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2016 DIGILAW 1910 (ALL)

MADAN LAL AHUJA v. STATE OF U. P.

2016-05-17

SHAMSHER BAHADUR SINGH, SUDHIR AGARWAL

body2016
JUDGMENT By the Court.—Heard Sri Manish Goyal, learned counsel for petitioner, Sri A.P. Paul, learned counsel appearing for Allahabad Development Authority, learned Standing Counsel and perused the record. 2. This writ petition under Article 226 of the Constitution of India has been filed assailing notifications dated 21.1.1986 issued under Section 4(1) of Land Acquisition Act, 1894 (hereinafter referred to as ‘Act, 1894’) and dated 23.1.1986 issued under Section 6(1) of Act, 1894 proposing to acquire land, bearing Khasra No. 3, area 5 bigha, 7 biswa and 14 biswansi (2 acres i.e. 4591 sq. yard) situate at Civil Station, Chail, Allahabad. 3. The aforesaid notifications were issued at the instance of Allahabad Development Authority (hereinafter referred to as ‘A.D.A.’), who required aforesaid land for establishment of “Light Industries and District Commercial Centre” in Allahabad, under Planned Development Scheme. While issuing notification under Section 4(1), State also dispensed with inquiry under Section 5-A by invoking provisions of Section 17(1) & (4) of Act, 1894 and while making declaration under Section 6(1), Government has authorised Collector to take possession of acquired land under Section 17(1) on expiration of 15 days from publication of notice under Section 9(1), even though, award under Section 11 has not been made. 4. Petitioner has set-up its case stating that, Hanumat and Ram Pal Trust, Kalakakar (hereinafter referred to as the ‘Trust’) is lessee of aforesaid site No. 3 and a major portion of said site is constructed having two buildings, wherein a hotel under the name and style of ‘Royal Hotel’ is working. Petitioner is a tenant in southern portion of acquired land and an area of 1 acre i.e. 1804 sq. yard is in possession of petitioner, pursuant to an allotment order dated 28.11.1950 issued by Rent Control and Eviction Officer, Allahabad (hereinafter referred to as ‘R.C.E.O.’). The other part of construction includes an annexe of hotel in which three rooms have been constructed. It is also used as part of hotel. Apart from lodging and boarding facility provided to customers, the hotel also houses, offices of Mahabir Finance Company and M/s Ram Mal-Shyam Das, which were carrying on their business in the said premises. The northern portion of site is also occupied to a large extent by constructions and is used as a residential premises by about 30 families. Apart from lodging and boarding facility provided to customers, the hotel also houses, offices of Mahabir Finance Company and M/s Ram Mal-Shyam Das, which were carrying on their business in the said premises. The northern portion of site is also occupied to a large extent by constructions and is used as a residential premises by about 30 families. ‘Royal Hotel’ is one of the oldest renowned hotel in Allahabad City and normally has occupancy of 60% throughout the year. It is recognised by Department of Tourist and Federation of Hotels and Restaurants Association of U.P. 5. The acquisition notifications have been challenged firstly, on the ground that State proposed to acquire land which is ‘Nazul’ and therefore owned by State itself, hence there is no question of acquiring such land, which already belong to State. The tenancy right and super-structure existing on said land have not been sought to be acquired and acquisition notification proposing to acquire land, which already belong to State, is wholly illegal. Secondly, that dispensation of inquiry under Section 5-A of Act, 1894 is wholly arbitrary, inasmuch as, there is no such urgency, which justify dispensation of inquiry under Section 5-A and there is no material justifying the same. Therefore, dispensation of inquiry under Section 5-A is patently illegal. Thirdly, that requirement of publication of notification in two newspapers has not been observed. No public notice was issued and for that reason also, acquisition notifications are bad in law. 6. A.D.A. got itself impleaded pursuant to Court’s order dated 20.1.1988 and has filed a counter-affidavit to contest writ petition. It is stated that on 6.2.1985 A.D.A. submitted an application to Collector for acquisition of land in dispute. Lease of land granted to Trust expired on 14.4.1962. Petitioner or anyone else have no right in law to continue in possession of disputed land. It is however admitted that disputed land is ‘Nazul’. The construction of buildings existing on disputed land are very old and in dilapidated condition. The buildings have out-lived their utility. 50% of land is vacant. Existence of a building being used as ‘Royal Hotel’, however, is not disputed, though other facts like 60% occupancy throughout year is disputed. Justifying acquisition, it is said that A.D.A. thought of establishing a market centre in Allahabad considering growing population and demand for such commercial establishment in the city. 50% of land is vacant. Existence of a building being used as ‘Royal Hotel’, however, is not disputed, though other facts like 60% occupancy throughout year is disputed. Justifying acquisition, it is said that A.D.A. thought of establishing a market centre in Allahabad considering growing population and demand for such commercial establishment in the city. In Master Plan, site has been reserved for establishment of Light Industry and District Commercial Centre. Master plan for Allahabad City was prepared and approved by State of U.P. The said plan was prepared in accordance with U.P. Regulation and Building Operation Act, 1958 (hereinafter referred to as ‘U.P. Act, 1958’) in the year 1972 and published for information of general public on 11.7.1973. After enactment of U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as ‘U.P. Act, 1973’), A.D.A. was constituted and it adopted master plan published on 11.7.1973 vide resolution dated 7.12.1974. Master Plan approved under U.P. Act, 1958 continued to operate by virtue of Section 59 of U.P. Act, 1973. Idea to develop a Commercial Centre was conceived in 1972 but could not be executed and in 19 years, pressure from population has increased to such an extent that now it has become urgent to give shape to the aforesaid proposal and that is how notifications for acquisition have been issued in January 1986. 7. A.D.A. has further given details of some other constructions of residential schemes etc., which in our view, are not relevant for the purpose of deciding issues raised in this writ petition. 8. Petitioner has filed a rejoinder-affidavit, in which it has reiterated what it has stated in writ petition and disputed and contradicted claim set-up by A.D.A. in the counter-affidavit. 9. 8. Petitioner has filed a rejoinder-affidavit, in which it has reiterated what it has stated in writ petition and disputed and contradicted claim set-up by A.D.A. in the counter-affidavit. 