Allahabad High Court
Khemchand And Others vs State Of U.P. And Others on 20 January, 2014
Bench: Ashok Bhushan, Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 08.01.2014. Delivered on 20.01.2014. Case :- WRIT - C No. - 52178 of 2011 Petitioner :- Khemchand And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Pankaj Dubey Counsel for Respondent :- C.S.C.,Ramendra Pratap Singh With Case :- WRIT - C No. - 52180 of 2011 Petitioner :- Ram Singh And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- Pankaj Dubey Counsel for Respondent :- C.S.C.,Ramendra Pratap Singh With Case :- WRIT - C No. - 54664 of 2011 Petitioner :- Jiley And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- Pankaj Dubey Counsel for Respondent :- C.S.C.,Ramendra Pratap Singh With Case :- WRIT - C No. - 57601 of 2011 Petitioner :- Bhopal Singh Respondent :- State Of U.P. Thru Its Secy. And Others Counsel for Petitioner :- Ajit Kumar Singh Counsel for Respondent :- C.S.C.,Ramendra Pratap Singh ::::::::::: Hon'ble Ashok Bhushan,J.
Hon'ble Mahesh Chandra Tripathi,J.
These four writ petitions have been filed challenging the acquisition of agricultural plots of petitioners situate in village Biraundi Chakrasenpur, district Gautam Budh Nagar.
A counter affidavit has been filed on behalf of respondent No.3 in Writ Petition No.52178 of 2011. All the writ petitions raise same questions of fact and law, hence they have been heard together and are being decided with the consent of parties.
For deciding all the writ petitions, it shall be sufficient to refer to the pleadings in Writ Petition No.52178 of 2011.
An order was passed by Hon'ble the Chief Justice on 14th September, 2011 for listing Writ Petition No.52178 of 2011 along with Writ Petition No.37443 of 2011 (Gajraj and others vs. State of U.P. and others).
Brief facts giving rise to Writ Petition No.52178 of 2011 are; the petitioners claim to be bhumidhar of plots situate in village Biraundi Chakrasenpur, Pargana Dadri, Tahsil Sadar, District Gautam Budh Nagar. A notification dated 18th December, 2001 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued proposing to acquire 46.2933 hectares of land for the planned industrial development in district Gautam Budh Nagar through Greater NOIDA. Sections 17(1) and 17(4) of the Act were also invoked. The notification under Section 4 of the Act stated that the land is urgently required for planned industrial development and it is necessary to eliminate the delay likely to be caused by an inquiry under Section 5A of the Act. The declaration under Section 6 of the Act dated 30th March, 2002 was issued directing the Collector to take possession on expiration of 15 days from the date of notification under Sub-section (1) of Section 9 of the Act. The State claims to have taken possession on 27th June, 2002. The award was also pronounced on 21st March, 2005. The respondent No.3, after taking possession of the land, has made allotment of land to various developers and builders in the year 2006/2008. Two of such allotment letters and the lease deeds dated 1st December, 2006 and 12th January, 2007 have been filed along with the writ petition. The petitioners have also received compensation in accordance with the Uttar Pradesh Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules, 1997. The petitioners after coming to know that the land which was acquired for the purposes of planned industrial development have been allotted to private builders and colonisers, have filed this writ petition in this Court on 7th September, 2011 praying for following relief:-
"i. To issue a writ, order or direction in the nature of CERTIORARI, calling the records and quashing the impugned notification no.4515/77-4-2001-87Bha.-99 dated 18.12.2001 issued under section 4 of Land Acquisition Act and impugned notification no.768/77-4-2002-87Bha-99 dated 30.03.2002 issued under section 6 of Land Acquisition Act in respect of Plot nos.54 area 0.1900 Hect., 66 area 0.4810 Hect. 67Kha area 0.1390 Hect., 71Kha area 0.2700 Hect., 89Kha area 0.2700 Hect., 106 area 0.3030 Hect., 107 area 0.2380 Hect. and 128 area 0.6800 Hect. of the Revenue Village Biraundi Chakrasenpur, Pargana Dadri, Tehsil Sadar, District Gautam Budh Nagar. (Annexure No.1 and 2 to the writ petition).
ii. To issue writ, order or direction in the nature of mandamus commanding the respondents not to give effect to the impugned notification dated 18.12.2001 under Section 4 and the impugned notification dated 30.03.2002 under Section 6 of the Act and not to dispossess and not to interfere into the peaceful possession of the petitioners over the Plot nos.54 area 0.1900 Hect., 66 area 0.4810 Hect. 67Kha area 0.1390 Hect., 71Kha area 0.2700 Hect., 89Kha area 0.2700 Hect., 106 area 0.3030 Hect., 107 area 0.2380 Hect. and 128 area 0.6800 Hect. of the Revenue Village Biraundi Chakrasenpur, Pargana Dadri, Tehsil Sadar, District Gautam Budh Nagar.
The writ petition was directed to be listed along with Writ Petition No.37443 of 2011 by Hon'ble the Chief Justice on 14th September, 2011. The writ petition was also listed before the Full Bench hearing Writ Petition No.37443 of 2011. By an order dated 9th May, 2013, the Full Bench ordered that Writ Petition No.37443 of 2011 having been decided on 21st October, 2011, this writ petition be listed before the regular Bench hearing such matters.
