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Judgment reserved on 08.4.2011 Judgment delivered on 12.5.2011 CIVIL MISC. WRIT PETITION NO. 500 OF 2010 Devendra Kumar and ors v. State of UP & ors Connected with CIVIL MISC. WRIT PETITION No. 314 of 2010; 11866 of 2010; 67419 of 2009; 67417 of 2009; 67420 of 2009; 6108 of 2010; 6107 of 2010; 16963 of 2010; 33708 of 2010; 13122 of 2010; 29907 of 2010; 35175 of 2010; 17932 of 2010; 17934 of 2010; 17936 of 2010; 17939 of 2010; 29905 of 2010; 33372 of 2010; 31627 of 2010; 33710 of 2010; 32312 of 2010; 32826 of 2010; 26190 of 2010; 14140 of 2010; 17332 of 2010; 17518 of 2010; 18181 of 2010; 35675 of 2010; 21734 of 2010 & 62782 of 2010 Hon'ble Sunil Ambwani, J.
Hon'ble Kashi Nath Pandey, J.

1.

The petitioners are original tenure holders, purchasers, and

Societies recorded as owners in revenue records of the land in village Shahberi, Pargana Dadri, District Gautam Budh Nagar. By these writ petitions, under Article 226 of the Constitution of India, they have challenged the notification dated 10.6.2009 under Section 4 (1), applying Section 17 (1) of the Land Acquisition Act, 1894 (in short, the Act) proposing to acquire a total area of about 156.903 hectares of land in the village Shahberi, Pargana Dadri, District Gautam Budh Nagar, for public purpose namely for the 'Planned Industrial Development' in Greater Noida Industrial Development Authority (GNOIDA), District Gautam Budh Nagar, recording the opinion of the Governor, that the provisions of sub section (1) of Section 17, of the Act are applicable to the said land inasmuch as the land is urgently required for the construction in Greater NOIDA in District Gautam Budh Nagar through GNOIDA, and in order to eliminate the

delay likely to be caused by an enquiry under Section 5-A of the Act, the Governor is further pleased to direct under sub section (4) of Section 17 of the Act, that the provisions of Section 5A of the Act shall not apply. They have also challenged the notification published in the Official Gazette dated 9.11.2009 under Section 6 read with Section 17 (4) of the Act, declaring the acquisition of land; recording the satisfaction that sub section (1) of Section 17 is applicable and directing the Collector of Gautam Budh Nagar, though no award under Section 11 has been made, may, on the expiry of 15 days from the date of publication of the notice under sub section (1) of Section 9, take possession of the land mentioned in the Schedule appended to the notification. 2. Earlier a Writ Petition No. 46693 of 2009, filed by Shri Sanjay

Sharma and others (the petitioners in Writ Petition No. 6108 of 2010). By an order dated 3.9.2009 the Court directed the State Government to produce the entire records of acquisition to demonstrate that the satisfaction was recorded by the State Government by applying its own independent mind under Section 4 (1) for invoking urgency clause under Section 17 (4) of the Act, dispensing with enquiry under Section 5-A of the Act. Similar orders were passed on 16.9.2009 in Writ Petition No. 49574 of 2009 filed by some 20 persons. On 27.10.2009 another Writ Petition No. 37512 of 2009 challenging the notification under Section 4 (1) read with Section 17 (4) of the Act came up for hearing. After hearing the counsels for the parties the Court dismissed the writ petition No. 49347 of 2009, as premature, without deciding any point on merits, with liberty to raise all the grounds, which have been taken in the writ petition or such ground, which may become available to the petitioners after notification declaring the acquisition of land under

Section 6 (1) is published. 3. Leading the argument in Writ Petition No. 500 of 2010,

Devendra Kumar and others vs. State of UP and others, Shri Veeresh Pratap Chaudhary, Senior Advocate assisted by Shri Kaushalendra Nath Singh, submits that UP Industrial Area Development Act, 1976 (Act of 1976) came into force on 01.4.1976. Section 3 of the Act of 1976 provides for constituting the development authority by a notification. The Greater Noida Industrial Development Authority (GNOIDA) was constituted by a notification dated 28.1.1991. By a notification dated 21.2.1994 various villages, including village Shahberi in District Gautam Budh Nagar, were notified as part of GNOIDA. Large areas of the notified villages have been acquired by the State Government for planned industrial development of the GNOIDA. The authority waited for 14 years before requesting the State Government for acquisition of 161.531 hectares of land in village Shahberi for development by its letter dated 24.10.2008 addressed to the Collector, District Gautam Budh Nagar. The letter stated that there is need to urgently acquire the land, and that there is likelihood of illegal and unauthorised constructions raised thereon, which will adversely affect the development. The Collector of District Gautam Budh Nagar, by his letter dated 18.5.2009 after a period of seven months from the date when the request was made by the authority, sent proposal for acquisition of 156.903 hectares of land of village Shahberi. The letter prepared by the officers of GNOIDA and forwarded by the Collector stated that the village Shahberi is included in the area notified for industrial development for the authority; the proposed area is urgently required for Planned Industrial Development; in the event of delay in acquisition there is a likelihood of increase in unauthorized occupation, which would

adversely affect the concept of planned development; some land of nearby villages has already been acquired while for some others the land acquisition proceedings are going on. In that situation, keeping in view the continuity of infrastructure services, it is necessary to acquire the proposed land urgently. As per the plan approved by the Government, the authority requires the land for all round development like roads; sewerage; provision for electricity, and its distribution for development. The work is at a standstill due to acquisition not having taken place. The prominent industrialists of the country, who wish to invest their capital in Uttar Pradesh, have to be provided with land urgently according to their plan. If they are not provided the land according to their need, then they would establish their units in other States, which would adversely affect the policy of inviting liberally the investment of capital in the State and for providing employment opportunities. It was further stated that 156.903 hectares of land in village Shahberi is required for planned development. If objections were to be invited to the acquisition, their disposal would take many years and this would unreasonably delay the acquisition affecting planned development. 4. The State of U.P. issued notification dated 10.6.2009 under