9. Before proceeding further, it would also be necessary to refer to enactment of Land Acquisition (U.P. Amendment and Validation) Ordinance, 1990 (U.P. Ordinance No. 32 of 1990), which proposes to insert a Proviso in Section 17(4) and declare that the same shall be deemed to have been inserted on 24.9.1984, it reads as under : “Provided that where in the case of any land, notification under Section 4, sub-section (1) has been published in the official gazette on or after September 24, 1984 but before January 11, 1989 and the appropriate Government has under this sub-section directed that the provisions of Section 5-A shall not apply, a declaration under Section 6 in respect of the land may be made either simultaneously with, or at any time after the publication in the official gazette of the notification under Section 4. sub-section (1).” 10. There is also a validation Clause. Section 3 of aforesaid Ordinance, reads as under : “Notwithstanding any Judgment, decree or order of any Court, Tribunal or other authority, no acquisition of land made or purporting to have been made under the principal Act before the commencement of this Ordinance, and no action taken or thing done (including any order or declaration made) agreement entered into or notification published in connection with such acquisition, which is in conformity with the provisions of the principal Act as amended by this Ordinance, shall be deemed to be invalid or ever to have been invalid merely on the ground that declaration under Section 6 was published in the official gazette on the same date on which notification under Section 4 sub-section (1) was published in the official gazette or on any other date prior to the date of publication of such notification as defined in sub-section (1) of Section 4.” 11. The aforesaid proviso subsequently became part of Act i.e. U.P. Act No. 5 of 1991. The aforesaid proviso subsequently became part of Act i.e. U.P. Act No. 5 of 1991. It only validates a publication under Section 6 on the same date on which a notification under Section 4 was issued, hence for the purpose of issues raised in this writ petition, we do not find any relevance of said provision, though, vires of aforesaid Proviso and Validation Clause has been challenged by amendment in writ petition. Since issue raised to assail acquisition notifications are different and are not affected by the said Proviso, no argument has been advanced in respect to validity of said Proviso, hence, we do not find any reason to look into this question. 12. Now coming to the issues, we find it admitted that land in question is ‘Nazul’. 13. A lease was executed of entire land in favour of ‘Trust’ with authority to raise construction on said land. ‘Trust’ raised constructions on the land in dispute whereupon a hotel was running on some part of such constructed portion and on other part there was occupation of tenants inducted voluntarily by original lessee or got tenancy rights in view of allotment orders passed by R.C.E.O. Lease rights of original lessee in respect to land in dispute expired in 14.4.1962. State however has not exercised any right of Resumption or Re-Entry in land and that is how original lessee as well as subsequent occupants are continuing in occupation. 14. Though the land indispute is admittedly ‘Nazul’ but the question is whether ‘Nazul’ is land owned by State or it has some different characteristic. Counsel for petitioner clearly submitted that ‘Nazul’ is nothing but a land owned by State though authorises to be administered by local administration. Learned counsel appearing for A.D.A. sought to argue that State is empowered to acquire even a ‘Nazul’ land. 15. There appears to be some confusion with respect to meaning of term ‘Nazul’ and it appears that authorities are not very clear as to what ‘Nazul’ is. It could be convenient for us to refer from a judgment of Special Bench (in which one of us Sudhir Agarwal, J. was member) rendered in Sunni Central Board of Waqfs v. Sri Gopal Singh Visharad and others, 2010(1) ADJ (SFB) (LB), wherein “what a ‘Nazul’ land is” has been considered in detail and this Court in majority judgment of Sudhir Agarwal, J. has observed as under: “4430. In the Legal Glossary 1992, fifth edition, published by the Legal Department of the Government of India at page 589, the meaning of the word “Nazul” has been given as “Rajbhoomi i.e. Government land”. It is an Arabic word and it refers to a land annexed to Crown. During the British Regime, immoveable property of individuals, Zamindars, Nawabs and Rajas when confiscated for one or the other reason, it was termed as “Nazul property”. The reason being that neither it was acquired nor purchased after making payment. In the old record, we are told when they used to be written in Urdu, this kind of land was shown as “Jaidad Munzabta”. 4431. For dealing with such property under the authority of the Lt. Governor of North Western provinces, two orders were issued in October, 1846 and October, 1848 wherein after the words “Nazul property” its english meaning was given as “Escheats to the Government”. Sadar Board of Revenue on 20th May, 1845 issued a circular order in reference to Nazul land and in para 2 thereof it mentioned “The Government is the proprietor of those land and no valid title to them can be derived but from the Government.” The Nazul land was also termed as confiscated estate. Under circular dated 13th July, 1859, issued by the Government of North Western Provinces, every Commissioner was obliged to keep a final confiscation statement of each district and lay it before the Government for orders. The kingdom of Oudh was annexed by East India Company in 1856. It declared the entire land as vested in the Government and thereafter settled the land to various individuals Zamindars, Nawabs etc. 4432. At Lucknow revolt against the British Company broke up in May, 1857 which is known as the first war of independence which very quickly angle a substantial part of north western provinces. After failure of the above revolution, the then Governor General Lord Canning on 15th May, 1858 issued a proclamation confiscating propriety rights in the soil with the exception of five or six persons who had given support and assistance to British Officers. This land was resettled first for a period of three years and then permanent propriety rights were given to certain Talukdars and Zamindars by grant of ‘Sanad’ under Crown Grants Act. This land was resettled first for a period of three years and then permanent propriety rights were given to certain Talukdars and Zamindars by grant of ‘Sanad’ under Crown Grants Act. In the meantime we all know that under the Government of India Act, 1858 the entire Indian Territory under the Control of East India Company was placed under Crown w.e.f. First November, 1858. A kind of first settlement in summary we undergone in Oudh in 1861 wherein it appears that the land in dispute was shown as Nazul and since then in the records, the nature of land is continuously being mentioned as Nazul. 