Allahabad High Court
Ram Singh And Another vs State Of U.P. And Others on 23 March, 2012
Equivalent citations: AIR 2012 (NOC) 365 (ALL.), 2012 (5) ALJ 22
Bench: Sunil Ambwani, Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 06.02.2012 Judgment delivered on 23.03.2012 Civil Misc. Writ Petition No.47712 of 2011 Ram Singh & Anr. v. State of U.P. & Ors. Hon. Sunil Ambwani, J.
Hon. Manoj Misra, J.
1. We have heard Shri Pankaj Dubey, learned counsel for the petitioner. Shri Ravi Kant, Sr. Advocate assisted by Shri M.C. Tripathi, Additional Standing Counsel appears for the State respondents. Shri Navin Sinha, Sr. Advocate assisted by Shri Ramendra Pratap Singh appears for Greater Noida Industrial Development Authority (GNIDA).
2. The petitioners are recorded tenure holders of Plot No.230 area.4.9333 hects. of revenue village Birandi Chakresenpur, Pargana Dadri, Tehsil Sadar, Distt. Gautam Budh Nagar. They have also constructed houses on the land used as abadi. By this writ petition the petitioners have challenged the validity of the acquisition of their land, by a proposal under Section 4 (1) read with Section 17 (1) dated 19th November, 2008 under the Land Acquisition Act, 1894 (in short, the Act). The notification records the opinion of the Governor of U.P. that the provisions of Section 17 (1) are applicable to the land as land is required for planned industrial development by GNIDA and since the land is urgently required and it is necessary for urgent acquisition of land to dispense with the provisions of Section 5A of the Act, a direction is issued that under the provisions of Section 17 (4) the provisions of Section 5A of the Act, will not be applicable. The notification included plot no.404 area 4.8435 hects. in the same village, for a total area of 9.7768 hects.
3. The notification under Section 4 (1) read with Section 17 (1) and (4) was followed by a notification under Section 6 for acquisition of the plots with a further direction under Section 17 (1) that even if no award is declared under Section 11, the Collector may take over the possession of the land within 15 days of the notice under Section 9 (1) of the Act.
4. The petitioners have challenged the acquisition of their land on the ground that the notification under Section 4 was issued without application of mind, as there was no urgency in the acquisition of land. The planned industrial development is not of such nature, for which provisions of Section 17 (1) and (4) of the Act could be invoked dispensing with enquiry under Section 5A of the Act. In paras 9, 10, 11, 12, 13, 14 and 19 of the writ petition, it is stated by the petitioner as follows:-
"9. That, as per the scheme of the Land Acquisition Act each and every section from sections 4 to 17 has an independent role to play though there is an element of interaction between them. Section 5-A has a very important role to pay in the acquisition proceedings and it is mandatory on the part of the Government to provide opportunity of hearing to the person interested in the land whose land is sought to be acquired. it is relevant to point out that the acquisition proceedings under the Act, are based on the principal of eminent domain and the only protection given to the person whose land is sought to be acquired is an opportunity under Section 5-A of the Act to convince the enquiring authority that the purpose for which the land is sought to be acquired is in fact not a public purpose and is only purported to be one in the guise of a public purpose.
10. That, there is no acute scarcity of land and there is not a very heavy pressure/ demand of land for public purpose in question till date not any inquiry on the spot has been conducted nor any survey of the plots sought to be acquired has been got done and thus it transpires that there was no material before the State Government to make an opinion to direct that the provisions of section 5-A shall not apply in the facts and circumstances of the present impugned notification under Section 4 (1) read with Section 17 (1) as well as under sub-Section (4) of Section 17 of Land Acquisition and there was no application of mind by State Government.
11. That, it is relevant to mention here that excluding the enquiry under Section 5-A can only be an exception where the urgency cannot brook any delay. The enquiry provides an opportunity to the owner of land to convince the authorities concerned that the land in question is not suitable for purpose for which it is sought to be acquired or the same sought to be acquired for the collateral purposes. It is pertinent to mention here that the respondent no.1 without the application of mind dispensed with the enquiry on the ground of urgency invoking the power conferred by Section 17 (1) or (2) of the Act.
12. That, the respondent no.1 issued the notification dated 23.3.2009, issuing declaration under Section 6 of the Land Acquisition Act, 1984 and the Governor is satisfied that the land mentioned in the Schedule concerned is needed for the public purpose, namely for the "Planned Industrial Development in District Gautambudh Nagar, through "Greater Noida Industrial Development Authority" and under Section 7 of the said Act to direct the Collector of Gautambudh Nagar to take order for the acquisition of the said land. The Governor being satisfied that the case is one of urgency is further pleased under sub-section (1) of Section 17 of the said act to direct the collector of District Gautam Budh Nagar through no ward under section 11 has been made may, on the expiration of fifteen days from the date of the publication of the notice, mentioned in sub-section (1) of section 9 take possession, of the land mentioned in the schedule for the said public purpose.
13. That, the whole acquisition proceedings are void, unconstitutional, tainted with malafide, abuse of authority and power, non-application of mind and as such liable to be quashed as violative of Articles 14, 19 and 300-A of the Constitution of India.
14. That, entire acquisition proceedings are tainted with malafide and have been issued by abusing power vested in the Respondents. Mandatory procedure and law have not been followed while issuing the impugned notification.
19. That, it is also pertinent to mention here that no notice under section 9 of the Act received by the petitioners till now and till now no award has been made and in view of the section 11A of Land Acquisition Act, 1894 entire proceedings of the acquisition becomes lapse if the award not declared in accordance to the section 11A of Land Acquisition Act, 1894."
5. The writ petition was filed on 18.8.2011. On 23.8.2011 this Court after noticing the statement of fact in para 19 of the writ petition that no notice under Section 9 has been received nor any award has been declared, and further the fact that in Shri Radhey Shyam (dead) through LRs v. State of U.P., Civil Appeal No.3261 of 2011 decided on 18.4.2011; and Greater Nodia Industrial Development Authority v. Devendra Kumar & Ors., SLP (C) No.16366 of 2011 decided on 6.7.2011 in which it was held that the planned and industrial development by the GNIDA, is not of such urgent nature that the provisions of Section 17 (1) can be applied and under the provisions of sub-section (4) of Section 17 the enquiry under Section 5A can be dispensed with and in such case even the declaration of award under Section 11 (1) will not save the acquisition of land, a direction was issued as an interim measure restraining the respondents from dispensing the enquiry and making any construction or development in the land in dispute.
6. Relying upon judgment in Radhey Shyam v. State of U.P., (2011) 5 SCC 553; and Greater Nodia Industrial Development Authority v. Devendra Kumar, (2011) 6 ADJ 480 this Court had in Har Karan Singh v. State of U.P. (Writ Petition No.17068 of 2009) decided on 19.7.2011 quashed the similar notification in respect of Village Patwari in the same District Gautam Budh Nagar, after holding that in the case of acquisition of land for planned industrial development the provisions of Section 5A could not be dispensed with, as there could be no urgency for planned industrial development to dispense with the minimal enquiry required under Section 5A of the Act, serving the principles of natural justice.
