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2007 DIGILAW 2760 (ALL)

RAJIV JAIN v. STATE OF UTTAR PRADESH

2007-11-16

ANJANI KUMAR, SABHAJEET YADAV

body2007
JUDGMENT By the Court.—The petitioners, by means of this writ petition under Article 226 of the Constitution of India have challenged the Notifications issued by the respondents under the provisions of Section 4 read with Section 17 (1) of Land Acquisition Act (hereinafter referred to as the Act). This notification under Section 4 of the Act was followed by another notification under Section 6 read with Section 17 (4) of the Act. 2. The petitioners have filed this writ petition with the following prayers, which was amended during the pendency of the writ petition : "(a) issue a writ, order or direction in the nature of certiorari quashing the impugned Notifications dated 18th December 2001 (Annexure-6) and the notification under Section 6 of the Act dated 31st January 2002 (Annexure-7) issued by the Industrial Development Section-4 of the State Government. (b) issue a writ, order or direction in the nature of mandamus restraining the respondents from dispossessing the petitioners from plot Nos. 553, 554 and 555 situate in village Surajpur, Tehsil Sadar, District Gautambudh Nagar. (c) issue any other writ, order or direction which this Honble Court may deem fit and proper in the circumstances of the case. (d) award cost of the petition." 3. The facts as emerge out of pleadings between the parties are that the petitioners are co-owners of the agricultural Khasra Plot Nos. 553, 554 and 555 situated in the village Surajpur, Tehsil Sadar, District Gautambudh Nagar. The relevant Khasra extracts for the Fasli year 1406 is annexed as Annexure-1 to the writ petition. The total area of the aforesaid three plots, according to the petitioners, comes to 101280 square yards. This the petitioners have purchased for industrial development but on account of global recession the petitioners postponed their programme for industrialisation. The petitioners are owners of 16 running industrial units throughout the length and width of the country and out of these 16 units, 12 are situated in National capital region wherein the petitioners are carrying on their industrial activities. The petitioners thereupon commented upon the activity of respondent No. 3, Greater NOIDA Authority. The petitioners are owners of 16 running industrial units throughout the length and width of the country and out of these 16 units, 12 are situated in National capital region wherein the petitioners are carrying on their industrial activities. The petitioners thereupon commented upon the activity of respondent No. 3, Greater NOIDA Authority. The petitioners have purchased in the year 1997 an area of 11400 square yards of land from the Greater NOIDA Authority (which shall hereinafter be referred to as the authority) plot No. 206-A, Block B, Phase II wherein the petitioners have established their industrial unit and are running the same for more than 20 years when the petitioners filed writ petition in the year 2002. 4. The respondents have issued a notification purported to be notification under Section 4(1) of the Act read with the provisions of Section 17 (1) of the Act which is published in the daily Hindi Newspaper Chetna Manch in its issue dated 27th December 2001, a copy of which has been annexed as Annexure-6 to the writ petition. The said notification is reproduced below : "No. 5436/LXXVII-4-2001-139Bha-2001 Dated Lucknow, December 18, 2001 1. UNDER sub-section (1) of Section 4 of the Land Acquisition Act, 1894 (Act No. 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 the planned industrial development in district Gautambudhnagar through Greater Noida Industrial Development Authority. 2. The Governor, being of the opinion that the provisions of sub-section (1) of Section 17 of the said Act are applicable to the said land in as much as the said land is urgently required, for the planned industrial development in district Gautambudhnagar through Greater Noida Industrial Development Authority and it is as well necessary to eliminate the delay likely to be caused by an inquiry 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 provisions of Section 5-A of the said Act shall not apply. SCHEDULE ____________________________________District Gautambudhnagar Pargana Dadri Tehsil Sadar Village Surajpur ____________________________________ Plot No. Approximate area to be acquired (in acres) 524 0.2579 540 1.0869 547 2.6235 553 0.1947 554M 4.9010 555 3.3754 590M 0.2651 ———— Total 12.7045 ———— For what purpose required - for the Planned Industrial Development in district Gautambudhnagar through Greater Noida Industrial Development Authority. Note : A site plan of the land may be inspected in the office of the Collector, Gautambudhnagar. By order, Anoop Mishra Sachiv" 5. The petitioners thereupon commented upon the circulation of the aforesaid newspaper and said that the aforesaid newspaper has scant