Allahabad High Court
Mahesh And Others vs State Of U.P. And Others on 22 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 946
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A F R Reserved on : 01.10.2019 (In Court no.34) Delivered on :22.04.2020 (In Chamber) In Chamber 1. Case :- WRIT - C No. - 6532 of 2006 Petitioner :- Mahesh And Others Respondent :- State of U.P. and Others Counsel for Petitioner :-Pankaj Dubey Counsel for Respondent :- C.S.C.,Mahesh Chandra Chaturvedi, Pranjal Mehrotra, R. Venkataramani, S.K. Mishra, Satish Chaturvedi, Usha Kiran, Vimlendu Tripathi 2. Case :- WRIT - C No. - 15174 of 2012 Petitioner :- Tekram And Others Respondent :- State of U.P. and Others Counsel for Petitioner :- Pankaj Dubey Counsel for Respondent :- C.S.C., Anuj Pratap Singh, Pranjal Mehrotra, R. Venkataramani, S.K.Mishra 3. Case :- WRIT - C No. - 1877 of 2012 Petitioner :- Sanoj And Others Respondent :- State Of U.P. Through Principal Secretary And Others Counsel for Petitioner :- Pankaj Dubey Counsel for Respondent :- C.S.C.,G.P. Srivastava, M.N. Singh, Pranjal Mehrotra, R. Venkataramani, 4.Case :- WRIT - C No. - 1873 of 2012 Petitioner :- Ajay Kumar And Others Respondent :- State Of U.P. Through Principal Secretary And Others Counsel for Petitioner :- Pankaj Dubey Counsel for Respondent :- C.S.C., A.N.Singh, G.P. Srivastava, Pranjal Mehrotra, R.Venkataramani Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra, J.
(Delivered by Hon'ble Sudhir Agarwal, J)
1. Heard Sri Pankaj Dubey, learned counsel for petitioners, learned Standing Counsel for State-respondents and Sri Anurag Khanna, Senior Counsel assisted by Sri Pranjal Mehrotra, Advocate for respondent-4.
2. Writ Petition No.6532 of 2006 (hereinafter referred to as "WP-1") has been filed under Article 226 of Constitution of India by 22 petitioners led by Mahesh son of Harpal praying for issue of a writ of certiorari to quash Notification No.2954/77-4-2005-58 Bha/2005 dated 18.07.2005 published by State of U. P. under Section 4 (1) read with Section 17 (4) of Land Acquisition Act 1894 (hereinafter referred to as "Act, 1894") and Notification No.4650/77-4-2005-58/Bha/2005 dated 18.08.2005 making declaration under Section 6 of Act, 1894 for acquisition of 38.429 hectare of land (94.0039 acres) of various plots mentioned in the Schedule enclosed to the notification, situate in Village-Badpura and Dhoom Manikpur, Tehsil-Dadri, District-Gautambudh Nagar for planned industrial development in District-Gautambudh Nagar.
3. The land was proposed to be acquired for development, to be executed through Uttar Pradesh State Industrial Development Corporation Limited, Kanpur (hereinafter referred to as 'UPSIDCL').
4. It is said that petitioners filed objections before respondent-3 i.e. Additional District Magistrate (Land Acquisition), Gautambudh Nagar (hereinafter referred to as 'ADM(LA)') claiming compensation at the rate of Rs.850/- per square yard or to exclude petitioners' land from acquisition, but without giving any opportunity, respondent-3 by order dated 26.11.2005 expunged petitioners' names from respective khatauni and passed order for recording name of UPSIDCL in khatauni. Mutation has been given effect to in khatauni on 08.12.2005. Details of petitioners' land are as under :-
Sl. No. Name of petitioner Gata number Area (in hectare)
1.
Mahesh 804 1.4540
2. Chandrbhan 855 1.5380
3. Ravindra 856 1.3520
4. Charta 857 0.9440
5. Vikram 858 0.3770
6. Chander 859 (M) 0.1110
7. Prakash 860 (M) 0.1110
8. Sabhajeet 1195 0.2760
9. Shree Ram 921 0.1430
10. Triloki 963 1.5000
11. Budhpal 983 0.3110
12. Smt. Ramji 821 0.8140
13. Sumitra 819 0.1290
14. Tej Pal 979 0.9480
15. Aap Singh 761 0.2120
16. Krishna 753 0.2530
17. Rakesh Kumar 799 1.1230
18. Ashok Kumar 795 0.1540
19. Member Singh 768 0.2630
20. Bhagirath 17 0.5311
21. Sita 29M, 199 0.3951, 0.2290
22. Ram Kala 737 0.3980
5. Before passing order of mutation, no opportunity was given to petitioners and even copy of order was not communicated. Apparently, land has been acquired for UPSIDCL for carrying out planned industrial development, but as a matter of fact, entire land has been acquired for a private company namely M/s Ambuja Cement Limited, and therefore, in the garb of public purpose a land has been acquired for a private company, which is patently illegal. Petitioners are also being pressurized to accept compensation at the rate of Rs.180/- per square yard. When petitioners refused, respondents prevailed upon some Tenure Holders and fixed compensation at the rate of Rs.245/- per square yard. Petitioners' entire land has been acquired to give benefit to a private company, hence, it is arbitrary, illegal and violative of Articles 14, 21 and 300-A of Constitution of India. Notification was issued in only one newspaper i.e. Dainik Vartman Satta, which has no wide circulation. The authority for which land was sought to be acquired had to deposit 80 percent of compensation, but as per knowledge of petitioners, same has not been deposited. Petitioners are being threatened to vacate the land or they shall be forcefully evicted. The land of petitioners, in the garb of statutory acquisition, is being snatched so as to benefit a private company, hence, it is patently unconstitutional.
6. During pendency of writ petition an Application No.105094 of 2008 was filed for impleadment of M/s Gujarat Ambuja Cement as respondent-5, which was allowed and notice was issued to newly impleaded respondent-5 vide order dated 28.03.2014.
7. A supplementary affidavit dated 03.02.2014, sworn by Rajendra son of C. B. Singh on behalf of petitioners has been filed placing on record documents to support that land of farmers was acquired for a private company. Copy of letter dated 28.01.2005 issued by Special Secretary, U.P. Government and addressed to Managing Director, UPSIDCL has been filed as Annexure-SA.1 wherein State Government has referred to a letter dated 30.12.2004 of one Puneet Saran of M/s Gujarat Ambuja Cement Limited requesting to make available 47.8930 hectare private land in village-Dhoom Manikpur and Badpura, Tehsil-Dadri and also 2.9753 hectare of Gram Sabha land for the purpose of M/s Gujarat Ambuja Cement Limited and directing that aforesaid land be acquired through UPSIDCL. State Government required UPSIDCL to send appropriate proposal for the said purpose. Another letter is dated 03.02.2005 whereby Government's decision has been communicated that land for the purpose of M/s Gujarat Ambuja Cement Ltd. shall be acquired through UPSIDCL. In compliance of aforesaid direction of State Government, UPSIDCL prepared documents and sent to government for examination thereof. State Government issued notification under Section 4/17 of Act, 1894. Next is the letter dated 19.04.2005 requesting to take steps for filing caveat in Court so as to contest and challenge the acquisition proceedings, if any, on the part of Land Owners. Said letter states that 108 land owners would be affected by proposed acquisition. Letter dated 28.09.2005 of Land Acquisition Officer (hereinafter referred to as "LAO") is for payment of publication bill to the Editor of newspaper concerned. Letter dated 22.10.2005 states that declaration under Section 6/17 of Act, 1894 vide Notification dated 18.08.2005 has been published and after giving notice to the Farmers under Section 9 (1) of Act, 1894, and distribution of 80 percent of estimated compensation, possession has to be obtained within 15 days and thereafter it shall be transferred to M/s Ambuja Cement Ltd. It, therefore, requested to get the land transferred to Executive Engineer of UPSIDCL at the earliest. Annexure-SA.6 is letter dated 29.11.2005 of M/s Ambuja Cement addressed to Sri Atul Gupta, Principal Secretary (Industries), U.P. Government stating that UPSIDCL has to take physical possession of land by initiating survey work i.e. fixing boundary of acquired land and then execute lease deed with Gujarat Ambuja Cement Limited and transfer possession of land to it. Hence, Government was requested to advise UPSIDCL to complete necessary formalities at the earliest. It also suggested a Consent Award under Section 11 of Act, 1894 by Collector, determining reasonable and amicable 'Consent Rate' with the Farmers. It also communicated that 15.01.2006 has been decided as 'Foundation Stone' laying date and commencement of actual work on the site. Aforesaid letter was communicated by Sri Atul Kumar Gupta, Secretary, Urban Development to District Magistrate, Ghaziabad by letter dated 22.12.2005.
8. On behalf of UPSIDCL i.e. respondent-4, a counter affidavit has been filed, sworn by Sri V. K. Singh, Assistant Manager (Legal), UPSIDCL. Publication of Notification dated 18.07.2005 under Section 4(1)/17 of Act, 1894 and declaration dated 18.08.2005 under Section 6/17 of Act, 1894, is admitted. However, it is said that such notifications were issued more than five months ago, therefore, petitioners are guilty of laches; acquired land has already been handed over by Collector to UPSIDCL on 21.10.2005; there are 192 farmers out of which only 22 have approached this Court and rest are satisfied with acquisition proceedings; notifications were published in two daily local newspapers i.e. "Dainik Pralayankar" and "Vartman Satta" published on 22.07.2005 and on 27.07.2005 in "Mahamedha" and "Vartman Satta" and same were also published on the Village Panchayat Notice Boards and in the localities; So far as right of compensation is concerned, if the petitioners are aggrieved by determination made by ADM(LA), they have remedy under Section 18 of Act, 1894; The expunction of names in khatauni has been made after order dated 26.11.2005 passed by Authority concerned giving opportunity of hearing to all concerned parties in accordance with U.P. Land Acquisition Manual, 1987; If petitioners are aggrieved on account of mutation they have remedy under U. P. Land Revenue Code, 2006; UPSIDCL has been created for development of industries and for such purpose, i.e. establishment of unit of M/s Gujarat Ambuja Cement Ltd, land in question was acquired at the instance of UPSIDCL by State Government and procedure followed is perfectly valid and in accordance with law; acquisition of land is for public purpose i.e. planned industrial development in District-Gautambudh Nagar; allegations that land has not been acquired for public purpose is denied; allegations of pressurizing petitioners to accept compensation at the rate of Rs.180 per square yard is also denied; Market value of land in question came to be Rs.83.76 per square yard but to be more liberal to the Farmers, compensation was offered at the rate of Rs.245/- per square yard and thereafter with the consent, agreement under U. P. Karaar Niyamawali, 1997 (hereinafter referred to as "Niyamawali, 1997") has been executed.
