Allahabad High Court
Smt.Mithilesh Kumari And Others vs State Of U.P. And Others on 9 November, 2010
Author: Ashok Bhushan
Bench: Ashok Bhushan, Virendra Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 12.10.2010. Delivered on 09.11.2010. Case :- WRIT - C No. - 23624 of 2010 Petitioner :- Smt.Mithilesh Kumari And Others Respondent :- State Of U.P. And Others Petitioner Counsel :- C.P.Gupta,Keshri Nath Tripathi Respondent Counsel :- C.S.C.,Satish Mandhyan With Case :- WRIT - C No. - 41012 of 2010 Petitioner :- Ram Pal Respondent :- State Of U.P. And Others Petitioner Counsel :- Anil Kumar Tiwari Respondent Counsel :- C.S.C.,B.D.Mandhyan,Satish Mandhyan ::::::: Hon'ble Ashok Bhushan,J.
Hon'ble Virendra Singh,J.
(Delivered by Hon'ble Ashok Bhushan, J.) Heard Sri Keshri Nath Tripathi, Senior Advocate, assisted by Sri C.P. Gupta, Advocate for the petitioners in Writ Petition No.23624 of 2010, Sri Anil Kumar Tiwari, Advocate for the petitioner in Writ Petition No.41012 of 2010 and Sri B.D. Mandhyan, Senior Advocate, assisted by Sri Satish Mandhyan, Advocate for the respondents in both the writ petitions. Learned Standing Counsel has appeared for State-respondents.
These two writ petitions challenging same notifications have been heard together and are being disposed of by this common judgment. Pleadings in Writ Petition No.23624 of 2010 have been exchanged and it is sufficient to refer to pleadings of the said writ petition for deciding both the writ petitions.
Learned Standing Counsel has produced the original records of the State Government pertaining to land acquisition in question, which has been perused by us.
Brief facts of the case, as emerge from pleadings of the parties, are; The petitioners claim to be bhumidhar of Plots No.391A and 391B measuring about 0.421 and 1.101 hectare respectively situated in village Islamganj, Pargana and Tehsil Jalalabad, district Saharanpur. Krishi Utpadan Mandi Samiti, Jalalabad, Saharanpur is a market area notified under Krishi Utpadan Mandi Samiti Adhiniyam, 1964. Allahganj is sub-market area of Krishi Utpadan Mandi Samiti, Jalalabad. Steps for construction of sub market yard were initiated by respondent No.3. The land selection committee of Krishi Utpadan Mandi Samiti, Jalalabad on 26th August, 1994 selected an area of 18.64 acres for sub-market area, Allahganj. The Board of Director, Mandi Parishad, Lucknow on 10th July, 1997 approved the proposal for acquisition of 10 acres of land. A letter dated 27th June, 2003 was written by the Regional Deputy Director (Administration), Mandi Parishad, Bareilly directing for making available proposal for land acquisition to Land Acquisition Directorate, Board of Revenue, Lucknow through the Collector for acquisition of 10 acres of land under Section 4/17 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act). On 8th August, 2008 resolution was passed by the Krishi Utpadan Mandi Samiti, Jalalabad directing for acquisition. A meeting of the Zila Bhoomi Upyog Samiti headed by Collector was held which approved the proposal submitted by respondent No.3 for acquisition of 3.995 hectare of land. The Collector vide letter dated 25th October, 2008 forwarded the proposal of acquisition, as submitted by respondent No.3, to the Commissioner and Director, Land Acquisition Directorate, Board of Revenue, Lucknow. The Commissioner and Director vide letter dated 1st December, 2008 forwarded the proposal to the Secretary, Department of Agricultural Marketing and Agricultural Foreign Trade for issuing notification under Section 4(1)/17 of the Act. A note dated 2nd January, 2009 was submitted, which was approved by the Special Secretary on 5th January, 2009. The note was also recommended for obtaining proposal from Director, Mandi Parishad. The Director, Mandi Parishad wrote a letter on 27th February, 2009. The note was submitted on 3rd March, 2009 for approval of the proposal for acquisition of 3.995 hectare of land under Section 4(1)/17 of the Act, which was forwarded by the Special Secretary on 5th March, 2009 and approved by the Minister concerned on 6th March, 2009. The provisions of sub-section (1) of Section 17 and sub-section (4) of Section 17 of the Act were also invoked dispensing the inquiry under Section 5A of the Act. The notification under Section 4(1) of the Act was published in the Gazette on 20th May, 2009 and the substance of the notification was published in the Hindi Daily newspapers "Amar Ujala" and "Dainik Jagaran" on 14th October, 2009 and 15th October, 2009 respectively. A declaration under Section 6(1) of the Act dated 27th January, 2010 was issued, which was published in the Gazette on 27th January, 2010 itself and thereafter published in the Hindi Daily newspapers "Amar Ujala" and "Dainik Jagaran" on 13th February, 2010. Challenging the notifications issued under Section 4 read with Sections 17(1) and 17(4) of the Act and the declaration under Section 6(1) read with Section 17(4) these writ petitions have been filed. A writ of mandamus has also been prayed for restraining the respondents from dispossessing the petitioners from their land.
The writ petition was entertained by Division Bench of this Court on 28th April, 2010. After filing of the counter affidavit and supplementary counter affidavit by respondents No.2 and 3 an interim order was passed on 3rd May, 2010 directing the parties to maintain status quo with regard to possession over the land in question. The State also filed its counter affidavit. The State Government was directed to produce the relevant records by order dated 30th September, 2010. The original records of the State Government being File No.600(293)/208 of the Department has been produced by learned Standing Counsel on the date of hearing.