4435. The claim of the muslim parties is that the entire territory which came in the control of Babar after defeating Ibrahim Lodhi and others became his land since king was the owner of the land and no system of private ownership was recognized and therefore, he was at liberty to direct for any kind of construction on such land and the land could not have been treated to be owned by any private individual or anyone else. 4436. Let us consider this aspect also in the context of the theory of ‘Nazul’. Such kind of land cannot be a Nazul land. If the entire territory during Mughal regime would that of a king, as soon as the territory annexation or otherwise changed its hand with the East India Company, they would have entered into the shoes of the Mughal king and got the same rights, obligations, privileges etc. on the land. The status of the land would not have changed in such a manner. Such a land could not be confiscated since it was already the land of the king but when a proclamation was issued for confiscating the land, meaning thereby the East India Company or the British Government did not follow the same principle. In our view, in such a matter, even the doctrine of “escheat” or “bona vacantia” may not be applicable 4437. The question as to who could have been owner of the land in 1528 AD when alleged that the disputed building was constructed by Babar through his Commander Mir Baqi, the concept sought to be canvassed is that law, whether Islam or Hindu Shastras, do not recognise any personal right of ownership upon immoveable property. The question as to who could have been owner of the land in 1528 AD when alleged that the disputed building was constructed by Babar through his Commander Mir Baqi, the concept sought to be canvassed is that law, whether Islam or Hindu Shastras, do not recognise any personal right of ownership upon immoveable property. The entire property within the suzerainty of the king belong to him, who had right to tax its subject in the form of tax or otherwise by realising share in the agricultural or other income in the immoveable property. The percentage of share may differ and that may not be relevant for our purpose. 4438. The second aspect of the matter is that since ancient time the right of ownership proceeded with possession and is recognized by the well known principle “possession follows title”. The individual right of ownership therefore was well recognized in the various personal laws and the only right the king had to acquire the land in known valid means, namely by purchase or gift etc. The obligation upon the king is to protect the subject and his property from enemies and for that purpose he used to raise revenue from the subject in the form of tax and/or share from the income of the property etc. It is said that the King, by virtue of its authority, was not the sole owner of the entire immoveable property within his suzerainty but though the immoveable property was subject to his suzerainty, the individual right of the owner on the property continued to be recognized. Besides, the fact that the land could have been acquired by the king by valid means like purchase, gift etc., meaning thereby other modes of acquisition of immoveable property by King existed otherwise no private owner of the land in question would have been there within his suzerainty. 4439. The learned counsel for the parties in this aspect referred to the doctrine of Escheat/bona vacantia. We find that the right of the King to take property by escheat or as bona vacantia was recognized by common law of England. Escheat property was the lord’s right of re-entry on real property held by a tenant dying intestate without lawful heirs. It was an incident, of feudal tenure and based on the want of a tenant to perform the feudal services. Escheat property was the lord’s right of re-entry on real property held by a tenant dying intestate without lawful heirs. It was an incident, of feudal tenure and based on the want of a tenant to perform the feudal services. On the tenant dying intestate without leaving any lawful heirs, his estate came to an end and the lord was in by his own right and not by way of succession or inheritance from the tenant to re-enter the real property as owner. In most of the cases the land escheated to the Crown as the lord paramount, in view of the gradual elimination of intermediate or mesne lords since 1290 AD. The Crown takes as bona vacantia goods in which no one else can claim property. In Dyke v. Walford, 5 Moore PC 434 : 496-13 ER 557 (580) it was said “it is the right of the Crown to bona vacantia to property which has no other owner.” The right of the Crown to take as bona vacantia extends to personal property of every kind. Giving a notice at this stage that the escheat of real property of an intestate dying without heirs was abolished in 1925 and the Crown cannot take its property as bona vacantia. The principle of acquisition of property by escheat i.e right of the Government to take on property by escheat or bona vacantia for want of a rightful owner was enforced in the Indian territory during the period of East India Company by virtue of statute 16 and 17 Victoriae, C. 95, Section 27. 4440. We may recollect having gone through the history that several estates were taken over by British Company by applying the doctrine of lapse like Jhansi which was another kind of the above two principles. The above provisions had continued by virtue of Section 54 of Government of India Act, 1858, Section 20(3)(iii) of Government of India Act, 1915 and Section 174 of the Government of India Act, 1935. The above provisions had continued by virtue of Section 54 of Government of India Act, 1858, Section 20(3)(iii) of Government of India Act, 1915 and Section 174 of the Government of India Act, 1935. After the enactment of the Constitution of independent India, Article 296 now provides : “Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union.” 4441. The Apex Court in Pierce Leslie and Co. Ltd. (supra) has considered the above principles in the context of sovereign India as it stands under its constitution after independence and has observed that “in this country the Government takes by escheat immoveable as well as moveable property for want of an heir or successor. In this country escheat is not based on artificial rules of common law and is not an incident of feudal tenure. It is an incident of sovereignty and rests on the principle of ultimate ownership by the State of all property within its jurisdiction.” 4442. The Apex Court placed reliance on Collector of Masulipatam v. C. Vencata Narainapah, 8 MIA 500, 525; Ranee Sonet Kowar v. Mirza Himmut Bahadoor, (2) LR 3 IA 92, 101, Bombay Dyeing & Manufacturing Co. v. State of Bombay, (1958) SCR 1122, 1146, Legal Remembrancer v. Corporation of Calcutta, (1967) 2 SCR 170 , 204. 4443. The Judicial Committee in Cook v. Sprigg, 1899 AC 572, discussing what is an act of state, observed : “The taking possession by Her Majesty, whether by cession or by any other means by which sovereignty can be acquired, was an act of State.” 