A counter affidavit has been filed by the Greater NOIDA pleading that possession of 42.8087 hectares of land was taken on 27th June, 2002 after the declaration under Section 6 of the Act was issued. Each of the petitioners accepted the compensation and the award was also pronounced on 21st March, 2005. It has further been stated that after taking possession of the land, development work was carried out and area was demarcated as Sectors Omicron 3, Pi, Recreational Green, Amusement Park. The Greater NOIDA has constructed roads, laid down sewer lines, electric transmission lines, developed green belts and carved out plots, flats and group housing work. It has been stated that an area of 37490 square meters has been allotted between the year 2003 to 2008. It has also been stated that developed residential plot equivalent to 6% of the acquired land subject to a minimum of 120 square meters and maximum of 2500 square meters has been given to each land owner. The name of Greater NOIDA has been mutated in the revenue entries. It was further pleaded that writ petition is a belated petition which deserves to be dismissed.
We have heard Sri Pankaj Dubey, learned counsel for the petitioners, Sri Ramendra Pratap Singh appearing for the Greater NOIDA and Sri Ram Krishna, learned Chief Standing Counsel for the State.
Learned counsel for the petitioners, challenging the land acquisition proceedings, has submitted that there was no such urgency in the matter so as to dispense with the inquiry under Section 5A of the Act. It is submitted that without application of mind and without there being any sufficient material, the provisions of Sections 17(1) and 17(4) of the Act have been invoked which vitiates the entire acquisition. An opportunity to the land holders to file objection under Section 5A of the Act was necessary and denying such right to the petitioners vitiates the entire process of acquisition. It is further submitted that the land although has been acquired for public purpose i.e. carrying out the planned industrial development but actually the land, after taking it from the farmers, has been allotted to the colonisers and private builders on huge premium. The acquisition has been made in colourable exercise of power by the State Government. Reliance has been placed by the learned counsel for the petitioners on the Full Bench judgment of this Court in which one of us (Justice Ashok Bhushan) was also a member, reported in 2022(11) ADJ 1; Gajraj and others vs. State of U.P. and others. It is submitted that although the notifications, which have been challenged in the present writ petition, were not under challenge before the Full Bench in any of the writ petitions but the land acquisition proceedings pertaining to village Biraundi Chakrasenpur was very much there before the Full Bench and the notification under Section 4 of the Act dated 28th November, 2002 and the declaration under Section 6 of the Act dated 29th January, 2003 relating to village Biraundi Chakrasenpur was under challenge before the Full Bench and the writ petitions relating to village Biraundi Chakrasenpur were decided by directing grant of additional compensation of 64.70% and for allotment of abadi plots, hence the petitioners are entitled for the same relief. It is further submitted that possession of the plots was not taken by the respondents in accordance with law and only symbolic possession was taken.
Learned counsel for the respondents, refuting the submissions of learned counsel for the petitioners, has submitted that writ petitions deserve to be dismissed on the ground of laches since the declaration was issued in March, 2002 and award was pronounced in March, 2005 whereas the writ petitions have been filed in the year 2011 with no satisfactory explanation for delay, hence the writ petitions be thrown out on the ground of laches alone. It is further submitted that there was urgency in the matter since planned industrial development was to be carried out and there was no error in invocation of Sections 17(1) and 17(4) of the Act. It is further submitted that possession was taken of large track of land by executing the possession memo in accordance with law. The petitioners have accepted compensation, hence they should not be allowed to challenge the acquisition. It is also stated that Greater NOIDA, after obtaining possession of the land in the year 2002 itself has carried out several development works including laying of sewer line, electric transmission lines and other amenities. It is further submitted that allotment of plots under various schemes were made between the year 2003 to 2008 and third party rights have been created and at this stage the petitioners' challenge cannot be entertained.
Learned counsel for the parties have relied on several judgments of the Apex Court as well as this Court in support of their submissions which shall be considered while considering the submissions in detail.
We have considered the submissions of learned counsel for the parties and perused the record.
The first issue to be considered is as to whether the writ petitions are liable to be thrown out on the ground of laches without entering into the merit of challenge.
There is no dispute that after issuing declaration under Section 6 of the Act dated 30th March, 2002, the award was also pronounced in the year 2005, the petitioners accepted the compensation and did not challenge the acquisition at the relevant time and has come up in the writ petition only in the year 2011. The explanation, which has been submitted by the petitioners for not filing the writ petition immediately after the completion of acquisition is stated in paragraphs 12, 13 and 15 of the writ petition which are as under:-
"12. That, it is most respectfully submitted that the respondents are in dominating position and therefore, the petitioner were left with no option but to accept the compensation by acquiescing and surrendering his rights to challenge the impugned notifications under the agreement entered into as per the provisions of Karar Niyamawali, 1997. Since the transaction between the petitioners and the respondents authorities under the said agreement was under compulsion, and therefore, such a contract/agreement is voidable at the instance of either party. Since the petitioner is now aggrieved by the illegal action of the respondents authorities, and therefore, the petitioner is at liberty to challenge the impugned transaction be declaring the same to be void.