Sri Keshri Nath Tripathi, Senior Advocate, appearing for the petitioners, challenging the impugned notifications, submits that steps for acquisition have been initiated in the year 1994 by Land Selection Committee which received approval of the Board of Director on 10th July, 1997 and thereafter after more than 10 years, respondent No.3 took a decision on 8th August, 2008 for proceeding with the land acquisition, which proposal was forwarded by the District Magistrate on 25th October, 2008 on the basis of which notification under Section 4 of the Act was issued on 20th May, 2009 and published in the newspapers on 14th and 15th October, 2009. The above facts indicate that there was no such urgency in the matter which may warrant dispensation of inquiry under Section 5A. It is submitted that even if it is assumed that construction of some market yard is urgent matter requiring invocation of Section 17(1) of the Act, there has to be exceptional reasons for dispensing with the inquiry under Section 5A of the Act. It is submitted that steps for construction of market yard having been initiated in the year 1994, which remained pending at the stage of respondent No.3 itself till 2008, there cannot be any sudden urgency for dispensing with the inquiry under Section 5A. He submits that in the plots in question there is a big grove of fruits bearing trees comprising of 110 tress of Mango, 52 trees of Sheesham, 2 trees of Popular, one big tree of Peepal and 2 trees of Neem which are about 40 years old. He submits that in accordance with the Government orders dated 20th August, 1969 and 5th February, 1993 as far as possible the cultivatory land should not be acquired for non cultivatory purpose. He submits that petitioners were entitled for an opportunity to file their objection, which has been denied without there being any valid ground. He submits that even after publication of notification under Section 4 of the Act on 20th May, 2009 the same was got published in the newspapers on 14th and 15th October, 2009, which fact itself indicates that there was no such urgency in the matter which warranted dispensation of inquiry. It is submitted that had the case being of such urgency, there was no occasion for publishing substance of notification under Section 4 of the Act after five months. Sri Tripathi further submitted that neither there was any material before the State Government forming any subjective satisfaction regarding invocation of Sections 17(1) and 17(4) of the Act nor the State Government applied its mind with regard to Sections 17(1) and 17(4) of the Act. It is submitted that sub-market yard at Allahganj has not been declared as required by Section 6(1) of the Krishi Utpadan Mandi Samiti Adhiniyam, 1964 and the gazette notification dated 29th October, 1996, which has been made available to the petitioners under the Right to Information Act, 2005, is a notification dividing existing market area of Jalalabad into two distinct market yards i.e. Jalalabad and Allahganj and not with regard to creation of new market yard at Allahganj. He submits that there was no need or justification for acquisition of land in question for construction of sub-market yard. Sri Tripathi has placed reliance on a Division Bench judgment of this Court in Writ Petition No.18918 of 2006 (Ramesh and others vs. State of U.P. and others) decided on 18th December, 2007 and the judgment of the Supreme Court in Civil Appeal No.2523 of 2008 (Anand Singh and another vs. State of U.P. and others) decided on 28th July, 2010.
Sri B.D. Mandhyan, learned Senior Advocate, appearing for respondents No.2 and 3, refuting the submissions of counsel for the petitioners, submits that construction of market yard and sub-market yard are matter of national urgency. He submits that in several judgments of this Court as well as the Apex Court, it has been held that invocation of provisions of Sections 17(1) and 17(4) is fully justified in regard to cases for construction of sub-market yard. He submits that construction of sub-market yard brings relief to the agriculturists, which is of extreme urgency. Reliance has been placed by Sri Mandhyan on Division Bench judgments of this Court in the cases of Satyendra Prasad Jain and others vs. State of U.P. and others reported in 1987 A.W.C.382, Smt. Manorama Devi and others vs. State of U.P. and others reported in A.I.R. 1994 Allahabad 359, Ranjit Singh Chauhan and another vs. State of U.P. and another reported in 1997 All.L.J. 1756, Smt. Manju Lata Agrawal vs. State of U.P. and others reported in 2007(9) Additional District Judge 447, Mahendra Singh vs. State of U.P. and others, reported in 2002(47) ALR 706 and the judgments of the Apex Court in the cases of Bhagat Singh vs. State of U.P. and others reported in A.I.R. 1999 S.C. 436 and First Land Acquisition Collector and othes vs. Nirodhi Prakash Gangoli and another reported in (2002)4 S.C.C. 160. Sri Mandhyan further submits that the delay on the part of respondents No.2 and 3 or by the State prior to issue of the notification under Section 4(1) of the Act is not relevant nor the same vitiate the notifications. He further submits that even the delay which have been occurred after issue of notification under Section 4 of the Act does not vitiate the acquisition proceedings. Refuting the submission of learned counsel for the petitioners with regard to non declaration of sub market area in question, it is submitted that notification was issued declaring Allahganj sub market area on 11th February, 1976 under Section 7 of the Krishi Utpadan Mandi Samiti Adhiniyam, 1964 declaring sub market area as Gaon Sabha Allahganj. He submits that there is no requirement of issuing any notification under Section 8 of the Krishi Utpadan Mandi Samiti Adhiniyam, 1964. It is submitted that notification dated 29th October, 1996, which has been filed by the petitioners themselves is notification under Section 8(1) of the Krishi Utpadan Mandi Samiti Adhiniyam, 1964 dividing Jalalabad market area into Allahganj market area and Jalalabad market area and there was no lack of jurisdiction in the authorities to acquire the land for construction of sub market yard at Allahganj.
