Kunwar Lal v. State of Uttar Pradesh — 1989 DIGILAW 194 (ALL)

JUDGMENT K.C. Agarwal, J. - These three writ petitions raise common questions of law, consequently they are decided by a common judgment For sake of convenience we have decided to treat Civil Misc. Writ Petition Na 12337 of 1985 as the leading writ petition 2. This petition (WP Na 12337 of 1985) was filed by as many as fifty four persons challenging validity of the notifications dated May 8 and May 9, 1985 issued under Sections 4 and 6, Land Acquisition Act, (hereinafter referred to as 'the Act'). They were published on 9th and 10th May, 1985 respectively in the official Gazette These notifications are as follows : S. 4 Notification : "Under sub-sec. (1) of S. 4, Land Acquisition Act, 1894 (Act 1 of 1894) the Governor is pleased to notify for general information that the land mentioned in the schedule below is needed for a public purpose, namely, for establishment of Industrial Area in District Kanpur Dehat through the Uttar Pradesh State Industrial Development Corporation Ltd, Kanpur, under a planned development scheme. 2. The Governor being of opinion that the provisions of sub-sec. (1) of S. 17 of the said Act are applicable to the said land inasmuch as the said land is urgently required for the establishment of Industrial Area in District Kanpur Dehat through the Uttar Pradesh State Industrial Development Corporation Ltd, Kanpur 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 S. 5-A of the said Act, the governor is further pleased to direct under sub-sec. (4) of S. 17 of the said Act that the provisions of S. 5-A of the said Act shall not apply". S. 6 "In continuation of Government Notification No. 1586 Bha. U/18-11-208 Bha-84, dated May8,1985 issued under sub sec. (1) of S. 4 and sub-sec. (4) of S. 17, Land Acquisition Act, 1894 (Act I of 1894), the Governor is pleased to declare under S. 6 of the said Act, that he is satisfied that the land mentioned in the schedule below is needed for a public purpose, namely, for the establishment of Industrial Area in district Kanpur Dehat through Uttar Pradesh State Industrial Development Corporation Ltd, Kanpur, under S. 7 of the said Act to direct the Collector of Kanpur to take order for the acquisition of the said land 2. The Governor being satisfied that the case is of urgency is further pleased under sub-sec, (1) of S. 17 of the said Act to direct that the Collector of Kanpur Dehat, though no award under S. 11 has been made, may on the expiration of fifteen days from the publication of the notice mentioned in sub-sec. (1) of S. 9, take possession of the land mentioned in the schedule below, for the said public purpose." Details ofthe plots given in these notifications have been omitted by us. Admittedly, the petitioners land has been acquired by the State through these notifications for making industrial development in public interest through the Uttar Pradesh State Industrial Development Corporation Limited, Kappur (hereinafter referred to as 'the corporation'). Challenging these notifications learned counsel for the petitioners, in all the writ petitions, contended that since the corporation was a company within the meaning of that word defined in S. 3(e), the State Government was required to make the acquisition in accordance with Chap. VII of the Act. 3. Section 39 of Chap. VII of the Act lays down that previous consent of appropriate Government and execution of agreement was necessary prior to putting in force the order to acquire land for any company. Counsels submission was that the required agreement had to be arrived at and published in the official gazette before the declaration under S. 6 of the Act was made. Declaration under S. 6(1) is made after the Government is satisfied that the land is required for a public purpose or for a company for purposes enumerated in S. 40 of the Act. 4. The argument of the petitioners' counsel is devoid of substance. Acquisition in the present case was made by the State Government for a public purpose, which was the development of establishment of industries in the area acquired by the notifications aforesaid It is not correct that the land was required for the benefit of the corporation I has been acquired by the collector under t provisions of the Act. It may be noted her that the Corporation is fully owned and controlled by the State Government. 5. For what we have said above, we find that merely because that the Corporation was the instrumentality through which settlement of the site for industrial purpose had to be made that could not make the acquisition for the corporation. It may be noted her that the Corporation is fully owned and controlled by the State Government. 