13. That it is stated that the petitioner had been in bonafide belief that his land is being acquired by the respondent no.1 to serve the purpose as specified in the impugned notifications namely for the "Planned Industrial Development in District Gautam Budh Nagar" and the acquiring body being souring authority having been in dominating position, the petitioner were left with no option but to acquiesced and surrender his rights and therefore, he acquiesced and surrendered his rights and accepted the compensation under the provisions of the Karar Niyamawali, 1997.
15. That, it is stated that petitioners being law abiding citizen were under impression that the State Government has acquired his land for public purpose and therefore they not come forward to challenge the impugned notifications by way of filing the writ petition. However, later on, the petitioner came to know that the very purpose of acquiring his land namely "Planned Industrial Development" has now been changed by the respondents by playing fraud on the statute and the lands have now been transferred to the private builders. Having acquired knowledge about the change of very purpose of acquisition of land, the petitioner is now advised to challenge the impugned notifications by way of filing the writ petition even after accepting the compensation for the same as mentioned above."
The petitioners' case in the writ petition is that the petitioners were in bonafide belief that the land has been acquired for public purpose i.e. for planned industrial development by the Greater NOIDA but when they came to know that the land has been allotted to private builders and colonisers, they decided to file the writ petition challenging the acquisition being aggrieved by the illegal action of the respondents.
The Full Bench in Gajraj's case (supra) had occasion to consider the same issue of delay and laches while considering bunch of 471 writ petitions challenging the land acquisition in different villages of Greater NOIDA and NOIDA. An specific Issue No.3 was framed by the Full Bench regarding delay and laches in filing the writ petitions. Before the Full Bench also the petitioners approached the Court with delay and laches and similar plea for explaining the laches was given which is being given in the present writ petition. It is useful to quote paragraph 198 of the judgment of the Full Bench which is to the following effect:-
"198. The substance of the pleadings in different writ petitions is to the effect that the petitioners were under the belief that the land is being acquired for Planned Industrial Development which shall serve the public purpose and provide employment to their children due to establishment of several industries in the area. The land owners accepted the same as their fate and did not immediately rush to the court. The reason given by most of the petitioners for coming to the Court is that subsequently when the land was started being transferred to private builders and colonisers it transpired that the land is not being utilised for the purpose for which it was acquired and instead of industries coming in the area only builders have come up. Petitioners have also pleaded that the authority has given meagre some of few hundred rupees per square yard to the land owners, but they have been transferring the land to the builders for hefty amount ranging from Rs. 10,000 to 20,000 per square metre. On the aforesaid ground and other grounds as noticed above, petitioners have approached the Court with delay, but the petitioners case is that since the facts elaborated above indicate that the respondents have played fraud and the acquisition was in colourable exercise of power, the delay in approaching the Court may not stand in their way in granting relief to them for which they are entitled in law. It is also relevant to note that in some of the cases in this bunch there are cases where the petitioners have immediately rushed to this Court and there is no delay in filing the writ petition for example with regard to Village Patwari which is under challenge, there are some writ petitions which were filed within the reasonable time and there is no delay in such writ petitions at all. For example Writ Petition No.62649/2008, Savitri Devi Vs. State of U.P. & Ors, same notifications dated 12/3/2008 and 30/6/2008 are under challenge. Similarly, with regard to Village Pali, Writ Petition No.25464/2008, Ghyanendra Singh Vs. State of U.P. & Ors, there is no delay. There are writ petitions of Village Aimnabad i.e. Writ Petition 26162/2008, Shripal Singh & Ors. Vs. State of U.P. & Ors, 26159/2008, Lakhi Ram Vs. State of U.P. & Ors, and writ petition of Village Khanpur being 20227/2009, Parag & Anr. Vs. State of U.P. & Ors., which cannot be said to have been filed with laches."
After noticing the various judgments of the Apex Court and this Court including the judgment of the Apex Court in the case of M/s Royal Orchid Hotels Ltd & Anr. Vs. G.Jayarama Reddy & Ors reported in 2011(10) SCC 608, on question of delay and laches in challenging the land acquisition proceeding, the Full Bench in Gajraj's case (supra) made following observations in paragraphs 221, 222 and 223 which are as under:-
"221. The Division Bench judgment of this Court in Puran & Ors Vs. State of U.P. & Ors, 2009 (10) ADJ, 679, in which one of us (Justice Ashok Bhushan) was a member has been heavily relied on by the learned counsel for the petitioners. In the said case, bunch of writ petitions were filed by farmers of District Ghaziabad challenging the acquisition of their agricultural land by the State of U.P. for public purpose. The ground of challenge in the writ petition was that the acquisition by the State of U.P. was in colourable exercise of power and the acquisition was not for public purpose and the acquisition was really for private Company. The notification under Section 4 was issued on 11/2/2004 and declaration under Section 6 was issued on 25/6/2004. The writ petitions were filed after more than 4 years. One of the ground taken by the learned counsel for the respondents in opposing the writ petition was that the petitions having been filed with delay and laches, the same deserve to be dismissed on the aforesaid ground. The Division Bench judgment in Puran Singh's case (supra) proceeded to examine the said submission in detail. The Division Bench noticed the submission in the aforesaid case and laid down following in paragraphs 49, 52 and 56 which are quoted below:-
"49. To recapitulate, the submissions of the petitioners in these writ petitions are that land acquisition by the State in the present case was in a colourable exercise of power. The application was made by the company after depositing part of the compensation and no part of the compensation was to be paid by the State Government when the application had been moved by the company or till the agreement was executed by the Company and State under Section 41 of the Act. Acquisition by the State as an acquisition for public purpose by invoking section 17 was a colourable exercise of power. The acquisition being acquisition for a company, part VII of the Act and Land Acquisition (Companies) Rules, 1963 were required to be adhered to. The State with an intention to bye pass the statutory provisions and to unduly help the respondent no. 2 had proceeded to acquire the land as acquisition for public purposes.