9. Respondent-5 has also filed a separate counter affidavit stating that acquisition in question would fall under Section 3 (f)(iii) and (iv) of Act, 1894 and such acquisition is for public purpose; it is wholly irrelevant that after acquisition, acquired land is transferred to an individual or a private company; UPSIDCL is a Nodal Agency and determines areas of land which can be acquired for the purpose of industrial development; General process of determination and identification of land for a planned industrial development is distinct from piecemeal acquisition for private company; it is open to State Government to take recourse to Sections 4, 6 and 17 of Act, 1894 for acquisition of land; in the case in hand, there was a need felt for establishment of a cement company in the vicinity of National Thermal Power Corporation (hereinafter referred to as 'NTPC') with an aim and objective of consumption of fly ash for the purpose of manufacturing cement; the productive use and disposal of fly ash became a major environmental concern; it is in this context that State Government acted for acquisition of land for public purpose; after allocation of land to respondent-5 on 08.02.2006 it has already set up its cement plant and commenced production; Use of land is entirely in terms of need of company, plant machinery and future expansion; Majority of land owners have received compensation in terms of award; Respondent-5 has deposited entire premium demanded by UPSIDCL including compensation; Cement plant of respondent-5 commissioned on 16.02.2010 and in operation producing cement; as per Government of India's policy, Thermal Power Plants in India, which generates electricity by using coal, produces large quantity of fly ash (a waste material) which is hazardous substance for mankind and environment, hence they were required to use said fly ash in an effective manner; disposal and handling of fly ash is very difficult and needs to be disposed off in an effective manner so as to prevent environmental hazards; Fly ash is generally thrown in rivers or open area causing water pollution and air pollution; for effective off-take of fly ash and for effective disposal, handling and utilization, cement factories were required to be established in the neighbourhood of Thermal Power Stations. Accordingly National Capital Power Station (hereinafter referred to as 'NCPS') situated in Dadri, District-Gautambudh Nagar which is one of the Power Station of NTPC, entered into an agreement dated 07.08.2004 with respondent-5 for effective disposal and utilization of fly ash produced in said Power Station; a contiguous location of a cement plant in the vicinity of Thermal Power Station was in public interest; in furtherance of aforesaid commitment and agreement executed with NCPS, respondent-5 in December 2004 submitted an application to Government of U.P. for allotment of a piece of land admeasuring 47.8930 hectares in the vicinity of plant of NTPC, Dadri; as per its investment programme in State of U.P., respondent-5 proposed to establish a cement manufacturing unit of 1.2 million ton per annum capacity; On the request of respondent-5, UPSIDCL, which is a unit of State of U.P. and established for industrial growth and development in State of U. P., allotted desired land to respondent-5 vide letter of allotment dated 08.02.2006 and total area of 38.043 hectares (94.0039 acres) of land has been allotted at the price Rs.275.62 per square meter with a basic tentative cost at the rate of Rs.10,48,55,828.60; A lease deed dated 18.08.2006 was executed between UPSIDCL and respondent-5 for a period of 90 years at a premium of Rs.14,06,30,596/-; initially lease was at rent of Rs.2000/- per hectare per year for first 30 years. Rs.5000/- per hectare per year for next thirty years and after expiry of first 60 years, Rs.10,000/- per hectare per year; Respondent-5 after allotment of land in question has invested sum of Rs.291.55 crores for establishment of its factory; Initially compensation was determined as Rs.245/- per square yard, which has been enhanced later as Rs.314 per square yard, and, most farmers are accepting compensation under Niyamawali, 1997; Majority of petitioners have received compensation pursuant to agreement executed under Niyamawali, 1997; Land has been allotted to respondent-5 after completing all required formalities and in accordance with Rules; Respondent-5 is a bonafide person having infused huge amount for development i.e. establishment of an industrial unit; after establishment of a cement factory by respondent-5, other cement manufacturing companies have also established their units namely, Ultratech Cement etc; One of the petitions being Writ Petition No.38848 of 2008 filed in respect of acquisition in question itself challenging the amount of compensation on the ground that higher compensation was paid in the vicinity of land, has been dismissed by this Court vide judgment dated 05.08.2008.
10. In rejoinder affidavit filed by petitioners, in reply to the counter affidavit of respondent-4, it is stated that when a land is acquired for a private company, the enquiry contemplated under Rule 4 of Land Acquisition (Companies) Rules, 1963 (hereinafter referred to as "Rules, 1963") has to be held, otherwise entire proceedings are bad in law. Broadly the averments made in writ petition and supplementary affidavit are reiterated.
11. A personal affidavit has been filed by Principal Secretary, Industrial Development pursuant to order dated 17.11.2016 passed by this Court stating that District Magistrate, Gautam Budh Nagar sent a proposal for acquisition of land, area 6.5619 hectare, in village-Badpura, area 31.410 hectare in village-Dhoom Manikpur Tehsil-Dadri, District-Gautam Budh Nagar vide letter dated 11.04.2005. The justification for aforesaid acquisition stated is that NTPC had installed a Power Plant at Dadri Tehsil which is producing very huge amount of fly ash and its storage and non disposal is causing serious environmental hazards; Fly ash is being used by Cement factories for producing cement by using modern techniques and in this way pollution due to fly ash can be avoided and controlled; the huge storage of fly ash at NTPC Plant has become serious environmental problem at Dadri and to tackle the same, NTPC has entered into an agreement with Cement company which is ready to go in production by December, 2005 and will consume 500 metric ton fly ash every day, which will subsequently increase to 1000 metric ton; Government of India, Ministry of Environment and Forest has also issued a notification providing that every construction within 100 kilometers of a Thermal Power Plant will be obliged to use fly ash for its manufacturing of construction material; Cement company namely M/s Ambuja Cement Ltd, respondent-5 which has entered into agreement with NTPC has requested District Magistrate, Gautam Budh Nagar to make available requisite land for establishment of Cement Company; State Government through its Industrial Department, vide letter dated 03.02.2005 has made UPSIDCL as a Nodal Body for acquisition of land for Cement Company and also required land for production unit, residential buildings and railway sidings and in view thereof it is very urgent to acquire land in two villages as noticed above, for UPSIDCL for planned industrial development in District-Gautam Budh Nagar.
12. Considering urgency it was requested that acquisition notification should be issued under Section 4 (1) read with Section 17 of Act, 1894. Aforesaid request was forwarded by Commissioner and Director, Land Acquisition vide letter dated 21.04.2005 to Industrial Department of State Government. Aforesaid proposal along with comments dated 25.05.2005 was forwarded to Bhumi Udyog Parishad. Thereafter, it was approved by Chief Minister on 14.06.2005 and it was approved as land for Ambuja Cement be acquired. Further proposal that land is to be acquired through UPSIDCL was approved by Chief Minister on 11.07.2005. UPSIDCL is governed by the provisions of U. P. Industrial Area Development Act, 1976 (hereinafter referred to as "Act, 1976"). Section 6 thereof provides functions of the authority as under :
"6. Functions of the Authority. - (1) The object of the Authority shall be to secure the planned development of the industrial development areas.
(2) Without prejudice to the generality of the objects of the Authority, the Authority shall perform the following functions-
(a) to acquire land in the industrial development area, by agreement or through proceedings under the Land Acquisition Act, 1894 for the purposes of this Act;
(b) to prepare a plan for the development of the industrial development area;
(c) to demarcate and develop sites for industrial, commercial and residential purposes according to the plan;
(d) to provide infra-structure for industrial, commercial and residential purposes;
(e) to provide amenities;
(f) to allocate arid transfer either by way of sale or lease or otherwise plots of land for industrial, commercial or residential purposes;
(g) to regulate the erection of buildings and setting up of industries; and
(h) to lay down the purpose for which a particular site or plot of land shall be used, namely, for industrial or commercial or residential purpose or any other specified purpose in such area.
6A. Power to authorize a person to provide infrastructure or amenities and collect tax or fee. - Notwithstanding anything to the contrary contained in any other provisions of this Act and subject to such terms and conditions as may be specified in the regulations, the Authority may, by agreement, authorize any person to provide or maintain or continue to provide or maintain any infrastructure or amenities under this Act and to collect taxes or fees, as the case may be, levied therefore."
(emphasis added)
13. Thereafter notifications under Sections 4 (1) and 6 (1) of Act, 1894 were issued on 18.07.2005 and 18.08.2005 and entire action of respondents is consistent with provisions of Act, 1976 read with Act, 1894.
14. State Government by letter dated 10.05.2005 made following queries from District Magistrate, Gautam Budh Nagar :
^^1- vk;qDr ,oa funs'kd ¼Hkw-v-½ Hkwfe v/;kfIr funs'kky;] jktLo ifj"kn m-iz- y[kuÅ ds i= fnukad 21-4-05 ds i`"Bkadu dh vis{kkuqlkj 10 izfr'kr vuqekfur izfrdj ,oa 10 izfr'kr vtZu O;; dh /kujkf'k fu/kkZfjr ys[kk 'kh"kZd dze'k% 8443&117 o 0029 esa tek djk dj pkyku dh izekf.kr izfr miyC/k djk;h tk;A 2- iz'uxr Hkwfe vtZu gsrq 10 izfr'kr vuqekfur izfrdj o 10 izf'kr vtZu O;; gsrq tek dh x;h /kujkf'k dk pkyku tks fu/kkZfjr ys[kk'kh"kZ ds ctk; vU; ys[kk'kh"kZd esa tek fd;k x;k gS] esa mfYyf[kr dqy /kujkf'k :0 1]72]86]742-00 gS] tc fd bl laca/k esa nksuksa xzkeksa ds ckjs esa fo'ks"k Hkwfe v/;kfIr vf/kdkjh ds izek.k i= o Hkwfe v/;kfIr eSuqvy ds iSjk&14 ds ifjf'k"V&2 ds vuqlkj dysDVj ds izek.k o vkns'k esa mfYyf[kr /kujkf'k dk ;ksx fHkUu gS rFkk xzke c<+iqjk ds izdj.k esa vtZu O;; o izfrdj dh /kujkf'k ds ;ksx esa Hkh =qfV gSA vr% bl laca/k esa mijksDr fcUnq la[;k&1 ds vuqlkj jktLo ifj"kn }kjk fu/kkZfjr ys[kk'kh"kZd esa /kukjkf'k tek fd;s tkus ddk pkyku miyC/k djkrs le; mDr =qfV dk Hkh fuokj.k fd;k tk;A 3- xzke c<+iqjk ds laca/k esa izi= la[;k&17 esa foKfIr ds vkys[; ¼fgUnh½ ds vuqlwph ds vUrxZr xkVk la[;k&24,e dk {ks=Qy 0-2125 vafdr gS] tcfd izi= la[;k&18 esa foKfIr ds vkys[; ¼vaxzsth½ ds vuqlwph esa ds xkVk la[;k&24,e- dk {ks=Qy 0-2185 vafdr gSA vr% mDr xkVk la[;k&24,e ds okLrfod {ks=Qy dk mYys[k djrs gq, la'kksf/kr o izekf.kr vuqlwph 'kklu dks miyC/k djk;h tk;A** "1. As required by way of the endorsement on the letter of the Commissioner and Director (Land Acquisition), Directorate of Land Acquisition, Revenue Board, Uttar Pradesh, Lucknow, a certified copy of the challan be made available by depositing the amount of 10 percent estimated compensation and 10 percent amount of acquisition cost under the prescribed account heads 8443-117 and 0029 respectively.
2. The total amount mentioned in the challan for the 10 percent estimated compensation and 10 percent acquisition cost for acquisition of the land in question comes to be Rs. 1,72,86,742.00, which has been deposited in another account head instead of the prescribed account head; whereas, the total of amounts mentioned in the certificate of Special Land Acquisition Officer for both the villages and in the certificate and order of the Collector according to Para 14 of Appendix-2 of Land Acquisition Manual is different; and there is also an error in the total of acquisition cost and compensation in case of Village Badpura. Hence, in this connection, while making available the challan for deposit of amount under the account head prescribed by the Revenue Board as per the aforesaid point no. 1, the said error may also be corrected.
3. In Form 17 related to Village Badpura, the area of Gata No. 24M is mentioned as 0.2125 in the schedule of the notification (Hindi draft) , whereas, the area of Gata No. 24M is mentioned as 0.2185 in the schedule of the notification (English draft) in Form 18. Hence, a revised certified schedule be made available to the government by mentioning actual area of the said Gata No. 24M."
(English translation by Court)
15. Reply by District Magistrate, Gautam Budh Nagar was given by letter dated 18.05.2005 stating that 10 per cent advance and 10 per cent land acquisition expenses which come to total Rs.29,81,727/- has been deposited in District Treasury in respect of land proposed to be acquired in village-Badpura and village-Dhoom Manikpur. There is some modification in the area of land, hence, demand has been forwarded for deposit of advance and land acquisition expenses. State Government again vide letter dated 26.05.2005 required District Magistrate to submit documents showing that the amount has been deposited.
16. A supplementary affidavit dated 31.08.2017 has been filed in reply to averments made by respondents that petitioners have accepted enhanced compensation under U. P. Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules, 1997 (hereinafter referred to as "Karaar Niyamawali, 1997"). It is stated that at the time of filing writ petition, petitioners have not entered into any agreement under Karaar Niyamawali, 1997 and also not accepted any amount towards compensation. However, during pendency of writ petition, petitioners have signed agreements. The explanation given is that petitioners are poor farmers, uneducated and ignorant of intricacies of legal documents; the agreement signed by them is not conscious and free will document and these agreements are invalid in the eyes of law as petitioners have signed them without understanding their rights etc. It is further stated that be that as it may, since, acquisition itself is bad in law, said agreement would be of no consequence and for this purpose reliance has been placed on Radheyshyam (Dead) through LRs and others vs. State of U.P. and others, (2011) 5 SCC 553; Greater NOIDA Industrial Development Authority vs. Devendra Kumar and others, 2011 (6) ADJ 480 (SC) and this Court's judgment in Pooran and others vs. State of U. P. and others, 2009 (10) ADJ 679. In para 8 it is said that petitioners-9, 10, 11, 12, 15, 33 and 35 have not accepted compensation till date. In para 9 it is said that 40 per cent of acquired land is still vacant.