5. For what we have said above, we find that merely because that the Corporation was the instrumentality through which settlement of the site for industrial purpose had to be made that could not make the acquisition for the corporation. Moreover, the corporation is a Government company as is defined in Sections 2(18) and 617 of the Companies Act as follows : "For the purposes of this Act Government company means any company in which not less than fifty one per cent of the paid up share is held by the Central Government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State Governments and includes a company which is subsidiary of a Government company as thus defined" If it was conceded that the corporation was Government company, as provided by S. 44 B, Chap. VII of the Act would not applicable. It applies only to a private company, which is not a Government company. The insertion of Sections 40(1)(aa), 41(4 j, 44-A and 44-B by the Amending Act 31 of 1962 does not violate Articles 14, 19(1)(f), 31(2) 1f the Constitution Mangalbhai Nathabhai v. State of Gujarat, AIR 1964 Guj 82 ; R.L. Arora v. State of U. P., AIR 1964 SC 1230 . 6. Second submission of the petitioners counsel was that after publication of notifications under Sections 4 and 6 the State Government indiscriminately and with a view to favour those who have been mentioned in ra8 of the supplementary rejoinder affidavit filed on January 24, 1989, withdrew the notifications under Sections 4 and 6 in respect of about 99 acres of land His submission was that under S. 48 it was incumbent on the State Government to withdraw the two notifications in respect of all the plots regarding which they were issued and that the State was not at liberty to withdraw from acquisition some plots and not all of them. 7. Submission made by the petitioners' counsel is not tenable. Section 48 confers power on the State Government to withdraw from acquisition 'or any land' of which possession has not been taken. The expression any has been defined in Black's Law Dictionary as 'some' one out of many, 'an indefinite number'. 7. Submission made by the petitioners' counsel is not tenable. Section 48 confers power on the State Government to withdraw from acquisition 'or any land' of which possession has not been taken. The expression any has been defined in Black's Law Dictionary as 'some' one out of many, 'an indefinite number'. It is a word of very wide meaning which excludes limitation or qualification. This means that the State Government could withdraw from the acquisition partially or wholly of the land notified under Sections 4 and 6 of the Act. The condition precedent only is that withdrawal can be of any land of which possession had been taken. In this case this controversy is not in dispute, we need not go into the same. Since, however, both the State Government and the persons whose plots have been released, they have no grievance in that regard, no further enquiry is required to be made. 8. Sri J.N. Tewari, counsel appearing for the corporation, has admitted that some plots had been released from acquisition after notification under S. 6 of the Act, but he had stoutly denied the charge of discrimination made in para 8 of the supplementary rejoinder affidavit. He filed before us a map showing the land which had been acquired by the impugned notifications and demonstrated with the help of the same that some plots near to the abadi had been released as it was thought that the same would be to the benefit of the persons living in the abadi. It was also shown from the said map that some plots had been left because that considered to be in the interest and to the benefit of the persons to whom the same belonged. It was, however, denied that the release of the plots was made indiscriminately and for benefiting the persons ~ to whom the plots belonged. From the map produced it appeared to us that all the plots were situated in a belt and that without discrimination they have been released, because the corporation or the State Government found that they could be spared or omitted. Moreover, the petitioners cannot succeed in the writ petition without establishing that notifications issued were not for a public purpose and that the procedure provided for issuing the same had not been followed. Moreover, the petitioners cannot succeed in the writ petition without establishing that notifications issued were not for a public purpose and that the procedure provided for issuing the same had not been followed. If the plots of the petitioners were required for a public purpose the petitioners could not succeed on the ground mentioned above, it has not been established before us that the plots of the petitioners were not required for establishment of industries. These plots are situated in a block. The petitioners were, therefore, not right in contending that there was failure on the part of the State Government to treat all similarly situated as equal. The petitioners charge of favouritism made against the State Government and the Corporation has no substance