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2008 DIGILAW 1961 (ALL)

JASRAJ SINGH v. STATE OF UTTAR PRADESH

2008-09-16

A.P.SAHI, ASHOK BHUSHAN

body2008
JUDGMENT By the Court.—The petitioner has questioned the validity of the acquisition proceedings initiated by the respondents for the acquisition of land of Plot No. 198, Area 0.101 Hectare, situate in village-Khanpur, Pargana Dankaur, Tehsil Sadar, Gautam Budh Nagar, which has been acquired by the respondents for planned industrial development under the provisions of Section 4 read with Section 17 and Section 6 of the Land Acquisition Act, 1894. 2. We have heard Sri Shashi Nandan, learned Senior Counsel, assisted by Rajesh Kumar, for the petitioner, learned Standing Counsel Sri Neeraj Upadhyay for the Respondent Nos. 1, 2 and 7 and Sri Pradeep Kumar for the Respondent Nos. 3 to 6. 3. A short-counter-affidavit has been filed on behalf of Respondent Nos. 3 to 6 and in view of the issues raised in the petition, the Court had summoned the original records which have been tendered before the Court by the learned Standing Counsel and have been perused by us. It has been urged by all the learned Counsels that in view of the arguments advanced and the records that are already available, there would be no necessity for inviting any further Affidavits and, therefore, we are proceeding to dispose of the matter finally with the consent of parties. 4. The facts, which have led to the filing of this writ petition, lie in a very narrow compass. Briefly stated, the Notification under Section 4 of the Act was issued on 31.1.2008 which was published in newspapers on 8.2.2008. This notification contains recital of invoking of the provisions of Section 17 (1) and 17 (4) of the Land Acquisition Act thereby dispensing with the inquiry under Section 5-A. The notification under Section 6 was issued after 6 months on 30.6.2008 which was published in the newspapers on 12.7.2008. This was followed by a Section 9 Notice on 25.7.2008. It is undisputed that the land falls within the notified area of Greater NOIDA and the land was sought to be acquired for the purposes of planned Industrial Development. 5. The petitioner has alleged that he has moved representations before the respondents for excluding the land from acquisition as there are constructions standing thereon which were made way back in the year 1990. It is, however, pleaded that nothing has been done by the respondents nor any response shown to the said representation. 5. The petitioner has alleged that he has moved representations before the respondents for excluding the land from acquisition as there are constructions standing thereon which were made way back in the year 1990. It is, however, pleaded that nothing has been done by the respondents nor any response shown to the said representation. The petitioner pleads that the land, being part of Abadi, could not have been acquired and that the same has been done with a mala fide intention. It is urged that the preliminary survey of the area was conducted in December 2004 and, as such, the invoking of the urgency clause was a colourable exercise of power. It has been further pleaded that the gap of 6 months between the notification under Sections 4 and 6 also indicates that there was no urgency and as a matter of fact there was no material on the basis of which an opinion could be formed for invoking the urgency clause. 6. On the strength of the aforesaid pleadings Sri Shashi Nandan has advanced his submissions urging that keeping in view the nature of the expropriatory legislation, the provisions of the Act should be strictly construed and that the dispensation of an inquiry under Section 5-A should not be resorted to arbitrarily. He has further submitted that there has to be an existence of material not only with regard to the existence of mere urgency or unforeseen emergency, but there should be a further existence of the need to dispense with the inquiry under Section 5-A while invoking Section 17 (4) of the Land Acquisition Act. He contends that a mere existence of urgency or an unforeseen emergency as contemplated under Section 17 (1) and 17 (2) of the Act would by itself not be sufficient to automatically dispense with the provisions of Section 5-A. He has invited the attention of the Court to paras 21 to 24 of the writ petition, wherein the petitioner has clearly urged that there was absolutely no application of mind by the State Government nor any satisfaction recorded with regard to the dispensation of the inquiry under Section 5-A of the Act. To substantiate and buttress the submissions, he has relied on the words used in sub-section (4) of Section 17 which states that if in the opinion of the appropriate Government, the provisions of sub-section (1) and sub-section (2) are applicable then the appropriate Government may direct that the provisions of Section 5-A shall not apply. He has laid emphasis on the aforesaid words to urge that this satisfaction has to be recorded by the appropriate Government, whereafter a specific direction is also required to be issued to give effect to such satisfaction. Sri Shashi Nandan also perused the records that were produced by the learned Standing Counsel and he urged that the notings by State Government and its officials while granting approval for invoking of sub-section (4) of Section 17 do not indicate any independent application of mind and issuance of directions, as referred to herein above. On the strength of the aforesaid submissions, Sri Shashi Nandan has urged that the impugned notifications are liable to be quashed and the writ petition deserves to be allowed. In support of his submissions, Sri Shashi Nandan has relied on paras 28 to 36 with particular emphasis on paras 32 and 33 of the decision of the Apex Court in the case of Union of India and others v. Mukesh Hans, (2004) 8 SCC 14 . 