Sri Ram Krishna, learned Standing Counsel, appearing for the State Government, has submitted that the State Government has rightly issued notification under Section 4 read with Section 17(1) and 17(4) of the Act. He submits that suitability of land was judged after spot inspection and the land in question was urgently required for construction of sub-market yard, therefore, provisions of Section 17(4) of the Act was rightly invoked. It is submitted that notice under Section 9(1) of the Act has been issued on 3rd March, 2010 in which petitioners have also filed their objection. It is further submitted that the State Government was fully satisfied with regard to acquiring of land and urgency for dispensing with the inquiry under Section 5A of the Act. Learned Standing Counsel referring to the original records, has submitted that all requisite certificates including certificate in PRAPATRA-10 for invoking section 17 was given by the Collector and there being materials on record, the State Government has rightly invoked Section 17(4) of the Act.
We have considered the submissions of learned counsel for the parties and perused the records including the record of the State Government produced by the learned Standing Counsel at the time of hearing.
The main issue, which has arisen for consideration in this writ petition, is with regard to invocation of Sections 17(1) and 17(4) of the Act. Section 17(1) and 17(4) of the Act are quoted below:-
" 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) ...........
(3) ...........
[(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 not 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).]"
Section 17(1) of the Act provides that 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. Sub-Section (4) of Section 17 provides that in 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.
The acquisition in question has been made for public purpose, namely "Construction of Sub Market Yard, Allahganj of Krishi Utpadan Mandi Samiti, Jalalabad". It is not disputed that the purpose for which the land is being acquired is public purpose. It is also not disputed that construction of market yard and sub market yard are matters of urgency. The Division Bench judgment of this Court in Satyendra Prasad Jain's case (supra), which has been relied by Sri B.D. Mandhyan, has laid down that farmers need protection against the exploiters, they need remunerative price for their produce, they should be provided all facilities for sale of their produce and, therefore, proper market yard is indispensable for them. It has further been held that their need is no less urgent than housing accommodation. Following was laid down in paragraphs 11 and 12 of the judgment:-
"11. Looking at these conditions it cannot be said that there is no urgency in the matter of acquiring the land in question. It is an acknowledged fact that the farmers need protection against the exploiters. They need remunerative price for their produce. The proper market yard, is, therefore, indispensable for them. We should not look leisurely at everything. The need of the farmers requires everybody's concern and attention. Their need is no less urgent than housing accommodation. The Supreme Court in a recent decision pertaining to the case of Meerut Development Authority - State of U.P. v. Meerut Development Authority, Meerut, AIR 1986 SC 2025 has observed that acquisition proceedings for the housing scheme could be taken by dispensing with the compliance of Section 5-A of the Act. It was observed at page 2028:-
"The provision of housing accommodation in these days has become a matter of national urgency. We may take judicial notice of this fact. Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is unnecessary to invoke Section 17(1) of the Act and to dispense with the compliance of section 5-A of the Act."
12. These observations are equally applicable to acquisition for construction of market yards which are primarily for the benefit of agriculturists. They are the back bone of this country. It is not the case of the petitioners that the lands have been acquired with malafide intention. Their only case is that they have planted eucalyptus, but the law provides for adequate compensation even for that."
The judgment of the Apex Court in Bhagat Singh's case (supra) was a case of construction of market yard at district Agra. The Apex Court in the said case has laid down that establishment of market yard is a matter of urgency.
Sri K.N. Tripathi has not seriously disputed the above said proposition. Thus the submission of Sri B.D. Mandhyan that the acquisition for construction of sub market yard was a matter of urgency, hence invocation of Section 17(1) of the Act cannot be faulted, is correct.
The submission, which has been emphatically pressed by the counsel for the petitioners is that there was no valid ground for invocation of Section 17(4) in facts of the present case. It is further submitted that neither there was any material to form any subjective satisfaction by the State that inquiry was liable to be dispensed with nor in fact the State applied its mind to the aforesaid.
Before we proceed to consider the facts of the present case and above submission of learned counsel for the petitioners, it is relevant to refer to certain decisions of this Court as well as the Apex Court, which had occasion to consider Section 17(4) of the Act.
A three Judges Bench of the Apex Court in the case of Narayan Govind Gavate & others. vs. State of Maharashtra & others reported in (1977) 1 S.C.C. 133 had considered sub-section (4) of Section 17 of the Act. The Apex Court was considering the land acquisition proceeding for the purpose of development of an area for industrial and residential purposes. The Apex Court laid down that barring exceptional circumstances, as to make immediate possession, without holding even a summary enquiry under section 5A of the Act, is imperative. It was also held that if a challenge is made to the invocation of provisions of Section 17(4) of the Act, it is for the State to show that some exceptional circumstances existed which necessitated the elimination of inquiry under section 5A of the Act and the authority applied its mind to this essential question. Following was laid down in paragraphs 40, 41 and 42 of the said judgment:-
"40. In the case before us, the public purpose indicated is the development of an area for industrial and residential purposes. .This in itself, on the face of it, does not call for any such action, barring exceptional circumstances, as to make immediate possession, without holding even a summary enquiry under section 5A of the Act, imperative. On the other hand, such schemes generally take sufficient period of time to enable at least summary inquiries under section 5A of the Act to be completed without any impediment whatsoever to the execution of the scheme. Therefore, the very statement of the public purpose for which .the land was to be 'acquired indicated the absence of such urgency, on the apparent facts of the case, as to require the elimination of an enquiry under 'section 5A of the Act.
41. Again, the uniform and set recital of a formula, like a ritual or mantara, apparently applied mechanically to every case, itself indicated that the mind of the Commissioner concerned was only applied to the question whether the land was waste or arable and whether its acquisition is urgently needed. Nothing beyond that seems to have been considered. The recital itself shows that the mind of the Commissioner was not applied at all to the question whether the urgency is of such a nature as to require elimination of the enquiry under section 5A.of the Act. If it was, at least the notifications gave no inkling of it at all. On the other hand, its literal meaning was that nothing beyond matters stated there were considered.