52. The acquisition in question was acquisition proceedings initiated by State by dispensing inquiry under Section 5-A denying opportunity of filing objections. It is true that petitioners have signed Kararnama and taken whatever compensation was given by the respondents but it is clear that petitioners have been raising their protests and continued their agitations. Agitation was started being noticed since May, 2006. The compulsory acquisition of land is a serious matter and the persons, who were pitted against the petitioners were the mighty State and respondent no. 2 company, the petitioners being thousands in number, took time in approaching the Court raising their grievance specially when the farmers had no opportunity and the inquiry under Section 5-A had been dispensed with. It is relevant to quote the observations of the apex Court in (1980) 2 SCC 471, State of Punjab Vs. Gurdial Singh & others following was laid down in paragraph 16:
".....It is fundamental that compulsory taking of a man's property is serious matter and the smaller the man the more the serious matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness and denial of this administration fairness is constitutional anathema except for good reasons........."
56. Taking into consideration over all facts and circumstances, we are not inclined to throw the writ petitions on the ground of delay and laches. The writ petitioners have made out a case for consideration of various issues by this Court which have arisen in these writ petitions. Thus, the submissions of learned counsel for the respondents that writ petitions be thrown out on the ground of delay and laches and other submissions need not be considered, does not merit acceptance."
222. A very recent judgment of the Apex Court in Civil Appeal No.7588/2005, M/s Royal Orchid Hotels Ltd & Anr. Vs. G.Jayarama Reddy & Ors, decided on 29/9/2011 by Hon'ble Mr. Justice G.S. Singhvi and Hon'ble Justice Sudhansu Jyoti Mukhopadhaya considering the issue of delay and laches in the land acquisition case needs to be considered. It is useful to note the facts in detail. On a request made by the Karnataka State Tourism Development Corporation, the State Government of Karnataka acquired the land of Village Kodihalli and Challaghata for the purpose of "Golf-cum-Hotel Resort". Notification under Section 4 (1) was issued on 29/12/1981 and declaration under Section 6 was issued and thereafter an award was passed by the Special Land Acquisition Officer on 07/4/1986. However, instead of utilising the acquired land for the purpose specified in the notification, Corporation transferred the same to private parties. Writ Petitions were filed in the year 1995, praying for quashing the notifications dated 29/12/1981 and 16/4/1983 issued under Section 4 of the Act and praying for a mandamus directing the respondents to redeliver the possession of the said land. The writ petition was dismissed by the learned Single Judge as barred by time, against which writ appeal was filed by the respondents which was allowed. Against the said judgment, the appellants who were private transferee of acquired land had filed civil appeal before the Apex Court. Submission was made by the appellants that the writ petitions being highly barred by laches was rightly dismissed by the learned Single Judge and the Division Bench committed error in allowing the writ appeal. The question of delay was considered by the Apex Court in the said case. Following was laid down in paragraphs 16, 17, 21 and 22 which are quoted below:-
"16. The first question which needs consideration is whether the High Court committed an error by granting relief to respondent No.1 despite the fact that he filed writ petition after long lapse of time and the explanation given by him was found unsatisfactory by the learned Single Judge, who decided the writ petition after remand by the Division Bench.
17. Although, framers of the Constitution have not prescribed any period of limitation for filing a petition under Article 226 of the Constitution of India and the power conferred upon the High Court to issue to any person or authority including any Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari is not hedged with any condition or constraint, in last 61 years the superior Courts have evolved several rules of self-imposed restraint including the one that the High Court may not enquire into belated or stale claim and deny relief to the petitioner if he is found guilty of laches. The principle underlying this rule is that the one who is not vigilant and does not seek intervention of the Court within reasonable time from the date of accrual of cause of action or alleged violation of constitutional, legal or other right is not entitled to relief under Article 226 of the Constitution. Another reason for the High Court's refusal to entertain belated claim is that during the intervening period rights of third parties may have crystallized and it will be inequitable to disturb those rights at the instance of a person who has approached the Court after long lapse of time and there is no cogent explanation for the delay. We may hasten to add that no hard and fast rule can be laid down and no straightjacket formula can be evolved for deciding the question of delay/laches and each case has to be decided on its own facts.