Section 4 (1) read with Section 17 (4) of the Act proposing to acquire about 156.903 hectares of land in village Shahberi for the purpose of planned industrial development. The notification contained a recital that the land was urgently required for constructions for planned industrial development by Greater Noida Industrial Development Authority in District Gautam Budh Nagar and as it is necessary to eliminate the delay likely to be caused by an enquiry under Section 5-A of the Act, the Governor has been pleased to direct under sub section (4) of Section 17 that the provisions of Section 5-A would not

apply. 5. In Writ Petition No. 500 of 2010, Devendra Kumar & others

vs. State of UP and others, and Writ Petition No.6108 of 2010 Sanjay Sharma & others vs. State of UP and others, the petitioners have purchased the land situated in Gata No. 11 (total area 9.0620 hectares) out of which 7.545 hectares has been acquired. The Gata was recorded earlier in the name of Arsh Prachar Sahitya Trust. By registered sale deeds dated 16.5.2008, 11.6.2008 and 31.7.2008, a total area 17.5 bigha was transferred to the petitioners No. 1 to 3. They have in turn sold it to petitioner Nos. 4 to 18. All these transactions were recorded prior to the issuance of the notification under Section 4 (1) of the Act dated 10.6.2009. In Writ Petition No. 6108 of 2010 18 bighas of land was transferred in the same Gata No. 11 to petitioner nos. 1 to 4. These petitioners after developing the land sold it to the petitioner nos. 5 to 18 for residential purposes. These transactions were also recorded prior to the notification under Section 4 (1) of the Act dated 10.6.2009. 6. Shri Chaudhari submits that there was no application of mind

by the State Government either for acquiring the land in question under Section 4 (1) or for taking recourse for Section 17 (4) and for dispensing with provisions of Section 5A of the Act. The satisfaction was tainted with malafides for collateral purpose. The GNOIDA has acquired huge chunk of land for the purposes of industrial development after the year 1991. Out of the entire land acquired 60% of the land has not been developed, nor is used or allotted to any industry and is lying vacant. He submits that there was no urgency at all to take recourse to Section 17 (4) of the Act, and to dispense with Section 5A of the Act. The State Government did not have the

recourse to recognise the land urgently required for planned industrial development. Nothing was mentioned to show that the authority had fulfilled its obligation mentioned in clauses- (b) to (e) of Act of 1976. In view of the provisions of Section 6-F and 7 of the Act of 1976, the State Government should have indicated the specific purpose as well for which the acquired land would be used, instead of merely saying that the land was required for planned industrial development. In the counter affidavits the detail, and particular of the record, which may have been placed by the authority before the State Government for applying its mind and considering its satisfaction for acquisition, has not been disclosed. The possibility of encroachment was not a relevant plea advanced by the authority for applying the emergency provision taking away valuable right of the owners of the land under Section 5-A of the Act. 7. Shri Chaudhari has placed reliance upon the recent judgments

of Supreme Court in Anand Singh & anr. v. State of Uttar Pradesh & ors JT 2010 (8) SC 15 decided on 28.7.2010; State of West Bengal and others v. Prafulla Churan Law 2011 (3) AD (SC) 296 decided on 4.2.2011and Dev Sharan & ors vs. State of UP & ors (2011) SCC L.Com 189 decided on 3.7.2011. He submits that in Anand Singh's case in the matter of invoking the urgency clause under Section 17 (1) and (4) along with Section 4 of the Act dispensing with the hearing of objections under Section 5A, the Supreme Court considered its earlier judgments in Raja Anand Brahma Shah v. State of Uttar Pradesh and ors 1967 (1) SCR 373; Jage Ram and ors v. State of Haryana and ors 1971 (1) SCC 671; Narayan Govind Gavate and ors v. State of Maharashtra and ors 1977 (1) SCC 133; State of Punjab and anr. v. Gurdial Singh and ors 1980 (2) SCC 471; Deepak Pahwa and ors v. Lt.