42. All schemes relating to development of industrial and residential areas must be urgent in the context of the country's need for increased production and more residential accommodation. Yet, the very nature of such schemes of development does not appear to demand such emergent action as to eliminate summary enquires under section 5A of the Act. There is no indication whatsoever in the affidavit filed on behalf of the State that the mind of the Commissioner was applied. at all to the question whether it was a case necessitating the elimination of the enquiry under section 5A of the Act. The recitals in the notifications, on the other hand, indicate that elimination of the enquiry under section 5A of the Act was treated as an automatic consequence of the opinion formed on other matters. The recital does not say at all that any opinion was formed on the need to dispense with the enquiry under section 5A of the Act. It is certainly a case in which' the recital was at least defective. The burden, therefore, rested upon the State to remove the defect, if possible, by evidence to show that some exceptional circumstances which necessitated the elimination of an enquiry under section 5A of the Act and that the mind of the Commissioner was applied to this essential question. It seems to us that the High Court correctly applied the provisions of section '106 of the Evidence Act to place the burden upon the State to prove those special circumstances. although it also; appears to us. that the High Court was not quite correct in stating its view in such a manner as to make it appear that some part of the initial burden of the petitioners under sections 101 and 102 of the Evidence Act had been displaced by the failure of the State, to discharge its duty under' section 106 of the Act. The correct way of putting it would have been to say that the failure of the State to produce the evidence of facts especially' within the knowledge of its officials, which rested upon it under section 106 of the Evidence Act, taken together with the attendant facts gnu circumstances, including the contents of recitals, had enabled the petitioners to discharge their burdens under sections 101 and 102 of the Evidence Act."
The Apex Court in the case of State of U.P. and others vs. Smt. Pista Devi reported in 1986 AIR 2025 1986 laid down that acquisition for the purpose of residence is a matter of national urgency.
The Apex Court in Bhagat Singh's case (supra), which has been relied by the learned counsel for the respondents, has laid down following in paragraphs 9, 10 and 11:-
"9. On the question of urgency, the following facts and contentions emerge from the Counter affidavits. The establishment of a Market Yard is not merely one of mere urgency but one which makes it necessary to dispense with inquiry under section 5-A. The existing market yard is situated in a very congested locality having no scope for expansion and the place where the Market is now located is not sufficient to cater to the growing needs of its constituents. There is no adequate space for free movement and parking of trucks/bullock carts etc. nor for providing necessary shelter for those who come to the market. The existing market is also devoid of any amenities necessary for hundreds of people who visit the market every day or for the bullocks which are being used to draw the carts. During rainy season it becomes well-nigh impossible to find out suitable shelters for the farmers and producers of vegetables. It has become necessary to provide amenities and also construct roads in a planned manner.
10. In our view, the subjective satisfaction for dispensing with inquiry under Section 5-A is based on sufficient material and cannot be faulted. The photographs as to the filthy state of the present Mandi with garbage and stray cattle and pigs show that the place is so loathsome that it will be precarious and perhaps hazardous to store vegetables or foodgrains in the existing market. We are, therefore, of the view that the urgency clause was rightly invoked by the government. There are also enough precedents in connection with acquisition of land for markets where Section 5-A has been dispensed with and such action was upheld.
11. In connection with a similar acquisition for a market yard, when Section 5- A inquiry was dispensed with on the ground of urgency, the Allahabad High Court in Satyendra Prasad Jain (S.P. Jain) and others, v. State of U.P., [1987] A.W.C. 382 observed :
"The question herein is whether the State was justified in dispensing the requirements of enquiry contemplated under Section 5-A. It could be taken judicial notice of, that in regard to agricultural produce there were no proper market facilities. There were innumerable charges, levies and exactions which the agriculturists were required to pay without having any say in the proper utilisation of the amount paid by them. The Government of India and the various committees and commissions appointed to study the condition of agricultural markets in the country had stress to need to provide proper market yards for the sale and purchase of agricultural produce. The Planning Commission also stressed long ago in this regard. The Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 has been enacted to provide for the regulation of sale and purchase of agricultural produce and for the establishment, superintendence and control of markets therefore, in Uttar Pradesh. The proposed construction of market and market yard by the Mandi Samiti is, therefore, a step forward to ameliorate the conditions of producers with due representation to them in the Mandi Samities for the fair settlement of disputes relating to their transactions. It is a long felt need which is said to have been included in the planned Development Scheme."
It was further stated (P.3 & 4) as follows :
"It cannot be said that there is no urgency in matter of acquiring the land in question."
The above observations of the Apex Court that establishment of market yard is not merely one of mere urgency but one which makes it necessary to dispense with inquiry under Section 5A were made on the basis that there was sufficient materials on the record for forming subjective satisfaction for dispensation of inquiry. Specific reasons, which led the authority to dispense with the inquiry, has been made in paragraphs 9 and 10 of the said judgment, as quoted above.
