Trilochan v. State of Uttar Pradesh — 1985 DIGILAW 391 (ALL)

JUDGMENT N.D. Ojha, J. - These two writ petitions challenge the validity of a notification dated 26-5-1984 under S. 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) and another notification dated 28-5-1984 under S. 6 of the Act published in the U.P. Gazette Extraordinary dated 28-5-1984 and 29-5-1984 respectively as also the subsequent notices issued under S. 9 of the Act. Since common pleas have been raised in these two writ petitions they are being decided by a common order. 2. As the impugned notifications indicate the land which is the subject matter of these notifications is being acquired for the setting up of a watch factory by the Government of India in district Nainital through the Hindustan Machine Tools Limited, Hyderabad, under a Planned Development Scheme and in view of the pressing urgency and to eliminate the delay likely to be caused by an enquiry under S. 5-A of the Act a direction has been issued by the Governor under sub-s. (4) of S. 17 of the Act that the provisions of S. 5-A thereof shall not apply. 3. Two points have been urged by counsel for the petitioners in these writ petitions: (1) that there was no such urgency so as to justify the direction of dispensing with the provisions of S. 5-A of the Act and (2) that other land suitable for the purpose aforesaid was available in the neighbourhood and the impugned proceedings for acquisition were consequently mala fide. 4. Having heard counsel for the petitioners and the Standing Counsel for the respondents we are of opinion that there is no substance in either of the aforesaid two points. As regards the first point it may be pointed out that two counter-affidavits have been filed in Writ Petition No. 9140 of 1984 on behalf of the respondents one by Sri J. C. Kukrety, Land Acquisition Officer, Nainital and the other by Sri Bhagwat Prasad Misra, Deputy Secretary, Industries Department, U.P. Secretariat, Lucknow. The counter-affidavit of Sri J. C. Kukrety indicates that a plan outlay costing about Rs. 45 Crores for manufacture of about two million watches per year was prepared by the Hindustan Machine Tools Company, a Government of India Undertaking which was finally approved by the Government of India on 25-9-1982. The counter-affidavit of Sri J. C. Kukrety indicates that a plan outlay costing about Rs. 45 Crores for manufacture of about two million watches per year was prepared by the Hindustan Machine Tools Company, a Government of India Undertaking which was finally approved by the Government of India on 25-9-1982. Major portion of the land required for the purpose was to be obtained either by private nagotiation or by transfer of the forest land of the U.P. Government, and that after having obtained land in this manner the construction of the factory was started and the present position is that the company has entered into the last phase of the construction of the factory. In this connection it became necessary to have such land which was situated at a height of 200 ft. above the level of the factory for storage of water and construction of water supply system so that "there may be a constant supply of water to the factory which in true sense is the core for manufacture of watches." This counter- affidavit also states that the factory cannot function unless the water supply (system) as proposed is completed. It further indicates that out of total investment of about Rs. 45 crores the company was to get capital subsidy of 25% from the Government of India provided it started its production by 31-3-1985. And it was for these reasons that the impugned notifications were issued. 5. The counter-affidavit of Bhagwat Prasad Misra indicates : "That the development of hill area was the foremost consideration in establishment of this factory. Along with it it was to be kept in mind that the delay in establishment and production by the factory will cause increase in the prices. Coupled with it was the report of the company before the Government that the establishment of the company is going on war footing and is near completion but its entire purpose will be frustrated if this land is not given possession of from where alone continuous water supply without use of energy can be made. Coupled with it was the report of the company before the Government that the establishment of the company is going on war footing and is near completion but its entire purpose will be frustrated if this land is not given possession of from where alone continuous water supply without use of energy can be made. The State Government has issued this notification keeping in view this condition also that if the factory will not start production by March, 1985, then it will lose 25% capital subsidy applicable in special region districts in which Nainital falls." It further states : "If the possession over the land under acquisition is not delivered the whole object of establishing the factory for manufacturing of watches will be frustarted. Moreover, trial production also cannot begin so long the continuous and uniterrupted water supply is not made available upto Sept./Oct. 1984. If the trial production could not begin in the months stated above the regular production cannot start within the specified time and if the production does not begin within the specified time the cost of the project will be adversely affected because of non-availability of Government subsidy." 