Governor of Delhi and ors 1984 (4) SCC 308; State of UP v. Smt. Pista Devi and ors JT 1986 SC 420; Rajasthan Housing Board and ors v. Shri Kishan and ors JT 1993 (1) SC 298; Chameli Singh and ors v. State of UP and anr JT 1995 (9) SC 380; Meerut Development Authority & ors v. Satbir Singh and ors JT 1996 (9) SC 382; Om Prakash and anr v. State of UP and ors JT 1998 (4) SC 601; Union of India and ors v. Mukesh Hans JT 2004 (7) SC 526; Union of India and ors v. Krishan Lal Arneja and ors JT 2004 (Suppl. 2) SC 245; Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai and ors JT 2005 (8) SC 470; Mahadevappa Lachappa Kinagi and ors v. State of Karnataka and ors JT 2008 (8) SC 581; Babu Ram and anr v. State of Haryana and anr JT 2009 (13) SC 99 and Tika Ram and ors v. State of Uttar Pradesh and ors JT 2009 (12) SC 1, and held that the exceptional and extraordinary power of doing away with an enquiry under Section 5A, in a case where possession of the land is required urgently or in unforeseen emergency is provided in Section 17 of the Act, is not a routine power, and save circumstances warranting immediate possession, it should not be lightly invoked. The guideline is inbuilt in Section 17 itself, for exercise of the exceptional power in dispensing with enquiry under Section 5A. Exceptional the power, the more circumspect the government must be in its exercise. The government obviously, therefore, has to apply its mind before it dispenses with enquiry under Section 5A on the aspect whether the urgency is of such a nature that justifies elimination of summary enquiry under Section 5A. 8. Shri Chaudhary submits that the repetition of statutory phrase

in the notification that the State government is satisfied that the land specified in the notification is urgently needed and provision

contained in Section 5A shall not apply, though may initially raise a presumption in favour of the government that pre-requisite conditions for exercise of such power have been satisfied, but such presumption may be displaced by the circumstances themselves having no reasonable nexus with the purpose for which power has been exercised. 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 the enquiry under Section 5A has been formed by the government after due application of mind on the material placed before it. 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. 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 5A 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 5A is set up as a reason for invocation of extraordinary power in dispensing with the enquiry, little realizing that an import and valuable right of the person interested in the land is being taken away and with some effort enquiry could always be completed expeditiously. The special provision has been made in Section 17 to eliminate enquiry under Section 5A 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 5A. 9. Shri W.H. Khan, appearing in Writ Petition No. 17932 of 2010

Arif Ali and others vs. State of UP and others; 17934 of 2010 Ranpal and ors vs. State of UP and ors; 17936 of 2010 Sunil Kumar and ors vs. State of UP and ors; 17939 of 2010 Sajid Husain & ors vs. State of UP and ors; 26190 of 2010 Aitzad Husain Khan vs. State of UP and others, all filed by original tenure holders, submits that the GNOIDA authorities and the Collector did not place correct facts before the State Government for applying Section 17 (1) and (4) of the Act to dispense with the enquiry under Section 5A of the Act. The GNOIDA has all along carved a plan proposing the land for allotment to colonizers in village Shahberi for group housing project. He has impleaded M/s Ajnara Gold City, Sector-34B, 63-B, NOIDA; Super Tec, ECO Village, Sector-56, B-37, Noida, and M/s Amrapali Gold Homes, Sector-62, 22-A NOIDA, the colonizers, who have been allotted large plots of land of more than 60,000 square meters for constructions of houses on 5% down payment for allotment, and facility for creating small plots of 20000 square meters each. He submits that the land acquisition has not been made for public purpose but for allotting large plots of land in village Shahberi to colonizers, which is not the purpose for which the GNOIDA has been established. The planned industrial purpose is an ostensible reason given by the GNOIDA authority and the Collector for acquisition of the land. The object and purpose for acquiring the land, namely for constructions of group housing projects only for making profits was not placed before the State Government, and thus the State Government could not apply its mind. He submits that out of 211

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tenure holders, only 19 belong to Scheduled Caste, and that they have accepted the compensation under the agreement executed under Karar Niyamawali 1997. The remaining tenure holders have not accepted the compensation. There are 103 big farmers and 88 small farmers. Shri Khan states that he represents the original tenure holders, who have been deprived of their land and livelihood. 10. Shri Khan submits that the State authority also acquired land

for GNOIDA in village Ebadullapur/Badalpur in Tehsil Dadri at a distance of 6 kms. This village is a native village of Sushree Mayawati, the Chief Minister of the State. The farmers of the village have been given a highly favourable treatment inasmuch as their 2080% land has been released and they have been paid compensation at a very higher rate. Almost the entire area of the tenure holders of village Badalpur acquired for planned industrial development has been released. 11. Shri R.N. Singh, appearing in Writ Petition No. 61071 of 2010

Smt. Rajbala and ors v. State of UP and ors, has relied upon averments in paragraph-25 to 41 of the judgment of the Supreme Court in Anand Singh's case, with regard to invocation of Section 17 (1) and (4) for dispensing with enquiry under Section 5A of the Act. He submits that there is no data of earlier user of the land acquired since 1991 placed before the State Government for recording satisfaction that any further land was required for planned industrial development. For recording satisfaction the State Government was required to consider the relevant material, namely the user of the land and the plan for industrial development. 12. Shri Navin Sinha assisted by Shri Amit Saxena appearing in

