Trijugi Nath Gupta v. State of Uttar Pradesh — 1985 DIGILAW 654 (ALL)

JUDGMENT K.N. Singh, J. - By means of this petition under Article 226 of the Constitution the petitioners have challenged validity of the proceedings taken under the Land Acquisition Act, 1894, for the purpose of acquiring their land. 2. The petitioners are co-owners along with several other persons of a building bearing old municipal Nos. 1, 116 to 119, Jawahar Quarters, in the city of Meerut. All the five municipal numbers have been changed and they now bear municipal No. 19. The Governor of Uttar Pradesh issued a notification on April 14, 1980, under S. 4 of the Land Acquisition Act. 1894, hereinafter referred to as the Act' notifying that the land mentioned in the schedule to the notification was needed for a public purpose, viz. for the construction of residential flats for the residents of Meerut by the Meerut Development Authority under a planned Development Scheme. The notification stated that the Governor was of the opinion that there was urgency for taking possession of the land and as such the provisions of S. 5A of the Act were dispensed with and the same shall not apply. Another notification under S. 6 of the Act was issued on 17-10-1980 declaring that the Governor was satisfied that the land mentioned in the schedule known as "Jawahar Quarter Kothi" was required for public purpose. The notification further contained a direction permitting the Collector to take possession of the land before the declaration of the award under S. 11 of the Act. Before the possession of the land could be taken the petitioners approached this Court by means of this petition challenging the validity of the aforesaid notification issued under Ss. 4 and 6 of the Act. 3. Before the possession of the land could be taken the petitioners approached this Court by means of this petition challenging the validity of the aforesaid notification issued under Ss. 4 and 6 of the Act. 3. Learned counsel for the petitioners made submissions to challenge validity of the acquisition on the ground that (1) there was no such urgency for acquisition of the land in dispute so as to invoke S. 17(1A) and 17(4) of the Act and to dispense with the enquiry under S. 5A of the Act; (2) there was no material before the State Government to form the requisite opinion as contemplated by S. 17(4) of the Act that the land was so urgently required that the affected persons should be denied opportunity to file objections; (3) the State Government invoked S. 17(4) of the Act and eliminated the enquiry under S. 5A of the Act in a mechanical manner without applying its mind to the question whether there was such urgency for the acquisition of the land that the summary enquiry under S. 5A should be dispensed with; (4) the impugned notifications indicate that the land in dispute has been acquired for the purpose of constructing residential flats by the Meerut Development Authority in accordance with the use of the land under the Master Plan finalised by the authority but the Meerut Development Authority has changed the purpose to construct commercial shops instead of residential flats. If the land is to be used for purposes of commercial shops the public purpose for which the notifications were issued was non-existent, and (5) the petitioners' land have been acquired on account of the mala fides of Sri A. P. Singh, the then District Magistrate, Meerut. On behalf of the State Government as well as on behalf of the Meerut Development Authority it was urged that the land in dispute has been acquired for a public purpose and since there was urgency the Governor applied S. 17(4) of the Act eliminating proceedings under S. 5A of the Act. The opinion formed by the Governor is not justiciable and it is not open to the petitioners to challenge the declaration of urgency in the impugned notifications. It was further urged that the acquisition is not vitiated by mala fides. 4. The opinion formed by the Governor is not justiciable and it is not open to the petitioners to challenge the declaration of urgency in the impugned notifications. It was further urged that the acquisition is not vitiated by mala fides. 4. The first three submissions made on behalf of the petitioners relate to the invocation of S. 17(4) of the Act and elimination of the enquiry under S. 5A of the Act on the ground that there was urgency for taking possession of the land. These three submissions can conveniently be discussed together. Section 4 of the Act provides that whenever it appears to the Government that land in any locality is needed for any public purpose, a notification to that effect shall be published in the official gazette. Section 5A provides for filing of objections by interested persons within 21 days after the issue of the notification under S. 4 raising objection to the acquisition of the land. The objections so filed are decided by the Collector after giving opportunity of hearing to the objectors. The Government may after considering the report, if any, made under S. 5A, make a declaration under S. 6 of the Act that the land is needed for a public purpose. Notices are issued to interested persons under S. 9 affording opportunity to them to file claims for compensation before