circulation in the locality where the land proposed to be acquired is situated. The petitioners, therefore, submitted that the compliance of Section 4(1) of the Act has thus not been made by the respondents in proceedings under Section 4(1) of the Act. The notification under Section 4(1) of the Act was followed by another notification under Section 6 read with Section 17(4) of the Act dated 31st January 2002 published in daily newspaper Vardhman in its issue dated 18th February 2002, a copy of the same is annexed as Annexure-7 to the writ petition. According to the petitioners this notification under Section 6 read with Section 17(4) of the Act suffers from the same illegality from which the earlier notification under Section 4 of the Act suffers, inasmuch as this newspaper Vardhman has particularly no circular in the locality where the land is sought to be acquired. Thus the publication of notification in the said newspaper cannot be treated to be a compliance of mandatory provision of Section 6(2) of the Act. The petitioners have further attacked the action of the respondents in dispensing with the enquiry contemplated under Section 5-A of the Act on the ground that the matter is of urgency. Petitioners contention is that dispensation of application under Section 5-A is mechanical and without application of mind and without any material. The petitioners further attacked the dispensation of enquiry under Section 5-A on the ground that there was no material for invoking the urgency clause. However, the petitioners further submitted that the formation of opinion about existence of urgency nonetheless is on the basis that there is no material which clearly demonstrates the application of urgency clause is arbitrary and illegal. The petitioners further submitted that the authority has already acquired a large chunk of land. However, the petitioners further submitted that the formation of opinion about existence of urgency nonetheless is on the basis that there is no material which clearly demonstrates the application of urgency clause is arbitrary and illegal. The petitioners further submitted that the authority has already acquired a large chunk of land. The application of urgency clause therefore was wholly unwarranted. 6. The next submission of learned Counsel for the petitioners, as per pleadings, is that substance of notifications under Sections 4 and 6 of the Act have not been pasted or circulated in the locality where the land in question is situated. Thus there is complete non-compliance of provision of Sections 4(1) and 6(2) of the Act which results in nullification of impugned acquisition. The petitioners have further submitted that without prejudice to the rights of the petitioners to challenge the acquisition by means of present writ petitioner the norm evolved by the respondent authority a scheme is enforced by the authority that area equivalent to 10% of the acquired land will be allotted in abadi to the tenure holder whose land is acquired provided the name of such tenure holder is entered in the revenue records. 7. The petitioners have filed a supplementary affidavit along with an application dated 17th July 2007 wherein in Para 10 they have stated as under : "10. The petitioner in the writ petition had also averred that the respondents are adopting a bias attitude inasmuch as the request for grant of 10% of the land as was being done in the cases of other tenure holders is not even being considered and the respondents have taken stand that the said procedure of allotment of 10% alternate land was confined to different set of persons and the same benefit cannot be extended to the petitioners. The deponent respectfully submits that the respondents have taken similar stand of allotment of alternate plot to other applicants/persons as is clear from the document which is being annexed hereto and marked as Annexure-SA-VI to this affidavit. The deponent respectfully submits that the respondents have taken similar stand of allotment of alternate plot to other applicants/persons as is clear from the document which is being annexed hereto and marked as Annexure-SA-VI to this affidavit. It has been stated in paragraph No. 5 of the Supplementary Counter Affidavit dated 17.01.05 that 10% of Aabadi land can be allotted to those tenure holders who are permanent residents of Greater Noida whereas the respondents have taken the decision of allotting 10% of Aabadi land as is clear from the perusal of Annexure-SA-VI annexed above." (in the supplementary affidavit dated 17.01.05) 8. As stated in the aforesaid para 10 of the supplementary affidavit the petitioners have referred to para 5 of the supplementary counter affidavit filed by the respondents dated 9th July 2006 whereby the respondents replied the averments made in para 18 of the supplementary affidavit filed by the petitioner along with their application dated 21st September 2002 which has been allowed by this Court by its order dated 19th November 2002. Para 3 and 4 