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Writ Petition No. 14140 of 2010, Radha Swami Satsang Beas, Shahberi Branch vs. State of UP and ors, submits that the petitioner purchased 0.926 hectares of land in plot No. 146 by sale deed dated 23.12.2008 executed by the original tenure holders. The object of the Trust is to organize meetings 'Satsang' for carrying out the object of the religious sect. The Government Order dated 28.4.1980, issued by the State Government providing for guidelines for acquiring the land owned by religious organizations and sects, provides that the acquisition should not affect the field of the members of the religious communities of sects and that unless it is absolutely necessary, the land owned by such organizations, and sects, should not be acquired. The provisions of the Government Order dated 28.4.1980 have been grossly violated for acquiring the land purchased by the petitioners. He submits that the averments in the counter affidavit, that no permission was taken from the GNOIDA for raising constructions, is baseless inasmuch as no pucca constructions have been raised. Only platforms with boundary walls and sheds have been raised for the purposes of organizing the religious gatherings. 13. Shri Sinha submits that out of 211 families affected by the

notifications acquiring 156.903 hectares in village Shahberi on its own showing and the satisfaction recorded by the Collector on FormX, 185 families will become landless out of which 88 are small farmers. The GNOIDA has acquired 179 plots measuring 156.903 hectares for planned industrial development. They have not specified the purpose for which the land was acquired. The provisions of invoking urgency clause has been applied with mechanically without considering the rights of the land owners. The proposal was made by initiating the process for acquisition of land by letter dated 24.10.2008 issued by the Assistant Execution Officer, G. Noida for

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acquiring 161.531 hectares. The purpose for acquisition was not stated in the letter addressed to the Collector. The Director, Land Acquisition gave permission on 18.5.2009 to acquire 156.903 hectares (375 acres). He submits that in Om Prakash's case (supra) the ground taken for invoking urgency clause, namely that there may be encroachments on the land during the process when the objections are being held, related to 438 plots in respect of 500 acres. The Supreme Court held that the encroachment is a law and order problem, and that urgency on that ground is not relevant. What is relevant is that the urgency is of such a nature that the delay will defeat the object of acquisition of land. In the present case a small area is involved and the number of persons affected are involved. The State Government could well give an opportunity to the land owners of hearing as to why the land should be acquired. He submits that the planned industrial development may include both industrial, commercial and residential use but that there must be a plan for the purpose of acquisition of the land. The material disclosed in the counter affidavit, namely that there may be encroachment, was not relevant at all. If such material is accepted to be sufficient for invoking the urgency clause, Section 5A will become otiose. He has relied upon Anand Singh's case (supra); State of West Bengal vs. Prafulla Chand Law (supra) and Dev Sharan (supra) in support of the submission that Section 17 (1) and (4) should not be mechanically applied and that the presumption can be rebutted by the petitioners in demonstrating that there was no urgency for acquisition of the land. 14. Shri S.D. Singh, appearing in Writ Petition No. 11866 of 2010

Modern Public School vs. State of UP and ors, submits that the School has purchased the land in village Shahberi (in plot No. 131)

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by sale deed dated 2.4.2008 for Rs. 31.50 lac and has further purchased the land (in plot No. 137) by sale deed dated 6.5.2008 for Rs. 23.36 lacs. The names of the school have been mutated in revenue record on 23.6.2008 and 18.6.2008, much prior to the notification under Section 4 (1) of the Act. He has adopted the argument of Shri Veeresh Pratap Chaudhari; Shri W.H. Khan; Shri R.N. Singh and Shri Navin Sinha and challenged the notifications. 15. Shri S.S. Shukla, appearing in Writ Petition Nos. 67417 of

2009 Satya Pal Chowdhary & anr vs. State of UP & ors; 67420 of 2009 Ashgar Husain vs. State of UP & others and 17518 of 2010 Daya Chand vs. State of UP & ors, has adopted the argument of senior counsels appearing in the matter. 16. Shri Saurabh Basu, appears in Writ Petition Nos. 13122 of

2010 Har Pal Singh & ors vs. State of UP and ors; 29907 of 2010 Jagdish Tyagi and ors vs. State of UP and others and has also adopted the argument of senior counsels appearing in the matter. Shri V.M. Zaidi appears in Writ Petition No. 18181 of 2010 Arif Lal Khan & ors vs. State of UP & ors and Writ Petition No. 62782 of 2010 Devendra Kumar Singh and ors vs. State of UP and others. 17. Shri M.C. Tripathi, Additional Chief Standing Counsel

assisted by Dr. Y.K. Srivastava and Shri G.N. Maurya, Standing Counsel have appeared for the State of UP. He submits that most of the petitioners have purchased the land subsequent to the survey dated 24.10.2008 for acquiring the land for planned industrial development. The 'Arya Sahitya Prachar Trust' has purchased the land on 28.5.2009 and transferred it to petitioner nos. 1 to 4. They have in turn transferred the land to petitioner nos. 5 to 18 and

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similarly petitioner no. 5 to 18 in Writ Petition No. 6108 of 2010 Sanjay Sharma and others. He submits that there are only a few tenure holders represented by Shri W.H. Khan. Shri Radhey Shyam Yadav has made unauthorised constructions over the land in dispute and that Modern Public School has not made any constructions at all. The original tenure holders are not much interested in retaining the land and that the remaining petitioners, who have purchased the land in the year 2008-09, have actually purchased litigation. Some of them have plotted land and have raised constructions without sanction of lay out plan. No one is interested in the overall development of the area. 18. Shri M.C. Tripathi submits that Shri Arif Ali in Writ Petition