the Collector. After holding enquiry into the claims the Collector determines compensation by means of award. After the delivery of award possession of the land is taken. This is the normal procedure. But the Act provides for shortening the procedure in urgent cases. It has empowered the Government to dispense with the enquiry under S. 5A and to take possession of land even before the determination of award. Section 17(4) empowers the Government to direct that the provisions of S. 5A shall not apply where it is satisfied that it is a case of urgency. The direction for dispensing S. 5A is made only when the Government forms opinion that there is urgency. The formation of the opinion by the State Government is a condition precedent to the exercise of power under S. 17(4) of the Act. The State Government's opinion is subjective and normally the Courts do not interfere with the opinion formed by the State Government if it is bona fide. The formation of the opinion by the State Government is a condition precedent to the exercise of power under S. 17(4) of the Act. The State Government's opinion is subjective and normally the Courts do not interfere with the opinion formed by the State Government if it is bona fide. Section 5A is the only provision which affords opportunity to the persons interested in the land to file objection against the acquisition. The enquiry contemplated by S. 5A of the Act is summary in nature, but that is the only safeguard afforded by the legislature to the owners of the land to raise objection against the acquisition of their land. Section 17(4) confers power on the Government to deprive them of that opportunity in the case of urgency. The State Government is, therefore, under a legal duty to consider whether there is such an urgency that even summary proceedings under S. 5A of the Act should be eliminated. It is not just the need to dispense with the inquiry under S. 5A which was to be considered, but the degree and extent of urgency should be considered. Though the opinion of the State Government regarding urgency for the purpose of dispensings. 5A of the Act is not justiciable, yet the Courts have held that if the opinion is not based on relevant material or if the opinion is not formed bona fide the declaration so made is liable to be challenged in Court. When a challenge is made and some material is placed before the Court and if a triable issue arises the burden shifts on the Government to show that there was real urgency and the opinion was formed bona fide on relevant material, 5. In Raja Anand Brahma Shah v. State of U.P., AIR 1967 SC 1081 , it was held that even though the power of the State Government has been formulated under S. 17(4) of the 'Act in subjective terms the expression of opinion of the State Government can be challenged as ultra vires in a Court of law if it could be shown that the State Government never applied its mind to the matter or that the action of the State Government is mala fide. If the State Government did not honestly form that opinion or in forming that opinion the Slate Government did not apply its mind to the relevant facts bearing on the facts of urgency, the opinion of the State Government is open to challenge. In Narayan Govind Gavate v. State of Maharashtra, AIR 1977 SC 183 , the Supreme Court considered the purpose of S. 17(4) of the Act and observed that the mind of the officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under S. 5A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an enquiry under S. 5A which has to be considered. Once a challenge is made to the formation of opinion or to the non-existence of urgency or the State Government has not applied its mind to the question of urgency or there was no material on the basis of which the State Government could bona fide form the requisite opinion, the burden rests upon the State to produce evidence of facts especially within the knowledge of its officials to show that there was material and the State Government applied its mind to the relevant material in forming the opinion regarding urgency. When a challenge is made and a prima facie triable issue is raised by the petitioner, it is the duty of the State to place relevant material before the Court which may constitute facts and circumstances on the basis of which the State Government formed the opinion that there was such an urgency as to dispense with the enquiry under S. 5A of the Act. 6. In the instant writ petition, it has been asserted that there was no urgency and there was no material before the State Government on the basis of which the requisite opinion for the purpose of invoking powers under S. 17(4) of the Act could validly be made. In this connection it has been pointed out that the proposal to acquire the land in dispute had been initiated by Development Authority in September, 1979, but, the notification under S. 4 of the Act was issued on 14-4-1980, with a delay of seven months. In this connection it has been pointed out that the proposal to acquire the land in dispute had been initiated by Development Authority in September, 1979, but, the notification under S. 4 of the Act was issued on 14-4-1980, with a delay of seven months. It is further asserted that the notification under