6. In view of the aforesaid facts stated in the two counter-affidavits mentioned above we are satisfied that the direction about the inquiry under S. 5-A of the Act being dispensed with was given after application of mind and consideration of material indicating urgency in this behalf and that the delay caused by the inquiry under S. 5-A of the Act was likely to result in grave injury. The sense of urgency is also borne out by the circumstance that notifications under Ss. 4 and 6 of the Act were issued in quick succession at an interval of one day only as already pointed out above. 7. In Rajbali v. State, AIR 1983 All 78 , a Division Bench of this Court held (Para 4) : "..........the question as to whether the enquiry should be dispensed with is primarily and fundamentally a matter of subjective satisfaction of the State Government. The decision of the State Government whether urgency exists cannot be questioned in any Court, provided the Government applies its mind and acts in good faith. Prima facie, the Government is the best judge for determining which is the more suitable site for achieving the purpose for which acquisition has been started. The decision of the State Government whether urgency exists cannot be questioned in any Court, provided the Government applies its mind and acts in good faith. Prima facie, the Government is the best judge for determining which is the more suitable site for achieving the purpose for which acquisition has been started. It is only in a case of mala fide exercise of power that the court can interfere." 8. In the case of Rajbali (supra) land was intended to be acquired for the purpose of planned industrial development of a district in backward area and entrepreneurs agreeable to start industries over the site in question were keen for obtaining possession of the lands immediately so that their finances were not held up. It was held that the dispensation of proceedings under S. 5-A of the Act was justified. 9. Anand Kishore v. State, 1984 All LJ 58 was a case where land was sought to be acquired for construction of stores and workshop for costly materials for drilling and development of tube-wells of a Government Department of Irrigation branch. Entire plan of construction was to be completed within a limited time as there was likelihood of a huge grant given by the Government for the purpose lapsing. Irrigation work mentioned above was found to be of a pressing nature having regard to the demand for proper and immediate irrigation facilities in the area in question and the direction whereby enquiry under S. 5-A of the Act was dispensed with was held to be quite in order and unexceptionable. 10. In Technical Associates (Pvt.) Ltd., Lucknow v. State, 1984 All LJ 1093 the dispensing with of the provisions of S. 5-A of the Act in connection with acquisition of land fora public purpose, namely, Ujariaon Housing Scheme, Lucknow, by the Lucknow Development Authority under a Planned Development Scheme was challenged in a group of writ petitions. These writ petitions were dismissed by a Division Bench of this court and it was held that the dispensing with of enquiry under S. 5-A of the Act was justified. 11. These writ petitions were dismissed by a Division Bench of this court and it was held that the dispensing with of enquiry under S. 5-A of the Act was justified. 11. Counsel for the petitioners placed reliance on the following observations of the Supreme Court in Narayan Govind Gavata v. State of Maharashtra, AIR 1977 SC 183 in support of his contention that the purpose for which the impugned notifications were issued did not justify dispensing with enquiry under S. 5-A of the Act : "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 appeal to demand such emergent action as to eliminate summary enquiries under S. 5-A of the Act." 12. Reliance on the aforesaid observations had been placed in the case of Technical Associates (Pvt.) Ltd., Lucknow (1984 All LJ 1093) (supra) also. It was held that the decision in the case of Narayan Govind Gavata was distinguishable. In this connection it was pointed out (Para 27-A) : "These observations have to be read in the context of the facts of that case. The greatest distinguishing feature is that the statute which was considered by their Lordships in that case did not, it seems, empower the Government, - as our sub-s. (1-A) of S. 17 does, - to invoke the urgency clause in cases of planned development. Secondly, a perusal of paras 3 to 9 of the report shows that the Government in that case did not even attempt to place before the court any material in support of the alleged urgency. They merely took their stand on the plea of non-justiciability of the satisfaction of the Government. Such a plea could obviously not stand in view of the principles of challengeability mentioned earlier. They merely took their stand on the plea of non-justiciability of the satisfaction of the Government. Such a plea could obviously not stand in view of the principles of challengeability mentioned earlier. In para 42 it was further noted by their Lordships that "The recital does not say at all that any opinion was formed on the need to dispense with the enquiry under S. 5-A of the Act" and that it was "certainly a case in which the recital was at least defective" and that " 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 S. 5-A of the Act and