17. Reply affidavit has been filed on behalf of respondent-5 stating that during pendency of writ petition, petitioners voluntarily and knowingly have accepted initial compensation of Rs.245/- per square yards and thereafter enhanced additional compensation of Rs.69/- per square yards. Thus, petitioners have received compensation at the rate of Rs.314/- per square yards without any demur and objection and also entered into an agreement under Karaar Niyamawali, 1997. Mere statement that agreements have been signed under pressure is not correct. In the receipts for payment of compensation, petitioners have undertaken that they have no objection to acquisition under consideration. Now the petitioners are barred from challenging acquisition at all. With regard to utilization of land, respondent-5, in paragraph 9 of reply affidavit, has given description of utilization of land as under :-
(i) Built up area = 122791.1 Sq. Yds.
(ii) Land for Green Belt = 150146.462 Sq. Yds.
(33 % as per norm of total land)
(i) Land set apart for Railway siding = 121055.725 sq. yds.
(ii) Truck Yard area = 60995.492 Sq. yds.
Total (38.0429 Hect.) 454989 Sq. Yds.
18. Facts stated above show that initially an agreement was entered into between NTPC and respondent-5 pursuant whereto respondent-5 had to establish an industrial unit in Tehsil-Dadri, District-Gautam Budh Nagar. It selected land in villages-Badpura and Dhoom Manikpur. Request was made to Collector to make available aforesaid land by acquisition. Recommendation was made by Collector for acquisition of land in favour of respondent-5 giving its reasons as we have already noticed, but in order to avoid procedure which was to be followed for acquisition of land for company, District Magistrate, Gautam Budh Nagar resorted to Government Order dated 03.02.2005 whereby UPSIDCL was made Nodal Body for acquiring land for companies and, therefore, colour was given to proposed acquisition proceedings as if land is being acquired for a Government company i.e. Instrumentality of State and not a private company. That is how procedure prescribed in Statute for acquisition of land for a private company was given a go bye.
19. Writ Petition No.15174 of 2012 (hereinafter referred to as "WP-2") has been filed by 25 petitioners challenging acquisition notification dated 18.07.2005 issued under Section 4 of Act, 1894 and notification dated 18.08.2005 issued under Section 6 of said Act. Disputed land of petitioners are detailed as under :
Sl. No. Plot Number Area (in hectare)
1. 731 0.6190
2. 763 0.1050
3. 778 0.5320
4. 781 0.2810
5. 791 0.5550
6. 792 0.4880
20. Aforesaid land is situated in village-Dhoom Manikpur, Pargana and Tehsil-Dadri, District-Gautam Budh Nagar. Challenge is on the ground that right of petitioner to file objections and hearing under Section 5 (A) of Act, 1894 has been dispensed with by invoking urgency Clause under Section 17 (4) of Act, 1894 illegally as there was no urgency whatsoever and land was acquired for fulfilling political obligations/promise of private persons/industries. In para 11 it is admitted that petitioners entered into agreements under Karaar Niyamawali, 1997 and accepted compensation. However, it is said that they had no option, since, respondents were in dominant position, hence, petitioners under compulsion entered into aforesaid agreement. Though various grounds are mentioned in writ petition, but learned counsel for petitioners has pressed his challenge to impugned notifications on the ground that land was acquired for a private company and the procedure laid down in Chapter VII read with Rules 1963 was not followed, which are mandatory.
21. We are not detailing the pleadings in counter and rejoinder affidavit, since, they are common as are involved in WP-I, which we have detailed hereinabove.
22. Writ Petition No.1873 of 2012 (hereinafter referred to as "WP-3") has been filed by 44 petitioners challenging notifications dated 18.07.2005 (Annexure-1 to writ petition) and 18.08.2005 (Annexure-2 to writ petition) and it is founded on similar grounds and facts as are stated in WP-2. However, land in dispute in this writ petition is detailed as under :
Land siutate in Village-Badpura, Pargana-Dadri, District-Gautam Budh Nagar Sl. No. Plot number Area (in hectare)
1. 10 N 0.2566
2. 16 0.5286
3. 17 0.5311
4.
30M 0.1320
5. 78M 0.4979
6. 84 0.4033
7. 85 0.1391 Land situate in Village-Dhoom Manikpur, Pargana-Dadri, District-Gautam Budh Nagar
8. 723 0.1500
9. 731 0.6190
10. 735 0.6010
11. 788 0.6790
12. 737 0.3980
13. 743 0.4680
14. 753 0.2530
15. 755 0.2350
16. 757 0.8530
17. 758 1.4830
18. 761 0.2120
19. 764 0.2130
20. 765 0.2120
21. 766 0.6725
22. 768 0.2630
23. Here also, in paragraph 11 it is admitted that petitioners have entered into agreement under Karaar Niyamawali, 1997 and have accepted compensation and explanation for the same is similar to that as given by petitioners in WP-2. Here also, we are not detailing the pleadings in counter and rejoinder affidavit, since, they are common as are involved in WP-I, which we have detailed hereinabove.
24. Writ Petition No.1877 of 2012 (hereinafter referred to as "WP-4") has been filed by 41 petitioners challenging notifications dated 18.07.2005 and it is founded on similar grounds and facts as are stated in WP-2. However, land in dispute in this writ petition is detailed as under :
Land siutate in Village-Dhoom Manikpur, Pargana-Dadri, District-Gautam Budh Nagar Sl. No. Plot number Area (in hectare)
1. 775 1.0010
2. 787 0.4570
3. 800 0.2540
4. 801 0.2810
5. 802 0.3020
6. 855 1.5380
7. 857 0.9440
8. 977 0.2160
9. 978 0.2910
10.
978G 0.3410
11. 978Gh 0.2020
12. 980 0.1360
13. 983 0.3110
14. 987 0.1680
25. Here also, in paragraph 11 it is admitted that petitioners have entered into agreement under Karaar Niyamawali, 1997 and have accepted compensation and explanation for the same is similar to that as given by petitioners in WP-2. Here also, we are not detailing the pleadings in counter and rejoinder affidavit, since, they are common as are involved in WP-I, which we have detailed hereinabove.
26. The issues which have arisen in these writ petitions are :-
1. Whether acquisition was for a private company so as to attract procedure laid down in Part VII of Act, 1894 read with Company Rules?
2.Whether procedure of acquisition adopted by respondents rendered the acquisition valid or not?
3. Whether petitioners deserve to be non suited on account of delay?
4. What relief, if any, petitioners are entitled?
27. In this backdrop we will have to examine first "whether acquisition of land ex facie is valid or not?"
28. The provisions of the Act, 1894 as it existed prior to the 1984 amendment need to be noticed. Section 3 of Act, 1894 is a definition clause which defines various expressions. Section 3(f) was amended in U.P. by U.P. Act No.22 of 1954 w.e.f. 19.11.1954. Prior to amendments of Section 3 (f) by Act.68 of 1984 provided that "public purpose" included provisions for or in connection with sanitary improvements of any kind, including reclamation; laying out of village sites, townships or the extension, planned development or improvement of existing village sites or townships; settlement of land for agriculture with the weaker section of people etc. Section 4 provided that whenever it appears to the appropriate Government that the land in any locality is needed for any public purpose a notification to that effect shall be published. Section 6 provided that subject to provisions of Part VII of the Act, when appropriate Government is satisfied after considering the report, if any, made under section 5-A, Sub-section (2), that any particular land is needed for any public purpose or for a company, a declaration shall be made to that effect. Section 17 provided that in case of urgency, whenever appropriate Government so directs, Collector, though no such award has been made, may, on the expiration of 15 days, from the publication of the notice mentioned in Sub-section (1) of section 9, take possession of any waste or arable land needed for public purposes or for a company. Section 39 provided that provisions of sections 6 to 37 shall not be put in force in order to acquire land for any company, unless the previous consent of the appropriate Government has been taken and unless the Company has executed the agreement.
29. Act, 1894 was amended by Act No.68 of 1984 (hereinafter referred to as "Amendment Act, 1984"). Amendment in Act, 1894 was necessitated for the object and purpose as specifically stated in the statements of object and reasons of Amendment Act, 1984. It is useful to quote the relevant portion of the statement of objects and reasons herein below:
"Prefatory Note- Statement of Objects and Reasons.- With the enormous expansion of the State's role in promoting public welfare and economic development since independence, acquisition of land for public purposes, industrialisation, building of institutions, etc., has become far more numerous than ever before. While this is inevitable, promotion of public purpose has to be balanced with the rights of the individual whose land is acquired, thereby often depriving him of his means of livelihood. Again, acquisition of land for private enterprises ought not to be placed on the same footing as acquisition for the State or for an enterprise under it. The individual and institutions who are unavoidably to be deprived of their property rights in land need to be adequately compensated for the loss keeping in view the sacrifice they have to make for the larger interests of the community. The pendency of acquisition proceedings for long periods often causes hardships to the affected parties and renders unrealistic the scale of compensation offered to them.
2. It is necessary, therefore, to restructure the legislative framework for acquisition of land so that it is more adequately informed by this objective of serving the interests of the community in harmony with the rights of the individual. Keeping the above objects in view and considering the recommendations of the Law Commission, the Land Acquisition Review Committee as well as the State Governments, institutions and individuals, proposals for amendment to the Land Acquisition Act, were formulated and a Bill for this purpose was introduced in the Lok Sabha on the 30th April, 1982. The same has not been passed by either House of Parliament. Since the introduction of the Bill, various other proposals for amendment of the Act have been received and they have also been considered in consultation with State Governments and other agencies. It is now proposed to include all these proposals in a fresh Bill after withdrawing the pending Bill. The main proposals for amendment are as follows:-
(i) The definition of "public purpose" as contained in the Act is proposed to be so amended as to include a longer illustrative list retaining, at the same time, the inclusive character of the definition.
(ii) Acquisition of land for non-Government companies under the Act will henceforth be made in pursuance of Part VII of the Act in all cases.
(iii) ..........."
The Legislature noticed that with the enormous expansion of the State's role in promoting public welfare and economic development acquisition of land for public purpose has become far more numerous than ever before, which is inevitable but the same is to be balanced with the rights of the individual whose land is acquired, thereby often depriving him of his means of livelihood. It was further stated that acquisition of land for private enterprises ought not to be placed on the same footing as acquisition for the State or for an enterprise under it. One of the main proposals for amendment as noticed in the statement of objects and reasons was ".. acquisition of land for non- Government companies under the Act will henceforth be made in pursuance of Part VII of the Act in all cases"."
(emphasis added)
30. Consequently, amendments were made in sections 3(f), 4,6,17 and 39. Following is the tabular chart of unamended and amended provisions of the above sections:
Before 1984 Amendment After 1984 amendment 3 (f) the expression "public purpose" includes the provision of village-sites in districts in which the appropriate Government shall have declared by notification in the Official Gazette that it is customary for the Government to make such provision; and 3 (f) the expression "public purpose" includes-
(i) the provision of village-sites, or the extension, planned development or improvement of existing village-sites;
(ii) the provision of land for town or rural planning;
(iii) the provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned;
(iv) the provision of land for a corporation owned or controlled by the State;
(v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;
(vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or with the prior approval of the appropriate Government, by a local authority, or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a state, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State;
(vii) the provision of land for any other scheme of development sponsored by Government or with the prior approval of the appropriate Government, by a local authority;
(viii) the provision of any premises or building for locating a public office, (but does not include acquisition of land for companies);
4 (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, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality.
4 (1) Whenever it appears to the appropriate Government the land in any locality [is needed or] is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette [and in two daily newspapers circulating in that locality of which at least one shall be in the regional language], and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality [(the last of the dates of such publication and the giving of such public notice , being hereinafter referred to as the date of the publication of the notification).