7. On the other hand, learned Standing Counsel, with the aid of the records, has urged that there was sufficient material on record for invoking the urgency clause and for this, he has invited the attention of the Court to the report of the Committee, duly endorsed by the District Magistrate and the Addl. District Magistrate (Land Acquisition), which has made a proposal for urgently taking possession of the land, wherein it has been clearly stated that there are many applicants awaiting allotment of land representing important industrial institutions and who are eager to invest in the planned industrial development programme of the State, and if such investors are not immediately provided the land in order to make their investment then there is every likelihood of the shifting of their business and investment to other States. The report also mentions many .foreign investors were also eager to get land allotted in their favour. The report also mentions many .foreign investors were also eager to get land allotted in their favour. It has further been opined that efforts were being made to immediately provide land so as to prevent the efflux of such prospective potential investors who may migrate to other States in case they are not provided la,nd immediately. Learned Standing Counsel has further invited the attention of the Court to the Certificate issued by the Collector on Form No. 10. On the basis of the said report, the Collector opined that the proposal for invoking sub-section (4) of Section 17 is justified and that inquiry under Section 5-A deserves to be dispensed with. The said endorsement of the Collector and his certificate approving the said proposal was forwarded to the State Government which formed the material not only for invoking the urgency clause but which also indicated the need for dispensation of inquiry under Section 5-A. Learned Standing Counsel further invited the attention of the Court to the notings formulated on 14.1.2008 by the Under Secretary, Govt. of U.P., and para 7 of the said noting clearly proposed the acceptance of invoking of the urgency clause in terms of the proposal aforesaid. Learned Standing Counsel urged that the entire proposal was there before the State Government on which mind was applied and keeping in view the material on record the State Government approved the entire proposal whereafter the Notification was issued under Section 4 coupled with Section 17 (1) and (4) of the Land Acquisition Act dispensing with the inquiry under Section 5-A. He contends that the said approval amounts to recording a satisfaction on the existing material and it also directs the issuance of the Notification including the dispensation of the inquiry under Section 5-A as is evident from the notification issued. 8. Sri Pradeep Kumar, learned Counsel for the respondent Nos. 3 to 6, has adopted the aforesaid submissions on behalf of the learned Standing Counsel and has supported the contents of the records that have been produced before the Court. He has further relied on the Division Bench decision of this Court in the case of Manju Lata Agrawal (Smt.) v. State of U.P. and others, 2007(9) ADJ 447 , and the decision of the Apex Court in the case of M/s. Sheikhar Hotels Gulmohar Enclave and another v. State of U.P. and others, 2008 (6) ADJ 307. 9. He has further relied on the Division Bench decision of this Court in the case of Manju Lata Agrawal (Smt.) v. State of U.P. and others, 2007(9) ADJ 447 , and the decision of the Apex Court in the case of M/s. Sheikhar Hotels Gulmohar Enclave and another v. State of U.P. and others, 2008 (6) ADJ 307. 9. Sri Shashi Nandan, in his rejoinder, has again laid emphasis on the distinction between the notifications under Section 17 (1), (2) and Section 17 (4) to urge that apart from the urgency or unforeseen emergency, there does not appear to be any consideration or the issuance of a separate direction by the State Government for dispensing the inquiry under Section 5-A. He contends that mere approval by the State Government to the proposal does not amount to a direction by the appropriate Government for dispensing of the inquiry under Section 5-A and further the proposal of the Committee simply mentions Section 17 without considering the ingredients of sub-section (4) of Section 17 and further it does not even mention the invoking of sub-section (4) and dispensation of Section 5-A of the Land Acquisition Act. It is urged that the aforesaid exercise namely the proposal of the Committee and the Collector’s certificate, as relied upon by the learned Standing Counsel, do not amount to any procedure which may satisfy the specific tests laid down by the Apex Court in the case of Mukesh Hans (supra). 10. We have given our anxious consideration to the various submissions advanced and on the basis of the pleadings, the original records and the decisions relied upon by the contending parties, we find that the proposal submitted by the Committee and duly countersigned by the Collector recites the urgency for which the land was required namely to provide land to prospective potential investors including foreign investors to support the planned industrial development in the State of U.P. The proposal, as noted above, also recites that in the event such land is not provided immediately, then the said investors would migrate to other States which would definitely have an adverse impact on the planned industrial development of the State. It is only when that such investors are provided immediate allotments that such planned industrial development would be possible. It is only when that such investors are provided immediate allotments that such planned industrial development would be possible. It is, thus, for the said public purpose coupled with the aforesaid urgency and emergency that the proposal was made for invoking the provisions of Section 17 of the Act. The Certificate issued by the Collector after receiving of the said report also re-emphasises the same and clearly spells out the need to dispense with the inquiry under Section 5-A of the Act. It is this material, which was there before the State Government which prompted it to invoke the urgency clause not only under Section 17 (1) but also under sub-section (4) of Section 17. Thus, on the facts of the present case, it cannot be said that there was no material before the State Government for invoking the urgency clause. 