21. Another principle of law of which cognizance deserves to be taken is that in exercise of power under Article 136 of the Constitution, this Court would be extremely slow to interfere with the discretion exercised by the High Court to entertain a belated petition under Article 226 of the Constitution of India. Interference in such matters would be warranted only if it is found that the exercise of discretion by the High Court was totally arbitrary or was based on irrelevant consideration. In Smt. Narayani Debi Khaitan v. State of Bihar [C.A. No.140 of 1964 decided on 22.9.1964], Chief Justice Gajendragadkar, speaking for the Constitution Bench observed:
"It is well-settled that under Article 226, the power of the High Court to issue an appropriate writ is discretionary. There can be no doubt that if a citizen moves the High Court under Article 226 and contends that his fundamental rights have been contravened by any executive action, the High Court would naturally like to give relief to him; but even in such a case, if the petitioner has been guilty of laches, and there are other relevant circumstances which indicate that it would be inappropriate for the High Court to exercise its high prerogative jurisdiction in favour of the petitioner, ends of justice may require that the High Court should refuse to issue a writ. There can be little doubt that if it is shown that a party moving the High Court under Article 226 for a writ is, in substance, claiming a relief which under the law of limitation was barred at the time when the writ petition was filed, the High Court would refuse to grant any relief in its writ jurisdiction. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the Court, in this matter too discretion must be exercised judiciously and reasonably."
(emphasis supplied)
22. In the light of the above, it is to be seen whether the discretion exercised by the Division Bench of the High Court to ignore the delay in filing of writ petition is vitiated by any patent error or the reasons assigned for rejecting the appellants' objection of delay are irrelevant and extraneous. Though it may sound repetitive, we may mention that in the writ petition filed by him, respondent No.1 had not only prayed for quashing of the acquisition proceedings, but also prayed for restoration of the acquired land on the ground that instead of using the same for the public purpose specified in the notifications issued under Sections 4(1) and 6, the Corporation had transferred the same to private persons. Respondent No.1 and other landowners may not be having any serious objection to the acquisition of their land for a public purpose and, therefore, some of them not only accepted the compensation, but also filed applications under Section 18 of the Act for determination of market value by the Court. However, when it was discovered that the acquired land has been transferred to private persons, they sought intervention of the Court and in the three cases, the Division Bench of the High Court nullified the acquisition on the ground of fraud and misuse of the provisions of the Act."
223. The Apex Court approved the Division Bench judgment which had ignored the delay in filing the writ petition challenging the acquisition. The Apex Court further laid down that where it was subsequently discovered that the acquired land has been transferred to private persons and then petitioners sought intervention of the Court, the Division Bench has rightly entertained the writ petition ignoring the delay."
Learned counsel for the respondents have referred to the judgment of the Apex Court in the case of Swaika Properties (P) Ltd. and another vs. State of Rajasthan and others reported in (2008)4 SCC 695 where the writ petition filed after delivering of the award was held to be barred by laches. There cannot be any dispute to the proposition that in land acquisition proceeding a tenure holder cannot be allowed to challenge the land acquisition proceeding after lapse of a reasonable time. The Court will not interfere with the land acquisition when the challenge is made with delay and subsequent to taking of possession and publication of award. In the present case, the petitioners have come up with the explanation, as noted above, that initially in good faith that the land having been acquired for public purpose shall be utilised for development to be carried by Grater NOIDA acquisition was not challenged but when they came to know that the land is being allotted to private builders and developers for carrying out development, they decided to challenge the acquisition. In the counter affidavit it has been specifically stated that the allotment of land has been made from 2003 to 2008. As noted above, on similar pleadings the Full Bench in Gajraj's case (supra) had entertained the writ petitions which were filed with delay. The Full Bench of this Court, however, observed that substantial delay in challenging the acquisition may be relevant factor while determining the relief to be granted to a petitioner. Taking into consideration overall facts and circumstances of the present case, we are of the view that the writ petitions be not thrown out on the ground of laches and petitioners' grievance be looked into in the interest of justice.
The submission, which has been pressed by the learned counsel for the petitioners is that invocation of Sections 17(1) and 17(4) of the Act for the planned industrial development was not justified and inquiry under Section 5A of the Act having been dispensed with without there being sufficient reason, the acquisition deserves to be set-aside on this ground alone. Reliance has been placed on the Full Bench judgment of this Court in Gajraj's case (supra).
It is relevant to note that the acquisition which was under challenge before the Full Bench related to villages of Greater NOIDA and NOIDA including the village Biraundi Chakrasenpur for the planned industrial development and the public purpose mentioned in the notification under Section 4 dated 18th December, 2001, which is under challenge in the present writ petition, was also the same i.e. for the planned industrial development in district Gautam Budh Nagar through Greater NOIDA. The Full Bench of this Court, after considering all relevant cases on the subject, came to the conclusion that invocation of Sections 17(1) and 17(4) for the planned industrial development was not justified. On the relevant materials produced by the State before the Full Bench, the Full Bench was not satisfied that invocation of Sections 17(1) and 17(4) could be justified. The judgment of the Full Bench of this Court in Gajraj's case (supra) fully supports the submission made by the learned counsel for the petitioners. In the present case, the acquisition has been made for the same purpose as in the cases before the Full Bench in Gajraj's case (supra). The petitioners have specifically challenged the invocation of Sections 17(1) and 17(4) of the Act in the present writ petition and dispensation of inquiry under Section 5A in paragraphs 8 and 9 of the writ petition which are to the following effect:-
"8. That, the said notification under Section 4 of the Act issued by the respondent no.1 without application of mind and there was no urgency in the acquisition of land for the planned industrial development on ground of which the respondent invoked Section 17(1) and 4 of the Act by dispensing with an enquiry under Section 5A of the Act. The respondents in order to fulfill their political obligations/promise to the private builders have dispensed with the enquiry under Section 5-A of the Act as well as overlooked the Master Plan concerned.