6. Declaration that land is required for a public purpose. - (1) Subject to the provision of Part VII of this Act, [when the [appropriate Government] is satisfied, after considering the report, if any, made under section 5A, sub-section (2)], that any particular land is needed for public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders, [and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (I) irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, sub-section (2)];
Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1), published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), shall be made after the expiry of three years from the date of such publication ;
Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.
(2) [Every declaration] shall be published in the Official Gazette, and shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and , where a plan shall have been made of the land, the place where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose of for a Company, as the case may be; and after making such declaration, the [appropriate Government] may acquire the land in manner hereinafter appearing.
6. Declaration that land is required for a public purpose. - (1) Subject to the provision of Part VII of this Act, [appropriate Government] is satisfied, after considering the report, if any, made under section 5A, sub-section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders [and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (I) irrespective of whether one report or different reports has or have been made (wherever required) under section 5A, sub-section (2);
Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section (1)-
(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), shall be made after the expiry of three years from the date of the publication of the notification; or
(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), shall be made after the expiry of one year from the date of the publication of the notification:
17. Special powers in cases of urgency. - (1) In cases of urgency, whenever the [appropriate Government], so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section 1), take possession of any waste or arable land needed for public purposes or for a Company. Such land shall thereupon [vest absolutely in the [Government], free from all encumbrances.
(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, the Collector may, immediately after the publication of the notice mentioned in the sub-section (1) and with the previous sanction of the [appropriate Government], enter upon and take possession of such land, which shall thereupon [vest absolutely in the [Government]], free from all encumbrances:
(3) In every case under either of the preceding sub-section the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.
[(4) In the case of any land to which, in the opinion of the [appropriate Government], the provisions of sub-section (1) or sub-section (2) are applicable, the [appropriate Government] may direct that the provisions of section 5A shall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at any time after the publication of the notification under section 4, sub-section (1)].
17. Special powers in case of urgency. - (1) In cases of urgency whenever the appropriate Government, so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section 1). [take possession of any waste or arable land needed for a public purpose]. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.
39. Previous consent of appropriate Government and execution of agreement necessary.- The provisions of sections 6 to 37 (both inclusive) and sections shall not be put in force in order to acquire land for any company, unless with the previous consent of the appropriate Government, nor unless the Company shall have executed the agreement hereinafter mentioned.
39. Previous consent of appropriate Government and execution of agreement necessary. - The provisions of sections 6 to 16 (both inclusive) and sections 18 to 37 (both inclusive)] shall not be put in force in order to acquire land for any company under this Part, unless with the previous consent of the appropriate Government, nor unless the Company shall have executed the agreement hereinafter mentioned.
31. Section 3 and Clause (e) and (f) is a definition clause and define 'Company' and "public purpose". Definition of "Company" is exhaustive but "public purpose" is an inclusive definition, which is expansive definition. However, an exclusionary definition have been added in section 3(f) by amendment "excluding acquisition of land for Companies". Section 3 (e) and (f) are reproduced as under :
"3.(e) the expression "Company" means-
(i) a company as defined in section 3 of the Companies Act, 1956 (1 of 1956), other than a Government company referred to in clause (cc);
(ii) a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, other than a society referred to in clause (cc);
(iii) a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State, other than a co-operative society referred to in clause (cc)."
"3.(f) the expression "public purpose" includes provision for or in connection with-
(i) sanitary improvements of any kind, including reclamation;
(ii) the laying out of village sites, townships or the extension, planned development or improvement of existing village-sites or townships;
(iii) the settlement of land for agriculture with the weaker section of the people; and
(iv) the provision of land for a corporation owned or controlled by the State;
(v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;
(vi) the provision of land for carrying out any educational, housing, health or slum clearance scheme sponsored by Government, or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government, by a local authority, or a society registered under the Societies Registration Act, 1860 (21 of 1860), or under any corresponding law for the time being in force in a State, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State;
(vii) the provision of land for any other scheme of development sponsored by Government or, with the prior approval of the appropriate Government, by a local authority;
(viii) the provision of any premises or building for locating a public office,but does not include acquisition of land for companies."
(As amended in U.P.)
32. Section 4 of Act 1894, permits acquisition of land under Part II if land is required for any 'public purpose' or for a 'company'. It reads as under :
"4. Publication of preliminary notification and power of officers thereupon. -(1) Whenever it appears to the appropriate Government or Collector the land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and, except in the case of any land to which by virtue of a direction of the State Government under sub-section (4) of Section 17, the provisions of Section 5-A shall not apply, the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification.
Explanation.-In respect of any land in a regulated area as defined in the Uttar Pradesh (Regulation of Building Operations) Act, 1958, a notification under this sub-section may be issued in anticipation of the preparation and finalisation of a scheme for the planned development of the area in which the land is situated and notwithstanding anything contained in section 5-A, it shall be sufficient to specify in such notification that the land is needed or is likely to be needed for the planned development of that area without further specification of the particulars of the proposed development.
(2) Thereupon it shall be lawful for any officer, either generally or specially authorized by such Government or Collector in this behalf, and for his servants and workmen,-
to enter upon and survey and take levels of any land in such locality;
to dig or bore into the sub-soil;
to do all other acts necessary to ascertain whether the land is adapted for such purpose;
to set out the boundaries of the land proposed to be taken and the intended line of the work, if any, proposed to be made thereon;
to mark such levels, boundaries and line by placing marks and cutting trenches; and, where otherwise the survey cannot be completed and the levels taken and the boundaries and line marked, to cut down and clear away any part of any standing crop, fence or jungle;
Provided that no person shall enter into any building or upon any enclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without previously giving such occupier at least seven days' notice in writing of his intention to do so."
(As amended in U. P.)
33. The acquisition of land under Act, 1894 is contemplated for 'public purpose' and for 'companies'. For companies also acquisition is permissible for public good on the grounds which are also for public benefit as mentioned in section 40 of Act, 1894. Amendment in section 4 of Act, 1894 was made by adding after the words " any public purpose, the words " or for a company". Section 4 prior to amendment, had only used the expression "for any public purpose". There was reason and rational for using expression "for any public purpose" only. The rational was that all acquisitions were contemplated for public purpose and acquisition for company was also for limited public purposes permitted for acquisition for company. Sections 5, 5-A and 6 of Act, 1894 are in respect of payment for damage, hearing of objections and declaration that land is required for public purpose respectively and read as under :
"5. Payment for damage.-The officer so authorized shall at the time of such entry pay or tender payment for all necessary damage to be done as aforesaid, and in case of dispute as to the sufficiency of the amount to paid or tendered, he shall at once refer the dispute to the decision of the Collector or other Chief Revenue Officer of the District, and such decision shall be final."
"5-A. Hearing of objections.-(1) Any person interested in any land which has been notified under Section 4, sub-section(1), as being needed or likely to be needed for a public purpose or for a company may, within twenty one days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under section 4, sub-section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final.
(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act."
"6. Declaration that land is required for a public purpose.-(1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under section 5-A, sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section (1), irrespective of whether one report or different reports has or have been made wherever required under section 5-A, sub-section (2):
Provided that no declaration in respect of any particular land covered by a notification under section 4, sub-section(1),-
(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of three years from the date of the publication of the notification; or
(ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification:
Provided further in computing the period of three years referred to in the preceding proviso, the time during which the State Government was prevented by or in consequence of any order of any Court from making such declaration shall be executed.
Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.
(2) Every declaration shall be published in the Official Gazette, and in two daily newspapers circulated in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality, the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration, and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, where a plan shall have been made of the land, the place where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the land is needed for a public purpose or for a company, as the case may be; and, after making such declaration the appropriate Government may acquire the alnd in a manner hereinafter appearing."
(As amended in U.P.)
34. Supreme Court had laid down, while interpreting the provisions of Act, 1894 prior to the Amendment Act 1984, that acquisition for a company is also an acquisition for a limited public purpose in (1993) 4 SCC 255 Shyam Nandan Prasad and Others Vs. State of Bihar & others and in paragraph 21, it is said:
"21. Now here the distinction is made between a public purpose and a purpose for the company. The acquisition of land for a company is in substance for a public purpose as all those activities mentioned in Section 40 such as constructing dwelling houses and providing amenities for the benefits of workmen employed by it and construction of some work for public utility etc. serve the public purpose. The acquisition for the company and the purpose for it, can well be investigated under Section 5-A or Section 40, necessarily after the notification under Section 4. Reference may usefully be made to Babu Barkya Thakur v. State of Bombay (now Maharashtra), AIR 1960 SC 1203. It was the conceded case before the High Court that there could be no acquisition for the respondent-Society without provisions of Sec. 40 of the Act being involved and complied with. In Babu Barkya's case supra too, this Court has taken the view that as provided in Section 39, the machinery of the Land Acquisition Act beginning with Section 6 and ending with Sec. 37 shall not be put into operation unless two conditions precedent are fulfilled, namely, (i) the previous consent of the appropriate Government has been obtained and (ii) an agreement in terms of Section 41 has been executed by the Company. Such consent could be given if it was satisfied on the report of the enquiry envisaged by Section 5-A(2) or enquiry held under Section 40 itself that the purpose of the acquisition is for purposes as envisaged in Section 40. In this state of law, the plea set up on behalf of the appellants that when their Society could not be treated either as a private or a Government company, was no company at all so as to remain bound to comply with Chapter VII of the Act, is of no substance. The Society as a company is bound to satisfy the requirements of Section 40 before taking aid of Sections 6 to 37 of the Act to promote its needed acquisition." (emphasis added)
35. Thus, section 4 before amendment used expression "for any public purpose" only whereas in section 6 both the expressions "for public purpose" or "for company" were used. The amendments made by Amendment Act, 1984 clearly separated the acquisition "for public purpose" and acquisition "for company" from the stage of issue of notification under Section 4 itself.
36. For acquisition for a company, compliance of part VII as well as compliance of Land Acquisition (Companies) Rules, 1963 (hereinafter referred to as "Rules, 1963") was made necessary.
37. Part VII deals with acquisition of land for companies. Section 39 provides for previous consent of appropriate government and execution of agreement mandatory. It reads as under :
"39. Previous consent of appropriate Government and execution of agreement necessary.-The provisions of sections 6 to 16 (both inclusive) and sections 18 to 37 (both inclusive) shall not be put in force in order to acquire land for any company, under this part, unless with the previous consent of the appropriate Government, nor unless the company shall have executed the agreement hereinafter mentioned."
(emphasis added)
38. Consent contemplated by Section 39 is restricted by Section 40 and it is said that such consent shall not be given unless appropriate government is satisfied of certain aspects, Section 40, therefore, is reproduced hereinunder :
"40. Previous enquiry.-(1) Such consent shall not be given, unless the appropriate Government be satisfied, either on the report of the Collector under section 5-A, sub-section (2), or by an enquiry held as hereinafter provided,-
(a) that the purpose of the acquisition is to obtain land for the erection of dwelling-houses for workmen employed by the company or for the provision of amenities directly connected therewith, or (aa) that such acquisition is needed for the construction of some building or work for a company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, or
(b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public.
(2) Such enquiry shall be held by such officer and at such time and place as the appropriate Government shall appoint.
(3) Such officer may summon and enforce the attendance of witnesses and compel the production of documents by the same means and, as far as possible, in the same manner as is provided by the Code of Civil Procedure, 1908 (5 of 1908) in the case of a Civil Court."
(emphasis added)
39. Section 41 talks of agreement which is to be entered into with appropriate government and it reads as under :
"41. Agreement with appropriate Government-If the appropriate Government is satisfied after considering the report, if any, of the Collector under Section 5-A, sub-section (2), or on the report of the officer making an inquiry under section 40 that the proposed acquisition is for any of the purposes referred to in clause (a) or clause (aa) or clause (b) of sub-section (1) of section 40, it shall require the company to enter into an agreement with the appropriate Government, providing to the satisfaction of the appropriate Government for the following matter, namely :-
(1) the payment to the appropriate Government of the cost of the acquisition;
(2) the transfer, on such payment, of the land to the Company;
(3) the term on which the land shall be held by the Company;
(4) where the acquisition is for the purpose of erecting dwelling-houses or the provision of amenities connected therewith, the time within which, the dwelling-houses or amenities shall be erected or provided;
(4-A) where the acquisition is for the construction of any building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, the time within which, and the conditions on which, the building or work shall be constructed or executed; and (5) where the acquisition is for the construction of any other work, the time within which and the conditions on which the work shall be executed and maintained and the terms on which the public shall be entitled to use the work.