In First Land Acquisition Collector's case (supra), the Apex Court laid down following in paragraph 5:-
"5. The question of urgency of an acquisition under Section 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In this view of the matter when the Government takes a decision, taking all relevant considerations into account and is satisfied that there exists emergency for invoking powers under Section 17 (1) and (4) of the Act, and issues Notification accordingly, the same should not be interfered with by the Court unless the Court comes to the conclusion that the appropriate authority had not applied its mind to the relevant factors or that the decision has been taken by the appropriate authority mala fide. Whether in a given situation there existed urgency or not is left to the discretion and decision of the concerned authorities. If an order invoking power under Section 17(4) is assailed, the Courts may enquire whether the appropriate authority had all the relevant materials before it or whether the order has been passed by non-application of mind. Any post Notification delay subsequent to the decision of the State Government dispensing with an enquiry under Section 5(A) by invoking powers under Section 17(1) of the Act would not invalidate the decision itself specially when no mala fides on the part of the government or its officers are alleged. Opinion of the State Government can be challenged in a Court of law if it could be shown that the State Government never applied its mind to the matter or that action of the State Government is mala fide. Though the satisfaction under Section 17(4) is a subjective one and is not open to challenge before a Court of law, except for the grounds already indicated, but the said satisfaction must be of the Appropriate Government and that the satisfaction must be, as to the existence of an urgency....."
The Apex Court in the above case has laid down that if an order invoking power under Section 17(4) is assailed, the courts may enquire whether the appropriate authority had all the relevant materials before it or whether the order has been passed by non application of mind. It was also laid down that any post notification delay subsequent to the decision of the State Government dispensing with the inquiry under Section 5A would not invalidate the decision itself.
A three Judges Bench of the Apex Court in the case of Union of India and others vs. Mukesh Hans reported in (2004)8 S.C.C. 14 had occasion to consider Section 17(5) and 5A of the Act and after considering several earlier judgments, following propositions were laid down in paragraphs 31, 32 and 33 of the said judgment:-
"31. Section 17 (4) as noticed above provides that in cases where the appropriate Government has come to the conclusion that there exists an urgency or unforeseen emergency as required under sub-sections (1) or (2) of Section 17 it may direct that the provisions of Section 5A shall not apply and if such direction is given then 5A inquiry can be dispensed with and a declaration may be made under Section 6 on publication of 4(1) notification possession can be made.
32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4) that by itself is not sufficient to direct the dispensation of 5A inquiry. It requires an opinion to be formed by the concerned government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5A inquiry which indicates that the Legislature intended that the appropriate government to apply its mind before dispensing with 5A inquiry. It also indicates the mere existence of an urgency under Section 17 (1) or unforeseen emergency under Section 17 (2) would not by themselves be sufficient for dispensing with 5A inquiry. If that was not the intention of the Legislature then the latter part of sub-section (4) of Section 17 would not have been necessary and the Legislature in Section 17 (1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5A inquiry will be dispensed with. But then that is not language of the Section which in our opinion requires the appropriate Government to further consider the need for dispensing with 5A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with 5A inquiry does not mean that in and every case when there is an urgency contemplated under Section 17 (1) and unforeseen emergency contemplated under Section 17 (2) exists that by itself would not contain the need for dispensing with 5A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the 5A inquiry is inherent in the two types of urgencies contemplated under Section 17 (1) and (2) of the Act.
33. An argument was sought to be advanced on behalf of the appellants that once the appropriate Government comes to the conclusion that there is an urgency or unforeseen emergency under Section 17(1) and (2), the dispensation of enquiry under Section 5A becomes automatic and the same can be done by a composite order meaning thereby that there no need for the appropriate Government to separately apply its mind for any further emergency for dispensation with an inquiry under Section 5A. We are unable to agree with the above argument because sub- section (4) of Section 17 itself indicates that the "government may direct that provisions of Section 5A shall not apply" which makes it clear that not in every case where the appropriate Government has come to the conclusion that there is urgency and under sub- section (1) or unforeseen emergency under sub-section (2) of Section 17 the Government will ipso facto have to direct the dispensation of inquiry. For this we do find support from a judgment of this Court in the case of Nandeshwar Prasad & Anr. vs. The State of U.P. & Ors. {1964 (3) SCR 425) wherein considering the language of Section 17 of the Act which was then referable to waste or arable land and the U.P.Amendment to the said section held thus :
"It will be seen that s. 17(1) gives power to the Government to direct the Collector, though no award has been made under s. 11, to take possession of any waste or arable land needed for public purpose and such land thereupon vests absolutely in the Government free from all encumbrances. If action is taken under s. 17(1), taking possession and vesting which are provided in s. 16 after the award under s. 11 are accelerated and can take place fifteen days after the publication of the notice under s. 9. Then comes s.17(4) which provides that in case of any land to which the provisions of sub-s. (1) are applicable, the Government may direct that the provisions of s. 5-A shall not apply and if it does so direct, a declaration may be made under s. 6 in respect of the land at any time after the publication of the notification under s. 4(1). It will be seen that it is not necessary even where the Government makes a direction under s. 17(1) that it should also make a direction under s. 17(4). If the Government makes a direction only under s. 17(1) the procedure under s. 5-A would still have to be followed before a notification under s. 6 is issued, though after that procedure has been followed and a notification under s. 6 is issued the Collector gets the power to take possession of the land after the notice under s. 9 without waiting for the award and on such taking possession the land shall vest absolutely in Government free from all encumbrances. It is only when the Government also makes a declaration under s. 17(4) that it becomes unnecessary to take action under s. 5-A and make a report thereunder. It may be that generally where an order is made under s. 17(1), an order under s. 17(4) is also passed; but in law it is not necessary that this should be so. It will also be seen that under the Land Acquisition Act an order under s. 17(1) or s. 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand."
In the above case, the Apex Court had laid down that even if the appropriate Government comes to the conclusion that there is an urgency under Section 17(1) of the Act, the dispensation of inquiry under Section 5A of the Act is not automatic. It was also held that even in cases the matter is of urgency, the appropriate Government has to separately apply its mind as to whether inquiry under Section 5A of the Act is to be dispensed with or not.