of the supplementary affidavit filed by the petitioners referred to in the preceding paragraph is quoted below : "3.................................The petitioners also highlighted the fact that before purchases of the above lands they requested the Greater Noida Authority to allot them at least 10% of the land acquired for setting up the industry but that petition also has remained unresponsed till date and due to this only the petitioner had incurred an extra investment of Rs. 1,45,38,215/- on account of purchase of land from others at the market rate. It was further highlighted that the petitioners units had paid more than Rs. 50 crores as revenue to the Government in only 12426 sq. yd. of land in terms of Excise Duty, Sales Tax, Income Tax and Custom duty etc. and despite their being need of land the Greater Noida Authority are not allotting the land to the petitioner. 4. That it was prayed by means of the said representation that direction be issued to the Greater Noida Authority for allotment of 10% of the land for residential purposes (being the requirement of Industrial land has been fulfilled by purchase of above plots) in abadi as was doing in the case of land acquired from other villagers similarly situate. 4. That it was prayed by means of the said representation that direction be issued to the Greater Noida Authority for allotment of 10% of the land for residential purposes (being the requirement of Industrial land has been fulfilled by purchase of above plots) in abadi as was doing in the case of land acquired from other villagers similarly situate. A photocopy of the said representation dated 29th November 2004 & 2nd December 2004 are being annexed hereto and marked as Annexure-SA-1 to his affidavit." 9. This paragraph has been replied to by the answering respondents in paragraph 5 of their supplementary counter affidavit filed on behalf of respondent No. 3 which is sworn on 9th July 2006 which is reproduced below : "5. That the contents of paragraph Nos. 4 and 5 of the supplementary affidavit are the matter of record. However, it is submitted that the representations dated 29..11.2004 and 02.12.2004 were received in the authority. But the prayer sought in the representations was against the land policy of the authority so it is not necessary to give reply to the petitioners. This fact is further important to state here that 10% Abadi land can be allotted to those tenure holders who are traditional permanent residents of Greater Noida area." 10. On the strength of aforesaid pleadings the petitioners have submitted that the action of the respondents including the authority is wholly arbitrary and discriminatory when they have refused to allot Abadi land to the extent of 10% of the land acquired which belong to the petitioners. The petitioners submitted that there cannot be any possible discrimination between two persons who are similarly situated so far as the acquisition of land is concerned and thus the action of the respondents in denying the prayer of the petitioners that petitioners should be allotted Abadi land to the extent of 10% of the area acquired from the petitioners. 11. We have heard learned Counsel for the parties. 12. The respondents have filed their counter affidavit and supplementary counter affidavit denying the allegations made by the petitioners. Sri Ravi Kant, learned senior Counsel for the petitioners, has submitted that the following are the relevant dates. 11. We have heard learned Counsel for the parties. 12. The respondents have filed their counter affidavit and supplementary counter affidavit denying the allegations made by the petitioners. Sri Ravi Kant, learned senior Counsel for the petitioners, has submitted that the following are the relevant dates. On 18.12.2001 the State Government issued a notification under Section 4(1) of the Act read with sub-section (1) of Section 17 of the Act and applying the provisions of sub-section (4) of Section 17 of the Act whereby the enquiry contemplated under Section 5-A of the Act has been dispensed with. The purpose for acquisition was shown as for planned industrial development in the district Gautambudh Nagar through Secretary NOIDA Development Authority. This notification is followed by notification dated 31st January 2002 under Section 6 of the Act. The present writ petition is filed after getting it reported before the Stamp Reported on 8th March 2002 and on 14th March 2002 a Division Bench of this Court entertained the writ petition and passed an order. It is 14th March 2002 the respondents have allegedly taken over possession of the land in dispute. 13. Learned Counsel for the petitioners, Sri Ravi Kant, has argued the following points : "1. Notification of Emergency clause, namely, section 17 (4) of the Land Acquisition Act by the State Government is wholly mechanical and routine. It is based on no material. It is arbitrary and perverse considering that the Greater Noida Authority possessed of thousands acres of land which remains unutilized at the time when impugned acquisition started. 