7. A Division Bench in Writ Petition No.37443 of 2011 noticed that there was some conflict in the opinion expressed in Har Karan Singh v. State of U.P. (Supra) and Harish Chandra & Ors. v. State of U.P. ( Writ Petition No.45777 of 2008 decided on 25.11.2008) and referred the matter to be considered by a larger bench. Hon'ble the Chief Justice by his order dated 6.8.2011 referred the matter to the Larger Bench. The referring order, however, did not frame any question of law. A large number of similar matters were filed after the judgment in Har Karan Singh v. State of U.P. dated 19.7.2011.
8. The Division Bench hearing all other matters coming before the Court challenging the notification for acquisition of land for planned industrial development on the ground of invoking the provisions of Section 17 (4) of the Act and dispensing with enquiry under Section 5A of the Act, directed that all such matters be connected together. More than 400 writ petitions challenging the land acquisition proceedings for acquiring the land for planned industrial development of GNIDA were connected together and were decided by the Full Bench judgment dated 21.10.2010, rendered in leading writ petition no.37443 of 2011 titled as Gajraj & ors. v. State of U.P. & Ors., (2011) 11 ADJ 1 (FB).
9. The three Judges Bench for its convenience to decide the cases classified the acquisition under challenge, into villages. It first considered the question of delay and latches and recorded the conclusions as follows:-
"In view of the foregoing conclusions we order as follows:
1. The Writ Petition No. 45933 of 2011, Writ Petition No. 47545 of 2011 relating to village Nithari, Writ Petition No. 47522 of 2011 relating to village Sadarpur, Writ Petition No. 45196 of 2011, Writ Petition No. 45208 of 2011, Writ Petition No. 45211 of 2011, Writ Petition No. 45213 of 2011, Writ Petition No. 45216 of 2011, Writ Petition No. 45223 of 2011, Writ Petition No. 45224 of 2011, Writ Petition No. 45226 of 2011, Writ Petition No. 45229 of 2011, Writ Petition No. 45230 of 2011, Writ Petition No. 45235 of 2011, Writ Petition No. 45238 of 2011, Writ Petition No. 45283 of 2011 relating to village Khoda, Writ Petition No. 46764 of 2011, Writ Petition No. 46785 of 2011 relating to village Sultanpur, Writ Petition No. 46407 of 2011 relating to village Chaura Sadatpur and Writ Petition No. 46470 of 2011 relating to village Alaverdipur which have been filed with inordinate delay and laches are dismissed.
2(i) The writ petitions of Group 40 (Village Devla) being Writ Petition No. 31126 of 2011, Writ Petition No. 59131 of 2009, Writ Petition No. 22800 of 2010, Writ Petition No. 37118 of 2011, Writ Petition No. 42812 of 2009, Writ Petition No. 50417 of 2009, Writ Petition No. 54424 of 2009, Writ Petition No. 54652 of 2009, Writ Petition No. 55650 of 2009, Writ Petition No. 57032 of 2009, Writ Petition No. 58318 of 2009, Writ Petition No. 22798 of 2010, Writ Petition No. 37784 of 2010, Writ Petition No. 37787 of 2010, Writ Petition No. 31124 of 2011, Writ Petition No. 31125 of 2011, Writ Petition No. 32234 of 2011, Writ Petition No. 32987 of 2011, Writ Petition No. 35648 of 2011, Writ Petition No. 38059 of 2011, Writ Petition No. 41339 of 2011, Writ Petition No. 47427 of 2011 and Writ Petition No. 47412 of 2011 are allowed and the notifications dated 26.5.2009 and 22.6.2009 and all consequential actions are quashed. The petitioners shall be entitled for restoration of their land subject to deposit of compensation which they had received under agreement/award before the authority/Collector.
2(ii) Writ petition No. 17725 of 2010 Omveer and others Vs. State of U.P. (Group 38) relating to village Yusufpur Chak Sahberi is allowed. Notifications dated 10.4.2006 and 6.9.2007 and all consequential actions are quashed. The petitioners shall be entitled for restoration of their land subject to return of compensation received by them under agreement/award to the Collector.
2(iii) Writ Petition No.47486 of 2011 (Rajee and others vs. State of U.P. and others) of Group-42 relating to village Asdullapur is allowed. The notification dated 27.1.2010 and 4.2.2010 as well as all subsequent proceedings are quashed. The petitioners shall be entitled to restoration of their land.
3. All other writ petitions except as mentioned above at (1) and (2) are disposed of with following directions:
(a) The petitioners shall be entitled for payment of additional compensation to the extent of same ratio (i.e. 64.70%) as paid for village Patwari in addition to the compensation received by them under 1997 Rules/award which payment shall be ensured by the Authority at an early date. It may be open for Authority to take a decision as to what proportion of additional compensation be asked to be paid by allottees. Those petitioners who have not yet been paid compensation may be paid the compensation as well as additional compensation as ordered above. The payment of additional compensation shall be without any prejudice to rights of land owners under section 18 of the Act, if any.
(b) All the petitioners shall be entitled for allotment of developed Abadi plot to the extent of 10% of their acquired land subject to maximum of 2500 square meters. We however, leave it open to the Authority in cases where allotment of abadi plot to the extent of 6% or 8% have already been made either to make allotment of the balance of the area or may compensate the land owners by payment of the amount equivalent to balance area as per average rate of allotment made of developed residential plots.
4.The Authority may also take a decision as to whether benefit of additional compensation and allotment of abadi plot to the extent of 10% be also given to ;
(a) those land holders whose earlier writ petition challenging the notifications have been dismissed upholding the notifications; and
(b) those land holders who have not come to the Court, relating to the notifications which are subject matter of challenge in writ petitions mentioned at direction No.3.
5. The Greater NOIDA and its allottees are directed not to carry on development and not to implement the Master Plan 2021 till the observations and directions of the National Capital Regional Planning Board are incorporated in Master Plan 2021 to the satisfaction of the National Capital Regional Planning Board. We make it clear that this direction shall not be applicable in those cases where the development is being carried on in accordance with the earlier Master Plan of the Greater NOIDA duly approved by the National Capital Regional Planning Board.
6. We direct the Chief Secretary of the State to appoint officers not below the level of Principal Secretary (except the officers of Industrial Development Department who have dealt with the relevant files) to conduct a thorough inquiry regarding the acts of Greater Noida (a) in proceeding to implement Master Plan 2021 without approval of N.C.R.P. Board, (b) decisions taken to change the land use, (c) allotment made to the builders and (d) indiscriminate proposals for acquisition of land, and thereafter the State Government shall take appropriate action in the matter."
10. The Three Judges Bench in Gajraj v. State of U.P. (Supra) following the judgments of the Supreme Court in Anand Singh v. State of U.P., (2010) 11 SCC 242; Dev Sharan v. State of U.P., (2011) 4 SCC 769; Radhey Shyam (dead) through LRs. V. State of U.P., (2011) 5 SCC 553, observed in para 311 that the reasons given for invoking urgency clause in all the cases were the same, which were given in Radhey Shyam's case and thereafter noticing the reasons given in the judgment in Greater Nodia Industrial Development Authority v. Devendra Kumar, (2011) 6 ADJ 480 (SC) held in paras 321, 322 and 323 that in all the cases the invocation of Section 17 (4) of the State Government to dispense with the enquiry under Section 5A of the Act, while issuing notification under Section 4 is vitiated. The dispensation of enquiry being invalid, all the petitioners were entitled for an opportunity to file objections uner Section 5A of the Act.