The judgment of the Apex Court in Union of India and others vs. Krishan Lal Arneja and others reported in (2004)8 S.C.C. 453, laid down the same proposition. Paragraph 16 of the said judgment is quoted below:-
"16. Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however, laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a land owner of his right in relation to immoveable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5A of the Act. The Authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the land owners and the inquiry under Section 5A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen's property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State Administration."
The Division Bench judgment in Mahendra Singh's case (supra), relied by Sri M.D. Mandhyan, learned counsel for the respondents, laid down the same proposition in paragraphs 6 and 9 of the judgment:-
"6. It is, therefore, well settled that the question of urgency is a matter for subjective satisfaction of the appropriate Government and it is not open to the Courts to examine the propriety or correctness of the satisfaction on an objective consideration of facts. The opinion can be challenged in a Court of law only if it can be shown that the Government never applied its mind to the matter or that the action of the Government is mala fide."
9. There are several decisions of our Court, where after noticing the law laid down by the Hon'ble Supreme Court in Narain's case (supra), it was held that the question of urgency is a matter for the subjective satisfaction of the Government and it is not open to the Courts to examine the propriety and the correctness of the satisfaction on subjective appraisal of facts. The opinion can be challenged in a Court of law only if it can be shown that the Government never applied its mind to the matter or its action was mala fide. Reference in this connection may be made to Raj Bali v. State of U.P., Trilochan v. State, Mohd. Hanif v. State, Gayatri Nagar Sahkari Avas Samiti Ltd. v. State, Kunwar Lal v. State, and Satbir Singh v. State."
Another Division Bench of this Court in Smt. Manju Lata Agrawal's case (supra) after considering almost all earlier judgments of the Apex Court, laid down following in paragraphs 43 and 71 of the judgment:-
"43. The question whether inquiry under Section 5-A of the Act is necessary or not is a question of fact and it requires to be determined by the Government in the facts and circumstances of each case for the reason that no straight jacket formula can be evolved as under what circumstances the urgency clause should be invoked. The role of the Court is very limited and it can only see as to whether there was any material to form an opinion about invoking the urgency clause or whether the Government exercised the power in a malafide manner. The question as to whether urgency exists or not, is primarily a matter for determination of the Government subject to the scope of judicial review by the courts of law."
71. ..... In exceptional circumstances where there is a grave urgency or unforeseen emergency, the Government is competent to invoke the urgency powers contained under Sections 17 of the Act and take possession before making the Award. In a case of urgency or emergency Government is also competent to take a decision that in order to avoid further delay, the enquiry envisaged under Section 5-A of the Act be dispensed with, but for taking such a decision, there must be existing and relevant material before the Government and it must apply its mind as to whether the urgency is such that persons interested are to be deprived of their right to file objections under Section 5-A of the Act. Invoking the provisions under Sections 17 (1) or 17 (2) of the Act would not automatically dispenses with the inquiry under Section 5-A. There has to be an independent decision by the State Government for such dispensation. Section 17 (4) itself indicates that the "Government may direct that the provisions of Section 5-A shall not apply." The recital of such an opinion in the order or in notification is not necessary. Nor reasons have to be recorded in this regard in the official records. It is a case of subjective satisfaction of the Government and once the Government forms the opinion and dispenses with the enquiry under Section 5-A of the Act, the Court, in its limited jurisdiction of judicial review, cannot declare the acquisition proceedings bad. Pre or post notification delay or lethargy on the part of the officials of the State Government is not fatal to acquisition proceedings......"
The Division Bench judgment relied by learned counsel for the petitioner in Ramesh's case (supra) was again a case of acquisition for construction of sub-market yard. The Division Bench after considering the materials on record of the said case laid down that there was no materials on record which could justify invocation of power under Section 17(4) of the Act. Following was laid down by the Division Bench in the said judgment:-
"From a perusal of the pleadings on record and also from a perusal of the record of the State Government we do not find any material on record which would justify invoking the power under Section 17(4) of the Act, dispensing with hearing of objection and enquiry. We also do not find any express satisfaction recorded by the State Government for invoking the provisions of Section 17(4) of the Act. From a perusal of the record it appears that power under Section 17(4) of the Act were invoked merely because the acquisition was for construction of sub-market yard by Mandi Samiti, and such acquisition being for public purpose.
We may record here that under the Act, Section 17 provides for special powers in case of urgency. Sub-section (1) of Section-17 of the Act lays down that in cases of urgency the appropriate Government may direct, in the absence of any award having been made the Collector to take possession of any land needed for a public purpose on the expiration of 15 days from the publication of notice mentioned in Section 9(1) of the Act. Upon such possession being taken the land shall vest absolutely in the Government free from all encumbrances. Sub-section (1) of Section 17 of the Act empowers the Collector to take possession of certain classes of land. Sub-section (3) of Section 17 of the Act provides that where possession is being taken, if there are any standing crop or tree the Collector will offer compensation. Sub-section (3-A) and (3-B) of Section 17 of the Act provides certain pre-conditions to be observed by the Collector, with regard to payment of compensation before taking possession under sub-section (1) or sub-section (2) of the Act. Sub-section (4) of Section 17 of the Act provides that if any land to which sub-section (1) and (2) apply a declaration may be made if in the opinion of the appropriate Government the provisions of Section 5A of the Act may be dispensed with. According to the proviso of the said sub-section the declaration may be made either simultaneously or at any time after the publication of the Notification under Section 4(1) of the Act. In the present case the declaration to dispense with enquiry under Section 5A of the Act has been made simultaneously with the publication of the Notification under Section 4(1) of the Act.
From a perusal of the scheme of Section 17 of the Act regarding the urgency power, it appears that holding any acquisition to be for public purpose is one aspect of the matter and making a declaration for dispensing with the enquiry under Section 5A of the Act would be a different matter. These are two separate aspects. There has to be separate application of mind by the Government based upon separate material on record with regard to holding of acquisition being for public purpose and for dispensing with the enquiry under section 5A of the Act.