having not been established from the facts narrated in the writ petition of the documents filed along with the same. 9. Next we may take up the submission of the petitioners' counsel that the acquisition was not fora public purpose. It was contended that the existence of public purpose is justiciable and that the court can examine whether the land is required for the purpose stated in the notifications under Sections 4 and 6 of the Act. The expression public purpose would include a purpose which would be for the establishment of industries. Sub-sec. (3) of S. 6 of the Act provides that the declaration made by the State that a particular land is needed for a public purpose shall be conclusive evidence of the fact that it is so needed. The validity of the Land Acquisition Act was challenged before the Supreme Court in Babu Barkya Thakur v. State of Bombay, AIR 1960 SC 1203 on the ground that it infringes the provisions of Articles 31(2) and 19(1)(f) of the Constitution. But this court repelled the submission by holding that attack was futile. 10. Counsel stressed that 2000 acres of land was banjar which was lying unused and that the State Government should have chosen to acquire the same. "The power to select, as said by the Supreme Court in State of Punjab v. Gurdial Singh, AIR 1980 SC 319 is left to the responsible discretion of Government under the Act, subject to Articles 14, 19 and 31 (then). The court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. "The power to select, as said by the Supreme Court in State of Punjab v. Gurdial Singh, AIR 1980 SC 319 is left to the responsible discretion of Government under the Act, subject to Articles 14, 19 and 31 (then). The court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court lock jawed save where power has been polluted by oblique ends............. Accepting in case of acquisition made mala fide the court has no power to enquire into the decision of the State Government. Mala fides are fraud on power vitiates or invalidates the acquisition just like other official acts. 11. The Uttar Pradesh Industrial Development, Kanpur formulated a development scheme known as 'Jainpur Industrial Area Scheme'. In the said scheme total investment had been planned to the extent of rupees twenty-two lacs for development of land and industrial sites. Out of this amount, the Central Government granted subsidy of rupees two hundred lacs, and the International Development Bank of India term loan of rupees two-hundred lacs. Rest of rupees two hundred twenty lacs had been provided by the State Government to the Uttar Pradesh Industrial Development Corporation for carrying out the aforesaid project 566 acres of land was required. Notifications for acquiring 422 acres of land were issued in 1985, which have been challenged in the present petitions. For remaining land, notifications were issued in 1988. 422 acres of land belonged to 358 agriculturists. Out of them only 91 have filed the present three writ petitions in this court and obtained stay orders. The remaining handed over possession. Out of those, who handed over possession, some of them have been paid compensation in full. On the plots taken possession of development started, construction of roads and levelling of plots have been completed. 12. From the short supplementary affidavit filed on behalf of the Corporation it appears that about two crores of rupees have already been spent over the project in question. Out of rupees two crores, rupees sixty lass were deposited with the Special Land Acquisition Officer, Kanpur Dehat for payment as compensation and rupees fifteen lacs had been paid to the Industrial Development Bank of India in the last two years as interest. Out of rupees two crores, rupees sixty lass were deposited with the Special Land Acquisition Officer, Kanpur Dehat for payment as compensation and rupees fifteen lacs had been paid to the Industrial Development Bank of India in the last two years as interest. About the financial progress, the Corporation filed two charts giving the details of the physical and financial progress. These charts go to support the Corporation case about expenditure already incurred in the development of the site of which possession had been obtained. 13. Counsel for the petitioners Sri R.R. Yadav, as well as Sri Rajeshi Verma, emphatically submitted that dispensation of the enquiry provided by S. 5 of the Act was unjustified and that the Court should hold that on account of the arbitrary dispensation, notification under S. 6 of the Act is invalid. Sri Rajeshji Verma went to the extent of submitting that the said notification be quashed only in respect of those persons, who filed the petitions in dispute challenging its validity. He contended that it was not necessary for the High Court to quash the same as a whole. 