11. Coming to the main contention advanced on behalf of the petitioner that there ought to have been a further application of mind and consideration by the appropriate Government for a direction to dispense with the inquiry under Section 5-A, it would be appropriate to refer to the notings dated 14.1.2008 wherein clause (7) of the said noting clearly recites that there could be no objection to the proposal made by the Committee as certified by the Collector to invoke the provisions of Section 17 of the Act. What the learned Counsel submits is that the said notings do not indicate any application of mind or consideration separately for dispensing with the inquiry under Section 5-A and further that no specific direction is contained in that regard. To our mind, the said notings in the file indicate a specific application of mind to the urgency indicated and further also a clear recital that there appears to be no objection to the invoking of Section 17. The recital in the noting mentions Section 17 and does not make any separate recital for Section 17 (1), (2) and Section 17 (4). In our opinion the recital would include an expression of opinion for invoking sub-section (4) of Section 17 inasmuch as the Government was alive to the proposal made by the Committee and the Certificate issued by the Collector which clearly referred to the dispensation of Section 5-A. 12. In our opinion the recital would include an expression of opinion for invoking sub-section (4) of Section 17 inasmuch as the Government was alive to the proposal made by the Committee and the Certificate issued by the Collector which clearly referred to the dispensation of Section 5-A. 12. The submission on behalf of the petitioner to the effect that there is an absence of mention of dispensation of inquiry by the State Government, therefore, cannot be accepted inasmuch as the notings of the State Government are in respect of the very same proposal referred to herein above which has been consciously approved by the State Government. In such a situation, the argument that there is non-application of mind and no recital of the specific provisions cannot withstand the scrutiny of law. 13. We have also perused the decision in the case of Mukesh Hans (supra) with specific reference to paras 32 and 33 thereof. The Apex Court in the said case clearly holds that the language of sub-section (4) of Section 17 requires the appropriate Government to further consider the need for dispensation of the inquiry under Section 5-A apart from the existence of any urgency or unforeseen emergency as contemplated under Section 17 (1) and (2). The mere existence of the aforesaid contingency may not automatically be the basis for dispensation of Section 5-A and that the State Government is required to separately apply its mind to find out the existence of any further emergency for dispensation of the inquiry under Section 5-A. 14. We have also perused the Division Bench judgment in the case of Manju Lata Agrawal (supra) where the Court has taken into consideration the judgment of the Apex Court on the aforesaid issues and which judgment, we are informed, has been affirmed by the Apex Court. The said judgment also takes notice of the arguments that were advanced on the strength of the judgment in the case of Mukesh Hans (supra). 15. Paragraph 22 of the case of Manju Lata Agrawal (supra) is quoted below which discusses the said proposition : “22. In Mukesh Hans (supra) the Hon’ble Supreme Court considered as to whether in case of urgency under Section 17 (1) or in case of emergency under Section 17 (2), the powers under Section 17 (4) could be automatically invoked for dispensing with the inquiry, required under Section 5-A of the Act. In Mukesh Hans (supra) the Hon’ble Supreme Court considered as to whether in case of urgency under Section 17 (1) or in case of emergency under Section 17 (2), the powers under Section 17 (4) could be automatically invoked for dispensing with the inquiry, required under Section 5-A of the Act. The Court placing reliance upon its earlier judgment in Nandeshwar Prasad and others v. U.P. Government and others, AIR 1964 SC 1217 , came to the conclusion that Section 17 (4) carves out an exception to the normal mode of acquisition. Mere existence of urgency or unforeseen emergency may not necessarily compel the Government to dispense with Section 5-A inquiry. The appropriate Government has to apply its mind as to whether urgency under Section 17 (1) or unforeseen emergency under Section 17 (2) warrants dispensation of the inquiry under Section 5-A and such an order is not automatic or consequential.” 