On the record of the State Government, what is available is the proposal sent by the Mandi Samiti. Learned Standing Counsel was not able to point out any material available on record of the State Government to justify its decision to dispense with the enquiry under Section5-A of the Act. We do not find any opinion also on the record recorded by the State Government as to why and what were the factors which compelled it to form opinion of dispensing with hearing of objection and enquiry under Section 5A of the Act. In the absence of any such material and also in the absence of any opinion of the State Government based upon reasons, it is difficult to hold that dispensation of enquiry under Section 5A of the Act was justified...."
The latest judgment of the Apex Court in Anand Singh's case (supra), relied by the counsel for the petitioners, has again elaborately considered almost all earlier cases on the subject. Paragraphs 30 and 31 of the said judgment, which are useful for the purpose, are quoted below:-
"30. The power of eminent domain, being inherent in the government, is exercisable in the public interest, general welfare and for public purpose. Acquisition of private property by the State in the public interest or for public purpose is nothing but an enforcement of the right of eminent domain. In India, the Act provides directly for acquisition of particular property for public purpose. Though right to property is no longer fundamental right but Article 300A of the Constitution mandates that no person shall be deprived of his property save by authority of law. That Section 5A of the Act confers a valuable right to an individual is beyond any doubt. As a matter of fact, this Court has time and again reiterated that Section 5A confers an important right in favour of a person whose land is sought to be acquired. When the government proceeds for compulsory acquisition of 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 5A 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, 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. The exceptional and extraordinary power of doing away with an enquiry under Section 5A in a case where possession of the land is required urgently or in 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 5A. Exceptional the power, the more circumspect the government must be in its exercise......"
31. In a country as big as ours, the roof over head is a distant dream for 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 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 5A be dispensed with invariably. We do not think so. Whether `planned development of city' or `development of residential area' cannot brook delay of few months to complete the enquiry under Section 5A? 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 city' or `for development of residential area' in exceptional situation. Use of the power by the government under Section 17 for `planned development of the city' or `the development of residential area' or for `housing' must 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 exercise of such power. It must, therefore, be held that the use of the power of urgency and dispensation of enquiry under Section 5A 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 a very valuable right under Section 5A may not meet the statutory test nor could be readily sustained."
From the proposition as laid down in the abovenoted cases, following principles can be culled for invocation of power by the State under Section 17(4) of the Act:-
(i)For exercising power under Section 17(4) of the Act condition precedent is urgency as contemplated under Section 17(1) and 17(2) of the Act but the mere fact that there is urgency in the matter shall not automatically lead to exercise of power under Section 17(4) of the Act.
(ii)Exercise of power under Section 17(4) of the Act has to be in exceptional circumstances where looking to the purpose for which the land is being acquired giving of opportunity under Section 5A shall frustrate the purpose and the case is one which cannot admit any delay.
(iii)For exercise of power under Section 17(4) of the Act there has to be material on the record on the basis of which the State can form subjective satisfaction for invoking the power under Section 17(4) of the Act.
(iv)The State has to apply its mind specifically as to whether the case is one which require dispensation of inquiry under Section 5A of the Act and the power cannot be exercise in a routine manner or mechanically.
Now we come to the facts and materials which are on the record of the present case for finding out as to whether invocation of power under Section 17(4) of the Act, in facts and circumstances of the present case, is justified.
It is relevant to note that although in the writ petition there was specific pleading that there is no such urgency in the matter so as to invoke the power under Section 17(4) of the Act, in the counter affidavit neither any material has been brought nor any pleading has been made giving any specific reason for justifying the invocation of power under Section 17(4) of the Act except stating that the acquisition was urgently needed for construction of sub-market yard for which the District Magistrate was fully satisfied.
As noticed above, the acquisition of sub-market yard may be urgent but for invocation of power under Section 17(4) of the Act there has to be some material on which subjective satisfaction can be arrived at by the State. In the counter affidavit and supplementary counter affidavit filed by respondents No.2 and 3 no material has been brought on the record in this regard. In the supplementary counter affidavit copy of resolution dated 8th August, 2008 of the Krishi Utpadan Mandi Samiti, Jalalabad has been brought on the record which is the resolution by which acquisition was directed to be initiated. The said proposal refers to selection of the land by the Land Selection Committee on 26th August, 1994 thereafter approval by the Board of Directors on 10th July, 1997 and letter dated 27th June, 2003 of Regional Deputy Director (Administration), Mandi Parishad, Bareilly for taking steps for acquisition of 10 acres of land through Collector. The said resolution does not say anything for any special urgency or exceptional circumstances for urgent acquisition. In the counter affidavit no materials have been brought on the record nor any pleading giving any specific reason for invocation of Section 17(4) of the Act has been made. Even if the pre-notification delay, i.e. April, 1994 to 19th May, 2009 may not be treated to vitiate the acquisition proceeding, the said long period is relevant for considering the question as to whether there was any exceptional case for invocation of Section 17(4) of the Act.
The original record, which has been placed by learned Standing Counsel for our perusal, has been perused by us, a brief reference to which is necessary. The original records contains the proposal submitted by the Collector along with the relevant PRAPATRS as per land acquisition manual, which were forwarded by the Commissioner and Director to Secretary of the Government vide letter dated 1st December, 2008. The letter dated 1st December, 2008 of the Commissioner and Director only mentions that notification under Section 4(1)/17 of the Act be directed to be issued. Along with the said proposal the proceeding of the meeting dated 19th September, 2008 of the Zila Bhoomi Upyog Samiti has been enclosed which does not mention anything about the urgency. The resolution dated 8th August, 2008 of the Krishi Utpadan Mandi Samiti, Jalalabad was also enclosed which does not say anything about urgency or invocation of Section 17(4) of the Act.