11. In respect of pre-notification and post notification delay the three Judges' Bench in Gajraj Singh held in para 332 that in the event there is sufficient material to explain the delay prior to issuing notification under Section 4 or subsequent to the notification under Section 6 the delay itself does not vitiate the acquisition. In Greater Noida Industrial Development Authority v. Devendra Kumar (Supra) the Apex Court had held that the delay in proceedings itself shall not create a ground or cause for urgency but increase the already existing urgency for acquisition of land for any public purpose. It was held that the delay may be by objections filed by interested persons or by lethargy of officers, which itself should not be a ground, but has material bearing on the question of urgency particularly in a situation where no material is placed before the appropriate government justifying that the urgency was of such nature that necessitated elimination of enquiry under Section 5A. The crux of the matter is whether urgency was such that summary enquiry under Section 5A was necessary to be dispensed with, since acquisition could not have waited for few days or few weeks. In large number of cases before the three Judge's Bench the pre-notification and post notification delay caused clearly indicated that cases were not such, so as to invoke Section 17 (1) and Section 17 (4) of the Act.
12. In para 349 the three judges' Bench held that the authority acted in colourable exercise of powers in exercising its statutory function of acquiring the land as per Section 6 (2) (a) of the U.P. Industrial Area Development Act, 1976. The authority on the pretext of carrying planned industrial development as it was statutorily obliged to carry, pursued different objects and purpose that the transferring the land to private persons dehorse the industrial development. The malafides, it was held in para 350 were not successfully pleaded or proved.
13. The three judges Bench thereafter held in para 362 that in many cases the possession was not taken by the State authorities in accordance with law and possession memos filed by State authorities could not be treated to be valid possession memo evidencing the possession. On the vesting of the land and its consequence on the validity of the acquisition the Court in Gajraj Singh held that in view of Kesari Singh v. Government of U.P. (Civil Appeal No.1331 of 2010) decided on 1.2.2010, even if the cases in which possession was taken, it may be possible to the Court to grant other reliefs, and that restitution was permissible. On the question whether the non-declaration of award within the statutory period under Section 11A would affect the acquisition the Court followed the ratio in Satyendra Prasad jain v. State of U.P., 1993 4 SCC 369; and Banda Development Authority v. Moti Lal Agrawal, (2011) 5 SCC 394 and repealed the argument on the basis of Section 11A.
14. The three Judge's Bench in Gajraj Singh noticed that there was difference of opinion on the applicability of Section 17 (3A) in M/s Delhi Air Services Pvt. Ltd. v. State of U.P. & Ors., JT (2011) 9 SC 440, and found that since the matter is referred to the Larger Bench, the judgment in Satyendra Prasad Jain's case will hold the field and hence it held that the non compliance of Section 17 (3A) will not vitiate the acquisition. The plea of waiver was also not accepted. In para 406 the three judge's Bench held that it cannot be presumed that the petitioners/ land owners have waived their rights and cannot be non-suited on that ground. The plea of acquiescence, argued on behalf of GNIDA, for having accepted compensation was also repelled. The Court thereafter proceeded on the question of third party rights and construction and noticed that in many cases after taking possession the land was allotted to builders for group housing. A number of applications were filed by interveners, which were allotted different group housing plots, and that many plots were also allotted in Village Patwari. The Court noticed in para 422 that after creation of third party rights the allottees have also proceeded to carry on building activities and substantial constructions have been made on some of the place. The flat owners' association claimed that large number of members of public have booked their flats and most of them have taken financial assistance from banks and other financial institutions. The three judge's Bench also noticed that in respect of Village Pali, Malakpur, Roja Yakubpur, Birondi Chakrasenpur, Dabara, Yusufpur Chak Shahberi, Khanpur, Tusiyana the acquisitions were upheld by the Court. In respect of Birondi Chakrasenpur in Writ Petition No.23244 of 2003, Bhopal Singh & Ors. v. State of U.P. & Ors. by judgment dated 5.3.2004 the acquisition affected notification dated 28.11.2002 and the declaration dated 29.1.2003 was upheld. The Court thereafter noticed that the judgment in Harish Chand's case, which was alleged to be in conflict with Har karan Sigh's case was not in accordance with law laid down in Narain Govind Gavate v. State of Maharashtra and Union of India v. Mukesh Hans. The judgment in Har Karan Singh was upheld. In para 456 the Court observed that in view of the discussion the Division Bench judgment in Harish Chandra is not to be approved, whereas view taken by the Division Bench in Har karan Singh that the invocation of Section 17 (4), was not justified is approved.
15. Thereafter the Court picked up the matter of individual villages and observed in para 463 to 478 following Bondu Ramaswamy & Ors. v. Bangalore Development Authority, (2010) 7 SCC 129, that though the land owners of the village Patwari were called for negotiation and agreement was reached with them the GNIDA did not call the land owners of other villages for negotiation, an amount of Rs.550/- per sq. mtr. In addition to Rs.50/- per sq. mtr., which comes to 64.70%, and the allotment of 10% of land by way of developed plots, to such land owners, where constructions have started, would meet the ends of justice. This arrangement was made only in respect of land on which the development had taken place or had started and third party rights had intervened.
16. Shri Pankaj Dubey, learned counsel for the petitioner submits that the land in dispute, namely the land of plot no.230 area 4.9333 hects. is lying vacant. The respondent authorities have not taken possession of the land as yet. A composite award was declared on 27.5.2011, both under Section 11 at Rs.240/- per sq. mtr., and under the agreement rules at the rate of Rs.850/- per sq. mtr. The petitioners, however, have neither accepted the award, nor possession has been taken. He submits that in view of the judgments of the Supreme Court referred to above in Gajraj Singh's case the petitioner's case is squarely covered and thus the notification acquiring the land deserve to be quashed.
17. Learned Standing Counsel has filed counter affidavit of Shri Harnam Singh, Addl. District Magistrate (Land Acquisition)/ Officer on Special Duty (Land Acquisition), Greater Noida Industrial Development Authority, in which after narrating the functions of the development authority under the U.P. Industrial Area Development Act, 1976 and stating the purpose of acquiring the land for planned industrial development, the detailed proceedings to the acquisition of disputed land are given in para 12 and 13 as follows:-
"12. That, the Greater Noida Industrial Development Authority (hereinafter referred to as the GNOIDA) submitted a proposal for acquisition of 173.8271 hectares of land situated in village Birondi Chakrasenpur, Pargana Dadari, Tehsil Sadar, District Gautam Budh Nagar vide its letter dated 03.08.2001. The proposal was revised vide letter dated 29.10.2001 in terms of which proposed area under acquisition was 172.9976 hectares. It is pertinent to submit that the plot No.230 which is subject matter of the land acquisition proceedings under challenge in the present writ petition was part of the aforementioned proposal submitted by the GNOIDA.