14. Before coming to the question as to whether dispensation could be held to be mala fide, We wish to mention that if it has to be quashed it will go as a whole and that the State Government will not be directed to take the proceeding under S. 5-A against all those persons who filed the present petitions. Petitioners counsel Sri Rajeshji Verma was, therefore, in our opinion, was not right to confining the relief only to the petitioners of the three writ petitions. It has been held by long series of cases of the Supreme Court as well as of this Court that the dispensation o enquiry under S. 5-A depends on subjective satisfaction of the State Government. The same can be quashed if it is mala fide. The burden to establish Mala fides is heavy burden to discharge. Vague and casual allegations suggesting that certain act was done with an ulterior motive cannot be accepted without proper pleadings and adequate proof. This has been held by the Supreme Court in Krishi Utpadan Mandi Samiti. Muzaffarnagar v. Ratan Prakash : AIR 1988 SC 1459 . The burden to establish Mala fides is heavy burden to discharge. Vague and casual allegations suggesting that certain act was done with an ulterior motive cannot be accepted without proper pleadings and adequate proof. This has been held by the Supreme Court in Krishi Utpadan Mandi Samiti. Muzaffarnagar v. Ratan Prakash : AIR 1988 SC 1459 . In State of Punjab v. Gurdial Singh, AIR 1980 SC 319 (supra) the Supreme Court upheld that decision of the High Court by finding that the particular plot had been acquired under emergency powers under S. 17 because of wielding political power. In that connection the Supreme Court laid down as to what were mala fides. The following passage is quoted from that decision to show that as to when a plea of mala fides in a case like the present one can be accepted (at p. 321 of AIR) : "The question then is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and often times overlaps motives, passions and satisfactions - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not regicidal The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment." 15. If considerations, foreign to the scope of the power or exteraneous to the statute, enter the verdict dispensation would be vitiated. 16. Petitioners' counsel relied on the decision of the Supreme Court in Narayan Govind Gavate v. State of Maharashtra, AIR 1977 SC 183 , in support of this submission that S. 5-A could not be dispensed with in the present case. He contended that as in that case the land was required for industrial purpose, so was it required in the instant writ petitions, consequently on the same ground dispensation under S. 6-A was invalid. He contended that as in that case the land was required for industrial purpose, so was it required in the instant writ petitions, consequently on the same ground dispensation under S. 6-A was invalid. This decision of the Supreme Court has been considered by the Supreme Court and distinguished in K.U.M. Samiti, AIR 1988 SC 1459 (supra) as well as State of U.P. v. Smt. Pista Devi, AIR 1986 SC 2025 . It was held in the latter decision (at p. 2028 of AIR) : "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 S. 17(1) of the Act and to dispense with the compliance with S. 5-A of the Act. Perhaps, at the time to which the decision in Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCR 763 : AIR 1977 SC 183 related the situation might have been that the schemes relating to development of residential area in the urban centres were not so urgent and it was not necessary to eliminate the inquiry under S. 5-A of the Act. The acquisition proceedings which had been challenged in that case related to the year 1963. During this period of nearly 23 years since then the population of India has gone up by hundreds of millions and it is no longer possible for the Court to take the view that the schemes of development of residential areas do not appear to demand such emergent action as to eliminate summary inquiries under S. 5-A of the Act." The Supreme Court agreed with distinction pointed out in the above case in K.U.M. Samiti, AIR 1988 SC 1459 (supra). 17. We are unable to agree with the submission of the petitioners' counsel that the acquisition in the instant petitions is mala fide. It was made with a view to establishment of industries in Kanpur Dehat. Emphasis of the petitioners Counsel was that since there were large number of industries in the Kanpur city, therefore, acquisition of the land for establishing industries in Kanpur Dehat was not required, does not appeal to us. It was fort the State Government to decide as to whether the industries had to be set up in the land acquired. 18. Emphasis of the petitioners Counsel was that since there were large number of industries in the Kanpur city, therefore, acquisition of the land for establishing industries in Kanpur Dehat was not required, does not appeal to us. It was fort the State Government to decide as to whether the industries had to be set up in the land acquired. 