S. 4 of the Act was issued on 14-4-1980 invoking the provisions of S. 17(4) of the Act on the premise that there was urgency for taking possession of the land for public purpose, yet the State Government itself took more than six months in issuing notification under S. 6 of the Act on 14-10-1980. On behalf of the State Government Satya Kumar Verma, Under-Secretary to the Government, Housing and Urban Development Department, has filed an All. L. J. affidavit on the question at issue. He has asserted that the Meerut Development Authority submitted proposal to the Government through the District Magistrate, Meerut, to acquire Jawahar Quarters, Meerut, having an area of 2 bigha 1 biswa for construction of residential accommodation for the persons belonging to middle class through the District Magistrate, vide his letter dated 3-10-1979. The State Government made certain enquiries from the development Authority. Thereafter, the proposal was examined by the Secretary, Housing Department, and again certain queries were made from the District Magistrate. After receiving replies from the District Magistrate the State Government considered the matter and accorded its approval to the proposal and sent the file to the Law Department on 29-2-1980. The Law Department also made certain queries from the Government and thereafter it stamped its approval on 4-3-1980, thereafter the notification under S. 4 was issued on 14-4-1980. The affidavit further states that these facts prove beyond doubt that the State Government was fully satisfied that the land in dispute was urgently required by the Meerut Development Authority. We have carefully considered the averments contained in the affidavit of Satya Kumar Verma but in our opinion it does not disclose facts and circumstances which may have been taken into consideration by the State Government in forming the requisite opinion for the purpose of invoking the emergency powers under S. 17(4) of the Act. Satya Kumar Verma has not disclosed any material which could show the need to eliminate enquiry under S. 5A of the Act. 7. Satya Kumar Verma has not disclosed any material which could show the need to eliminate enquiry under S. 5A of the Act. 7. Learned Standing Counsel then placed reliance on the affidavit of Leela Nand Joshi filed on behalf of the State Government. In his affidavit, Leela Nand Joshi stated that there was material before the State Government on the basis of which it recorded satisfaction for invoking its powers under S. 17(4) of the Act. He has referred to two letters, one dated 13-12-1979 and the other dated 26-8-1980, on the basis of which the State Government is alleged to have formed the opinion regarding urgency. There is no affidavit of Leela Nand Joshi on the record of this petition. Instead an affidavit of Leela Nand Joshi has been filed in the connected Writ Petition No. 8284 of 1984, Mahendra pal Sharma v. State of U.P. That petition does not relate to the impugned notifications, but instead it relates to some other land. On a perusal of the two letters (Annex. CA1 and CA2 to the affidavit of Leela Nand Joshi) we find that these documents do not relate to the acquisition of the land in dispute, instead they relate to acquisition of land having an area of 662 bighas of land situate in village Mokrampur, district Meerut. The State Government could not legally form opinion regarding urgency on the basis of the two letters, which were not relevant for acquisition of the land in dispute. 8. The Standing Counsel placed reliance on the affidavit of Jayadrath Prasad, filed on behalf of Meerut Development Authority. The affidavit of Jayadrath Prasad shows that he is an employee of the Meerut Development Authority. He is not competent to file affidavit on behalf of the State Government on the question at issue but even the affidavit filed by him does not show that the State Government had any relevant material before it in forming the requisite opinion for the purpose of invoking its powers under S. 17(4) of the Act. In view of these facts and circumstances we have no hesitation in holding that the State Government has failed to discharge its burden in placing the relevant material before the Court on the basis of which it may have formed its opinion to invoke the emergency powers under S. 17(4) of the Act and eliminate enquiry under S. 5A of the Act. 9. The public purpose for which the land has been acquired is for the construction of residential flats for the residents of Meerut by the Meerut Development Authority under a planned development scheme. In Narayan v. State of Maharashtra, AIR 1977 SC 183 the land was sought to be acquired for a public purpose, namely, development of area for industrial and residential purpose, S. 17(4) was applied and enquiry under S. 5A was eliminated. Considering the nature of the public purpose the Supreme Court observed that the public purpose for which the land was sought to be acquired in itself, on the face of it, did not call for any such action, barring exceptional circumstances, as to take immediate possession, without holding even a summary enquiry under S. 5A of the Act. The Court observed that such schemes generally take sufficient time to enable at least summary inquiries under S. 