16. The Court further in para 71 of the same decision has held as follows : “71. In view of the aforesaid settled legal propositions, it emerges that the land can be acquired for public purpose; the expression ‘public purpose’ cannot be defined by giving a specific definition as the same cannot be fitted in a straitjacket formula. The facts and circumstances of each case have to be examined to find out whether acquisition is for a public purpose. Right to property is a constitutional/statutory/human right of an individual person. A person interested has a right to file objections under Section 5-A of the Act though such a right is limited for pointing out that the purpose for which the land is acquired is not a public purpose of the land of the said person is not suitable for that purpose or the area of the land sought to be acquired would be excessive for serving the said purpose as the land cannot be acquired for some other collateral purpose. Such objections form the basis of an enquiry under Section 5-A of the Act. In exceptional circumstances where there is a grave urgency or unforeseen emergency, the Government is competent to invoke the urgency powers contained under Section 17 of the Act and take possession before making the Award. Such objections form the basis of an enquiry under Section 5-A of the Act. In exceptional circumstances where there is a grave urgency or unforeseen emergency, the Government is competent to invoke the urgency powers contained under Section 17 of the Act and take possession before making the Award. In a case of urgency or emergency Government is also competent to take a decision that in order to avoid further delay, the enquiry envisaged under Section 5-A of the Act be dispensed with, but for taking such a decision, there must be existing and relevant material before the Government and it must apply its mind as to whether the urgency is such that persons interested are to be deprived of their right to file objections under Section 5-A of the Act. Invoking the provisions under Sections 17 (1) or 17 (2) of the Act would not automatically dispenses with the inquiry under Section 5-A. There has to be an independent decision by the State Government for such dispensation. Section 17 (4) itself indicates that the “Government may direct that the provisions of Section 5-A shall not apply”. The recital of such an opinion in the order or in notification is not necessary. Nor reasons have to be recorded in this regard in the official records. It is a case of subjective satisfaction of the Government and once the Government forms the opinion and dispenses with the enquiry under Section 5-A of the Act, the Court, in its limited jurisdiction of judicial review, cannot declare the acquisition proceedings bad. Pre or post-notification delay or lethargy on the part of the officials of the State Government is not fatal to acquisition proceedings. Very often persons interested in the land proposed to be acquired make various representations to the concerned authorities against the proposed acquisition. This is bound to result in a multiplicity of enquiries, communications and discussions leading invariably to delay in the execution of even urgent projects, very often the delay makes the problem more and more acute and increases the urgency of the necessity for acquisition. There is no prohibition in law for acquiring the land for a public purpose, which is not in conformity with the land use shown in the Master Plan, as the Master Plan can be amended/modified by the Government. There is no prohibition in law for acquiring the land for a public purpose, which is not in conformity with the land use shown in the Master Plan, as the Master Plan can be amended/modified by the Government. Acquisition of the land for a use other than the use for which it had been earmarked in the Master Plan can be initiated in anticipation of approval to the proposed amendment/modification of the Master Plan by the State Government. Planned development proposed should not be installed at the behest of a few aggrieved persons, where as huge chunk of land belongs to a very large persons is involved.” 17. There cannot be any dispute with the proposition which has been settled by this Court. However, to our mind the facts of the present case as discussed herein above, clearly indicates that there was a specific proposal for dispensation of the provisions of Section 5-A of the Act and which has been separately noticed by the State Government whereafter it was approved. This approval, therefore, amounts to applying mind specifically to the aspect of dispensation under Section 5-A and the submission made on behalf of the petitioner does not appear to be correct. The State Government cannot be said to have ipso facto directed the dispensation of the inquiry inasmuch as the material as discussed above, was available to the State Government. 18. We find on the facts of this case that the notification under Section 4 reciting the invoking of sub-section (4) of Section 17 is supported by the material on record and also the satisfaction recorded to that effect by the State Government as available on record. In our opinion, there was sufficient material, satisfaction, consideration and approval available on record to enable the State Government to direct the dispensation of the inquiry under Section 5-A. This is not a case where there was no material in existence and even otherwise it would depend on the facts from case to case as was found by the Apex Court in the case of M/s Sheikhar Hotels Gulmohar Enclave (supra). 19. The question of delay which has been faintly raised in the writ petition has also been dealt with specifically in paras 27 to 32 of the decision in the case of Manju Lata Agrawal (supra) holding that pre-notification or post-notification delay would not invalidate the acquisition proceedings. 19. The question of delay which has been faintly raised in the writ petition has also been dealt with specifically in paras 27 to 32 of the decision in the case of Manju Lata Agrawal (supra) holding that pre-notification or post-notification delay would not invalidate the acquisition proceedings. No other point has been pressed before us. 20. Having considered the submissions advanced as recorded herein above, we do not find any merit in the contentions advanced and, therefore, the writ petition is liable to be dismissed. Accordingly, the writ petition is dismissed without any orders as to costs. The records, that had been retained by us, have been returned to the learned Standing Counsel. The interim order, if any, stands discharged. No orders as to costs. ————