No. 17932 of 2010 has already sold the property and has retained only small portion. Smt. Rajbala Devi in Writ Petition No. 6107 of 2010 is the owner of small portion of land sold to her by Shri Sanjay Sharma on 21.4.2009. She has also purchased litigation. 19. Shri M.C. Tripathi has produced the original record maintained

by the State Government for the purposes of acquiring the land and for invoking the provisions of Section 17 (1) and (4) of the Act. He submits that a Master Plan 2021 was approved on 17.7.2010. The public notice regarding the change of land use of the area, including Shahberi was published in daily newspapers on 20.11.2009 inviting applications. The land in neibhouring villages, namely in Haibatpur (240 hectares) was acquired in the year 2002; in village Etahera (320 hectares) in the year 2008; in village Chipiana Khurd in the year 2009, and in village Patmari (589 hectares) in the year 2008. He has produced a super imposed image of Master Plan 2021 of Sector-4, 16, 16-B, and 16-C including village Shahberi in Sector-4 and

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submits

that the State Government had applied its mind to the

material available on record for invoking urgency clauses for acquisition of the land. The land is being used for planned industrial development and that in view of the principles of law laid down by this Court in Manjulata Agarwal vs. State of UP 2007 (9) ADJ 447 and in Nand Kishore Gupta vs. State of UP (Writ Petition No. 31314 of 2009, decided on 30.11.2009), reported in (2010) 10 SCC 282, which have been approved by the Supreme Court, the sufficiency of the material on the basis of which the land was acquired and Section 17 (1) and (4) was applied, is not subject to judicial review and that only the process has to be seen by the Court. In this case the entire process of applying urgency provisions and dispensation of the enquiry was followed and thus the Court should not interfere with the notifications. 20. Shri Ravindra Kumar assisted by Shri Ramendra Pratap Singh

appears for the GNOIDA. He submits that the object and purpose of the U.P. Industrial Area Development Act, 1976 is planned industrial development. Village Shahberi was included by notification along with the other villages as the industrial development area of GNOIDA on 21.2.1994. The GNOIDA has prepared a Master Plan 2021, which has been approved by the State Government. The GNOIDA can develop the land for the objects and purpose of the Act, which includes planned development of the area. A proposal was made for acquiring the land for planned industrial development. On 24.10.2008 the proposal of GNOIDA was considered by the Collector, District Gautam Budh Nagar. He considered the details collected in the survey and after preparing a check list of 14 items including the area sought to be acquired; the number of farmers to be affected including the numbers of Scheduled Caste and Scheduled

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Tribes; and number of persons to be totally displaced, forwarded the proposal on Form-X to the State Government. The material was available on record and was considered by the State Government. The entire material was considered by the State Government before applying Section 17 (1) and (4) of the Act. 21. Shri Ravindra Kumar submits that the swapping of the land

use in the Master Plan is permitted provided the percentage of land use for each category namely industrial; commercial; residential or green belt etc. is not changed. He submits that it is well within the power of the GNOIDA to change the land use. A request was sent by the Property Department on 30.10.2010 to convert the land use of village Shahberi in the first stage for development for the purposes of residential area. A committee was constituted on 03.11.2009 for change of land use. The committee submitted a report on the same day on 03.11.2009. The report was approved and was directed to be placed by the Chief Executive Officer of GNOIDA in the Board meeting. The Chief Executive Officer of GNOIDA passed an order for including the matter in the agenda item in the Board meeting to be held on 04.11.2009. The matter was considered in the Board's meeting on 06.11.2009 and was approved. A public notice of the change of land use was given on 20.11.2009. Since no objections were received upto 30.12.2009, the land use was changed and the scheme was floated for allotment to builders, providing for terms and conditions for allotment of plots for plotted and flatted developments. A similar scheme was floated as 'Builders Residential Scheme-BRS-01/08-09' which opened on 16.1.2009 for which the detail of plots were given in the scheme in various sectors including Omega-I; Pi; Beta-II; Zeta-I; Rho-I; Sigma-III; Omicron-III; Sector10 & 12 & Chi-V. The Builders Residential Scheme-BRS-01/08-09

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did not invoke appropriate response and thus considering, that the village Shahberi was contiguous to the land acquired in village Aimnabad by notification under Section 6 dated 12.12.2006, Village Bisrakh under Section 6 dated 30.6.2008 and village Patwari under Section 6 dated 30.6.2008; the land use of village Shahberi was changed in Master Plan 2021 after giving public notice and inviting objections. 22. Shri Ravindra Kumar submits that the GNOIDA has denied

that 60% land acquired by it for planned industrial development is lying unutilised. He submits that although no detail has been given in paragraph-12 of the counter affidavit in Writ Petition No. 6108 of 2010 of the unutilised land, the purpose of acquired land still continues to be the planned industrial development. 23. Shri Ravindra Kumar has invoked the principle of prejudice to

the land owners to call for judicial review of the dispensation of enquiry under Section 5A. He submits that 114 land owners out of 211 have accepted the compensation under the Karar Niyamawali 1997. 24. Shri Ravindra Kumar has cited the judgments of the Supreme

Court beginning from Constitution Bench in Aflatoon & ors vs. Lt. Governor of Delhi 1975 (4) SCC 285; Pista Devi (supra; Dipal Pahwa (supra; Jage Ram (supra); Narayan Govind Gavate He has placed (supra); Rajasthan Housing Board (supra).

reliance upon judgments of Chameli Singh (supra); Om Prakash (supra); Mukesh Hans (supra); Krishan Lal Arneja (supra) and the latest judgment of the Supreme Court in Nand Kishore Gupta (supra) in submitting that the judicial review in the matters of