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 acquired indicated the absence of such urgency on the apparent facts of the case, as to require the elimination of an enquiry under S. 5A of the Act. In the instant case, it is obvious that no such urgency has been made out which may have justified the Government to deprive the petitioners of the opportunity of filing objections against the proposed acquisition of their land. The declaration about urgency is incompatible with the fact that after the issue of notification under S. 4 of the Act the Government took two months further time in issuing notification under S. 6 of the Act. Delay in issuing the notification under S. 6 of the Act is a relevant factor in determining as to whether there was real urgency so as to eliminate the proceedings under S. 5A of the Act. Summary enquiry is dispensed with in urgent cases where possession of the land is necessary to be taken immediately. Possession cannot be taken unless declaration is made under S. 6 of the Act, therefore, if there was real urgency to take immediate possession, notification under S. 6 of the Act would have been issued by the Government without any delay after the issue of the notification under S. 4 of the Act. Possession cannot be taken unless declaration is made under S. 6 of the Act, therefore, if there was real urgency to take immediate possession, notification under S. 6 of the Act would have been issued by the Government without any delay after the issue of the notification under S. 4 of the Act. If undue delay takes place in issuing notification under S. 6 of the Act it would indicate that there was no such urgency as to justify elimination of proceedings under S. 5A of the Act. 10. In the affidavits filed on behalf of the Government the undue delay caused in the issue of the notification under S. 6 of the Act has remained unexplained. The explanation which is contained in the affidavits filed on behalf of the State Government pertains to the period prior to the issue of the notification under S. 4 of the Act. Pre-notification delay does not vitiate the invocation of the urgency provisions under S. 17(4) of the Act as was held by Supreme Court in Jage Ram v. State of Haryana, AIR 1971 SC 1033 and Deepak Pahwa v. Lt. Governor of Delhi, AIR 1984 SC 1721 , but undue delay subsequent to the notification under S. 4 of the Act is material. If there is delay in issuing the notification under S. 6 of the Act it would be difficult to hold that there was real urgency. In Seshagiri Maller v. Spl. Tahsildar for Land Acquisition, AIR 1965 Ker 92 , it was held that where the Government published the notification under S. 17(4) directing that S. 5A will not apply to the case after a delay of nearly two months after they decided about the urgency which required such dispensation, it has to be held that the exercise of the power is an abuse of the power conferred by S. 17(4). In Smt. Manohari Devi v. State of U.P., 1979 All CJ 163 a Division Bench of this Court held that if undue delay has taken place in issuing the notification that would alone constitute a good ground to take the view that there was no such urgency which could justify abrogation of S. 5A of the Act. In Smt. Manohari Devi v. State of U.P., 1979 All CJ 163 a Division Bench of this Court held that if undue delay has taken place in issuing the notification that would alone constitute a good ground to take the view that there was no such urgency which could justify abrogation of S. 5A of the Act. In Yesho Nathu Mahajan v. State of Maharashtra, AIR 1980 Bom 221 , notification under S. 4 of the Act was issued on 25th July, 1975, and provisions of S. 17(4) were applied and enquiry under S. 5A of the Act was eliminated, but notification under S. 6 of the Act was issued on 7th October, 1975, under which the urgency clause was applied. A Division Bench held that the unexplained delay of more than two months in the issue of notification under S. 6 of the Act with the application of urgency clause was a clear abuse of power. In Ajadul Bux v. State, AIR 1982 All 435 , a Division Bench quashed the notification under S. 6 of the Act as there was time lag of about two years between the notification issued under Ss. 4 and 6 of the Act. In Smt. Pistan Devi v. State of U.P., Civil Misc. Writ No. 7729 of 1982, decided on 24-5-1985 (reported in 1985 All LJ 961), we have already taken the view that where there was considerable time lag between the notifications under Ss. 4 and 6 of the Act and if the Government failed to explain the delay, the invocation of urgency clause was illegal. 