(emphasis added)
40. Section 42 requires publication of agreement. Section 43 talks of certain cases where Sections 39 to 42 with regard to agreement will not apply and it reads as under :
"43. Section 39 to 42 not to apply where Government bound by agreement to provide land for companies.-The provisions of sections 39 to 42, both inclusive, shall not apply and the corresponding sections of the Land Acquisition Act, 1870 (10 of 1870), shall be deemed never to have applied, to the acquisition of land for any Railway or other company, for the purposes of which, under any agreement with such company, the Secretary of State for India in Council, the Secretary of State, the Central Government or any State Government is or was bound to provide land."
41. Section 44A places certain restrictions on acquisition of land for private companies, other than government companies, and reads as under :
"44A. Restriction on transfer, etc. No Company for which any land is acquired under this Part shall be entitled to transfer the said land or any part thereof by sale, mortgage, gift, lease or otherwise except with the previous sanction of the appropriate Government."
42. Section 55 of Act, 1894 confers power upon appropriate government to make Rules and reads as under :
"55. Power to make rules.-(1) The appropriate Government shall have power to make rules consistent with this Act for the guidance of officers in all matters connected with its enforcement, and may from time to time alter and add to the rules so made:
Provided that the power to make rules for carrying out the purposes of Part VII of this Act shall be exercisable by the Central Government and such rules may be made for the guidance of the State Governments and the officers of the Central Government and of the State Governments:
Provided further that every such rule made by the Central Government shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule:
Provided also that every such rule made by the State Government shall be laid, as soon as may be after it is made, before the State Legislature.
(2) The power to make, alter and add to rules under sub-section (1) shall be subject to the conditions of the rules being made, altered or added to after previous publication.
(3) All such rules, alterations and additions shall be published in the Official Gazette, and shall thereupon have the force of law."
43. In view of proviso to Section 55 (1) of Act, 1894, Central Government has framed Rules, 1963. Rule 3 thereof talks of Land Acquisition Committee (hereinafter referred to as "Committee") to be constituted by "appropriate government" by notification in Official Gazette and constitution of Committee described under Rules 3 (2) of Rules, 1963 and it reads as under :
"3(2) the Committee shall consist of-
(i) the Secretaries to the Government of the Departments of Revenue, Agriculture and Industries or such other officers of each of the said Departments as the appropriate Government may appoint.
(ii) such other members as the appropriate Government may appoint for such term as that Government may, by order, specify, and
(iii) the Secretary to the Department or any officer nominated by him dealing with the purposes for which the company proposes to acquire the land."
44. Rule 4 provides the manner in which appropriate government is to be satisfied before initiating acquisition proceedings and reads as under :
"4. Appropriate Government to be satisfied with regard to certain matters before initiating acquisition proceedings.-(1) Whenever a company makes an application to the appropriate Government for acquisition of any land that Government shall direct the Collector to submit a report to it on the following matters, namely :--
(i) that the company has made its best endeavour to find out lands in the locality suitable for the purpose of the acquisition;
(ii) that the company has made all reasonable efforts to get such lands by negotiation with the persons interested therein on payment of reasonable price and such efforts have failed;
(iii) that the land proposed to be acquired is suitable for the purpose;
(iv) that the area of land proposed to be acquired is not excessive;
(v) that the company is in a position to utilise the land expeditiously; and
(vi) where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land.
(2) The Collector shall, after giving the company a reasonable opportunity, to make any representation in this behalf, hold an enquiry into the matters referred to in sub-rule (1) and while holding such enquiry he shall :--
(i) in any case where the land proposed to be acquired is agricultural land, consult the Senior Agricultural Officer of the District whether or not such land is good agriculture land;
(ii) determine, having regard to the provisions of Sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land, which, in the opinion of the Collector, should be acquired for the company; and
(iii) ascertain whether the company offered a reasonable price (not being less than the compensation so determined), to the persons interested in the land proposed to be acquired.
Explanation.--For the purpose of this rule "good agricultural land" means any land which, considering the level of agricultural production and the crop pattern of the area in which it is situated, is of average or above average productivity and includes a garden or grove land.
(3) As soon as may be after holding the enquiry under sub-rule (2), the Collector shall submit a report to the appropriate Government and a copy of the same be forwarded by that Government to the Committee.
(4) No declaration shall be made by the appropriate Government under Section 6 of the Act unless--
(i) the appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if any, submitted under section 5-A of the Act; and
(ii) the agreement under section 41 of the Act has been executed by the company."
(emphasis added)
45. Rule 5 provides the matter to be provided in the agreement under Section 41 of Act, 1894 and reads as under :
"5. Matters to be provided in the agreement under Section 41.- (1) The terms of the agreement referred to in section 41 of the Act shall include the following matters, namely :-
(i) that the company shall not, except with the previous sanction of the appropriate Government, use the land for any purpose other than that for which it is acquired;
(ii) that the time within which the dwelling houses or amenities directly connected therewith shall be erected of provided or the building or work shall be constructed or executed shall not exceed three years from the date of transfer of the land to the company;
(iii) that where the appropriate Government is satisfied after such enquiry as it may deem necessary that the Company was prevented by reasons beyond its control from erecting, providing, constructing or executing dwelling houses or amenities or any building or work within the time specified in the agreement, the appropriate Government may extend the time of that purpose by a period not exceeding one year at a time so however that the total period of extension shall not exceed three years.
(iv) that if the company commits a breach of the conditions provided for in the agreement, the appropriate Government may make an order declaring the transfer of the land to the company as null and void whereupon the land shall revert back to the appropriate Government and directing that an amount not exceeding one-fourth of the amount paid by the company to the appropriate Government as the cost of acquisition under clause (1) of Section 41 of the Act shall be forfeited to the appropriate government as damages and the balance shall be refunded to the company, and the order so made shall be final and binding.
(v) that if the company utilises only a portion of the land for the purpose for which it was acquired and the appropriate Government is satisfied that the company can continue to utilise the portion of the land used by it even if the unutilised part thereof is resumed, the appropriate Government may make an order declaring the transfer of the land with respect of the unutilised portion thereof as null and void whereupon such unutilized portion shall revert back to the appropriate Government and directing that an amount not exceeding one-fourth of such portion of the amount paid by the company as cost of acquisition under clause (1) of Section 41 of the Act as is relatable to the unutilized portion shall be forfeited to the appropriate Government as damages and that balance of that portion shall be refunded to the company and that order so made shall, subject to the provisions of clause (vi), be final and binding.
(vi) that where there is any dispute with regard to the amount relatable to the unutilized portion of the land, such dispute shall be referred to the court within whose jurisdiction the land or any part thereof is situated and the decision of that court thereon shall be final.
(2) Where the company commits a breach of any of the terms of the agreement, the appropriate Government shall not make an order under clause(vi) or clause(v) of sub-rule (1), unless the company has been given opportunity of being heard in the matter.
(3) The appropriate Government shall consult the Committee before according any sanction under clause (i) of sub-rule (i) or extending the time under clause(iii) or making any order under clause(iv) or clause (v) of that sub-rule."
46. Rule 6 provides certain additional matters and reads as under :
"6. Additional matters which may be provided in the Agreement under Section 41-(1) Without prejudice to the provisions of Rule 5, the terms of agreement referred to in section 41 of the Act may also include the following matters, namely ; that, before an award has been made under Section 11 of the Act, the company shall deposit with the Collector, free of interest, such amount being not more than two-thirds of the approximate amount of compensation payable in respect of the land as determined under clause (ii ) of sub-rule (2) of Rule 4, and within such time as the Collector thinks fit, to specify in this behalf.
(2) Where any amount has been deposited with the Collector under sub-rule (1), the Collector shall tender payment of the amount so deposited to the persons interested who, in the opinion of the Collector, are entitled to receive payment of compensation under sub-section (1) of section 31 of the Act and shall pay it to them, unless prevented by some one or more of the contingencies mentioned in sub-section (2) of Section 31 of the Act, subject to the following conditions, namely :--
(i) the execution of an agreement by each recipient that the amount received by him would be adjusted against the compensation finally awarded and that where the amount received by him exceeds the amount of the compensation finally awarded, the excess amount shall be recoverable from him as an arrears of land revenue and that he shall not claim any interest under the provisions of the Act in respect of the amount received by him under this sub-rule; and (ii ) the execution of a bond by each recipient with or without security as the Collector may decide undertaking to indemnify the appropriate Government against any claim for compensation or payment thereof by any other person.
(3) If the amount deposited by the company under sub-rule (1) or any part thereof is not paid under sub-rule (2) the Collector shall, as soon as practicable, refund the same to the company."
47. Rule 9 makes special provision in relation to a company and reads as under :
"9. Special provision in relation to a company.-Where an application is made to the appropriate Government for acquisition of any land by a company, other than a company owned or controlled by the Central Government or any State Government, such acquisition shall ordinarily be made in accordance with the provisions of Part VII of the Act.
(2) Where the land is proposed to be acquired for a company, other than company owned or controlled by the Central Government, the special power conferred on the appropriate Government under Section 17 of the Act shall not be exercisable unless it is satisfied that it is necessary to do so in public interest."
(emphasis added)
48. We may now examine the purpose of inquiry under Rules, 1963 and Part VII.
49. The State having itself undertaken numerous welfare activities, acquisitions for public purpose by State are increasing day by day. The land available specially for agricultural, is limited, more strict inquiry and rigorous procedure has been envisaged and contemplated by 1984 Amendment. At this juncture, it is necessary to refer to Rules 4 and 5 of the Land Acquisition (Companies) Rules, 1963. Various requirements of Rule 4 indicate that normally, request of the company for acquisition is not to be accepted unless it has made best endeavour to find out the land, and made all reasonable efforts to get such lands by negotiation on payment of reasonable price; area of land proposed to be acquired is not excessive; and, if the land proposed to be acquired is a good agricultural land, no alternative suitable site is to be found. The inquiry under Rule 4 of Rules, 1963 is envisaged with the object that no agricultural land be acquired, if any suitable site can be found. The obligation to find suitable site has been placed on the Government which shall obtain a report from Collector on the above mentioned issues.
50. Another noticeable change which has been brought by Amendment Act, 1984 is the amendment in section 17. In unamended Section 17 in cases of urgency whenever appropriate Government so directs, Collector could have taken possession of any land needed for public purpose or for a company. After amendment, in Section 17, the words "or for a Company" have been deleted. Thus, for an acquisition for a company, Section 17 is no more available. Legislative intent is that for acquisition for 'company', urgency clause is not to be invoked. Legislature thus, does not treat acquisition for a company as an urgent acquisition. Statement of objects and reasons give clear Legislative intendment for interpreting amendments brought in sections 3(f), 4, 6 and 17.
51. The amendments in section 39 also re-enforces Legislative intendment that in an acquisition for a company section 17 is not available. Earlier Section 39 provided that provisions of sections 6 to 37 shall not be put in force in order to acquire the land for any company unless previous consent of appropriate Government is obtained and an agreement is executed. Section 17 was included in section 39. Thus, before amendment section 17 was permissible to be used, after previous consent of Government is obtained, and an agreement is executed, but, deletion of section 17 from section 39 makes the intention clear that Section 17 is not available for acquisition for a company.
52. In 1973 A.I.R. S.C. 1016 Commissioner of Income Tax Gujrat V. Vadilal Lallubhai etc. Court laid down that in order to find out the legislative intent, it has to be find out what was the mischief that legislature wanted to remedy.
53. From the statement of object of Amendment Act, 1984 and the amendment brought in Act, 1894, it is apparent that legislature intended that acquisition for a company be no longer treated as acquisition for public purpose. For acquisition for a company more strict scrutiny and compliance of the Rules, 1963 and Part VII of Act, 1894 was made mandatory with clear intendment that acquisition for a company be not treated as acquisition for public purpose and land be acquired for company only when mandatory requirement of Part VII of Act, 1894 and Rules, 1963 are complied with. Due to above reason, Section 17 of Act, 1894 was made inapplicable for acquisition for companies as noted above.
54. Section 3(f) uses exclusionary clause in negative words. Negative words used in section 3(f) are clearly prohibitory and in no case, acquisition for a company has to be treated as an acquisition for public propose for purpose of Sections, 4,6 and 17. In (1997) 2 SCC 424 Mannalal Khetan & others Vs. Kedar Nath Khetan, Court laid down that when Statute prohibits acquisition for company to be treated as acquisition for public purpose, the same cannot be done indirectly.