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invocation of urgency clause is confined only to the process and not the sufficiency of material. If there is some material, which may justify as in the present case in which there was more than sufficient material to invocation of urgency clause, the Court should not interfere. He has relied upon paragraphs 20 to 47, 83, 84, 85, 89-91 and 93-98 in Anand Singh's case in support of his submission. Shri Ravindra Kumar also submits that in Anand Singh the Court did not grant substantial relief to the petitioners. It was found that the possession of the land in case was taken over and that the house/structure and buildings had been constructed. The Court thus instead of quashing the notification gave liberty to the petitioners to make representations to the State authorities under Section 48 (1) of the Act for exemption from acquisition. 25. In the rejoinder Shri Navin Sinha, after having perused the

material produced by the State Government, and the statement made by Shri Ravindra Kumar, that the proposal of the property department was initiated to change the land use to residential on 30.10.2010; the approval to the report of the Committee constituted on the same day on 3.11.2009, and the approval of change of land use by the Board's meeting dated 6.11.2009, (three days before the notification under Section 6 was published on 09.11.2009), submits that in this case the acquisition is full of deceit. The entire exercise is a fraud on the power for acquisition of land. In planned industrial development the dominant purpose of the plan is the development of the industry. In this case the real purpose of development was residential. The GNOIDA did not disclose the purpose of acquisition to the State Government, and having obtained the permission to invoke urgency clause for 'planned industrial development' changed the land use before the notification under Section 6 was published.

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He has drawn distinction between the provisions of Section 17 (1); 17 (1A) and 17 (4). He submits that the authority has to decide whether Section 17 (4) will apply and submit proposal to the State Government before the publication of the notification under Section 4 (1). If the hidden purpose of user of the land was residential, the argument that the purpose of the land can be changed at any time, should be rejected. If the State Government was informed that the land was to be used for building housing complexes through builders it may have either dropped the proposal for acquisition or may not have invoked Section 17 (1). The State in such case could not have permitted to take possession without payment of compensation. 26. Shri Sinha submits that the satisfaction should be based on the

material produced and not what was in the magic box of the GNOIDA. The GNOIDA was planning to have a purely housing scheme for builders. They could not have changed the object and purpose of the acquisition prior to the notification under Section 6 of the Act. In these circumstances, the possibility of encroachment and the industrial investment was only a camouflage. In fact no material connected with the purpose of acquisition was placed before the State Government to record satisfaction. Even the Collector's satisfaction recorded on Form-X was not in bonafide exercise of powers. The GNOIDA in fact wanted to acquire the land for builders, and not to use the land for planned industrial development. 27. Shri Navin Sinha has relied upon judgment in Express

Newspapers Pvt. Ltd. and others vs. Union of India and others (1986) 1 SCC 133 paras 199 and 120, in which the Supreme Court has explained the circumstances in which the Court should test the colourable exercise of powers by executive. He submits that there is

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a distinction between the exercise of power in good faith and misuse in bad faith. When an authority misuses its powers in breach of law, by taking into account bonafide and with best of intentions some extraneous matters or by ignoring relevant matters, the impugned act or order will be rendered ultra vires; it would be a case of fraud on power. The misuse in bad faith when the power is exercised in improper motive, say to satisfy a private or personal grudge or to wreck-vengeance, the use of a power for an 'alien' purpose, other than the one for which the power is conferred, is malafide use of that power. Same will be the position when an order is made for a purpose other than that which finds place in the order. The power must be used bonafide for the purpose for which it is conferred. 28. Shri Navin Sinha submits that Anand Singh's case is not a

case in which the Supreme Court may have made observations entirely out of line and in context with the legal position obtained on that date. The Supreme Court considered the entire case law as discussed above in laying down the principle of existence of satisfaction based upon the material produced before the State Government for the purpose of invoking urgency clause and dispensing with enquiry under Section 5A. It is submitted that the right to property has undergone a change from the earlier view adopted by the Courts and is now accepted as a right akin to fundamental right. In Nand Kishore the Court found that the construction of expressway was a target oriented welfare scheme. The road in that case was substantially constructed and that majority of persons had accepted the compensation. 29. We summoned the original record and with the help of Shri

M.C. Tripathi, Additional Chief Standing Counsel and Shri Ravindra

21

Kumar, learned counsel appearing for GNOIDA, perused the notings and the orders on the original file. With reference to the letter of the Director (Land Acquisition)/Additional Chief Executive Officer, Greator NOIDA dated 21.5.2009, a note was put up by Shri Suresh Kumar, Special Secretary, Industrial Development Department, Government of U.P. on 26.5.2009 stating therein that a request has been made through Greator NOIDA industrial Development Authority for planned development of village Shahberi, Pargana Dadri, Tehsil Dadri in District Gautam Budh Nagar of 156.903 hectares of land, and to issue notifications under Section 4/17. The Directorate of Land Acquisition made available the information on the points as required by the Government Order dated 21.12.2006 after narrating all the 14 points relating to the preliminary enquiry; the details of the land including the land use; the deposit of 10% estimated compensation; the certificate that the land does not belong to State Government; ceiling or Gram Samaj, the certificate given by the District Level Land Use Committee through the Collector; the certificate issued by the Collector on Form-X giving justification of applying Section 17; the dues on the proposed land to be acquired, the existence of religious places or graveyard; the existing constructions on the land, the proposed notifications in English and Hindi, the certificate that the possession of the land has not been taken by any local body nor the land has been allotted to it and that all the rules and procedures for acquisition have been followed. The undertaking given by the Revenue Department in accordance with the Government Orders dated 21.6.2005 and 24.5.2006 to be given under the National Re-allocation and Rehabilitation Policy 2003 was also made available. In paragraph-3 of the note it was stated that the Collector has recorded in his note for applying Section 17 that the Greator Noida Industrial Development Authority was constituted

