)
AHMAD SAGHIR S. (J)
CITATION:
1996 AIR 697 1996 SCC (1) 9
JT 1995 (9) 323 1995 SCALE (6)664
ACT
HEADNOTE
JUDGMENT
JUDGMENT Kuldip Singh, J.
These transfer cases are the writ petitions under Article 226 of the Constitution of India which were filed before the Delhi High Court. The petitioners have challenged the notifications dated January 6, 1995 and March 9, 1995 under Sections 4, 6 and 17(4) of the Land Acquisition Act, 1894 (the Act) relating to the revenue estate of village Nilothi, National Capital territory (NCT) of Delhi.
This Court is monitoring the constructions of Sewage Treatment Plants (STPs) in various parts of Delhi in the public interest proceedings in write petition (civil) No.4677/85 M.C. Mehta vs. Union of India & Ors. under Article 32 of the Constitution of India. Pursuant to the directions issued by this Court in M.C. Mehta’s case the NCT - Administration has issued the notifications dated January 6, 1995 and March 9, 1995 under the Act which have been impugned in the transferred cases. Since this Court is seized of the matter relating to the construction of STP at Keshopur on the land in dispute, it was deemed appropriate to transfer the writ petitions from the file of the Delhi High Court to this Court.
The land in dispute is being acquired for a public purpose namely for setting up of pumping station/sewerage treatment plant in villages Jasola, Nilothi and Shaffipur Ranola for the planned development of Delhi. The provisions of sub-Section (1) of Section 17 of the Act have been made applicable and as such the enquiry under Section 5-A of the Act has been dispensed with. The relevant part of the notification dated January 6< 1995 is as under:-
"No. F. >(46)/94-L&B/LA/298: Whereas it
appears to the Lt. Governor, of Delhi
that the land is likely to be required
to be taken by Government at public
expense for a public purpose; namely for
setting up of pumping station/sewerage
Treatment plant in village Jasola for
the planned development of Delhi,it is
hereby notified that the land in the
locality described below is likely to be
required for the above
purpose..........The Lt. Governor being
of opinion that 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 5-A shall not
apply." Section 4 of the Act to the relevant-extent is reproduced:-
"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........." Mr. N.S. Vasisht, learned counsel for the petitioners has challenged the acquisition proceedings on the following grounds:-
[1] The notification under Section 4 of
the Act uses the expression "likely to
be needed" which means there was no
existing need and the land was required
some time in the future. There was,
thus, no urgency and as such the
provisions of Section 17(4) of the Act
could not be invoked and the right of
the land owners to file objections under
Section 5-A of the Act could not be
taken away. It further indicates that
there was no application of mind on the
part of the Lt. Governor of NCT; [2] The
land in dispute is shown in the Master
Plan and Zonal Development Plan as
agricultural green whereas it is being
acquired for the public purpose of
setting up the STP. The acquisition is
contrary to the Master Plan and the
Zonal Development Plan. The first contention raised by the learned counsel is based on the language of Section 4 of the Act. The power under Section 4 of the Act can be exercised when it appears to the Government that the "land in any locality is needed or is likely to be needed for any public purpose". It is no doubt correct that the expression "is needed" indicates the existing need whereas the expression "is likely to be needed" refers to the future need. When the later expression is used in the notification under Section 4 of the Act it may be suggestive of the fact that there may not be emergency to acquire the land, but the question of urgency cannot be determined solely by the expressions used in the notification under Section 4 of the Act. The emergency must be reflected in the need of the acquisition. The existence of urgency is a matter which is entirely based on the subjective satisfaction of the Government. The courts do not interfere unless the reasons given are wholly irrelevant and there is no application of mind. When a notification under Section 4 of the Act uses the expression "is likely to be needed" it may be necessary, in a given case, to examine the records or the attendant circumstances to satisfy that there was material before the Government justifying the Order under Section 17, dispensing with the provisions of Section 5-A of the Act. If the public purpose on the face of it shows that the land is needed urgently,that by itself is a relevant circumstance for justifying the action under Section 17(4) of the Act. This Court in State of U.P. vs. Smt.Pista Devi and others, etc.etc. AIR 1986 SC 2025 - where urgency provisions were invoked to acquire the land for housing schemes - held as under:-
"In the circumstances of the case it
cannot be said that the decision of the
State Government in resorting to S.