I. The aforementioned land acquisition proposal was submitted by the District Magistrate/ Collector, G.B. Nagar vide letter dated 11.12.2001, to the Directorate Land Acquisition, Board of Revenue, Lucknow, and thereafter the proposal was submitted to the State Government by the Land Acquisition Directorate vide its letter dated 13.12.2001. It is relevant to notice that the aforementioned letters dated 11.12.2001 and 13.12.2001 contain a specific recital to the effect that two plots bearing Khasra No.230 and 404 are affected by the ceiling proceedings.
II. In response to the aforementioned proposal, the State Government vide its letter dated 20.09.2002 issued directions to the GNOIDA to re-submit the proposal after excluding the plots which were affecte3d by the ceiling proceedings, and pursuant thereto the GNOIDA submitted a modified proposal vide its letter dated 24.10.2002 after excluding the two plots bearing Plot Nos.230 and 404 which were affected by ceiling proceedings. In terms of the modified proposal, the total area proposed for acquisition was 163.2208 hectares (after excluding the area under ceiling proceedings which was 9.7768 hectares).
III. After obtaining necessary approval from the State Government, Notification No.4935/77-4-2002-168 bha-2001 dated 28.11.2002 was issued under section 4 (1)/17 (1), (4) of the Land Acquisition Act in respect to the total area 163.2208 hectares of land situate in Village Birondi Chakrasenpur, Pargana Dadari, Tehsil Sadar, District Gautam Budh Nagar and subsequently notification No.222/77-4-2003-168 bha-2001 dated 29.01.2003 in respect to the said land was issued under section 6/17 (1) of the Land Acquisition Act.
IV. Pursuant to aforementioned notifications, possession of 162.5307 hectares of land was taken over, and the same was handed over to the GNOIDA on 08.05.2003.
V. It is relevant to submit here that the State Government vide G.O. dated 11.12.1986 has constituted a Committee under Chairmanship of Principal Secretary, Revenue to examine the matters relating to Land Acquisition Proceedings proposed in respect to the land affected by the Ceiling Proceedings. In terms of the aforementioned G.O. acquisition of land affected by ceiling proceedings can be made pursuant to the recommendations of the aforesaid committee. In the present case proposal for acquisition of land, which was affected by ceiling proceedings was submitted to the State Government for approval, and in this regard a meeting of the aforementioned committee headed by the Principal Secretary, Revenue was held on 31.10.2007. In the said meeting upon considering the urgency for the acquisition of land in question and also fact that the plots (which had been left out in the earlier acquisition proceedings) were in the middle and surrounded by the plots which had already been acquired, the proposal for acquisition of land under ceiling proceedings was held to be justified.
VI. After obtaining approval from the State Government the Notification dated 19.10.2008 was issued under section 4 (1)/17 (1), (4) and Notification dated 23.3.2009 was issued under section 6/17 (1) of the Land Acquisition Act in respect to the plots of land bearing plot Nos.230 and 404 situate in village Birondi Chakrasenpur, Pargana Dadari, Tehsil Sadar, District Gautam Budh Nagar. In the aforesaid manner it is clear that the plot of the petitioner being plot no.230 was not exempted from the acquisition proceedings initiated in terms of the earlier notification dated 28.11.2002 issued under section 4 (1)/17 (1), (4), but the same had been left out only on account of pendency of the ceiling proceedings. Subsequently, after obtaining the necessary approval from the Committee, constituted at the level of the State Government for considering the matters relating to acquisition of land under ceiling proceedings the present land acquisition proceedings in respect of the two plots bearing plot Nos.230 and 404 have been initiated.
13. That the complete factual details with regard to the initiation of the acquisition proceedings are being submitted herein below:-
(a) That, the village Birondi Chakrasenpur, Pargana and Tehsil Dadri of Gautam Buddh nagar is part of the notified area under the Greater Noida Industrial Development Authority. For the purpose of planned industrial development in District Gautam Buddh nagar, proposal for the acquisition of 9.7768 hectares of land in Village Birondi Chakrasenpur, Pargana and Tehsil Dadri, District Gautam Budh Nagar was submitted by the Greater Nodia Authority to the office of Additional District Magistrate (Land Acquisition/ Officer on Special Duty (Land Acquisition), Gautam Buddh Nagar along with a Note of Justification for invoking the provisions of Section 17 (4) of Act, 1894 as the land was needed urgently.
(b) After reconciliation from the revenue records, the proposal for same area 9.7768 hectares was forwarded by the District Magistrate/ Collector Gautam Budh Nagar together with his recommendation to the Directorate of Land Acquistion, Board of Revenue along with certificate (Prapatra 10) for invoking the provisions of Section 17 (4). The Directorate of Land Acquisition after further reconciliation submitted the proposal to State Government for consideration and issuance of notification under Section 4 (1)/ 17 (4) of the Land Acquisition Act, 1894 in respect of 9.7768 hectares.
(c) In the request submitted by the Greater Noida Development Authority to Additional District Magistrate (Land Acquisition), District Gautam Buddh Nagar for the purposes of initiating proceedings for acquisition of land of Village Birondi Chakrasenpur, Pargana Dadri, Tehsil Sadar, it was specifically stated that the land in question was proposed to be acquired for planned industrial development in District Gautam Buddh Nagar, through Greater Noida Development Authority. Upon receipt of the said request letter and the Note containing justification for invocation of urgency, the District Magistrate/ Collector Gautam Buddh Nagar on being satisfied recommended acquisition of 9.7768 hectares of land in Village Birondi Chakrasenpur, Pargana Dadri, Tehsil Sadar after further reconciliation from the revenue records, and also for invoking of the urgency provisions as contained in Section 17 of Land Acquisition Act. The complete records were placed before the State Government through the Directorate of Land Acquisition with recommendation for acquisition of 9.7768 hectares, and upon consideration of the complete materials, the State Government recorded its subjective satisfaction for invoking of the urgency clause under Section 17, and approval was granted by the State Government for issuance of notification under Section 4 (1)/ 17 (4) and initiation of acquisition proceedings for 9.7768 hectares.
(d) The Greater Nodia Development Authority deposited 70% of the compensation amount (10% of the compensation amount had already been deposited by the Greater Noida Authority before submitting the proposal for issuance of Section 4 Notification), as required under the Land Acquisition Act, before sending the proposal for issuance of declaration under Section 6. The proposal was sent to the State Government and the State Government after being satisfied with the proposal issued declaration under Section 6 (1)/17 (1) on 23.3.2009. After the declaration under Section 6 (1)/17 (1), notices under Section 9 were issued to the land owners, and after expiration of fifteen days time as stipulated in the notices, possession of land was transferred to Greater Noida Development Authority on 15.04.2009 for an area of 9.7768 hectares."