18. Counsel urged that dispensation was mala fide as disposal of an objection under S. 5-A of the Act does not take long and as the State Government was afraid of facing the consequences of enquiry it chose to do away with the same. one month has certainly been given for filing of objection under S. 5 A, but that it is not the end of it. Experience shows that long time is spent in such enquiries as the one contemplated by S. 5-A. One cannot lose sight of the fact that persons against acquisition would prolong the enquiry under S. 5-A by adopting measures, which may even be unjustified. Consequently, it is not only the period within which an objection is to be filed is not determinative of the submission advanced by the petitioners, about the delay, which may prolong the acquisition proceedings. In Smt. Kailashwati v. State of U.P., AIR 1978 All 181 a Division Bench of this Court considered the aforesaid decision of the Supreme Court in Narayan Govind Gavate, AIR 1977 SC 183 (supra) and observed (at p. 184 of AIR 1978 All) : "It is true that in para 39 of the judgment, the Supreme Court made observation to that effect, but it would not be correct, in our opinion, to say that the Supreme Court laid down exhaustively the list of cases where alone such a power could be exercised. The example taken was only illustrative. In Narayanas case before the Supreme Court , neither in the counter-affidavit filed on behalf of the acquiring body nor in the notification issued, there was any material showing that the State Government had applied its mind to the question that there existed urgency which warranted the elimination of the enquiry contemplated by S. 5-A of the Act, on the special facts and circumstances of the case, the Supreme Court dismissed the State appeal and issued a direction that the enquiry under S. 5-A of the Act be held............. 19. 19. In Trilochan v. State of U.P. 1985 All LJ 718 another Division Bench of this Court agreed with the decision of Smt. Kailashwati v. State of U.P., AIR 1978 All 181 . In taking a decision to dispense with S. 5-A what is required by the State Government to see is whether even the enquiry under S. 5-A of the Act should be eliminated. It is not just the existence of any urgency, but the need to dispense with the enquiry under S. 5-A which is to be considered. In the present writ petitions, along with the counter affidavits filed by the State as well as the Corporation, a number of letters sent by the Collector to the State Government had been filed to impress upon the State Government that dispensation of S. 5-A was needed in public interest. In these letters the Collector emphasised the need to dispense with the enquiry under S. 5-A of the Act. 20. In this connection we may refer to a decision of the Gujarat High Court given in Ishwarlal v. State, 1967 8 Guj LR 729. It reads as under : ".......The first is that the observation seeks to determine the urgency by reference only to the time likely to be taken up by the inquiry under S. 5-A which, as we have pointed out above, is not correct test for determining the question of urgency and secondly the observation seems to proceed on the assumption that the only time which is likely to be taken up in the inquiry under S. 5-A is a period of 30 days. But this assumption is wholly unfounded as the period of 30 days referred to in S. 5-A is merely the period given by the section for filing objections against the proposed acquisition. This period can, under the rules made by the Government under S. 55, be extended by the Collector, if proper cause is shown. After the objections are filed, a date has to be fixed for hearing the objector in person or by pleader. The hearing then takes place and if the Collector permits, oral as well as documentary evidence can be led and where evidence is led by one party, the opposite party has to be given an opportunity to cross-examine the witnesses of the first party as also to rebut the case by means of other evidence. The hearing then takes place and if the Collector permits, oral as well as documentary evidence can be led and where evidence is led by one party, the opposite party has to be given an opportunity to cross-examine the witnesses of the first party as also to rebut the case by means of other evidence. The Collector then has to consider the objections and to make his report to the Government and the Government has to decide the objection after taking into account the report of the Collector. This elaborate procedure is bound to take a considerable amount of time and it is difficult to see how the learned Judge of the Kerala High Court has limited the determination of the existence of urgency by saying that the urgency must be of such a nature as cannot brook any delay of 30 days." This decision was followed by our High Court in Somdutt v. State of Uttar Pradesh, (1976) 2 All LR 529 . 