17(1) of the Act was unwarranted. The
provision of housing accommodation in
these days has become a matter of
national urgency. We may take judicial
notice of this fact. Now it is difficult
to hold that in the case of proceedings
relating to acquisition of land for
providing house sites it is unnecessary
to invoke S.17(1) of the Act and to
dispense with the compliance with S. 5-A
of the Act." The land in dispute is being acquired for the construction of STP. This Court in M.C. Mehta’s case (supra), while directing the closure of the stone crushers in the city of Delhi, on May 15,1992 observed as under:
"We are conscious that environmental
changes are the inevitable consequence
of industrial development in our
country, but at the same time the
quality of environment cannot be
permitted to be damaged by polluting the
Air, Water and Land to such an extent
that it becomes a health-hazard for the
residents of the area. We are
constrained to record that Delhi
Development Authority, Municipal
Corporation of Delhi, Municipal
Corporation of Delhi, Central
Corporation Control Board and Delhi
Pollution Control Committee have been
wholly re-miss in the performance of
their statutory duties and have failed
to protect the environments and control
air-pollution in the Union Territory of
Delhi. Utter disregard to environment
has placed Delhi in an unenviable
position of being the world’s third
grubbiest, most polluted and unhealthy
city as per a study conducted by the
World Health Organisation. Needless to
say that every citizen has a right to
fresh air and to live in pollution-free
environment. While dealing with the construction of STP’s in Delhi, this Court in Mehta’s case passed the following order on April 22, 1994:
"The Delhi Development Authority has
filed an affidavit through its Secretary
Mr. V.N. Bansal. It is stated that the
Authority is ready and willing to
provide land to the M.C.D. for setting
up of the Sewage Treatment tanks.
Keeping in view the urgency of the
matter, we request Mr. Subhash Sharma,
Commissioner, M.C.D., Mr. S.P.Jkhanwal.
Vice Chairman, D.D.A., Mr. Ashok Kumar,
Additional Commissioner, Water and Mr.
JK Mathur, Chief Engineer of the Delhi
Water Supply and Sewage Disposal
Undertaking to be present in Court on
May 6, 1994. We are requesting the
officers to be present in Court so that
we can have their view points for taking
appropriate decisions on the spot.
Needless to say that with the increase
of population in Delhi it is of utmost
urgency to set up the sewage Treatment
Plants within the time-bound Schedule." Thereafter, on May 13, 1994 this Court issued various directions regarding the transfer of land to the Delhi Water Supply and Sewage Disposal Undertaking (the Undertaking) for the STP’s in Delhi and finally directed as under:
"We direct the D.D.A through Mr.S. Roy,
Commissioner. Lands to hand over the
possession of the vacant land available
for setting up of the Sewage Treatment
Plants in various colonies within four
weeks from today. We further direct the
M.C.D. to make payment in respect of
these lands simultaneously. Mr. S.
Prakash, Engineer-in-Chief will be
responsible for taking over the land and
also for making payment to the D.D.A. on
behalf of the M.C.D. The work for
setting up of Sewage Treatment Plants
shall be completed at war-footing." This Court on August 1,1994, noticed the progress made in the construction of the SPT’s in the following words:
"Mr. Kapil Sibal, learned senior counsel
appearing for the Delhi Water Supply and
Sewage Disposal Undertaking has produced
before us a chart showing tentative
schedule of completion and commissioning
of Sewage Treatment Plants in various
areas in Delhi. It is stated that the
first appraisal is the soil
investigation. The soil investigation is
to be done by the Investigating team of
the Undertaking within four weeks from
today. In any case, we direct the
Undertaking to complete it within four
weeks. Thereafter, the Undertaking shall
float and finalise the tenders within 6
weeks.
The progress report and the name of the
company/person whose tender would be
accepted shall be submitted to this
Court by 24.10.94. List it on 24.10.94." Regarding the STP in Okhla area it was found that the dispossession, of the landowners, in respect of large area of land under acquisition was stayed by the Delhi High Court in the writ petitions filed by them. This Court in M.C. Mehta’s case passed the following order on December 14,1994:
"We directed the D.D.A. to issue notices
through Newspapers consecutively for two
days stating therein that the parsons
who have obtained stay orders from
various courts be present in this Court
at 2.00 p.m. on December 14, 1994. The
notices were published by the D.D.A. as
directed by us. In response to the
notices, Mr. S.M. Ashri, Dr. B.S.
Chauhan, Mr. Maninder Singh and Mr.L.C.