4444. This decision has been followed in Raja Rajinder Chand v. Mst. Sukhi and others, AIR 1957 SC 286 . 4445. In Vajesingji Joravarsingji v. Secretary of State, AIR 1924 PC 216 , Lord Dunedin said : “When a territory is acquired by a sovereign State for the first time, that is an act of State. It matters not how the acquisition has been brought about. Sukhi and others, AIR 1957 SC 286 . 4445. In Vajesingji Joravarsingji v. Secretary of State, AIR 1924 PC 216 , Lord Dunedin said : “When a territory is acquired by a sovereign State for the first time, that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing.” 4446. In Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income-tax, AIR 1958 SC 816 , the Court said : “The expression ‘act of State’ is, it is scarcely necessary to say, not limited to hostile action between rulers resulting in the occupation of territories. It includes all acquisitions of territory by a sovereign State for the first time, whether it be by conquest or cession.” 4447. In Promod Chandra Deb v. State of Orissa, AIR 1962 SC 1288 , the Court said, “ ‘Act of State’ is the taking over of sovereign powers by a State in respect of territory which was not till then a part of its territory, either by conquest, treaty or cession, or otherwise.” 4448. To the same effect was the view taken by the Constitution Bench in Amarsarjit Singh v. State of Punjab, AIR 1962 SC 1305 in para 12 as under : “It is settled law that conquest is not the only mode by which one State can acquire sovereignty over the territories belonging to another State, and that the same result can be achieved in any other mode which has the effect of establishing its sovereignty.” 4449. In Thakur Amar Singhji v. State of Rajasthan, AIR 1955 SC 504 , in para 40, the Court said: “The status of a person must be either that of a sovereign or a subject. There is no tertium quid. In Thakur Amar Singhji v. State of Rajasthan, AIR 1955 SC 504 , in para 40, the Court said: “The status of a person must be either that of a sovereign or a subject. There is no tertium quid. The law does not recognise an intermediate status of a person being partly a sovereign and partly a subject and when once it is admitted that the Bhomicharas had acknowledged the sovereignty of Jodhpur their status can only be that of a subject. A subject might occupy an exalted position and enjoy special privileges, but he is none the less a subject ...” 4450. In State of Rajasthan and others v. Sajjanlal Panjawat and others, AIR 1975 SC 706 , it was held that the Rules of the erstwhile Indian States exercised sovereign powers, legislative, executive and judicial. Their firmans were laws which could not be challenged prior to the Constitution. The Court relied on its earlier two decisions in Director of Endowments, Government of Hyderabad v. Akram Ali, AIR 1956 SC 60 , and Sarwarlal v. State of Hyderabad, AIR 1960 SC 862 . 4451. In Promod Chandra Deb v. State of Orissa, AIR 1962 SC 1288 , “act of the State” was explained in the following words: “an “act of State” may be the taking over of sovereign powers either by conquest or by treaty or by cession or otherwise. It may have happened on a particular date by a public declaration or proclamation, or it may have been the result of a historical process spread over many years, and sovereign powers including the right to legislate in that territory and to administer it may be acquired without the territory itself merging in the new State.” 4452. This decision has been followed later on in Biswambhar Singh and another v. The State of Orissa and others, 1964(1) SCJ 364. 16. Thus, a territory acquired by a sovereign State is an Act of State but the land comprising territory does not become the land owned by State. The land owned by State may come to it in various ways, like confiscation, purchase, escheat or bona vacantia, gift etc. In such a case the ownership vests in State, like any other individual and State is free to deal with the same in a manner like any other owner may do so. 17. The land owned by State may come to it in various ways, like confiscation, purchase, escheat or bona vacantia, gift etc. In such a case the ownership vests in State, like any other individual and State is free to deal with the same in a manner like any other owner may do so. 17. Thus ‘Nazul’ is a land vested in State for any reason whatsoever that is cession or escheat or bona vacantia, for want of rightful owner or for any other reasons and once land belong to State, it will be difficult to assume that State would acquire its own land. It is per se impermissible to acquire such land by forcible acquisition under Act, 1894, since there is no question of any transfer of ownership from one person to another but here State already own it, hence there is no question of any acquisition. 18. The proposition advanced by learned counsel for petitioner that acquisition notifications proposing to acquire ‘Nazul’, a land, which already vest in a State are illegal and invalid in law, has substance and we are inclined to accept the same. In our view, first flaw in acquisition notifications, impugned in this writ petition, is that land in question being ‘Nazul’, i.e. a land already vested in State, could not have been acquired by it. Only lease rights of any occupier/occupant and if there existed any superstructure, same could have been acquired but land being in ownership of State already, could not have been acquired by State itself. 19. The above proposition is no more res integra having already been considered and decided in a plethora of authorities, some of which may be referred to herein. 20. In Secretary of State v. Narain Khanna, AIR 1942 PC 35 , it was held; “where Government acquires any property consisting of land and buildings, and where land was the subject-matter of Government grant, subject to power of resumption by Government at any time on giving one month’s notice, then compensation was payable only in respect of such buildings as may have been authorised to be erected and not in respect of land.” (emphasis added) 21. A Division Bench of Judicial Commissioner in Md. A Division Bench of Judicial Commissioner in Md. Wajeeh Mirza v. Secretary of State for India in Council, AIR 1921 Oudh 31, Court said as under : “when Government itself claims to be owner of the land, there can be no question of its acquisition and the provisions of the Land Acquisition Act cannot be applicable. This opinion expressed by Judicial Commissioner has been approved in Sharda Devi v. State of Bihar and another (supra). Court reiterate in Sharda Devi v. State of Bihar and another (supra) that land or an interest in land pre-owned by State cannot be subject-matter of acquisition by State. If the land in question is Government land, there is no question of initiating proceedings of acquisition at all. Government would not acquire the land, which already vests