22

under the U.P. Industrial Area Development Act, 1976 with the purpose of industrial development and for establishment of the authority for that purpose. Under the Act the Greator Noida Industrial Development Authority has been authorised to acquire the land in the notified area; make plan; identify the land for the industrial units; provide infrastructural facilities; sell or lease the land for industrial use; houses and industrial units and for determining the land use; the revenue village Shahberi, Pargana Dadri, Tehsil Dadri, District Gautam Budh Nagar is situate in the notified area for planned industrial development; the land is immediately needed by the GNOIDA and then in case of delay in acquisition there is strong possibility of encroachment over the area which will adversely affect the planned development in public interest. 30. In para 4 of the note it was stated that the land in village

Shahberi 156.903 hectares has been proposed to be acquired for planned industrial development. In case of hearing of the objections in writing or orally, it will definitely take several years causing unusual delay, which will seriously affect the planned development and thus the land is urgently required to be acquired for planned industrial development by GNOIDA. In para 5 it was stated that the land has to be immediately acquired and keeping in view the identified land and the justification given by the Collector to apply Section 17 along with Section 4 (1) on which the provisions of Section 5A are dispensed with, the Collector has given his consent for either giving any opportunity of hearing to the land owners and thus keeping in view the opinion the Government does not have any objection to give its approval to apply Section 17 of the Act. 31. The proposal was signed by the Chief Secretary, Rehabilitation

23

and Industrial Development Department, Government of UP on 31.5.2009 and the Principal Secretary to the Chief Minister, who is the Minister of the concerned department in the State of UP on 6.6.2009. 32. The notification under Section 4 (1) applying Section 17 (1)

was published in the Official Gazette on 10.6.2009. 33. The note in the original record, in continuation of the earlier

approval signed by the Principal Secretary to the Chief Minister, Government of UP dated 6.6.2009, shows that a letter was thereafter sent on 30.9.2009 by the Director in the Directorate of Land Acquisition from his campus office requesting for issuing notification under Section 6/17 for acquiring 156.903 hectares of land. Para-3 of the note states that the notification under Section 4/17, the copies of the Official Gazette, the copies of the proclamation and the deposit of 80% of the compensation in the PLA account, a certificate for depositing the entire amount under the Rehabilitation Scheme has been made available. The proposed copies of the notifications under Section 6/17 in Hindi and English has also been made available. The certificate of deposit of 10% compensation under Section 4/17 has also been made available and thus a total of 80% of the entire amount has been deposited in the concerned account. Para-4 of the note further states that there is no objection for giving approval for the notifications under Section 6/17 and thus the approval of the Chief Minister may be obtained. This note put up by the Under Secretary, Industrial Development Department, Government of UP dated 5.10.2009 was directed to be put up along with concerned file forwarded to the Department of Law vide the signatures of the Special Secretary of the Department dated

24

8.10.2009. 34. A fresh note was prepared giving the entire details as aforesaid

with regard to notification under Section 4/17. It was stated in the note that the file was sent to the Law Department on 22.10.2009. Since there was strong possibility of delay in getting advice from the Law Department, and that a number of writ petitions have been filed in the High Court, in which dates have been fixed for 24.11.2009, and it is possible that the High Court may give stay order, it will be appropriate to issue notifications under Section 6/17 without getting the advice of the Law Department. Paragraphs 3 & 4 of the note reiterated that 70% of the amount has been deposited in the PLA account of the Collector, 10% at the time of proposal under Section 4/17 and thus 80% amount has been deposited. Since the notification under Section 4/17 has been issued for 156.903 hectares the proposal of same land has been made available for notification under Section 6/17, the Government does not appear to have any objection for issuing notifications under Section 6/17. In case of approval the notification under Section 6/17 may be issued. The note was signed by the Deputy Secretary and the Special Secretary of the Industrial Development Department on 22.10.2009 and by the Rehabilitation and Industrial Development Department, Government of UP on 26.10.2009, it was approved by Shri Ashok Dixit, Special Secretary to the Chief Minister, Government of UP on 01.11.2009. The notification under Section 6/17 was issued on 09.11.2009. 35. We had asked and are informed by Shri Ravindra Kumar

fairly that after the notification under Section 4/17 was published, the Board of GNOIDA considered a request forwarded by the property department of the GNOIDA dated 30.10.2010. A