9. That, as per the scheme of the Land Acquisition Act, each and every section from sections 4 to 17 has an independent role to play though there is an element of interaction between them. Section 5-A, has a very important role to play in the acquisition proceedings and it is mandatory on the part of the government to give hearing to the person interested in the land whose land is sought to be acquired. It is relevant to point out that the acquisition proceedings under the Act, are based on the principal of eminent domain and the only protection given to the person whose land is sought to be acquired is an opportunity under Section 5-A of the Act to convince the enquiring authority that the purpose for which the land is sought to be acquired is in fact not a public purpose and is only purported to be one in the guise of a public purpose."
Paragraphs 8 and 9 of the writ petition has been replied by the Greater NOIDA in paragraphs 38 and 39 of the counter affidavit which are to the following effect:-
"38. That except for the issuance of the notification, the contents of para 8 of the writ petition are wrong and denied. It is denied that the notification was issued without application of mind or that there was no urgency. It is vague wrong and denied that the acquisition was made to fulfil the political obligations to the builders. The builders were not even known as no scheme had been announced for allotment.
39. That except for the admissions made therein, the contents of para 9 of the writ petition as stated are argumentative and are not admitted. It is reiterated that Planned Industrial Development is a public purpose and so is housing. Any contention of the petitioner which is contrary to the aforesaid is wrong and denied."
Neither any reason has been given in paragraphs 38 and 39 of the counter affidavit nor any material has been disclosed to justify invocation of Sections 17(1) and 17(4) of the Act. It is relevant to note that in none of the writ petitions the State has filed any counter affidavit. As noted above, the writ petition was directed to be listed along with Writ Petition No.37443 of 2011 (Gajraj and others vs. State of U.P. and others) before the Full Bench. In the said case counter affidavit was filed and original records were produced which were all examined by the Full Bench in its judgment and order dated 21st October, 2011.
In a recent judgment the Apex Court had again occasion to consider the provisions of Sections 5-A, 17(1) and 17(4) of the Act in the case of Ram Dhari Jindal Memorial Trust Vs. Union of India and Others reported in 2012(11) SCC 370. After referring to all earlier relevant judgments on the subject, the Apex Court laid down following in paragraphs 14, 15, 16, 17, 19 and 20 of the judgment which are to the following effect:-
"14. In a recent decision of this Court in Anand Singh and another vs. State of Uttar Pradesh and others, (2010) 11 SCC 242 this court considered elaborately the power of urgency conferred upon the Government under Section 17 of the Act, its invocation and dispensation of enquiry under Section 5A of the Act. This Court speaking through one of us (R.M. Lodha,J.) in Anand Singh considered the previous decisions of this Court in Raja Anand Brahma Shah vs. State of U.P., (1967) 1 SCR 373; Jage Ram vs. State of Haryana, (1971) 1 SCC 671; Narayan Govind Gavate vs. State of Maharashtra, (1977) 1 SCC 133; State of Punjab vs. Gurdial Singh, (1980) 2 SCC 471; Deepak Pahwa vs. Lt. Governor of Delhi, (1984) 4 SCC 308; State of U.P. vs. Pista Devi, (1986) 4 SCC 251; Rajasthan Housing Board vs. Shri Kishan, (1993) SCC 84; Chameli Singh s. State of U.P., (1996) 2 SCC 549; Meerut Development Authority vs Satbir Singh, (1996) 11 SCC 462; Om Prakash vs. State of U.P., (1998) 6 SCC 1; Union of India vs. Mukesh Hans3; Hindustan Petroleum Corpn. Ltd. vs. Darius Shapur Chenai, (2005) 7 SCC 627; Mahadevappa Lachappa Kinagi vs. State of Karnataka, (2008) 12 SCC 418; Babu Ram vs. Statte of Haryana, (2009) 10 SCC 115 and Tika Ram vs. State of U.P., (2009) 10 SCC 689 and culled out the legal position as follows:
"42. When the Government proceeds for compulsory acquisition of a particular property for public purpose, the only right that the owner or the person interested in the property has, is to submit his objections within the prescribed time under Section 5-A of the Act and persuade the State authorities to drop the acquisition of that particular land by setting forth the reasons such as the unsuitability of the land for the stated public purpose; the grave hardship that may be caused to him by such expropriation, availability of alternative land for achieving public purpose etc. Moreover, the right conferred on the owner or person interested to file objections to the proposed acquisition is not only an important and valuable right but also makes the provision for compulsory acquisition just and in conformity with the fundamental principles of natural justice.
43. The exceptional and extraordinary power of doing away with an enquiry under Section 5-A in a case where possession of the land is required urgently or in an unforeseen emergency is provided in Section 17 of the Act. Such power is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The guideline is inbuilt in Section 17 itself for exercise of the exceptional power in dispensing with enquiry under Section 5-A. Exceptional the power, the more circumspect the Government must be in its exercise. The Government obviously, therefore, has to apply its mind before it dispenses with enquiry under Section 5-A on the aspect whether the urgency is of such a nature that justifies elimination of summary enquiry under Section 5-A.