in it. 22. In Sharda Devi v. State of Bihar and another, 2003 (3) SCC 128 , Court has said as under : “the State does not acquire its own land for it is futile to exercise the power of eminent domain for acquiring rights in the land, which had already vests in the State. It would be absurdity to comprehend the provisions of Land Acquisition Act being applicable to such land wherein ownership or the entirety of rights already vests in State. In other words, land owned by State on which there are no private rights or encumbrances is beyond the preview of provisions of Land Acquisition Act.” (emphasis added) 23. In Collector of Bombay v. Nusserwanji Rattanji Mistri, (1996) 10 SCC 150 , it was held; “under the provision of Land Acquisition Act, Government acquires the sum total of all private interests subsisting in them. If Government has itself an interest in land, it has only to acquire other interest outstanding thereof so that it might be in a position to pass it on absolutely for public user.” (emphasis added) 24. In State of U.P. and another v. Lalji Tandon (dead) through Legal Representatives, 2004 (1) SCC 1 , referring to the decision in Sharda Devi v. State of Bihar (supra), Court said as under : “the notification and declaration under Sections 4 and 6 of the Land Acquisition Act for acquisition of the land i.e. the site below the bungalow are meaningless. It would have been different if the State would have proposed the acquisition of lease hold rights and/or the superstructure standing thereon, as the case may. But that has not been done.” 25. In Ahmad Borthers v. State of M.P. and another, 2005 (1) SCC 545 , Court said as under : “if the state was owner of the land in question, there was no reason to acquire its own land”. 26. In Harish Tandon v. State of U.P. and another, 2006(4) ADJ 415 (All)(DB), this Court has referred to definition and meaning of ‘Nazul’ as contained in ‘Nazul’ manual which is a compilation of Executive Orders dealing with ‘Nazul’ and said as under: “Nazul means any land or building which, being the property of Government is not administered as a State property under the control of the Land Reforms Commissioner, or the forest, or the Irrigation Department, or is not under the control of the Military, Postal, Telegraph, Railway or other purely Central Government Department.” 27. Court has relied on Sharda Devi v. State of Bihar and another (supra) to observe that Government cannot acquire its own land or the land which already vests in it. 28. Thus, we have no hesitation in holding that impugned notifications, insofar as, the same propose to acquire land in dispute, which is ‘Nazul’, are not valid. 29. Now we come to second question, “whether there existed circumstances to justify dispensation of inquiry under Section 5-A by invoking provision of Section 17 (1) & (4) of Act, 1894”. 30. The only reason given is that land was required for Commercial Centre which was in ‘public interest’ and such construction of Commercial Centre was an urgent need. In this regard, we may refer to a few dates, though mostly referred earlier. 31. A.D.A. admitted that scheme of establishment of Light Industries and District Commercial Centre was conceived in master plan in 1972 and it took more than a decade to give it a shape by taking further steps for acquisition. Application was submitted by A.D.A. to Collector requesting for acquisition of disputed land on 6.2.1985 i.e. after almost thirteen years. State Government took more than 11 months in issuing notification under Section 4(1) of Act, 1894. Application was submitted by A.D.A. to Collector requesting for acquisition of disputed land on 6.2.1985 i.e. after almost thirteen years. State Government took more than 11 months in issuing notification under Section 4(1) of Act, 1894. Still it is being pleaded by respondents that there was such an urgency to acquire land that a few weeks or one or two months, which may have taken, if an inquiry would have been made under Section 5-A, could not have been waited and this inquiry had to be dispensed with. 32. Looking to the authorities on the subject and stress more on observance of inquiry under Section 5-A instead of adopting exception of dispensation of such inquiry, we find it difficult to justify such exercise on the part of respondents. 33. If a few weeks or one or two months would have been taken in making inquiry under Section 5-A of Act, 1894, we do not find that any prejudice it would have caused to respondents. When respondents could have availed luxury in completing process of request and initial notification by taking 11 months, we find it difficult to hold that there was such an urgency so as to invoke exceptional power under Section 17(4) and dispense with inquiry under Section 5-A. 34. Time and again, it has been held that inquiry under Section 5-A should not be dispensed with lightly. We may buttress our judgment, as to when dispensation of inquiry under Section 5-A would be justified by discussing relevant provisions as well as binding judicial precedents thereon. 35. Section 5-A was inserted in Act, 1894 as long back as in 1923, by Act No. 38 of 1923. There are minor amendments made subsequently but substance of provision has remained the same. 36. Normal procedure of acquisition is that a proposal of acquisition is published in notification under Section 4(1) of Act, 1894. Land owners whose land is proposed to be acquired, are given an opportunity to make their objections. Collector is under an obligation to consider objections and also offer an opportunity of hearing to objectors and thereafter submit report to Government containing his recommendations on the objections, for decision of Government. After considering the report and other material, Government makes declaration that land is proposed to be acquired for public purpose and this is done by publication of notification under Section 6. After considering the report and other material, Government makes declaration that land is proposed to be acquired for public purpose and this is done by publication of notification under Section 6. Therefore, there is possibility of some difference in details of land stated in the notification issued under Section 4 and finally declared land, as acquired for public purpose, detailed in notification under Section 6. 37. Collector is then authorised to take order for acquisition and under Section 8 is supposed to mark, measure and plan the acquired land. A notice thereafter is issued under Section 9 to Land Owners by Collector notifying his intention of taking possession of land and that the claim for compensation be submitted to him. Under Section 11, Collector makes enquiry for determining amount of compensation payable to land owners, whose land has been acquired, and make award. After payment of compensation, Collector takes possession of land. 38. There is an exception to normal procedure of taking possession which is contained in Section 17 of Act 1894. It says that in case of urgency, even though no award has been made, Government can direct Collector to take possession of any land, needed for public purpose, and on such possession being taken by Collector, land shall vest absolutely with the Government free from all encumbrances. Section 17(4) provides, where such urgency for the purpose of possession is to be acted upon, Government, shall declare that provision of Section 5-A shall not apply. 