55. Another authority relevant to be noticed for interpreting exclusionary clause is (2006) 6 SCC 530 Falcon Tyres Ltd.,M/s Vs. State of Karnataka. Therein agricultural produce was defined in section 2A(1) of Entry Tax Act. There was exclusionary definition in the definition clause. In second schedule Sub-section (3) of Section 6 provided that no tax shall be levied under the Act on the goods specified in second Schedule or its entry into a local area. Serial No. 2 of the second schedule specifies Agriculture produce including tea, coffee and cotton (whether ginned or unginned) as exempt from the entry tax. The argument was raised that tea and coffee is to be included in the agricultural produce by virtue of second schedule. Rejecting the submissions, in paragraphs 10 and 13, Court held :
"10. We do not find any substance in the submission of the learned counsel for the appellant that the semicolon after the word cotton does not mean that the first part of the Section is disjunctive from 'such produce' as has been subjected to any physical, chemical or other process. Section 2 (A) (1) is in two parts, it excludes two types of food from agricultural produce. According to us, the definition of the agriculture and horticulture produce does not say as to what would be included in the agriculture or horticulture produce, in substance it includes all agriculture or horticulture produce but excludes, (1) tea, coffee, rubber, cashew, cardamom, pepper and cotton from the definition of the agriculture or horticulture produce though all these products as per dictionary meaning or in common parlance would be understood as agricultural produce and (2) "such produce as has been subject to any physical, chemical or other process for being made fit for consumption", meaning thereby that the agricultural produce other than what has been excluded, which has been subjected to any physical, chemical or other process for making it fit for consumption would also be excluded from the definition of the agriculture or horticulture produce except where such agricultural produce is merely cleaned, graded, sorted or dried. This is an exception created by the legislature. If the legislature intended to create exception for rubber also it could have done it but it chose not to do it. Simply because the legislature has included tea, coffee and cotton in the Second Schedule exempting it from payment of Entry Tax does not mean that all other agricultural produce items which have been excluded from the definition of the agricultural produce would stand included in the Second Schedule to the Act exempting them from payment of Entry Tax. This would be doing violation to the Act as well as acting contrary to the intent of the legislature."
(emphasis added)
56. The above view of ours finds full support from Division Bench judgment of Madhya Pradesh High Court in Chaitram Verma and others vs. Land Acquisition Officer, Raipur and others reported in A.I.R. 1994 Madhya Pradesh 74. In above case Section 4 notification was issued for acquisition of land for "public purpose". The respondent-4 therein a company, made an application for making available land for construction of railway siding. Application of Section 17(1) was approved by Commissioner. The submission before High Court by land owners was to the effect that acquisition of their land is in colourable exercise of power under Act, 1894, inasmuch as, though the land is needed for respondent No.4 (a public limited company), notification under Section 4(1) and declaration under Section 6 of the Act mention the acquisition for public purpose with a view to avoid application of Chapter VII of the Act and to deny statutory benefits to the petitioners. Division Bench noticed the amendments made by Act No.68 of 1984 in Section 3 and said in paragraphs 11 and 12 of judgment as follows :-
11. ........... The last part of the definition i.e. "it does not include acquisition of land for Companies" is important and brings out the obvious fact that even though a "public purpose" may be served by acquiring land for companies, the expression "public purpose" as used in the Act does not include such acquisition. It is true that the definition is inclusive and therefore, it is possible to hold that it includes many other purposes, which would otherwise not be included within it. But the use of exclusionary sentence as the end would make the difference and indicate that except for acquisitions for companies which cannot be treated as acquisition for public purpose, all other purposes are included within it. It is, therefore, a case where the definition is both inclusive and exclusive, the exclusion being of a limited nature suggesting that other categories of acquisitions which are not excluded fall within the inclusive definition. This method in relation to a definition clause is not natural and had received attention of the Supreme Court in Purshottam H. Judye v. V. B. Potdar, AIR 1966 SC 856 and Commr. of Income-tax, Gujarat v. Vidilal Lallubhai, AIR 1973 SC 1016. Under the circumstances whatever may be extent of purpose included within the definition of "public purpose", acquisition for company is excluded from it. Clearly therefore, an acquisition for a company is to be distinguished from acquisition for a public purpose, and an acquisition for a company even though serving public purpose, cannot, in the context of S. 3(i) of the Act, be accepted as an application for a public purpose.
12. Legal position was different before the amendment of the definition in 1984 by Act No. 68 of 1984. The definition of "public purpose" in S. 3(f) of the Act before this amendment did not have any exclusionary clause and was inclusive. Similarly, S. 4(1) of the Act permitted issue of notification only for a "public purpose". It was therefore possible to then submit that if 'public purpose' is served by a company, there would be no illegality in the acquisition for a company on the basis of notification, mentioning acquisition for a public purpose. In this connection the decision of the Supreme Court in Barkya Thakur v. State of Bombay, AIR 1960 SC 1203, may be profitably read. The law declared by this decision has, however, become irrelevant because of the amendment not only of the definition of 'public purpose' in Section 3(f) but also Section 4(1) of the Act. Under the circumstances, the submission that the public purpose being served by the respondent No. 4, notification mentioning acquisition as for public purpose is legal, cannot be accepted."
(emphasis added)
57. Division Bench further held that provisions of Section 17(1) were not attracted in such acquisition. In the said case an agreement was also entered under Section 41 of Act, 1894 even before issuance of notification under Section 4. Court held that since authorities issuing notification under Section 4 knew about agreement under Section 41, therefore, acquisition mentioning "for public purpose" was held to be in colourable exercise of power. Court further held that Section 17 was inapplicable in such acquisition. It also held that there was no justification for invoking urgency clause under Section 17(1) even if Section 17(4) was applicable.
58. Learned Senior Advocate, appearing for respondent-4 submits that exclusionary clause in section 3(f) is not absolute. Elaborating this submission, he contends that in following three situations exclusionary clause should not be taken to be applicable:-
(i) A situation where the acquisition for the company comes in the main part of the definition of section 3(f).
(ii) If acquisition comes within a express provision excluding applicability of part VII of the Act.
(iii) Acquisition for a company in which public fund is infused by the Government. Reliance has been placed on second proviso to section 6 of the Act.
59. Thus, first situation where exclusionary clause shall not be applicable, as per learned counsel for respondents, is when purpose of the company is covered in the main definition of 'public purpose' given under section 3(f). The arguments is to be tested by referring to various express public purpose mentioned in section 3(f). Much emphasis has been laid down by learned counsel for respondents on aforesaid.
60. The public purpose as envisaged in clause (vi) is for carrying out any educational, housing, health or slum clearance scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or, with the prior approval of the appropriate Government. However, the carrying out of above scheme is contemplated only by following:
(a) A local Authority
(b) A society registered under the Societies Registration Act, 1860
(c) A Cooperative Society within the meaning of any law relating to cooperative Society.
61. Confining the carrying out of scheme by above three categories clearly indicates that a 'company' is excluded even for carrying out such a scheme.
62. It is relevant to note the expression 'companies' has been defined in section 3(e). It begins with "...unless there is something repugnant in the subject or context ..." Thus, the expression "Company" wherever used in Act, 1894 shall have the meaning as given in section 3(e) unless there is something repugnant in the subject or context. In clause 3(f) (vi) when a 'registered society' and 'cooperative society' has been specifically included for carrying out such scheme, the exclusion of registered company under the Act, 1956 is for purpose and object. Section 3(f) (vi) thus, clearly contemplates that educational, housing, health or slum clearance scheme, although is a public purpose while carrying out any scheme sponsored by Government or any authority, but a registered company is excluded from said clause which has purpose and object. For this purpose, we may also look to Clause (vii) of Section 3(f). Clause (vii) provides that public purpose includes the provisions of land for any other scheme or development sponsored by Government or with the prior approval of the Government by a local authority. In a case where project has been sponsored by Government or by any local authority with the prior approval of Government, the position would be different. In any view of the matter the exclusionary clause shall take out acquisition for a company from a public purpose acquisition. The submission that acquisition for a public purpose, if it is covered by main definition of section 3(f), exclusionary clause excluding the acquisition of land for company shall not apply, cannot be accepted.
63. According to respondents, the second category which shall not be covered by exclusionary clause is the category which is expressly excluded from part VII. Learned Counsel has referred to section 44-B particularly. The submission that respondent-5 is a private company, the said private Company is expressly excluded by virtue of section 44-B hence acquisition for such company has necessarily to be made under part II. It is relevant to have a look at section 44-B of Act, 1894 which is quoted as below:
" Land not to be acquired under this Part except for certain purpose for private companies other than Government companies.
44B. Notwithstanding anything contained in this Act, no land shall be acquired under this Part, except for the purpose mentioned in clause (a) of sub-section (1) of section 40, for a private company which is not a Government company.
Explanation: "Private company" and "Government company" shall have the meanings respectively assigned to them in the Companies Act, 1956 (1 of 1956)."
64. The submission of respondent No.2 is that for an acquisition for a private company for the purpose other than those mentioned in clause (a) of Sub-section (1) of Section 40 exclusionary clause shall not be applicable. Section 44-B and exclusionary clause contained in Section 3(f) are in consonance with each other. Section 44-B begins with the word "Notwithstanding anything contained in this Act". Thus, section 44B is couched in a negative prohibitory term. Section 44B provides that "...no land shall be acquired under this Part except for the purpose mentioned in clause (a) of Sub-section (1) of Section 40, for a private company.." Acquisition for a private company for purposes other than those mentioned in section 40(1)(a) is impermissible. Section 44B was added by Act No. 31 of 1962. The object clearly was to close door for private company praying for acquisition of land from the Government exercising its power of eminent domain for any purpose other than acquisition of land for erection of dwelling house for workmen employed by the company or for the provision of amenities directly connected therewith. The object and purpose of section 44B is clear and loud. Supreme Court had occasion to consider section 44B in AIR 1964 S.C. 1230 R.L. Arora Vs. State of U.P. & others. Therein amendments made in sections 40 and 41 of the Act by Act No. 31 of 1962 were under challenge. In the above context, a submission was made before the Apex Court that there is a discrimination between the 'public company' and 'private company'. It was contended that acquisition for a private company can be made only for the purpose as mentioned in section 40 (1)(a) whereas acquisition can be made for other company for purpose as mentioned in clause (aa) as inserted under section 40(1) by Amendment Act. Repealling the submissions, Court held that acquisition between a public company/Government company on one hand and a private company on the other hand has a reasonable nexus with the object sought to be achieved. It was held that intention of the Legislature is clear that private individual and private company could not have advantage of acquiring the land even though they may be intending to engage in some industry or work which may have a public purpose. Following was laid down in paragraph 17.
" 17. .......It is true that acquisition for the purpose of cl. (aa) can only be made for a Government company or a public company and cannot be made for a private company or an individual; but there is in our opinion a clear classification between a public company and a Government company on the one hand and a private company and an individual on the other, which has reasonable nexus with the objects to be achieved under the law. The intention of the legislature clearly is that private individuals and private companies which really consist of a few private individuals banded together should not have the advantage of acquiring land even though they may be intending to engage in some industry or work which may be for a public purpose inasmuch the enrichment consequent on such work goes to private individuals or to a group of them who have formed themselves into a private company. Public companies on the other hand are broad based and Government companies are really in a sense no different from Government, though for convenience of administration a Government company may be formed, which thus becomes a separate legal entity. Thus in one case the acquisition results in private enrichment while in the other it is the public which gains in every way. Therefore a distinction in the matter of acquisition of land between public companies and Government companies on the one hand and private individuals and private companies on the other is in our opinion justified, considering the object behind cl. (aa) as introduced into the Act. The contention under this head must therefore also fail."
(emphasis added)
65. From above, it is clear that both the submissions i.e. firstly exclusionary clause in Section 3(f) shall not be attracted for those acquisition which are expressly excluded from part VII and secondly for a private company acquisition can be made for a public purpose disregarding the provisions of part VII, have to be rejected. We are of the clear view that in view of Section 44B, no acquisition for private company can be made for any purpose other than those mentioned in section 40(1)(a) i.e. for the erection of dwelling house for workmen employed by the company or for the provision of amenities directly connected therewith.