18. In para 15 of the counter affidavit the State respondents have stated that the Village Birondi Chakrasenpur is in the notified area of GNIDA. As per master plan whole of the agricultural/ waste/ banjar land has to be acquired. The land in village was previously acquired in two phases. An area of 42.888 hects. was acquired by notifications dated 18.1`2.2001 and 30.3.2002 under Section 4 and 6 of the Act and thereafter 162.5507 hects. was acquired by notifications dated 28.11.2002 and 29.1.2003 under Section 4 and 6. At that time the plots under Khasra No.404 and the dispute plot no.230 were not acquired. Since these plots are lying in the close vicinity of the land, which is also acquired, their exclusion could have adversely affected the execution of the integrated planned development in accordance with the master plan. In para 20 it is stated that the writ petition suffers from delay and latches. The second notification was issued on 23.3.2009, whereas the writ petition was filed in August, 2011. It is stated in para 25 of the counter affidavit that out of total acquired and possessed area the tenure holders in respect of 2.1711 hects. of land have accepted the compensation in terms of agreement. The award under Section 11 has been declared on 27.5.2011. In para 26 and 27 it is stated as follows:-
"26. That in addition to the compensation which is paid to the land owners as per the policy of the Greater Noida Authority, the land owners under the category of Pushtani, are also entitled to substantial additional benefits in the form of 15% rehabilitation/ bonus, and also allotment of a developed residential plot of area equivalent to 6% of the acquired land subject to a minimum of 120 square meters and a maximum of 2500 square meters.
27. That the Greater Noida Industrial Development Authority is now implementing the directions in the order and judgment dated 21.10.2011 contained in the Civil Misc. Writ Petition No.37443 of 2011 Gajraj Singh and others Versus State of U.P. and others & 470 connected cases in which it has been directed to pay 64.7% of additional compensation in the form of ex-gratia to the affect-tenure-holders in villages where heavy investment in infrastructure and development have been made."
19. The GNIDA has filed counter affidavit of Shri Uma Kant Tiwari dated 21.11.2011 and has also filed three supplementary affidavits dated 27.11.2011, 13.12.2011 and 19.1.2012 respectively. In the main counter affidavit dated 21.11.2011 after giving out the object and purpose of establishment of the development authority and the preparation of development plan, generally known as master plan it is stated that the land in dispute was acquired by notification dated 19.11.2008 under Section 4 read with Section 17 dated 19.11.2008 and Section 6 dated 27.11.2008, acquiring plot nos.404 and subject plot no.230, total area 9.7768 hects. The notice under Section 9 was issued on 15.4.2009. As regards development of the neighbouring areas, it is stated in para 16, 17A and 17B as follows:-
"16. That after the taking over of possession of the land in terms of the declaration dated 23.3.2009, development work was carried out, some portion of this notification falls according to the Master Plan and the area stands demarcated as Sectors Omicron 3, Pi, Recreational Green, Amusement Park. The Authority has so far constructed roads, laid down sewer lines, electric transmission lines, developed green belts and carried out plotted, flatted and Group Housing development works in respect of the aforesaid sectors in so far as they fall in the acquired land of Village Birondi Chakrasenpur. The remaining area of these sectors fall in the acquired land of the adjoining villages and acquisition of these adjoining villages for the purpose of planned and integrated development has taken place separately. In the development works, carried out on the acquired land of Village Birondi Chakrasenpur, so far the respondent Authority has spent about Rs.62220.18 Lacs.
17 (a). That in the area developed over the land in Village Birondi Chakrasenpur, 381 nos. Co-operative society Plots have been allotted of which the area is 38,900 sq mt. Ten Group Housing plots have also been allotted. Seven nos. of Facility plots (within the residential sectors) (facility include hospitals, schools etc) having an area of 37,490 sq. mts. Have also been allotted between the year 2003 to 2008.
17 (b). That residential plots having an area of 2,87,216 sq. mt. under the 6% scheme for the villagers whose land has been acquired have also been allotted in the sectors developed over the acquired land in Village Birondi Chakrasenpur."
20. In the first supplementary counter affidavit it is stated in para 4, 5 and 6 that due to the proceedings under U.P. Imposition of Ceiling on Land Holdings Act, 1961, initiated against the petitioners, the khata nos.230 and 404 were not acquired by earlier notifications, however, later on for planned development these gatas were necessary for planning point of view hence during the pendecy of ceiling proceedings a Committee constituted by the Principal Secretary and other Directors and Secretaries to decide whether the land should be acquired, it was decided to acquire the land and deposit the compensation. Since the gatas adjacent to Gata No.230 and 404 were acquired under the earlier notifications the subject gatas were necessary to be acquired. A superimposed copy of the plan is filed and reliance is placed upon Gajraj Singh's case in which Writ Petition No.46501 of 2011, Jagdish v. State of U.P. of village Birondi Chakrasenpur was also disposed of with higher compensation of land.
21. In the second supplementary counter affidavit some more details of the development on the land in the village is given in para 3 to 12 as follows:-
"3. That the land of village Biraundi Chakrasenpur was acquired by different notification and declaration which were issued fro time to time. The detail of which is being quoted below for ready reference of the Hon'ble Court.
Sl.No. Section 4/17 Section 6/17 Date of Possession Area of which possession was taken in Hectares Date of Award
1. 18.12.2001 30.03.2002 27.06.2002 42.8087 21.03.2005
2. 28.11.2002 29.01.2003 08.05.2003 162.5507 09.09.2009
3. 03.08.2007 15.01.2008 02.05.2008 0.8233 18.05.2009
4. 19.11.2008 23.03.2009 14.04.2009 9.7768 23.05.2011 It is further stated that 8.8284 hect. land was purchased by the authority directly from the tenure holders.
4. That the award of the notification under challenged has also been pronounced by the ADM (LA) on 23.05.2011. The copy of Award dated 23.05.2011 is being annexed as Annexure No.SA-1 to this affidavit.
5. That the survey was conducted of gata no.230, 6 trees of Seesam, one tree of Bacayard, one tree of Jamun, two trees of Seeras, 40 trees of Guava, two trees of Anar, 40 trees of Eucalyptus wee found. No residential constructions were found.
6. That according to the Master Plan the land use is residential and recreation green. The sector which has been carved out according to the Master Plan are Pi-1, Pi-2 and Omicron-III (Residential Green). These sectors have been carved out of the land which were acquired by different notifications of Biraundi Chakrasenpur.
7. That the entire surrounding land of village Biraundi Chakrasenpur has been acquired and development work has been carried out by the authority, it is further clarified the land which were acquired by different notifications of Biraundi Chakrasenpur, the detail of which is being quoted below:-
S. No. Particulars work carried out in the sectors.
The expenditure of the Amount in lacs
1.
Road work.
2835.87
2. Sever line work.
279.66
3. Drainage work.
437.89
4. Water work and Gangajal project.
116.00
5. Electrification work.
470.05
6. Parks work.
293.99
7. Construction of Building work 915.67 It is further stated that the Authority has development village Biraundi Chakrasenpur and the total expenditure on the development of the Village in Construction of Road, sewer, water, drain, pump house, Barat Ghar, Primary School, common Sanitary facilities is of Rs.374.41 lacs. On the 6% abadi the facilities of sever, drainage etc. are 220.15 lacs. The total amount which has been incurred by the Authority in the development of acquired and unacquired land is 6220.18 lacs or 62.20 crore.
8. That the writ petition no.19851 of 2009 (Bhopal Singh v. State of U.P and others) was challenging the same notification for gata no.404 of village Biraundi Chakrasenpur, in which a withdrawal application dated 01.01.2011 was received by the office of the counsel of Greater Noida Authority. The withdrawal application came before the Hon'ble Court on 05.12.2011. The prayer of the application is being quoted below:-
"It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to dismissed the present writ petition C.M.W.P. No.19851 of 2009 (Bhopal Singh v. State of U.P. and others) as withdraw, otherwise the petitioners shall suffer irreparable loss and injury".