39. However, right to file objection under Section 5-A against proposal of acquisition of land published under Section 4 is a substantial right, consistent with principle of natural justice, since forcibly acquisition of land, without consent of land owners, is a serious matter. This is the view taken consistently, by Courts. 40. The circumstances, when Government would be justified to dispense with enquiry under Section 5-A while invoking urgency clause under Section 17, for the purpose of taking possession, have been considered in a catena of decisions in last several decades and it would be useful to refer some relevant authorities in this regard. 41. 40. The circumstances, when Government would be justified to dispense with enquiry under Section 5-A while invoking urgency clause under Section 17, for the purpose of taking possession, have been considered in a catena of decisions in last several decades and it would be useful to refer some relevant authorities in this regard. 41. In Nandeshwar Prasad v. U.P. Government, AIR 1964 SC 1217 , Court said : “the right to file objection under Section 5-A is a substantial right when a person’s property is being threatened with acquisition and we cannot accept that that right can be taken away as if by a side wind”. 42. In Munshi Singh and others v. Union of India, (1973) 2 SCC 337 , which is a decision of three judges bench, Court stressed upon and emphasized upon an inbuilt legislative recognition of principal of natural justice in Section 5-A and said : “Sub-section (2) of Section 5-A makes it obligatory on the Collector to give an objector an opportunity of being heard. After hearing all objections and making further inquiry he is to make a report to the appropriate Government containing his recommendation on the objections. ........ The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5-A”. (emphasis added) 43. In State of Punjab v. Gurnail Singh and others, 1980 (1) SCC 471, it was held that it is fundamental that compulsory taking of a man’s property is a serious matter and smaller the man, more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness. Denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing, land acquisition authorities should not, having regard to Articles 14, burke an enquiry under Section 17 of Act, 1894. A slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes travesty of emergency power. 44. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing, land acquisition authorities should not, having regard to Articles 14, burke an enquiry under Section 17 of Act, 1894. A slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes travesty of emergency power. 44. In Shyam Nandan Prasad and others v. State of Bihar and others, (1993) 4 SCC 255 , reiterating that Section 5-A is mandatory, Court said : “the proceeding before the Collector is a blend of public and individual enquiry”. 45. In Union of India and others v. Mukesh Hans, (2004) 8 SCC 14 , Court held that Section 17(4) is an exception to normal mode of acquisition. Mere existence of urgency or unforeseen emergency by itself is not sufficient to direct for dispensation of Section 5-A. Court reiterated that there must be real existing emergency for which an opinion must be formed by the Government, objectively. Court said as under : “It requires an opinion to be formed by concerned Government that alongwith existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A enquiry, which indicates that the legislature intended that the appropriate Government to apply its mind before dispensing with Section 5-A enquiry. It also indicates the mere existence of an urgency under Section 17 (1) or unforeseen emergency under Section 17 (2) would not by itself be sufficient for dispensing with Section 5-A enquiry. If that was not the intention of the legislature then the latter part of sub-section (4) of Section 17 would not have been necessary and the legislature in Section 17 (1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A enquiry will be dispensed with, but then that is not language of the Section which, in our opinion, requires the appropriate Government to further consider the need for dispensing with Section 5-A enquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does not mean that in every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5-A enquiry. ....... There is need for application of mind by appropriate Government that such an urgency for dispensing of Section 5-A enquiry is inherent ........... .” 46. In Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai and others, (2005) 7 SCC 627 , it was held that the provisions of Section 5-A of Act, 1894 must be read consistent with Article 300-A of the Constitution and it is akin to fundamental right of procedure before depriving a persons of his land, and must be strictly complied with. 47. In Essco Fabs Pvt. Ltd. and another v. State Of Haryana and another, (2009) 2 SCC 377 , it was held that enquiry should not be dispensed with lightly. 48. In Anand Singh and another v. State of U.P. and others, (2010) 11 SCC 242 , Court considered as to when State would be justified in invoking power under Section 17(4) for acquisition of land and dispensing with enquiry under Section 5-A so as to take possession immediately. It is said that power under Section 17 is not to be exercised in a routine manner. It would be justified only when circumstances warrant immediate possession. It should not be lightly invoked. It is an exceptional power enabling land acquiring body to dispense with enquiry under Section 5-A. Government must apply its mind before dispensing with enquiry under Section 5-A whether urgency is of such a nature that justifies elimination of summary enquiry under Section 5-A. The mere mention of words in acquisition notification that Government is satisfied about urgency and dispensing with enquiry under Section 5-A may raise a presumption in favour of Government with per-requisite conditions for exercise of such power are satisfied but when challenged, Government has to produce relevant material before Court to show existence of such circumstances, which justify dispensation of inquiry and avail an exceptional power under Section 17. Court said : “upon challenge being made to the use of power under Section 17 the Government must produce appropriate material before the Court that the opinion for dispensing with enquiry under Section 5-A has been formed by the Government after due application of mind on the material placed before it”. (emphasis added) 49. With regard to judicial review of exercise of