Chachi, Advocates are present on behalf
of the land owners. The only contention
raised by the learned counsel for
various land owners is that the
Notification under sections 4 and 6 were
issued in the year 1964 and 1966
respectively. According to them, the
possession of land is still with them.
It is further stated by the learned
counsel that they are entitled to
compensation at the rate of market value
of the land today....
Keeping in view the facts and
circumstances of this case, we direct
that 13 writ petitions mentioned in the
public notice published in the Hindustan
Times dated November 30, 1994, be
transferred from the Delhi High Court to
the file of this Court. These petitions
be listed for final disposal in the 2nd
week of February, 1995.
Meanwhile, we vacate the stay orders
granted by the High Court in all these
writ petitions and direct the Delhi
Administration to take over the
possession of the land and hand over to
the Delhi Water Supply and Sewage
Disposal Undertaking." Further directions were issued to the Delhi Administration on December 14, 1994 to take over the land from DDA and acquire where necessary for the STPs at various place in Delhi.
This Court has been issuing time-bound directions for the procurement of land for the STP’s in various parts of Delhi. The impugned notifications regarding Keshopur STP were issued under the directions of this Court. On January 23, 1995 this Court passed the following order regarding the land in dispute:-
"A very grim picture emerges regarding
increase of pollution in the city of
Delhi from the two affidavits filed by
Shri DS Negi, Secretary (Environment),
Govt. of Delhi. He has pointed out that
the population of Delhi which was about
17 lakh in 1951 has gone up to more than
94 lakhs as per the 1991 census. In
fact, more than 4 lakh people are being
added to the population of Delhi every
year out of which about 3 lakh are
migrants. Delhi has been categorised as
the fourth most polluted city in world
with respect to concentration of
Suspended Particular Metal (SPM) in the
ambient atmosphere as per World Health
Organisation Report, 1989. From NEERI’s
annul report 1991 it is obvious that the
major contributions, so far as air
pollution is concerned, is of the
vehicular traffic but the industries in
the city are also contributing about 30%
of the air pollution. So far as the
discharge of effluent in Yamuna is
concerned, the industries are the prime
contributors apart from the MCD and NDMC
which are also discharging sewage
directly into the river Yamuna. We are
dealing with the sewage problems in
separate proceedings." Thereafter, on April 21, 1995 this Court, regarding the construction of STP’s observed as under:
"Treatment of sewage is of utmost
importance for health and for supply of
pure water to the citizens of Delhi. Any
delay in this respect is health-hazard
and cannot be tolerated." The land for Keshav Pur STP was not being made available. There was considerable delay in completing the acquisition proceeding order:
"So far as Keshavpur is concerned, land
has to be acquired by the State Govt.
Mr. Arun Jaitley, learned senior counsel
states that although he is not appearing
for the Delhi Administration, yet he has
information that some steps have already
been taken by the State Govt. There is
nobody in the Court to assist us on
behalf of Delhi Admn. We are told that
Mrs. Suman Swarup is the Secretary, In-
charge of the Land and Building Deptt.
We are prima facie of the view that
there is obvious inaction on the part of
the Delhi Admn. in complying with our
orders. Before we take any action in
this respect we direct Ms. Suman Swarup
to file an affidavit in this Court
within one week giving over-all action
the Govt. has initiated in respect of
acquiring land in setting up of Sewage
Treatment Plant in Keshavpur. The
affidavit be filed by 1 PM on 11th
August, 1995. List the matter on 11th
August, 1995 at 2 PM." Thereafter, on August 11, 1995 this Court issued following directions regarding the STP at Keshavpur:
"Pursuant to this Court’s order dated
August 4, 1995 Ms. Suman Swarup,
Secretary Land and Building Department,
Government of National Capital Territory
of Delhi has filed an affidavit. Ms.
Geeta Luthra, learned counsel appearing
for the Secretary, Land & Building
states that the necessary procedure for
acquiring 106 Hectares of land in
Keshavpur for the purpose of setting up
of Sewage Treatment Plant has already
been completed. She further states that
the advance compensation is to be
disbursed to the land-owners. Mr. Arun
Jaitley. Learned counsel states that the
DDA shall hand-over the compensation
amount to the administration within
three days from today. Learned counsel
further states that about 30 Hectares of
acquired land is under the
authorised/unauthorised possession of
various persons. According to her, the
remaining 76 Hectares of land can be
handed over to the Undertaking with
immediate effect. We request the
Committee consisting of Mr. PC Jain, Mr.