9. That the development work has already been carried and huge expenditure has been spent by the Authority on the development of the adjoining acquired land of the village land. It is further stated that the gata no.230 comes between the acquired land of the Authority. Moreover alignment of 9 meter wide road, 12 meter wide road and 60 meter wide road will pas through the said plot no.230, portions of this gata also are planned to be developed as park, residential plots and for purposes of fall as per the development plan in facilities, park and individual plots group housing. It is clarified that no allotment has been made in view of the interim order operative in the case. It is specifically stated that the development work in surrounded area of this gata has already been carried out. A copy of super impose map which being annexed shall demonstrate that the gata no.230 situate at the middle of the scheme and is necessary for acquisition. The whole area of village of Biraundi Chakrasenpur which ere acquired by different notifications have been developed. The gata no.230 is an important, integrated project and is necessary for acquisition, the copy of super impose map which will demonstrate that the gata no.230 falls in the middle, is being filed herewith and marked as Annexure No.SA-2 to this affidavit.
10. that the construction of 60 mtrs. wide road has been carried out till the gata no.230 and the construction of the road work on the gata no.230 could not be carried out, although 20,000 sq. mt. land of this gata is going to be utilized on the construction of 60 mtr. wide road and on 12 mtr. wide road and 9 mtr. wide road. Almost 12500 sq. mt. land is going to be utilized on the construction of the road. It is further stated that 11000 sq. mt. land of this gata is going to be utilized on green belt and park and about 8200 sq. mt. land is going to be utilized on the facility of the sector.
11. That on surrounding plots of the gata no.230 infrastructure development work has been carried out like laying down sewer line, electrification, drainage, but continuity in the work could not be carried out on the gata no.230. It is further clarified the work of sewer line, electrification, constructions of road and drainage has been stopped on the point of gata no.230. The surrounding area of gata no.230 has fully been developed and infrastructure development work has already been carried out. Moreover in the facilities, the plot is going to be utilized for the school, so that the people who were earlier allotted individual residential plots in surrounding areas can send their children to the school. The drinking water work has also been carried out. Moreover 32 individual plots were carved out on the land which were acquired earlier of the Village Biraundi Chakrasenpur and have been allocated the plot in the year 2005-06. The list of the allotment is being filed herewith and marked as Annexure No.SA-3 to this affidavit.
12. That the adjoining village Biraundi Chakrasenpur i.e. village Jaitpur Vaishpur and Ghori Bachera have been acquired as a part of industrial development scheme and the development work in these two villages has also been carried out. The gata no.230 situates at the central and is necessary for infrastructure development. It is further clarified that the gata no.230 is situate at the centre of vast areas of acquired and developed land, hence it is necessary for wholesome development of the area and the project."
22. In the third supplementary affidavit the GNIDA has relied upon the observations of judgment in Gajraj & Ors. v. State of U.P. (Supra) in respect of village Birondi Chakrasenpur and in which this Court observed:-
"land use under the development plan was shown as residential, construction of Flat by the builders has been made."
"Development has been made in the area by constructing roads, laying down sewer lines and electricity transmission line, Group Housing development work has also been done."
23. In para 8 of the third supplementary counter affidavit it is stated that sectors, which fall as per Master Plan over Birondi Chakrasenpur are Omicron-III, PHI-1, R-Green and some portion of PHI-II. On these plots development work has been carried out and third party rights has been created. The total area of group housing for development over acquiring land of the village is given in detail giving the plot area (as per lay out) in sq. mtrs. as 765836.96 (76.58 hects.) and area falling in acquire land of Village Birondi in sq. mtrs. as 544020.36 (54.40 hects.). In respect of the amounts spent on facilities for residential development over the acquired land of Birondi, the details are given in the chart as follows:-
"Facilities Under Residential Developed over the acquired land of Birondi."
Sr. No. Sector Plot No. Plot Area (as per layout) in sqm.
Area falling in Acquired land of Village Birondi Scheme Code Allotted to Allot Date
1. Pi NS-52 1000.00 1000.00 GHS05 Munish Gupta 27.6.2003
2. Pi NS-53 1000.00 1000.00 Open Ended Sarvodaya Educational and Cultural 23.7.2003
3. Pi NS-53A 1000.00 1000.00 Open Ended BN Educational Institution 11.12.2006
4. Pi NS-57 1000.00 1000.00 Open Ended Babita W/o Madan Gopal 16.3.2003
5. Pi HO-1 8000.00 8000.00 Open Ended Delhi IBF Fulertilty Res Centre 10.1.2004
6. Pi HS-34 17490.00 17490.00 Open Ended Om Sai Foundation 22.11.2006
7. Pi f-1, KALIBAARI Temple 80000.00 80000.00 Open Ended Greater Noida Sardia Sanskritik Samiti 29.3.2008 Grand total 37490.00 37490.00
24. In para 9 of the third supplementary counter affidavit it is stated that 148 individual residential plots of the societies have also been allotted in this area on which third party rights have been created and constructions over the area has been carried out.
25. It is submitted by Shri Ravi Kant, learned counsel appearing for the State that from the facts disclosed in the counter affidavit and supplementary affidavit, the development has already taken place in Village Birondi Chakrasenpur. Due to interim order of the Court the development could not be carrid out on the plots in dispute. In order to serve the equity the Court may follow the same directions i.e. in the case of Gajraj Singh v. State of U.P. in which 64.70% compensation was given in addition to the compensation awarded under the agreement rules along with 10% instead of 6% of the developed plan. This court may follow the Apex Court judgment reported in Bondu Ramaswamy & Ors. v. Bangalore Development Authority, (2010) 7 SCC 129 (para 129, 130 and 131) and may award higher compensation. He submits that the writ petition challenging acquisition of the other plot no.404 in the notifications was withdrawn, as the petitioners in the writ petition have accepted the compensation. If plot in question is not acquired, it will give rise to haphazard constructions raising pollution levels and creating concrete jungles in between planned development.
26. Shri Navin Sinha appearing for GNIDA submits that the writ petitions relating to acquisition of land, which have been developed in Birondi Chakrasenpur have been dismissed. The three judges' Bench in Gajraj Singh have taken all the aspects into consideration and that even if, without conceding, the dispensation of enquiry under Section 5A, in view of Radhey Shyam's case and Devendra Kumar's case decided by Supreme Court, is held to be bad in law, the Court should consider to award higher compensation, which is being offered by GNIDA as in the case of developed areas of Gajraj Singh. He submits that directions of Full Bench are binding on the Division Bench and thus the Court may issue similar orders.