power, Court in Anand Singh and another (Supra) further said in paras 45, 46, 47 and 48 as under : “45. It is true that power conferred upon the Government under Section 17 is administrative and its opinion is entitled to due weight, but in a case where the opinion is formed regarding the urgency based on considerations not germane to the purpose, the judicial review of such administrative decision may become necessary.” “46. As to in what circumstances the power of emergency can be invoked are specified in Section 17 (2) but circumstances necessitating invocation of urgency under Section 17(1) are not stated in the provision itself. Generally speaking, the development of an area (for residential purposes) or a planned development of city, takes many years if not decades and, therefore, there is no reason why summary enquiry as contemplated under Section 5-A may not be held and objections of land owners/persons interested may not be considered. In many cases on general assumption, likely delay in completion of enquiry under Section 5-A is set up as a reason for invocation of extraordinary power in dispensing with the enquiry little realizing that an important and valuable right of the person interested in the land is being taken away and with some effort enquiry could always be completed expeditiously.” 47. The special provision has been made in Section 17 to eliminate enquiry under Section 5-A in deserving and cases of real urgency. The Government has to apply its mind on the aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5-A. We have already noticed few decisions of this Court. There is conflict of view in the two decisions of this Court viz.; Narayan Govind Gavate and Pista Devi. In Om Prakash this Court held that decision in Pista Devi must be confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate. In Om Prakash this Court held that decision in Pista Devi must be confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate. We agree.” “48. As regards the issue whether pre-notification and post-notification delay would render the invocation of urgency power void, again the case law is not consistent. The view of this Court has differed on this aspect due to different fact-situation prevailing in those cases. In our opinion such delay will have material bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the appropriate Government before the Court justifying that urgency was of such nature that necessitated elimination of enquiry under Section 5-A.” (emphasis added) 50. In Radhe Shyam (Dead) through Lrs. and others v. State of U.P. and others, 2011(5) SCC 553 , it was reiterated that property of a citizen cannot be acquired by State without complying with the mandate of Sections 4, 5-A and 6 of Act, 1894. A public purpose however, loudable would not entitle Government to invoke urgency provisions, since the same have the effect of depriving owner of his right to property and that too without being heard. Only in a case of real urgency, Government would be justified in invoking urgency provisions. Section 17 must have been invoked only when purpose of acquisition cannot brook the delay of even few weeks or months. The authority must be fully satisfied that time of few weeks or months likely to be taken in conducting enquiry under Section 5-A shall, in all probability, frustrate the public purpose for which land is proposed to be acquired. Satisfaction of Government on issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and can be challenged on the ground that authority did not apply its mind to relevant factors, and on record, there is no material justifying existence of alleged urgency. It also held that exercise of power under Section 17(1) necessarily does not result in exclusion of Section 5-A, inasmuch as, the person concerned can file objection and is entitled to be heard in support of his objection. It also held that exercise of power under Section 17(1) necessarily does not result in exclusion of Section 5-A, inasmuch as, the person concerned can file objection and is entitled to be heard in support of his objection. The use of word “may” in sub-Section (4) of Section 17 shows that it merely enables Government to direct that Section 5-A would not apply to the cases covered under Sections (1) or (2) of Section 17. Therefore, mere fact that certain purposes may be treated as public purpose for purpose of acquisition but that by itself would not mean that their exists urgency to dispense with inquiry unless the circumstances actually and really are in existence to show that delay in taking possession would be adverse to public interest. It also held that Court can take judicial notice of the fact that planning, execution and implementation of scheme relating to development of residential, commercial and industrial or institutional areas, Government takes few years, therefore, in such cases private property should not be acquired by invoking urgency clause as denial of Rule of audi alteram partem embodied in Section 5-A is not at all warranted in such cases. 51. In Darshan Lal Nagpal (Dead) By Lrs. v. Government of NCT of Delhi and others, (2012) 2 SCC 327 , after having retrospection of some of authorities on the subject, Court in para 28 of the judgment, stated as under : “What needs to be emphasized is that although in exercise of the power of eminent domain, the State can acquire the private property for public purpose, it must be remembered that compulsory acquisition of the property belonging to a private individual is a serious matter and has grave repercussions on his Constitutional right of not being deprived of his property without the sanction of law - Article 300-A and the legal rights. Therefore, the State must exercise this power with great care and circumspection. At times, compulsory acquisition of land is likely to make the owner landless. The degree of care required to be taken by the State is greater when the power of compulsory acquisition of private land is exercised by invoking the provisions like the one contained in Section 17 of the Act because that results in depriving the owner of his property without being afforded an opportunity of hearing.” (emphasis added) 52. The degree of care required to be taken by the State is greater when the power of compulsory acquisition of private land is exercised by invoking the provisions like the one contained in Section 17 of the Act because that results in depriving the owner of his property without being afforded an opportunity of hearing.” (emphasis added) 52. In Union of India and others v. Shiv Raj and others, 2014 (6) SCC 564 , Court in para 15 said that Section 5-A confers a valuable right on the owner of land and it is not an empty formality. It is a substantive right, which can be taken away only for good and valid reasons and within the limitations prescribed under Section 17(4) of Act, 1894. 