JK Mathur and Mr. SP Chakrabarti to
visit the area and identify the 76
Hectares of land which can be
immediately surrendered to the
Undertaking. This may be done within one
week. We direct the Secretary, Land &
Building Department to send Department’s
representative/representatives with the
team for the purpose of identification
of 76 Hectares of land (as at present).
Mr. Suman Swarup shall file an
additional affidavit in this Court
within three weeks from today indicating
the progress made in this matter." Finally, on September 8, 1995 this Court issued the following directions regarding the STP at Keshavpur:-
"So far as the requirement of land for
setting up STP in Keshopur is concerned,
this Court issued directions to the
Delhi Administration on December 14,
1994 to initiate proceedings within two
weeks thereafter and hand over the
possession to the Undertaking as early
as possible. We are constrained to say
that till date the possession of the
whole of the land (106 hectares) has not
been handed over to the Undertaking. As
mentioned above, formal possession of 75
hectares has been handed over to the
Undertaking. Ms. Suman Swarup is the
Secretary Incharge of the Land &
Building Department and also of the
Public Works Department of the Delhi
Administration. We direct Ms. Suman
Swarup to have the proceedings such as
the assessment of the value of the
structures on the spot etc. completely
within four weeds from September
11,1995. Thereafter, she would made a
formal request to the DDA to demolish
the structures and hand over the
possession so that the DDA gets the land
from the Delhi Administration on payment
and thereafter hand over the same to the
Undertaking. Ms. Suman Swarup shall file
an affidavit indicating the compliance
of our order before October 16, 1995." Various orders and directions issued by this Court from time to time in Mehta’s case clearly show that the land in dispute - for Keshavpur STP - is being acquired under the directions of this Court. Even the impugned notifications under Section 4 read with 17 and Section 6 of the Act have been issued under the directions of this Court. This Court repeatedly indicated in the orders-directions that there was urgency in taking over the possession of the land, under acquisition, for the construction of STP at Keshopur. The authorities were directed to take up the work of land acquisition and construction of STP’s on war-footing. "Likely" in the background of this Court’s orders passed from time to time for a time bound programme for setting up the STPs means, for purposes of this case, "certainly" and "urgently".
Delhi - the capital of India - one of the world’s great and historic cities has come to be listed as third/fourth most polluted and grubbiest city in the world. Apart from air-pollution, the waters of river Yamuna are wholly contaminated. It is a paradox that the Delhi tes - despite river Yamuna being the primary source of water supply - are discharging almost totality of untreated sewage into the river. There are eighteen drains including Najafgarh drain which carry industrial and domestic waste including sewage to river Yamuna. Thirty eight smaller drains fall into Najafgarh drain. The Najafgarh drain basin is the biggest polluter to river Yamuna. Eight of the drains including Najafgarh drain are untrapped, four fully trapped and remaining six are partially trapped. All these eighteen drains, by and large, carry untreated industrial and domestic wastes and fall into river Yamuna. The river Yamuna enters Delhi at Wazirabad in the North and leaves at South after travelling a distance of about twenty five kilometers. The water of river Yamuna till it enters Najafgarh is fit for drinking after treatment, but the confluence of Najafgarh drain and seventeen other drains make the water heavily polluted. The water quality of Yamuna, in Delhi stretch, is neither fit for drinking nor for bathing. The Biochemical Oxygen Demand (BOD) level in the river has gone so high that no flora or fauna can survive. It is of utmost importance and urgency to complete the construction of the STP’s in the city of Delhi. The project is of Great public importance. It is indeed of national importance. We take judicial notice of the fact that there was utmost urgency to acquire the land in dispute and as such the emergency provisions of the Act were rightly invoked. We reject the first contention raised by the learned counsel.
So far as the second contention raised by Mr. Vashisht, the same is mentioned to be rejected.
Whatever may be the user of the land under the Mastor Plan and the Zonal Development Plan the State can always acquire the same for public purpose in accordance with the law of the land. In any case the object and purpose of constructing the STP’s is to protect the environment, control pollution and in the process maintain and develop the agricultural green.
We see no force in any of the contentions raised by Mr. Vashisht. We, therefore, dismiss the Transfer cases (writ petitions) with costs. We quantify the costs as Rs.10,000/- to be paid by each of the petitioners in these cases.