21. Counsel for the petitioners urged that the dispensation was recommended for taking the advantage of subsidy and the Government of India was contemplating benefit of exemption of sales tax and as the period for those exemptions expired in March 1985 there could he no justification for dispensing S. 5A by means of notification issued on May 8, 198-5. On the face the argument appears to be plausible, but when scrutinised closely, the same would be found to have no substance.' The main idea behind dispensation was of establishing industries in the village in question for which moneys had been obtained from the Central Government, Industrial Development Bank and the State Government. The money could be utilised if the project of establishing industries was expeditiously implemented. Letters, filed along with the counter affidavit, proved that he initial period given for providing subsidies, as well as benefit of sale-tax holiday had been enlarged. Furthermore these are not grounds on which this High Court under Article 226 of the Constitution can hold that dispensation was improper, in the absence of mala fides counsel emphasised that need of acquiring land for urban development and industrialisation was not the need which could be given precedence over agriculture and as such the land should not be converted to: non-agricultural use. This controversy arose recently before the Supreme Court in Bharat Singh v. State of Haryana, 1988 4 SCC 534 : AIR 1988 SC 2181 , the Supreme Court held (at p. 2186 of AIR) : "Though agricultural land is necessary and should not ordinarily be converted to non-agricultural use, but keeping in view the progress and prosperity of the country, the' State has to strike a balance between the need for development of industrialisation and the need for agriculture. The allegation that before initiating the acquisition proceedings, the Government has not applied its mind to the need for agricultural land is a very vague allegation without any material in support thereof. The contention is overruled." 22. For the progress of the country, development of industries in the world of today is necessary as much as taking care of agricultural output. As to how much should be done on which head is a matter again for the State to consider. The country would be left behind if industries are not set up. To set up industries, which are able to compete with industries situate in other parts of the world, is very necessary. 23. The performance of Agricultural sector in 1988-89 will be beyond earlier expectations if the estimates relating to the yield of food and cash crops turn out right. After the setback in 1984-87 and the impact of the severe drought in 1987-88, the fixation of a high target of 170 million tonnes for food grains appeared somewhat utopian. But this is likely to be realised. The,output in the Kharif season alone is placed at 94.5 million tonnes as against the earlier record of 89.23 million tonnes. An increase of about 20 million tonnes over 1987-88 in the Kharif season alone ensured an output of around 160 million tonnes even if the Rabi crops yielded only 65 million tonnes as in the last season. But it is expected that the output may be around 75 million tonnes. All this is being stated by us for showing that the submission of the petitioners that agricultural production would largely suffer if lands are acquired for establishment of industries, has no merits. The plots belonging to the petitioners have been acquired considering the same as suitable for the public purpose. All this is being stated by us for showing that the submission of the petitioners that agricultural production would largely suffer if lands are acquired for establishment of industries, has no merits. The plots belonging to the petitioners have been acquired considering the same as suitable for the public purpose. The petitioners cannot 1 complain of any discrimination because instead of their lands, lands of other persons had not been acquired by the State Government. As to what should be acquired and what should not be, is a matter fundamentally for the decision of the State Government. A court cannot substitute its opinion with regard to the same. 24. We are of opinion that the State' Government could not be held to be guilty of forming the opinion as to urgency in an arbitrary or perverse fashion without regard to patent, actual and undeniable facts. It has also not been established that the opinion had been arrived at on the basis of irrelevant considerations, or on no material at all, or on matters so flimsy, slander, or dubious that no reasonable person can reasonably reach that conclusion. 25. For the reasons given in the above, we find no merits in these writ petitions. The writ petitions are dismissed. No costs.