53. Considering the facts of this case as discussed above and also exposition of law, we are satisfied that there existed no such urgency so as to justify exercise of power under Section 17(4) for dispensation of inquiry under Section 5-A of Act, 1894. Impugned notifications therefore, in so far as inquiry under Section 5-A has been dispensed with, are vitiated in law. 54. Though in written submissions already filed by petitioner, it has raised three more grounds namely discrimination, non-publishing of notices in newspapers having wide circulation and that purpose would not be achieved by acquisition of impugned land in dispute but during course of oral arguments advanced in Court, only two issues already discussed have been pressed, hence it is not necessary to look into other ground taken in written arguments. 55. Before parting, we may refer to a preliminary objection raised on behalf of A.D.A. that petitioner being a tenant has no right to challenge acquisition, when original lessee has not joined such challenge. Sri Paul, learned counsel for A.D.A. relied on a judgment in Navneet Ram Batra v. State of U.P. and others, (1975) 2 SCC 727 . 56. Having gone through aforesaid decision, we do not find anything therein to support his submission. In the present case, petitioner is tenant in a portion of acquired land in view of an order of allotment issued by R.C.E.O. in exercise of powers under Section 7 of U.P. Temporary Control of Rent and Eviction Act, 1947 (hereinafter referred to as ‘Act, 1947’). Admittedly, tenancy created by aforesaid allotment order is in respect to house existing on disputed land of which landlord was Trust. Admittedly, tenancy created by aforesaid allotment order is in respect to house existing on disputed land of which landlord was Trust. Since acquisition, if any, would have resulted in vesting of land free of any encumbrance, tenancy rights of petitioner are bound to suffer. Petitioner, therefore, is the person interested in land sought to be acquired and any such person who is interested in land is entitled to make objection, if any, in the inquiry, if made, as contemplated in Section 5-A of Act, 1894. 57. In Navneet Ram Batra (Supra) he was tenant of plot No. 428 and sought to raise an argument on the basis of plot No. 436 whereof the owner raised no dispute and accepted compensation, Court said that in respect to plot No. 436, Navneet Ram Batra cannot be said to be a person interested and therefore has no right to challenge acquisition with reference to plot No. 436, since he was concerned with respect to plot No. 428 only. This is evident from the following observations made by Court in para 2 of the judgment. “The only point argued before us was that there was a pucca construction on plot No. 436 which was also notified for acquisition under the impugned notification and consequently the provisions of Section 17(4) would not be applicable to that land as it was not arable or waste land which could be acquired by dispensing with the enquiry under Section 5A and as such the whole notification is bad and should be quashed. Admittedly the appellant’s land is a waste and arable land and thus falls under Section 17(1). There was therefore no objection to the Government dispensing with the provisions of Section 5A by resorting to the power conferred by Section 17(4). The person who could have taken objection to the enquiry under Section 5A being dispensed with was the owner of plot No. 436. He has not objected to the acquisition. He has taken the compensation awarded to him and walked out. It is, therefore, not open to the appellant to question the validity of this notification. If possibly the owner of plot No. 436 had objected to the notification different considerations might arise. He has not objected to the acquisition. He has taken the compensation awarded to him and walked out. It is, therefore, not open to the appellant to question the validity of this notification. If possibly the owner of plot No. 436 had objected to the notification different considerations might arise. The appellant who is only the owner of plot No. 428 in relation to which Sections 17(1) and 17 (4) are applicable and therefore enquiry under Section 5A could properly be dispensed with, cannot object to the same notification because the notification also relates to another land to which Sections 17(1) and 17(4) are not applicable when the owner of that land has not chosen to challenge the notification.” (emphasis added) 58. Next it is contended by Sri Paul that even if acquisition notifications refer to land but interested person may claim compensation in respect to super-structure or in respect to leasehold rights or sum-total of interest held by lessee or sub-lessees in the land under acquisition, as the case may be hence it is not necessary to interference with the notifications. In this regard, he placed reliance on the judgment in Inder Parshad v. Union of India, (1994) 5 SCC 239 . 59. We find that in Inder Prashad (Supra) notification under Section 4(1) of Act, 1894 proposed to acquire demise land together with building alongwith other lands for public purpose. The dispute related to apportionment of compensation taken before Court. The argument was that land being owned by State, there was no occasion to acquire the same and what was acquired is only the sum-total of right and interest held by lessor in perpetual lease and, therefore, appellant is entitled to total compensation determined by award. The acquisition notification was not challenged therein on the ground that it proposed to acquire ‘Nazul’ land only, which is already vested in State, therefore, acquisition by itself is bad. The aforesaid judgment, therefore, does not help A.D.A. for deciding issue raised by petitioner in the present petition. 60. The discussion made above leads to an inescapable conclusion that the impugned notifications dated 21.1.1986 and 23.1.1986 are bad in law, since ‘Nazul’ land, which is already vested in State is sought to be acquired and not the lease rights or super-structure existing thereon belongs to the occupants of land. 60. The discussion made above leads to an inescapable conclusion that the impugned notifications dated 21.1.1986 and 23.1.1986 are bad in law, since ‘Nazul’ land, which is already vested in State is sought to be acquired and not the lease rights or super-structure existing thereon belongs to the occupants of land. Further dispensation of inquiry under Section 5-A by involving Section 17(4) is also illegal as there existed no urgency whatsoever to justify the same. Had the only flaw would have been wrong exercise of power under Section 17(4), we could have invalidate only declaration made under Section 6 by notification dated 23.1.1986 and permit respondents to proceed from that stage but since the former ground goes to the root of the matter, we have no option but to quash both the aforesaid notifications. 61. In the result, writ petition is allowed. Notifications dated 21.1.1986 and 23.1.1986 are set aside, so far as the same pertain to petitioner’s land with cost which we quantify to Rs. 20,000/-.