44. A repetition of the statutory phrase in the notification that the State Government is satisfied that the land specified in the notification is urgently needed and the provision contained in Section 5-A shall not apply, though may initially raise a presumption in favour of the Government that prerequisite conditions for exercise of such power have been satisfied, but such presumption may be displaced by the circumstances themselves having no reasonable nexus with the purpose for which the power has been exercised. Upon challenge being made to the use of power under Section 17, the Government must produce appropriate material before the Court that the opinion for dispensing with the enquiry under Section 5-A has been formed by the Government after due application of mind on the material placed before it.
45. It is true that power conferred upon the Government under Section 17 is administrative and its opinion is entitled to due weight, but in a case where the opinion is formed regarding the urgency based on considerations not germane to the purpose, the judicial review of such administrative decision may become necessary.
46. As to in what circumstances the power of emergency can be invoked are specified in Section 17(2) but circumstances necessitating invocation of urgency under Section 17(1) are not stated in the provision itself. Generally speaking, the development of an area (for residential purposes) or a planned development of city, takes many years if not decades and, therefore, there is no reason why summary enquiry as contemplated under Section 5-A may not be held and objections of landowners/persons interested may not be considered. In many cases, on general assumption likely delay in completion of enquiry under Section 5-A is set up as a reason for invocation of extraordinary power in dispensing with the enquiry little realizing that an important and valuable right of the person interested in the land is being taken away and with some effort enquiry could always be completed expeditiously.
47. The special provision has been made in Section 17 to eliminate enquiry under Section 5-A in deserving and cases of real urgency. The Government has to apply its mind on the aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5-A. We have already noticed a few decisions of this Court. There is conflict of view in the two decisions of this Court viz. Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCC 133, and State of U.P. v. Pista Devi, (1986) 4 SCC 251. In Om Prakash v. State of U.P., (1998) 6 SCC 1, this Court held that decision in Pista Devi (supra) must be confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate (supra). We agree.
48. As regards the issue whether pre-notification and post-notification delay would render the invocation of urgency power void, again the case law is not consistent. The view of this Court has differed on this aspect due to different fact situation prevailing in those cases. In our opinion such delay will have material bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the appropriate Government before the Court justifying that urgency was of such nature that necessitated elimination of enquiry under Section 5-A.
49. In a country as big as ours, a roof over the head is a distant dream for a large number of people. The urban development continues to be haphazard. There is no doubt that planned development and housing are matters of priority in a developing nation. The question is as to whether in all cases of planned development of the city or for the development of residential area the power of urgency may be invoked by the Government and even where such power is invoked, should the enquiry contemplated under Section 5-A be dispensed with invariably. We do not think so. Whether `planned development of city or `development of residential areacannot brook delay of a few months to complete the enquiry under Section 5-A? In our opinion, ordinarily it can. The Government must, therefore, do a balancing act and resort to the special power of urgency under Section 17 in the matters of acquisition of land for the public purpose viz. planned development of cityor for development of residential areain exceptional situation.
50. Use of the power by the Government under Section 17 for `planned development of the cityor `the development of residential areaor for `housingmust not be as a rule but by way of an exception. Such exceptional situation may be for the public purpose viz. rehabilitation of natural calamity affected persons; rehabilitation of persons uprooted due to commissioning of dam or housing for lower strata of the society urgently; rehabilitation of persons affected by time bound projects, etc. The list is only illustrative and not exhaustive. In any case, sans real urgency and need for immediate possession of the land for carrying out the stated purpose, heavy onus lies on the Government to justify the exercise of such power.
51. It must, therefore, be held that the use of the power of urgency and dispensation of enquiry under Section 5-A by the Government in a routine manner for the planned development of cityor development of residential areaand thereby depriving the owner or person interested of a very valuable right under Section 5-A may not meet the statutory test nor could be readily sustained."
15. If the government seeks to invoke its power of urgency, it has to first form the opinion that the land for the stated public purpose is urgently needed. Such opinion has to be founded on the need for immediate possession of the land for carrying out the purpose for which land is sought to be compulsorily acquired. The use of power of urgency under Section 17(1) and (4) of the Act ipso facto does not result in elimination of enquiry under Section 5A and, therefore, if the government intends to eliminate enquiry, then it has to apply its mind on the aspect that urgency is of such nature that necessitates elimination of such enquiry. The satisfaction of the government on twin aspects viz; (i) need for immediate possession of the land for carrying out the stated purpose and (ii) urgency is such that necessitates dispensation of enquiry is a must and permits no departure for a valid exercise of power under Section 17(1) and (4).
16. In paragraph 51 of the case of Anand Singh, it has been held:
"51........ that use of the power of urgency and dispensation of enquiry under Section 5A of the Act by the Government in a routine manner for the planned development of city or development of residential area and thereby depriving the owner or person interested of a very valuable right under Section 5-A may not meet the statutory test nor could be readily sustained." (emphasis supplied).
17. Ordinarily, therefore, invocation of urgency power by the government for a Residential Scheme that does not fall in exceptional category as illustrated in para 50 of Anand Singh8 cannot be held to be legally sustainable.