Learned Standing Counsel has referred to PRAPATRA-10 which is a format for applying Section 17 of the Act in the notification under Section 4 of the Act.
The said certificate mentions that for immediate completion of the project, it is necessary to take possession of the land. It further states that when Section 17 of the Act is invoked provisions of Section 5A of the Act automatically comes to an end and he agrees with dispensation of hearing to the land owners. Apart from above certificate in PRAPATRA-10, there is no other correspondence or material on the record giving any reason for invocation of Section 17(4) of the Act or even specifically recommending for invocation of Section 17(4) of the Act. The letter of the Director and Commissioner dated 1st December, 2008 was considered by the department of Agricultural Marketing and Agricultural Foreign Trade on 2nd January, 2009 when a note was put up before the Special Secretary. The note does not even refer to any urgency for invocation of Section 17(4) of the Act nor even recommends for invocation of Section 17(4). The note was approved on 3rd March, 2009. The said note also refers to draft notification under Section 4(1)/17 of the Act and recommends that proposal of Commissioner and Director dated 1st December, 2008 be placed before the Secretary/Hon'ble Minister which was approved by the Special Secretary on 5th March, 2009 and by Hon'ble Minister on 6th March, 2009. The said note dated 3rd March, 2009 does not refer to invocation of Section 17(4) of the Act or any specific urgency for dispensation of inquiry. The note only refers to proposal submitted by the Commissioner and Director, Land Acquisition Directorate (letter dated 1st December, 2008). Before the State Government there were thus only two notes submitted by the Department of Agricultural Marketing and Agricultural Foreign Trade dated 2nd January, 2009 and 3rd March, 2009. They do not refer to any fact regarding urgency. It has already been noticed that proposal of the Commissioner and Director, Land Acquisition Directorate dated 1st December, 2008 did not refer to any urgency or invocation of Section 17(4) of the Act specifically. Thus neither the proposal submitted by Commissioner and Director dated 1st December, 2008 nor the above two notes, which were submitted by the department of Agricultural Marketing and Agricultural Foreign Trade, made mention of Section 17(4) of the Act.
From the aforesaid, it is clear that there was no application of mind by the State with regard to invocation of power under Section 17(4) nor the records disclose that the aforesaid fact has been considered by the State Government before directing for dispensation of inquiry under Section 5A of the Act.
Except the certificate issued by the Collector in PRAPATRA-10, as extracted above, no materials have been brought along with the counter affidavit filed by respondents No.2 and 3 or along with the counter affidavit filed by the State to prove that there was any material before the State for forming subjective satisfaction for invocation of power under Section 17(4) of the Act. The PRAPATRA-10, as submitted by the Collector and noticed above, indicates that Collector having come to conclusion that project is required to be urgently completed, has assumed that inquiry under Section 5-A has to be automatically dispensed with. The said is not the legal position, as noticed above.
In view of the foregoing discussions, we are of the considered opinion that in the present case there was neither any material nor there was application of mind by the State with regard to invocation of power under Section 17(4) of the Act and the power under Section 17(4) of the Act was invoked by the State in a routine and mechanical manner which cannot be sustained. Thus the submission of counsel for the petitioners has substance that invocation of power under Section 17(4) of the Act is not in accordance with the provisions of the Act and the law laid down by the Apex Court as noted above.
Insofar as the second argument of Sri Tripathi that there being no declaration of sub-market area by appropriate notification, no land acquisition proceeding could be initiated for acquisition of land for construction of sub market yard is concerned, suffice it to say that appropriate notification under Section 7 Krishi Utpadan Mandi Samiti Adhiniyam, 1964 has already been referred to in which sub-market area has been declared and further notification under Section 8(1) Krishi Utpadan Mandi Samiti Adhiniyam, 1964 has been brought on the record by the petitioners themselves in their supplementary affidavit by which the market area of Jalalabad has been divided into two market areas, hence there was no legal impediment in proceeding with the land acquisition for acquisition of land for construction of sub-market yard. There is no substance in the second submission of the learned counsel for the petitioners.
We are cautious that construction of sub-market yard is urgent matter but, as observed above, mere urgency does not automatically lead to deny the land holders their right of filing objection under Section 5A. Thus the land acquisition proceedings initiated by issuing notification under Section 4(1) of the Act dated 20th May, 2009 is to be maintained. The invocation of power under Section 17(4) of the Act in the notification under Section 4 of the Act dated 20th May, 2009 has to be set-aside and consequently notification under Section 6 of the Act has also to be set-aside.
In the result, both the writ petitions are partly allowed by issuing following directions:-
(i) The notification dated 20th May, 2009 insofar as following part, both in English and Hindi, is concerned "and that in view of the pressing urgency it is as well necessary to eliminate the delay likely to be caused by an enquiry under section 5-A of the said Act, the Governor is further pleased to direct under sub-section (4) of section 17 of the said Act that the provisions of section 5-A of the Act shall not apply", is quashed by maintaining rest of the part and the declaration under Section 6 dated 27th January, 2010 is also quashed.
(ii) The petitioners and other tenure holders, whose land is sought to be acquired, are entitled to file their objection under Section 5A(1) of the Act. Necessary corrigendum (newspaper publication giving opportunity to the petitioners and other tenure holders to file their objection) be issued within 30 days from today and thereafter further proceedings may take place in accordance with the provisions of the Act.
Parties shall bear their own costs.
Dated: November 9, 2010.
Rakesh