that the mind of the Commissioner was applied to this essential question." The matter was thus decided only on the basis of burden of proof. The observations extracted above cannot be read as if they were the words of a statute, but have to be read only as forming part of the train of reasoning while formulating the principles of law laid down in the case. It would be contrary to the intent of the Legislature to construe the said dicta of their Lordships to mean that even though the Legislature says that S. 17 can be invoked if the Government thinks it necessary for purposes of planned development, yet it cannot be invoked for purposes merely of planned development. There is no doubt an observation in para 39 of Narayan, ( AIR 1977 SC 183 ) (supra), that the urgency clause could be invoked in the case of operation of natural physical forces beyond human control, but as was pointed out in Smt. Kailashwati v. State of U.P., AIR 1978 All 181 , (Paras 8 to 10), this observation was only illustrative and not exhaustive of the situations in which the urgency clause could be invoked." 13. We are of opinion that the distinction pointed out above applies to the facts of the instant cases also. 14. Reliance for the aforesaid proposition was also placed by counsel for the petitioners on two decisions of this Court in Dr. Nanak Chandra Chaturvedi v. State, 1979 All CJ 105 and Smt. Manohari Devi Balwal v. State of U.P., 1979 All CJ 163. 15. 14. Reliance for the aforesaid proposition was also placed by counsel for the petitioners on two decisions of this Court in Dr. Nanak Chandra Chaturvedi v. State, 1979 All CJ 105 and Smt. Manohari Devi Balwal v. State of U.P., 1979 All CJ 163. 15. These two decisions were relied on in the case of Anand Kishore (1984 All LJ 58) (supra) also and it was held : "We find both these two decisions distinguishable on facts. In the case of Dr. Nanak Chandra Chaturvedi (supra) the position was that though the Government had taken the decision to dispense with the enquiry under S. 5-A on 24th July 1978, the notification under Ss. 4 and 6 was not published until the 19th Aug. 1978, and despite a specific challenge by the petitioners in that behalf no explanation was forthcoming from the acquiring authority as to why when the Government itself delayed publication of notification under S. 4 by more than one month after it took the decision to dispense with the enquiry under S. 5-A, it was not possible to give to the affected persons the opportunity to file objections under S. 5-A. It was contended that on these facts the decision of the Government to dispense with the enquiry under S. 5-A was ex facie indefensible. The contention was upheld by the Bench on the ground that despite a challenge, the respondent-acquiring authority did not place any material before the court to enable it to judge whether it was really a case of urgency." ................. "The other decision cited above, namely, 1979 All CJ 163 is equally distinguishable. In that case the public purpose indicated was establishment of an industrial estate and further there was an unjustified time lag between the decision of the Government to dispense' with the enquiry under S. 5-A and publication of notification under S. 4 of the Act. Quite obviously such a purpose could not be characterised as one of that degree of urgency which may legitimately warrant dispensing with the enquiry under S. 5-A." 16. In the instant cases as seen above the notifications under Ss. 4 and 6 of the Act were issued in quick succession at an interval of one day only and there was no unexplained interregnum. 16A. In the instant cases as seen above the notifications under Ss. 4 and 6 of the Act were issued in quick succession at an interval of one day only and there was no unexplained interregnum. 16A. Coming to the second point urged by counsel for the petitioners it may be pointed out that, as held by this Court in the case of Rajbali ( AIR 1983 All 78 ) (supra) prima facie, the Government is the best judge for determining which is the more suitable site for achieving the purpose for which acquisition has been started. It is only in a case of mala fide exercise of power that the court can interfere. In the instant cases apart from making a bald allegation that other suitable land was available no details of such land have been given on the basis of which it may be held that there was other land suitable for the purpose for which the land in question is being acquired and that the acquisition proceedings were mala fide on this score. No other allegation of mala fide against any particular officer has been made. 17. In view of the foregoing discussion we do not find any good ground to quash the two impugned notifications. As regards the notices under S. 9 of the Act we are of opinion that once the notifications under Ss. 4 and 6 of the Act have been found to be valid there exists no ground for quashing these notices. In this connection it may be pointed out that in the counter-affidavit of Sri J. C. Kukrety it has been stated that as an initial step for the rehabilitation of the persons uprooted one member of each family whose land will be acquired will be provided job in the factory as far as possible in addition to the compensation which will be paid to them. 18. In the result we find no merit in these writ petitions. They are accordingly dismissed but there shall be no order as to costs.