27. We have considered the arguments raised by learned counsel for the parties, and perused the records, as well as details of development carried out in Village Birondi Chakrasenpur. We are of the view that each case relating to acquisition of land has to be considered on its own merits. When the petitioners rely upon their rights and have raised the grievance that his land has been acquired in violation of provisions of the Act without giving him an opportunity of hearing, we can not refuse to hear him on the ground that in respect of notifications issued earlier of the same village, the Court had even after considering that the acquisition was bad in law, as on the facts there was no urgency to dispense with enquiry under Section 5-A of the Act and the entire acquisition was for malafide purpose to allot land to private builders to make profits, disposed of the writ petition, providing higher compensation on the ground that development had taken place on the land. In the present case the plot in dispute has not been allotted to any third party nor any development has taken place on the plot. The GNIDA has not spent any amount on the subject land for its development. The allotments have been made to the builders and individual plot owners, on the land, which is not adjacent to it and is far away from the plot in the same village. The details given in the third supplementary counter affidavit of Shri Uma Kant Tiwari, Naib Tehsildar, Greater Noida Industrial Development Authority would show that out of total acquired area of 215.8 hects. over Village Birondi Chakrasenpur by 4 notifications namely notification dated 18.12.2001/30.3.2002 (42.8087 hects.); notification dated 28.11.2002 / 29.1.2002 (162.5507 hects.); notification dated 3.8.2007/15.10.2008 (0.8233 hects.); and the subject notification dated 19.11.2008/23.3.2009 (9.776 hects.) and further area of 8.8284 hects. was purchased from the tenure holders, the GNIDA has allotted only 54.40 hects. of land from 7.12.2000 to 5.9.2006, and has thereafter made allotment of only 3.7 hects. of land between 27.6.2003 to 29.3.2008. It has made investment of Rs.374.41 lacs on roads, sewer lines and water drainage, pump house, panchayat ghar, primary school and common sanitary facilities for the allotted land. No development has taken place on the subject plot no.320 so far. It is proposed in the counter affidavit to be used for park, and residential plots as per development plan, and for facilities of parks to the individual plots and group housing on other plots of the village.
28. The argument of Shri Ravi Kant and Shri Navin Sinha that the entire development of Vilage Birondi Chakrasenpur will be blocked, and that alignment of roads will be disturbed, if the acquisition of the disputed plot is quashed, overlooks the fact that there is no intersection or any main road passing through the plot. Even if the land is left out, the development on the land has to take place in accordance with the development plans prepared by GNIDA. We are unable to appreciate as to how in leaving a plot of land measuring 4.9332 hects. in the village in which 215.8 hects. has been acquired and of which only 58.10 hects. has been allotted to private builders, will affect the development plan. The GNIDA is not developing a particular village but the area for development. The acquisition is made qua the plots falling in all villages but that would not take away the rights of the individual plot owners to challenge the acquisition. The proposed park or internal roads should not defeat their rights on the ground that some portion of plots acquired 6 years ago have been allotted to some individuals for whom internal roads are to be constructed through their land. At present it is admitted that the petitioner is doing farming on the land. The petitioners claim that they also have a residential house on the land. In future even if he wants to develop the land, he will have to obtain approval of his plans from GNIDA, which will of course be given in accordance with the bylaws, in conformity with the Master Plan and not otherwise. The objection that leaving a plot will raise concrete jungle, and will affect the planning is totally devoid of force.
29. In Gajraj Singh's case the three Judge Bench upheld the legal position in the judgment in Har Karan Singh following the judgment in Anand Singh's case, Radey Shyam's case and Devendra Kumar's case decided by the Supreme Court and held on same facts that the application of Section 17 (1) and (4) and dispensation of enquiry under Section 5A, was bad in law and thus the notification were liable to be quashed. The Court, thereafter, proceeded to adjust equities, without any demand from farmers to raise compensation or allotment of more developed land, and without there being any offer given by the State of GNIDA. It increased the compensation and the allotment of developed areas to the land owners. We find substance in the submission of learned counsel for the petitioner that the increased compensation can only be accepted under an agreement with the land owners after obtaining their consent and not under the directions issued by the Court. We also find substance in the contention raised by him that the market value of the land depends upon various factors set out in Section 23 of the Act. It depends upon its location and utility. The entire land of Village may not be valued at the same market value, irrespective of its situation, distance from road and potential. We are also informed that Special Leave Petitions have been admitted by the Supreme Court against the judgment in Gajraj Singh's case.
30. A judgment is binding as a precedent on the question of law. The doctrine of stare decisis, as a public policy is applicable on the cases raising same questions of law or mixed question of facts and law. The question of law in Gajraj Singh's case following Anand Singh's, Radhey Shyam's and Devendra Kumar's case was decided in favour of the land owners. The Court had thereafter in special circumstances of that case in order to adjust equities between those, who had invested money in development or in booking flats on the land affected by projects in which constructions were in progress, awarded higher compensation, which was neither demanded by the land owners, nor offered by the State and GNIDA. The directions to adjust equities may have a persuasive value but would not be binding as the order passed in adjusting equities, does not have a precedential value, and may not be made binding in other cases.
31. Shri Ravi Kant appearing for the State of U.P. submits that the petitioners were entitled to receive a very small amount as compensation in proceedings under the Imposition of Ceiling on Land Holdings Act, 1961. The proceedings were not finalised. The State Government, in the meantime, decided to acquire the land under the Act. The petitioner would get the compensation on market value under the Act and if he accepts the compensation under the agreement, with enhanced compensation worked out in accordance with the judgment in Gajraj Singh's case, he will not only get a large amount, as compared to the compensation in ceiling proceedings but would also be benefited by allotment of developed land. Shri Ravi Kant submits that the land is in National Capital Region and that ultimately the petitioner will sell the land. He will get better deal, in case he accepts the enhanced compensation.
32. The argument of Shri Ravi Kant overlooks the rights of the land holders, who are cultivating the land for several generations. It is not open to the State to submit that every farmer would ultimately sell his land. In this connection it is useful to refer to Chief Seattle's Thoughts, which is considered to be one of the most beautiful and profound statement ever made. The statement is also useful in the cases, where land is sought to be acquired from farmers, who are cultivating it for generations. The farmers have equal rights to property and development. The statement with its reference is in response to offer to purchase the land is quoted as below:-
"In 1851 Seattle, chief of the Suquamish and other Indian tribes around Washington's Puget Sound, delivered what is considered to be one of the most beautiful and profound environmental statements ever made." -- Buckminster Fuller in Critical Path.
Chief Seattle's Thoughts How can you buy or sell the sky, the warmth of the land? The idea is strange to us.
If we do not own the freshness of the air and the sparkle of the water, how can you buy them?
Every part of this earth is sacred to my people. Every shining pine needle, every sandy shore, every mist in the dark woods, every clearing and humming insect is holy in the memory and experience of my people. The sap which courses through the trees carries the memories of the red man.
The white man's dead forget the country of their birth when they go to walk among the stars. Our dead never forget this beautiful earth, for it is the mother of the red man. We are part of the earth and it is part of us. The perfumed flowers are our sisters; the deer, the horse, the great eagle, these are our brothers. The rocky crests, the juices in the meadows, the body heat of the pony, and man --- all belong to the same family.
So, when the Great Chief in Washington sends word that he wishes to buy our land, he asks much of us. The Great Chief sends word he will reserve us a place so that we can live comfortably to ourselves. He will be our father and we will be his children.
So, we will consider your offer to buy our land. But it will not be easy. For this land is sacred to us. This shining water that moves in the streams and rivers is not just water but the blood of our ancestors. If we sell you the land, you must remember that it is sacred, and you must teach your children that it is sacred and that each ghostly reflection in the clear water of the lakes tells of events and memories in the life of my people. The water's murmur is the voice of my father's father.