2. Notifications under Sections 4 and 6 have been published in the newspapers which are either non-circulation or have very scant circulation in the locality. They are registered merely for tender publication, notices and other public documents and public do not subscribe or read these newspapers. 3. At any rate, the Notification under Section 4(i) of the Land Acquisition Act was not published in the locality. 4. The land has been acquired colourably for a private company, namely, Moserbaer. 5. Clause (3) assuming that the acquisition of land is valid respondents are bound by policy decision to allot area equivalent to 10% of the area acquired by the Government to the petitioners." 14. 4. The land has been acquired colourably for a private company, namely, Moserbaer. 5. Clause (3) assuming that the acquisition of land is valid respondents are bound by policy decision to allot area equivalent to 10% of the area acquired by the Government to the petitioners." 14. The first point argued by Sri Ravi Kant is regarding application of urgency clause, namely, sub-section (4) of Section 17 by the State Government that it is without application of mind and the same has been applied mechanically. In reply to the aforesaid argument the Counsel appearing for the contesting respondent has submitted that from the counter affidavit filed on behalf of the State Government by Additional Tahsildar and Additional District Magistrate it is apparent that the argument regarding mechanical application of Section 17 (4) of the Act is not made out and the argument deserves to be rejected. We have asked the Counsel appearing for the respondents to produce the original records regarding application of urgency clause and we find from the record that it cannot be said that the application of urgency clause and dispensation of enquiry contemplated under Section 5-A of the Act is either mechanical or is based on no material. This argument, therefore, deserves to be rejected and is hereby rejected. 15. Since we ourselves have gone through the record it is not necessary to refer the cases referred to by Sri Ravi Kant, i.e., AIR 1977 SC 183 (para 38 to 42) and AIR 1980 SC 319 (para16) 16. Sri Agrawal appearing for respondent No. 2, who has been allotted land by respondent No. 3, submitted that in view of recent decision of the Honble Apex Court the adequacy of material on the basis whereof the satisfaction of urgency has been exercised cannot be gone into by this Court and from the records it is clear that there was material before the State Government on the basis whereof application of the urgency clause cannot be challenged. 17. It is then submitted by Sri Ravi Kant that the notifications under Sections 4 and 6 have been published in the newspapers which are either non-circulation or have very scant circulation in the locality. They are registered only for publication of tenders, notifications or other documents. 17. It is then submitted by Sri Ravi Kant that the notifications under Sections 4 and 6 have been published in the newspapers which are either non-circulation or have very scant circulation in the locality. They are registered only for publication of tenders, notifications or other documents. This argument cannot be accepted in view of counter affidavit filed by the State wherein the State has annexed the notifications which have been issued in the two newspapers having circulation in the locality. Thus publication of notification in the two newspapers as submitted by learned Counsel appearing for respondents No. 1 and 3, in our view, is sufficient compliance of the provisions of Sections 4 and 6 of the Act regarding publication of notification. This disposes of point No. 3 advanced by Sri Ravi Kant wherein he says that at any rate the notifications under Section 4 and 6 was not published in the locality which deserves to be rejected and is hereby rejected. 18. The next submission of Sri Ravi Kant is that in fact the land has been acquired colourably for a company without complying the mandatory provision of law. This fact has been denied inasmuch the land has been acquired by the State Government for planned development which will be undertaken by respondent No. 3 and acquisition for planned development has been held to be for public purpose in the case of Aflatoon and others v. Lt. Governor of Delhi and others, 1975 (4) SCC 285 . This disposes of the objection regarding dispensation of Section 5-A of the Act and acquisition being colourable. 