19. Where the government invokes urgency power under Section 17(1) and (4) for the public purpose like 'planned development of city' or 'development of residential area' or 'Residential Scheme', the initial presumption in favour of the government does not arise and the burden lies on the government to prove that the use of power was justified and dispensation of enquiry was necessary. In the present case, the respondents have miserably failed to show to the satisfaction of the Court that power of urgency and dispensation of enquiry under Section 5A has been exercised with justification. The action of the Lt. Governor, Delhi, in the facts of the case whereby he directed that the provisions of Section 5A shall not apply, if allowed to stand, it would amount to depriving a person of his property without authority of law.
20. The power of urgency by the Government under Section 17 for a public purpose like Residential Scheme cannot be invoked as a rule but has to be by way of exception. As noted above, no material is available on record that justifies dispensation of enquiry under Section 5A of the Act. The High Court was clearly wrong in holding that there was sufficient urgency in invoking the provisions of Section 17 of the Act."
In view of the above, we are of the view that invocation of urgency clause under Sections 17(1) and 17(4) of the Act was not justified.
In the counter affidavit filed by the Greater NOIDA, detail of developments, which have been carried out, have been stated. The possession was taken by the State in the year 2002 and during the period large number of developments have been carried out on the land in dispute which has been mentioned in paragraphs 17, 18(a) and 18(b) of the counter affidavit. Paragraphs 17, 18(a) and 18(b) of the counter affidavit are quoted below:-
"17. That after the taking over of possession of the land in terms of the declaration dated 30.3.2002, development work was carried out and the area stands demarcated as Sectors Omicron 3, Pi, Recreational Green, Amusement Park. The Authority has so far constructed roads, laid down sewer lines, electric transmission lines, developed green belts and carried out plotted, flatted and Group Housing development works in respect of the aforesaid sectors in so far as they fall in the acquired land of Village Birondi Chakrasenpur. The remaining area of these sectors fall in the acquired land of the adjoining villages and acquisition of these adjoining villages for the purpose of planned and integrated development has taken place separately. In the development works, carried out on the acquired land of Village Birondi Chakrasenpur, so far the respondent authority has spent about Rs.62220.18 lacs.
18(a). That in the area developed over the land in Village Birondi Chakrasenpur, 381 nos. Cooperative society Plots have been allotted of which the area is 38,900 sq. mt. Ten Group Housing plots have been allotted. Seven nos. of Facility plots (within the residential sectors) (facility include hospitals, schools etc) having an area of 37,490 sq. mts. have also been allotted between the year 2003-2008.
18(b). That residential plots having an area of2,87,216 sq. mt. under the 6% scheme for the villagers whose land has been acquired have also been allotted in the sectors developed over the acquired land in Village Birondi Chakrasenpur."
As noted above, various third party rights have been created by making allotment during 2003 to 2008. On account of extensive development carried out on the land in dispute and creation of third party rights, we are of the view that on the ratio laid down by the Full Bench of this Court in Gajraj's case (supra), the petitioners are not entitled for quashing of notifications under Sections 4 and 6 of the Act.
Learned counsel for the petitioners have also contended that petitioners are entitled for the benefit of enhanced compensation as allowed by the Full Bench of this Court in Gajraj's case (supra). The Full Bench in the said case has allowed additional compensation of 64.70% taking into consideration that Authority itself has agreed to pay the aforesaid percentage of compensation with regard to acquisition of land of village Patwari. The present land acquisition pertains to village Biraundi Chakrasenpur which was one of the villages before the Full Bench. The land acquisition of the same village vide notification dated 28th November, 2002 issued under Section 4 of the Act and notification dated 29th January, 2003 issued under Section 6 of the Act was subject matter of consideration before the Full Bench. In the present case the notifications under challenge are dated 18th December, 2001 and 30th March, 2002. The possession of the land was taken in the year 2002 in the present case and award was pronounced in the year 2005. We are of the view that ends of justice would be served in extending same benefits to the petitioners of the present case which were extended by the Full Bench in Gajraj's case (supra) despite refusing the relief of quashing the notifications issued under Section 4 and 6 of the Act.
In result, all the writ petitions are disposed of with the following directions:-
(i) The petitioners shall be entitled for the benefit of directions issued by the Full Bench of this Court in Gajraj's case (supra) in paragraphs 3(a) and 3(b) which are as under:-
3(a) The petitioners shall be entitled for payment of additional compensation to the extent of same ratio (i.e. 64.70%) as paid for village Patwari in addition to the compensation received by them under 1997 Rules/award which payment shall be ensured by the Authority at an early date. It may be open for Authority to take a decision as to what proportion of additional compensation be asked to be paid by allottees. Those petitioners who have not yet been paid compensation may be paid the compensation as well as additional compensation as ordered above. The payment of additional compensation shall be without any prejudice to rights of land owners under section 18 of the Act, if any.
3(b) All the petitioners shall be entitled for allotment of developed Abadi plot to the extent of 10% of their acquired land subject to maximum of 2500 square meters. We, however, leave it open to the Authority in cases where allotment of abadi plot to the extent of 6% or 8% have already been made either to make allotment of the balance of the area or may compensate the land owners by payment of the amount equivalent to balance area as per average rate of allotment made of developed residential plots.
All the writ petitions are disposed of accordingly.
Parties shall bear their own costs.
Date: 20.01.2014.
Rakesh.