11. These authorities eminently show that if the minimum protection granted to the land owners is taken away by applying the urgency clause the Government must act speedily in issuing the notification and taking possession. If there is a challenge. to the validity of the application of the urgency clause the burden lies on the Government to place material before the Court to show that there was a real urgency and the delay caused in issuing the notification was for some unavoidable good reasons. If the State Government fails to place any material before the Court explaining the delay the Court has no option but to strike down the notification. If the State Government fails to place any material before the Court explaining the delay the Court has no option but to strike down the notification. As noted earlier, in the instant case the Government has failed to explain the, delay caused in the issue of the notification under S. 6 of the Act. Since the Government was itself acting in a lethargic manner, there appears to be no justification to invoke the urgency clause and deny opportunity to the petitioners to file objections under S. 5A of the Act. We, therefore, hold that the State Government acted in excess of its power in applying the provisions of S. 17(4) of the Act and eliminating the proceedings under S. 5A of the Act. Consequently, the impugned notifications are rendered illegal. 12. As regards the fourth submission of the petitioners, it is apparent that the land in dispute has been acquired at the instance of the Meerut Development Authority constituted under the U.P. Urban Planning and Development Act, 1973, for the purpose of constructing residential flats for the residents of Meerut. The petitioners have alleged that under the Master Plan framed and finalised under the U.P. Urban Planning and Development Act, 1973, the use of the land in dispute has been shown 'residential purpose'. The impugned notifications also indicate that the land has been acquired for the purpose of constructing residential accommodation, but the Meerut Development Authority by its resolution dated 14-10-1980, a copy of which has been filed as Annex. 6 to the writ petition, resolved to utilise the land in dispute for the purpose of constructing commercial shops and offices. 13. The petitioners have asserted that under the Master Plan the land in dispute was proposed for residential purpose and the impugned notifications also indicated that the land is being acquired for the purpose of constructing residential flats but by the resolution dated 14-10-1980, the Development Authority changed the purpose and it also changed the land use contrary to the provisions of Master Plan finalised under the 1973 Act. On behalf of the respondents no material has been placed before the Court to show that the land use as specified in the Master Plan was amended under the provisions of S. 14(2) of the 1973 Act. On behalf of the respondents no material has been placed before the Court to show that the land use as specified in the Master Plan was amended under the provisions of S. 14(2) of the 1973 Act. Development contemplated in accordance with the Master Plan for the residential purpose cannot be changed to commercial purpose unless the Master Plan is amended in accordance with the provisions of Ss. 13 and 14 of the Act of 1973. No material has been placed before the Court to show that the Master Plan was amended in accordance with the provisions of Ss. 13 and 14 of the 1973 Act and as such the change in the use of the land has been made in contravention of Ss. 13 and 14 of the 1973 Act. Though the purpose for which land has been acquired has been changed, but that does not render the acquisition illegal. 14. Lastly, the petitioners have challenged validity of the acquisition proceedings on the ground of mala fides. The petitioners have asserted that Sri A. P. Singh, the then District Magistrate, Meerut, who was Vice-Chairman of the Meerut Development Authority, had initiated proceedings for the acquisition o the land in dispute as he had failed to allot the building standing on the land in favour of the nominee of Harendra Agarwal, a close relation of the then Chief Minister Sri Banarasi Dass. It appears that the petitioners challenged the allotment proceedings as a result of which the accommodation could not be allotted to the nominee of Harendra Agarwal The petitioners have further asserted that since Sri A. P. Singh failed to get the accommodation allotted to the nominee of Harendra Agarwal, he took proceedings for the acquisition of the land on account of malice. Sri A. P. Singh has filed a detailed counter-affidavit denying the allegations made against him. He has denied the allegations of malice and he has further asserted that the land in dispute was acquired as the Meerut Development Authority wanted to develop the same. The land acquisition proceedings were taken by the Meerut Development Authority of which, no doubt, he was Vice-Chairman, but the requisite notifications were issued by the State Government. No allegations of mala fide have been made against the State Government. The land acquisition proceedings were taken by the Meerut Development Authority of which, no doubt, he was Vice-Chairman, but the requisite notifications were issued by the State Government. No allegations of mala fide have been made against the State Government. Moreover, since A. P. Singh has denied the allegations of a mala fide in detail we find no merit in the plea of mala fide. We accordingly hold that the impugned notifications are not vitiated on account of mala fides. 15. In view of the above discussion, we hold that the impugned notifications are vitiated in law. We accordingly allow the petition and issue a writ of certiorari quashing the notifications under Ss. 4 and 6 dated 14-1-1980 and 17-10-1980 respectively. The petitioners are entitled to their costs.