19. In the case of Ajai Krishan Singhal and others v. Union of India and others, 1996 (10) SCC 721 Honble Apex Court, relying upon the decision of Aflatoon and others (supra), has held as under : "Once public purpose has been satisfied by the Governor in the notification and on specification obviously on presumptive satisfaction thereof the Governor issued the notification as required under Section 4(1); the absence of the specification and further elaboration of the development do not have the effect of rendering the satisfaction reached by the Governor illegal and the notification under Section 4(1) published by the Governor in exercise of the power of eminent domain is not rendered void. Therefore, it is not necessary to elaborately deal in detail with the manner in which the development has to be undertaken when the land is situated within the cantonment area. In fact, Section 12(3)(ii) of the Development Act takes care of the development in cantonment area when there would be a conflict between the authorities under the Development Act and the need for prior approval in that behalf of the cantonment, which is a local authority, for developing land under the Development Act. The notification under Section 4(1) is not vitiated on account of the fact that planned development was not specified with particularisation of the land in question needed for the public purpose." 20. Learned Counsel for the petitioner then submitted, relying upon the proviso of Section 17(4) of the Act as amended in the State of U.P. that notification under Section 6 cannot be issued simultaneously or immediately after publication of notification under Section 4. The Apex Court has interpreted the proviso as amended by U.P. Act in sub-section (4) of Section 17 : "Except in excess of any land to which by virtue of direction of State Government under sub-section (4) of Section 17 the provision with respect to Section 5-A shall not apply." 21. The argument that was advanced is not that Section 4(1) of the Act envisaged that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company the notification to that effect shall be published in the official gazette and in two daily newspapers having circular in that locality, one of which shall be in regional language. This was added by the Amendment Act 68 of 1984. Earlier thereto under the local amendment of U.P., publication in one newspaper was sufficient. The Collector is required to cause public notice of the substance of such notification to be given at convenient places in the said locality. The State of U.P. amendment in Section 4 by Land Acqusition (U.P. Amendment and Validation) Act (8 of 1974) and Land Acquisition (U.P. Amendment) Act (22 of 1954), whereunder in sub-section (1) between the word and and the words the Collector the following shall be inserted and be deemed always to have been inserted. The State of U.P. amendment in Section 4 by Land Acqusition (U.P. Amendment and Validation) Act (8 of 1974) and Land Acquisition (U.P. Amendment) Act (22 of 1954), whereunder in sub-section (1) between the word and and the words the Collector the following shall be inserted and be deemed always to have been inserted. The proviso thereto was added as under : ""except in the case of any land to which by virtue of a direction of the State Government under sub-section (4) of Section 17, the provision of Section 5-A shall not apply." 22. Thus the aforesaid decision of the Apex Court is complete answer of the argument advanced on behalf of the petitioner regarding simultaneous publication of notification in the locality. 23. It is further submitted that the petitioners have applied that since their land has been acquired as per policy of the authority that 10% of the Abadi land may be allotted to the petitioners equivalent to the total area of the land acquired from the petitioners. Pleading in this regard has been narrated above. On the strength of the aforesaid pleading it is submitted that denial of allotment to the petitioners the area equivalent to 10% of total land acquired from the petitioners by the authority is wholly arbitrary, discriminatory and therefore the entire acquisition deserves to be quashed. 24. We have given our considered thoughts to the aforesaid arguments and we find that even assuming that what has been submitted the acquisition is legal, the acquisition cannot be quashed on this ground alone that area equivalent to 10% of the total area acquired from the petitioner. That in view of pleading of the petitioners, a suitable direction be issued to the respondents to allot area equivalent to 10% to the petitioners land which is acquired and in denial of the aforesaid 10% land in Abadi to the petitioners per se amounts to discrimination as we do not see that there is any reasonable ground on which the petitioner can be denied the aforesaid allotment when the respondents have already allotted the same to many persons whose land have been acquired like that of the petitioners by acquisition for the authority. 25. 25. In view of what has been stated above this writ petition deserves to be allowed in part while we are upholding the acquisition of the land by the respondents we direct the respondents to allot an area equivalent to 10% of the total area acquired from the petitioners in the Abadi land as is done by the respondents with regard to other persons whose land has been acquired. 26. The writ petition is allowed in part. ————