66. It is not disputed before us that Rule 4 of Rules, 1963 is mandatory and its compliance is also mandatory. Learned counsel for petitioners further contended that fact of this case are similar as were involved in Division Bench judgment of this Court in Pooran and others vs State of U.P. (supra). But, we find that there is a distinction between said judgment and facts of present case. The proposition of law with respect to applicability of Part VII is clear as we have already discussed in detail but 'when it will be applicable' and "whether facts of present case would attract the same or not", is the moot question.
67. In Pooran and others vs State of U.P. (supra) facts as emerge from judgment are as under :
(A) an application dated 19.1.2004 was submitted by Reliance Delhi Power Private Ltd. to Collector Ghaziabad as well as to Chief Secretary of the State of U.P. The Collector proceeded to inquire the proposal submitted by respondent no. 2. The proposal was submitted by respondent No. 2 with deposit of 10% of acquisition costs and 10% of estimated compensation (amount of Rs. 16 Crores). Acquisition proceedings were not initiated pursuant to any decision of State Government or any of it's Department.
(B) land measuring 2500 acres was identified and selected by Reliance Delhi Power Pvt. Ltd. and in the application submitted to the Collector, Ghaziabad, the name of seven villages were mentioned by company. The site was neither selected by the State Government or any of it's Departments or by Collector, Ghaziabad for acquisition.
(C) Collector Ghaziabad after conducting necessary inquiry sent the proposal for acquisition to Director Land Acquisition Directorate Board of Revenue U.P. Lucknow. In the letter dated 24.1.2004 it was stated that proposal for land acquisition has been received from Reliance Delhi Power Pvt. Ltd. for acquisition of land with regard to 735.45 acres of land of village Kakarma Pargana Dasna, Tahsil Hapur. It was further stated that Reliance Delhi Power Pvt Ltd deposited the required 10% acquisition cost and 10% of estimated compensation in the specified head. The separate letters dated 24.1.2004 were forwarded by Collector Ghaziabad with regard to seven villages along with plot numbers and area sought to be acquired. A proposed notification under section 4(1) also invoking the urgency provisions of Sub-section (1) of Section 17 and Sub-section (4) of section 17 was submitted. After receipt of the letter by Collector, Ghaziabad, Director Land Acquisition examined the proposal and forwarded it by letter dated 28.1.2004 to Principal Secretary, Energy, State of U.P. Lucknow. Separate letters dated 28.1.2004 were issued for different villages in question. In the letter dated 28.1.2004 it was specifically mentioned that Reliance Delhi Power Private Limited is a private Company hence taking into consideration Land Acquisition (Companies) Rules, 1963 and Part VII and Part III Sections 38 to 55 of the Land Acquisition Act and after getting the agreement executed, notification under section 4(1)/17 be issued. Collector thus completed the entire proceedings and forwarded the proposal of the company for acquisition of land for a company after following procedure provided in parts VII and VIII of Act, 1894.
(D) the proposal received from the Director Land Acquisition vide letter dated 28.1.2004 was examined by the Department of Energy Government of U.P. and it was decided to obtain recommendation of Bhumi Udyog Parishad. Accordingly, Bhumi Udyog Parishad submitted a note through Principal Secretary, Niyojan on 31.1.2004 that Reliance Delhi Power Pvt. Ltd. being a private company, keeping into consideration part VII of the Land Acquisition Act as amended according to the provisions of Sections 38 to 44-B proceedings be undertaken after taking approval from the Department of Revenue and Law. The recommendations were duly approved by the Chief Minister on 31.1.2004. The Secretary, Revenue submitted a note that before issuance of section 4(1)/17 notification agreement be executed as required by paragraph 14 of the Land Acquisition Manual and the entire cost of acquisition shall necessary be got deposited. Subsequently although it was earlier recommended that notification under section 4(1)/17 be issued after execution of agreement as required under section 41 but it was decided to issue notification under section 4(1) by invoking Section 17 and agreement be executed thereafter. After publication of notification under section 4(1)/17, the draft of the agreement as contemplated under Section 41 of the Act was approved by Hon'ble the Chief Minister on 19.2.2004 and thereafter it was executed. Under section 41, the entire cost of acquisition was to be born by the company and the State was not to bear any cost of acquisition.
(E) the land acquisition proceedings were not initiated under any project/scheme submitted by Energy Department or any other Department of the State nor the acquisition in question was to result into any project of the State rather the agreement stipulated transfer of land in favour of the respondent No. 2.
(F) the decision to bear 60% costs of acquisition was taken after amendments in power policy was approved on 8.6.2004 and accordingly, the State support agreement was executed on 16.6.2004.
68. If we compare the facts of above case, we find the facts of the case in hand as under :
(I) Government of India formulated a policy for use of fly ash produced by Thermal Power Plants in India creating ecological hazards and to clear the same it was proposed that same be utilized in a cement plant. It, therefore, offered several concessions, incentives and relaxation to such cement factories which establish their units for production of cement by using fly ash as raw material in prescribed ratio.
(II) NTPC has one of its Power Station in District-Gautam Budh Nagar and for consumption of its fly ash, respondent-5 decided to establish a cement unit near aforesaid Power Station of NTPC in District-Gautam Budh Nagar. An agreement, therefore, for supply of fly ash was executed between NTPC and respondent-5 on 07.08.2004 for effective disposal and utilization of fly ash produced in aforesaid Power Station to establish a Cement Factory in the vicinity of said Power Station on 30.12.2004. Respondent-5 requested State of U.P. to allot a piece of land admeasuring 47.8930 hectare in the vicinity of Thermal Power Station of NTPC at Dadri. Since, respondent-5 proposed to establish a cement unit manufacturing 1.2 million tonne per annum capacity, State Government decided that land should be acquired by UPSIDCL, since it was a body constituted by State of U.P. for industrial development of small industries in State of U.P. Consequently, State Government required UPSIDCL to sent appropriate proposal for acquisition of land in village-Dhoom Manikpur and Badpura, Tehsil-Dadri.
(III) On 03.02.2005, State Government communicated its decision that land shall be acquired by UPSIDCL and thereafter in furtherance of its objective it shall be transferred to respondent-5.
(IV) Commissioner and Director, Land Acquisition vide acquisition letter dated 21.04.2005 forwarded request for acquisition of land to Industry Department of State Government.
(V) Aforesaid proposal along with comments dated 25.05.2005 was forwarded to Bhumi Udyog Parishad.
(VI) Chief Minister approved the proposal on 14.06.2005.
(VII) On request of UPSIDCL a proposal was forwarded by Collector to State Government and thereafter on 18.07.2005, notification under Section 4 (1) read with Section 17 of Act, 1894 was published. Thereafter, notification under Section 6 read with Section 17 of Act, 1894 was published by notification dated 18.08.2005. Possession of land was taken by Collector and on 21.10.2005 it handed over the same to UPSIDCL. Mutation was made in khatauni pursuant to revenue authorities' order dated 26.11.2005. Compensation has been paid to land owners admittedly at the rate of Rs.340 per square year under Karaar Niyamawali, 1997.
(VIII) UPSIDCL allotted desired land to respondent-5 vide allotment letter dated 08.02.2006 allotting 38.043 hectares of land. Respondent-5 commenced construction of industrial unit by laying its foundation stone on 15.01.2006.
(IX) Lease deed dated 18.08.2006 was executed between UPSIDCL and respondent-5 for a period of 90 years. Respondent-5 has commissioned its plant on 16.02.2010.
69. Above facts show that in Pooran and others vs State of U.P. (supra) on the request of a private company State received almost entire cost of land from the private company and thereafter, acquired land and handed over the same. In the present case, land has been acquired at the instance of UPSIDCL, which is a government body, and it is UPSIDCL, which has forwarded land to respondent-5. Moreover, here is a case where industrial unit has been set up by respondent-5 at Gautam Budh Nagar for manufacturing of cement, despite the fact that raw material is not available within nearby area of District-Gautam Budh Nagar, but for the reason of contributing to Government of India's policy of consuming fly ash, so as to help ecology and reduce hazardous substance, which is causing pollution in the area.
70. With respect to UPSIDCL, we may place on record that it was incorporated under Act, 1956 on 29.03.1961 as a State Government company only owned by it. The objective and purpose was to acquire and develop land for the purposes of promoting industrialization in State of U.P. UPSIDCL got the land acquired through State of U.P. for developing industrial area, allot land to entrepreneurs and received premium and lease rent etc., in instalments from such entrepreneurs.
71. Therefore, the discussions we have made with respect to Part VII, is not applicable where acquisition is made for a government company and it makes the entire difference in the facts of present case than what were involved in Pooran and others vs State of U.P. (supra). In the present case, it thus cannot be said that land has not been validly acquired, since, procedure laid down in Chapter VII read with Rules, 1963 has not been followed, and therefore, acquisition is bad. This contention is wholly misconceived and is, accordingly, rejected.
72. Moreover, in this case we find that all the petitioners except one have entered into agreements under Niyamawali, 1997 after receiving compensation to their satisfaction. That being so, it is now not open to petitioners to challenge acquisition in question and this ground alone is sufficient to non-suit petitioners.
73. In M/s Asian Townsville Farms Ltd Vs State of U. P. and others (Writ C No.47312 of 2000) decided on 02.05.2016, while considering Niyamawali, 1997, this Court in paras 13 and 14 has held as under :
"13. Moreover, it may also be relevant to notice that in para 23 of counter affidavit filed on behalf of State of U.P. and Collector it has been said that before taking possession, notices were served upon land owners in accordance with U.P. Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules, 1997 (hereinafter referred to as "Rules, 1997") and after payment of eighty per cent compensation to land owners, possession was taken. Para 23 of counter affidavit is reproduced as under:
^^23- ;g fd ;kfpdk ds izLrj 21 esa of.kZr dFku Lohdkj ugha gSaA D;ksafd vtZu ls izHkkfor HkwLokfe;ksa dks dCtk ysus ls iwoZ djkj fu;ekoyh 1997 esa fufgr O;oLFkk ds vUrxZr uksfVl la[;k 1 o 2 Hkstdj 80 izfr'kr izfrdj izkIr djus gsrq lwfpr fd;k x;k mlds mijkUr dCtk izkIr fd;k x;kA ;kph d`"kdka }kjk djkj fu;ekoyh ds vUrxZr djkj dh dk;Zokgh iw.kZ dj 80 izfr'kr izkIr fd;k x;k gSA** "23. That the averment made in para 21 of the petition is not acceptable inasmuch as the landowners affected by the acquisition proceedings were, prior to possession being taken, served with Notice Nos 1 and 2, as required under provisions of the Agreement Rules 1997, calling upon them to collect 80% compensation and only thereafter possession was taken. The petitioner farmers have received 80% amount after completing the agreement formalities under the Agreement Rules."
(English Translation by Court)
14. We do not find that averments made in counter affidavit have been controverted by petitioner by filing any rejoinder affidavit as none is available on record. The averments, therefore are un-rebutted. That being so, when erstwhile owners have also received substantial compensation under agreement, there is no scope to challenge acquisition of land in dispute by petitioner, who is subsequent purchaser, through sale-deeds dated 11.10.1999."
74. In view of above, petitioner cannot be allowed to challenge acquisition notifications once compensation has been accepted after entering into agreements under Niyamawali, 1997.
75. Now we may come to another part of the matter. WP-1 has been filed in 2006 and rest connected petitions have been filed in 2012. Acquisition notifications were issued on 18.07.2005 and 18.08.2005 under Sections 4 and 6 of Act, 1894 respectively. Initially, respondent-5 was not made party in writ petition filed in 2006 and in fact, it was impleaded by filing impleadment application in 2008 only, which was allowed vide order dated 28.03.2014 and thereafter it was impleaded. Prior thereto respondent-5 was not a party in WP-1 and in remaining three petitions, respondent-5 is still not a party. In the matter of land acquisition, it has been held time and again that delay in challenging the acquisition notifications may be fatal and land owners may be non-suited on the ground of delay and laches, if the same remain unexplained and in none of writ petitions, any reason for filing writ petitions belatedly have been explained. Even, WP-1 was filed on 30.01.2006 and rest in 2012.
76. Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India. In New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, Court observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993, it was said that representation would not be adequate explanation to take care of delay.
77. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities have also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297. In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479, Court held that it is well settled principle of law that delay defeats equity. It is now a trite law that where the writ petitioners approaches the High Court after a long delay, reliefs prayed for may be denied to them on account of delay and laches irrespective of the fact that they are similarly situated to other candidates who have got the benefit. In Yunus Vs. State of Maharashtra and others, 2009(3) SCC 281 the Court referred to the observations of Sir Barnesdelay Peacock in Lindsay Petroleum Company Vs. Prosper Armstrong Hurde etc. (1874) 5 PC 239 and held as under:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. . . . . . . Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
78. In our view, cause of delay has resulted in this case in putting respondent-5 in such a situation where it cannot be put back. Writ petition was filed when the possession of land was taken by Collector and handed over to UPSIDCL and thereafter UPSIDCL handed over the same to respondent-5 in February 2006 itself, which commenced its construction work by laying foundation stone. The work continued for almost three years. In 2000 application was filed and when it was pending, respondent-5 already completed its unit and commissioned it in 2010.
79. In these facts and circumstances of the case, in our view, even delay will be taken to be fatal in present case. Considering question of delay, a Constitutional Bench in Aflatoon and others Versus Lieutenant Governor of Delhi and others, AIR 1974, SC 2077, Court said that:
"A valid notification under Section 4 is a sine qua non for initiation of proceedings for acquisition of property. To have sat on the fence and allowed Government to complete acquisition proceedings on the basis that notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on grounds which were available to land owners at the time when the notification was published, would be putting a premium on dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioners."
80. In Kshama Sahkari Avas Samiti Ltd. Versus State of U.P. and others 2007(1) AWC 327, a Division Bench also in para 22 of judgement observed as under:
"No doubt the correctness of such a notification can be examined while testing the validity of the declaration issued under Section 6 of the Act. But it is sometimes too late in the day to challenge the same as once a declaration under Section 6 of the Act is issued after invoking urgency provisions, the Collector is entitled and do takes over the possession of the acquired land on the expiry of fifteen days of the notice under Section 9 of the Act. Thus, vesting the land in State free from all encumbrances as even taking of symbolic possession is sufficient to vest the land in the State. Once vesting gets completed, it becomes next to impossible to divest the land to the original owners/tenure holders. Moreover, the Apex Court has repeatedly held that the delay in challenging the notification for acquisition is fatal and if the land acquisition proceedings stood finalized, interference by the Court is not called far. Therefore, the notification issued under Section 17(4) of the Act is open to challenge independently even before the issuance of the declaration under Section 6 of the Act where prima facie, there is no material before the authorities to record subjective satisfaction about urgency."
81. Similar is the view taken recently by a Division Bench of this Court in Roopam Kumari Arya versus State of U.P., 2008(4) ADJ 686.
82. Again this question was considered by a Division Bench of this Court in which one of us (Justice Sudhir Agarwal) was a Member, in Civil Misc. Writ Petition No. 3195 of 1989 (Jagriti Sahkari Avas Samiti Ltd. Ghaziabad & another Versus State of U.P. & others) wherein in para 36, this Court said:
"Now coming to the objection raised by the respondents for non-suiting the petitioners on the ground of delay and laches, we are of the view that the argument is not without any substance. Notification under Section 4 was issued on 10.3.1988 stating that the land is required urgently and therefore it is necessary to dispense with inquiry under Section 5-A to eliminate delay likely to be caused thereby. It was always open to the petitioners to challenge the said notification on the ground that the said decision is without there being any material and formation of the opinion is without any substance. However, the petitioners chose not to challenge the same at that stage. Thereafter the notification under Section 6 was published in the gazette dated 8.7.1988 but the same was also not challenged. It was only when the notice under Section 9 was issued to the petitioners on 19.1.1989 that the present writ petition was filed on 16.2.1989 after getting it reported on 15.2.1989. As held by a Division Bench of this Court in Brij Bhushan Goswami (supra), petitioners are guilty of delay and laches and the petition deserves to be dismissed on this ground also."
83. Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India.
84. In New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, Supreme Court observed that after a long time writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction.
85. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993, it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of Supreme Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297. In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479 Supreme Court held that it is well settled principle of law that delay defeats equity.
86. It is now a trite law that where the writ petitioners approaches the High Court after a long delay, reliefs prayed for may be denied to them on account of delay and laches irrespective of the fact that they are similarly situated to other candidates who have got the benefit. In Yunus Vs. State of Maharashtra and others, 2009(3) SCC 281, Court referred to the observations of Sir Barnesdelay Peacock in Lindsay Petroleum Company Vs. Prosper Armstrong Hurde etc. (1874) 5 PC 239 and held as under:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. . . . . . . Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
87. In Swaika Properties (P) Ltd. & Anr. Vs. State of Rajasthan & Ors, (2008) 4 SCC 695, Court held in paras 16, 17 and 18 that:
"16. This Court has repeatedly held that a writ petition challenging the notification for acquisition of land, if filed after the possession having been taken, is not maintainable. In Municipal Corpn. of Greater Bombay v. Industrial Development Investment Co. (P) Ltd.(1996) 11 SCC 501 where K. Ramaswamy, J. speaking for a Bench consisting of His Lordship and S.B. Majmudar, J. held : (SCC p.520,para 29) "29. It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4 (1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."
In the concurring judgment, S.B. Majmudar, J. held as under:(Industrial Development Investment case (1996) 11 SCC 501 SCC pp 522-23, para 35) "35..... Such a belated writ petition, therefore, was rightly rejected by the learned Single Judge on the ground of gross delay and laches. The respondent-writ petitioners can be said to have waived their objections to the acquisition on the ground of extinction of public purpose by their own inaction, lethargy and indolent conduct. The Division Bench of the High Court had taken the view that because of their inaction no vested rights of third parties are created. That finding is obviously incorrect for the simple reason that because of the indolent conduct of the writ petitioners land got acquired, award was passed, compensation was handed over to various claimants including the landlord. Reference applications came to be filed for larger compensation by claimants including writ petitioners themselves. The acquired land got vested in the State Government and the Municipal Corporation free from all encumbrances as enjoined by Section 16 of the Land Acquisition Act. Thus right to get more compensation got vested in diverse claimants by passing of the award, as well as vested right was created in favour of the Bombay Municipal Corporation by virtue of the vesting of the land in the State Government for being handed over to the Corporation. All these events could not be wished away by observing that no third party rights were created by them. The writ petition came to be filed after all these events had taken place. Such a writ petition was clearly stillborn due to gross delay and laches."
17. Similarly, in State of Rajasthan v. D.R. Laxmi, (1996) 6 SCC 445 following the decision of this Court in Municipal Corporation of Greater Bombay (1996) 11 SCC 501 it was held : (D.R. Laxmi case, (1996) 6 SCC 445 SCC p 452, para 9) "9.... When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."
18. To the similar effect is the judgment of this Court in Municipal Council, Ahmednagar v. Shah Hyder Beig (2000) 2 SCC 48 wherein this Court, following the decision of this Court in C.Padma v. Dy. Secy. To the Govt of T.N. (1997) 2 SCC 627 held : (Shah Hyder case (2000) 2 SCC 48, SCC p.55,para 17) "17.In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases (C.Padma v. Dy. Secy. To the Govt of T.N. (1997) 2 SCC 627) ...."
88. In Banda Development Authority Vs. Motilal Agarwal (2011) 5 SCC 394 this Court held in paras 17, 18, 19, 20, 21, 22, 23,24 and 25 that:
"17.It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self imposed restraint evolved by the superior courts is that the High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallized rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits.
18. In State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006, the Constitution Bench considered the effect of delay in filing writ petition under Article 226 of the Constitution and held: (AIR pp 1011-12 paras 17 and 21) "17....It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it......It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus.
21.....Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable."
19. In matters involving challenge to the acquisition of land for public purpose, this Court has consistently held that delay in filing the writ petition should be viewed seriously and relief denied to the petitioner if he fails to offer plausible explanation for the delay. The Court has also held that the delay of even few years would be fatal to the cause of the petitioner, if the acquired land has been partly or wholly utilised for the public purpose.
20. In Ajodhya Bhagat v. State of Bihar (1974) 2 SCC 501, this Court approved dismissal by the High Court of the writ petition filed by the appellant for quashing the acquisition of his land and observed: (SCC p.506,para 23) "23. The High Court held that the appellants were guilty of delay and laches. The High Court relied on two important facts. First, that there was delivery of possession. The appellants alleged that it was a paper transaction. The High Court rightly rejected that contention. Secondly, the High Court said that the Trust invested several lakhs of rupees for the construction of roads and material for development purposes. The appellants were in full knowledge of the same. The appellants did not take any steps. The High Court rightly said that to allow this type of challenge to an acquisition of large block of land piecemeal by the owners of some of the plots in succession would not be proper. If this type of challenge is encouraged the various owners of small plots will come up with writ petitions and hold up the acquisition proceedings for more than a generation. The High Court rightly exercised discretion against the appellants. We do not see any reason to take a contrary view to the discretion exercised by the High Court."
21. In State of Rajasthan v. D.R.Laxmi (1996) 6 SCC 445, this Court referred to Administrative Law H.W.R. Wade (7th Ed.) at pages 342-43 and observed: (SCC p.453, para 10) "10. The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances."
22. In Girdharan Prasad Missir v. State of Bihar (1980) 2 SCC 83, the delay of 17 months was considered as a good ground for declining relief to the petitioner.
In Municipal Corpn. of Greater Bombay v. Industrial Development Investment Co. (P) Ltd. (1996) 11 SCC 501, this Court held: (SCC p 452, para 9) "9. ....It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4 (1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Articloe 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."
23. In Urban Improvement Trust v. Bheru Lal (2002) 7 SCC 712, this Court reversed the order of the Rajasthan High Court and held that the writ petition filed for quashing of acquisition of land for a residential scheme framed by the appellant-Urban Improvement Trust was liable to be dismissed on the ground that the same was filed after two years.
24. In Ganpatibai v. State of M.P. (2006) 7 SCC 508, the delay of 5 years was considered unreasonable and the order passed by the High Court refusing to entertain the writ petition was confirmed. In that case also the petitioner had initially filed suit challenging the acquisition of land. The suit was dismissed in 2001. Thereafter, the writ petition was filed. This Court referred to an earlier judgment in State of Bihar v. Dhirendra Kumar (1995) 4 SCC 229 and observed: ( Ganpatibai v. State of M.P. (2006) 7 SCC 508, SCC p.510, para 9) "9. In State of Bihar v. Dhirendra Kumar (1995) 4 SCC 229 this Court had observed that civil suit was not maintainable and the remedy to question notification under Section 4 and the declaration under Section 6 of the Act was by filing a writ petition. Even thereafter the appellant, as noted above, pursued the suit in the civil court. The stand that five years after the filing of the suit, the decision was rendered does not in any way help the appellant. Even after the decision of this Court, the appellant continued to prosecute the suit till 2001, when the decision of this Court in 1995 had held that suit was not maintainable."
25. In Swaran Lata v. State of Haryana (2010) 4 SCC 532, the dismissal of writ petition filed after seven years of the publication of declaration and five years of the award passed by the Collector was upheld by the Court and it was observed: (SCC p.535 para 11) "11. In the instant case, it is not the case of the petitioners that they had not been aware of the acquisition proceedings as the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration under Section 6 of the 1894 Act had been published in the newspapers having no wide circulation. Even if the submission made by the petitioners is accepted, it cannot be presumed that they could not be aware of the acquisition proceedings for the reason that a very huge chunk of land belonging to a large number of tenure-holders had been notified for acquisition. Therefore, it should have been the talk of the town. Thus, it cannot be presumed that the petitioners could not have knowledge of the acquisition proceedings."
89. From the above mentioned judgments, it is clear that there is a consistent view that in case there is an inordinate delay in approaching the Court and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the proceedings.
90. The facts discussed above show that petitioners in this case are also guilty of undue delay and laches creating an irreversible situation, and delay and laches being wholly unexplained, this is another ground non-suiting the petitioners.
91. In the circumstances, we do not find any merit in these writ petitions. Dismissed accordingly.
92. Interim orders, if any, stands vacated in all writ petitions.
Order Date : 22.04.2020 Manish Himwan