The rivers are our brothers, they quench our thirst. The rivers carry our canoes, and feed our children. If we sell you our land, you must remember, and teach your children, that the rivers are our brothers and yours, and you must henceforth give the rivers the kindness you would give any brother.
We know that the white man does not understand our ways. One portion of land is the same to him as the next, for he is a stranger who comes in the night and takes from the land whatever he needs. The earth is not his brother, but his enemy, and when he has conquered it, he moves on. He leaves his father's grave behind, and he does not care. He kidnaps the earth from his children, and he does not care. His father's grave, and his children's birthright are forgotten. He treats his mother, the earth, and his brother, the sky, as things to be bought, plundered, sold like sheep or bright beads. His appetite will devour the earth and leave behind only a desert.
I do not know. Our ways are different than your ways. The sight of your cities pains the eyes of the red man. There is no quiet place in the white man's cities. No place to hear the unfurling of leaves in spring or the rustle of the insect's wings. The clatter only seems to insult the ears. And what is there to life if a man cannot hear the lonely cry of the whippoorwill or the arguments of the frogs around the pond at night? I am a red man and do not understand. The Indian prefers the soft sound of the wind darting over the face of a pond and the smell of the wind itself, cleaned by a midday rain, or scented with pinon pine.
The air is precious to the red man for all things share the same breath, the beast, the tree, the man, they all share the same breath. The white man does not seem to notice the air he breathes. Like a man dying for many days he is numb to the stench. But if we sell you our land, you must remember that the air is precious to us, that the air shares its spirit with all the life it supports.
The wind that gave our grandfather his first breath also receives his last sigh. And if we sell you our land, you must keep it apart and sacred as a place where even the white man can go to taste the wind that is sweetened by the meadow's flowers."
33. We are relieved of discussing the matter further in as much as during the pendecy of this writ petition the Supreme court rendered a judgment in Darshan Lal Nagpal (dead) by L.Rs. v. Government of NCT of Delhi & Ors., Civil appeal No.11169 of 2011 dated January 3rd, 2012. In this case considering the pre-notification delay between January 2006 and July 2008 by the officers of the Delhi Transo Ltd. and Delhi Development Authority and the Government of National Capital Region of Delhi, caused due to exchange of letters on the issue of allotment of land for the sub-station, the Supreme Court after noticing that there is nothing in Jage Ram v. State of Haryana, (1971) 1 SCC 671, that the pre-notification delay would not affect the acquisition and observing that in Chameli Singh v. State of U.P. the Supreme Court simply followed the observations made by learned Single Judge of Andhra Pradesh High Court in Kashi Road Paiha v. Government of A.P., AIR 1975 (269), held that in view of the judgment in Anand Singh v. State of U.P. the pre-notification delay will have material bearing on the question of invocation of urgency powers particularly when no material is produced by the appropriate government to justify elimination of enquiry envisaged under Section 5A of the Act.
34. In Darshan Lal Nagpal (dead) through LR's case the Court had noticed the argument of Shri Waziri, learned counsel appearing for Delhi Transco Ltd. in para 9, that the work of establishing the sub station had been completed to large scale; still finding that the invocation of Section 17 was not justified relying upon Anand Singh's case and Radhey Shyam's case the Supreme Court quashed the notification with following observations:-
"28. In the result, the appeal is allowed and the impugned order is set aside. As a corollary, the writ petition filed by the appellants is allowed and the acquisition of their land is quashed. However, it is made clear that this judgment shall not preclude the competent authority from issuing fresh notification under Section 4(1) and taking other steps necessary for the acquisition of the appellant's land. If the respondents initiate fresh proceedings for the acquisition of the appellants' land then they shall be free to file objections under Section 5A(1) and they shall also be entitled to be heard in the inquiry to be conducted by the Collector in terms of Section 5A(2) of the Act. The parties are left to bear their own costs."
35. The Supreme Court has delivered yet another judgment in Bangalore City Cooperative Housing Society Ltd. v. State of Karnataka & Ors. (Civil Appeal No.7425-26 of 2002 decided on February 2nd, 2012 and held that even in view of the objections that Rs.18.73 crores was spent and 1791 plots were allotted to the members out of which 200 have also constructed their houses and 50% of the land was given to BDA for providing civil amenities and 16154 sq. ft. to Karnataka Power Transport Corporation, the case was not fit case for invoking doctrine of prospective overruling and quashed the notification under Section 4 (1), after recording findings that the cooperative societies for which the land was acquired was not a cooperative society established for the public purpose, which includes education, housing health or slum clearance, sponsored by the government or with prior approval of the appropriate government by local authority or society registered under the Society Registration Act and held that if acquisition of land for cooperative society, which has covered by the definition of the term offer is for any purposes other than public purpose as defined under Section 3 (f), then the provision of Part VII would be attracted and mandate thereof will have to be complied with. The Supreme Court dismissed the appeals by which the acquisition proceedings were quashed. However, keeping in view that some of the members of the appellant may have built their houses on the sites allotted to them, liberty was given to them to negotiate with the respondents for purchase of their land at the prevalent market price with the hope that the land owners will notwithstanding the judgment of the High Court agree to accept the price so that those, who have built their houses may not suffer. At the same time, it was made clear that the appellant must return the vacant land to the respondents irrespective of the fact that it may have carved out the site and allotted the same to its members. A direction was issued that the land must be returned and agreed market price paid within three months during which the appellant will not change the status of the vacant area/ sites and the appellants, who were allotted sites will also not change the status and character of the land.
36. The Supreme Court has in its recent judgments in Kamal Trading Pvt. Ltd. v. State of West Bengal, (2012) 2 SCC 25, and in Raghubir Singh v. State of Haryana & Ors., (2012) 1 SCC 792, following its judgment in Radhey Shyam v. State of U.P. (Supra) and Dev Sharan v. State of U.P. (Supra) set aside the judgment of the High Court on the ground that Section 5A of the Land Acquisition Act could not have been dispensed with as there was no urgency to acquire the land.
37. We are informed that a composite award has been made on 27.5.2011 in respect of the subject acquisition both under Section 11 (1) of the Act as well as under the U.P. Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules, 1997. The award under Section 11 (1) is at the rate of Rs.240/- per sq. mtr. and the award under the Agreement Rules, 1997 is at the rate of Rs.850/- per sq. mtr. We are unable to appreciate as to how both the awards can be made simultaneously and the rates in the award under the Agreement Rules, 1997 were fixed without holding discussions with the petitioners. The petitioners were not called for any meetings and discussions with District Authorities or the officials of GNIDA. In the present case the petitioners have not accepted the compensation. Shri Pankaj Dubey appearing for them has made statement in the Court that the petitioners are not ready to accept the enhanced compensation and the developed land, and want to retain their land.
38. For the aforesaid reasons, the writ petition is allowed. The notifications dated 19.11.2008 under Section 4 (1) read with Section 17 (1) and (4), and dated 23.3.2009 under Section 6 (1) acquiring plot no.230 area 4.9330 hects. of the Revenue Village Birandi Chakrasenpur, Pargana Dadri, Tehsil Sadar, Distt. Gautam Budh Nagar is quashed. The petitioners will be entitled to Rs.25,000/- as costs of the petition from the respondents.
Dt.23.03.2012 SP/