25

Committee was constituted to consider the proposal to change the land use, by swapping without changing the percentage of the land use. The Committee gave its report on 03.11.2009. It was approved by the Chief Executive Officer, GNOIDA on same day and was directed to put up in the Board's meeting. The proposal was forwarded on 04.11.2009, and that the Board approved it on 06.11.2009. The public notice of the change of land use without giving any details, in a small box was published in the newspapers on 20.11.2009 and since no objections were received upto 30.12.2009, it was approved and the Builders Residential Scheme was floated inviting bids in January, 2010. The allotment was made to the builders by the end of the month. 36. The sequence of the dates, in which the notifications were

approved and by which the State Government approved to dispense with enquiry by invoking Section 17, is summarized as follows:1. A letter was addressed by the Additional Chief Executive Officer, GNOIDA proposing to acquire 161.531 hectares of land in village Shahberi. The Collector, District Gautam Budh Nagar, by his letter dated 18.5.2009 after a period of seven months from the date of request, sent proposal for acquisition of 156.903 hectares of land in village Shahberi. 2. The Collector signed on the proposal prepared by the officers of the GNOIDA and forwarded it along with 14 points report and justification of applying Section 17 for planned industrial development. The note forwarded by the Collector stated that the land is needed for planned industrial development. In case of delay there may be encroachments over the land. The land is needed for a continuous integrated development along with the development of the neighbouring land acquired earlier. The land is also needed for continuity of infrastructural services and all round development like roads, sewerage, provision of electricity and its distribution for development. The prominent industrialists of the country, who wish to invest their capital in UP, have to be provided with

26

land urgently. If they are not provided the land according to their needs, they will establish their units in other States, which will adversely affect the policy of inviting liberal investment of capital in the State and for providing employment. 3. The Collector's proposal to acquire the land and to apply Section 17 along with letter of the Director (Land Acquisition) dated 21.5.2009 was placed before the State Government. The State Government accepted the proposal reiterating the grounds given in the note namely that the land is immediately needed for planned industrial development, and in case of delay in acquisition there is strong possibility of encroachments, and further that hearing of the objections will take sufficient time, which will adversely affect the planned development approved the application of Section 17 of the Act to the acquisition on 6.6.2009. 4. The notification under Section 4 was published on 10.6.2009. Three months thereafter a proposal was put up on 30.9.2009 for issuing notification under Section 6/17. The Special Secretary, Industrial Development Department directed on 8.10.2009 the note to be put up with the concerned filed sent to the Law Department with its opinion. 5. Without waiting for the return of the file with the opinion of the Law Department on the ground, that some writ petitions have been filed in the High Court, in which there is possibility of stay order, a fresh note was prepared by the Under Secretary, Industrial Development Department and was put up by the Special Secretary on the say day on 22.10.2009 before the Principal Secretary, Secretary, Rehabilitation and Industrial Development Department, Government of UP on 26.10.2009. The note was approved by the Chief Minister under the signatures of her Special Secretary on 01.11.2009. 6. During the progress of the file for which the great urgency was shown, as there were writ petitions filed in the High Court, and the file was processed, without waiting the opinion of the Law Department, GNOIDA started the proceedings of change of land user and to convert the user of the plot for a Builders Residential Scheme providing for plots of more than 60000 square meters each. The change of land use and the Builders Scheme was proposed on 30.10.2010.

27

The Committee constituted for that purpose on 3.11.2009 gave its approval on the same day and that on next day it was directed to put up before the Board. On 06.11.2009 i.e. within three days of the Committee's approval and three days thereafter on 09.11.2009 the notification was published under Section 6/17 of the Act. Immediately on the expiry of ten days a public notice was published in small box in newspapers for change of land use. On 30.12.2009 the land use was changed and Builders Scheme was published in first week of January, 2010. 37. The sequence of events clearly demonstrates and establishes

that the GNOIDA never intended to develop the land proposed to be acquired for integrated planned industrial development. The Builders Residential Scheme-BRS-01/08-09, did not get sufficient response. In the proposals annexed to the rejoinder affidavit to convert the land use, it was clearly recommended by the Committee constituted by GNOIDA that on account of economic recession the earlier Builders Residential Scheme did not get sufficient response, and since the land in village Shahberi is close to the Ghaziabad and is adjoining the main road, in order to earn more profits it was considered appropriate that the land be utilised for multi storied housing complex, through a builders allotment scheme. 38. The motive of the GNOIDA in league with the builders is

further demonstrated by the fact, that conditions in the scheme were greatly relaxed to the extent that the allotment was to be made to the builders of the plots measuring not less than 60000 square meters each, out of which one of the plots in village Shahberi measures more than 2 lac square meters, on down payment of 5% of the premium with a condition that the builders will be permitted to sub-divide and sub-lease the plots measuring at least 20000 square meters each.

28

39.

The facts on record demonstrate that GNOIDA never intended

to put the land for integrated planned industrial development. The entire object was to develop a residential complex with multi storied hosues to be given to the builders at the proposed rate of Rs. 10000/per square meters with relaxation of the terms to such an extent that the builders may be permitted to develop the housing complexes by sub dividing the leased land after paying only 5% of the premium. 40. There is no doubt that the building houses is essential to an

industrial township but that the method and manner of such development has to be bonafide for the purpose connected with the industrial use of the land. Where the record demonstrates that the entire object was to build multi storied complexes to be allotted to the builders for earning profit and no such proposal was sent to the State Government either at the stage of issuing notification under Section 4/17 and thereafter at the stage of issuing notification under Section 6/17, the acquisition of land has to be held to be in colourable exercise of powers. The GNOIDA did not want to disclose to the State Government that the land will be put to use for constructing house complexes through the builders. 41. We find substance in the submission of Shri Navin Sinha, that

if GNOIDA had clarified in the proposals submitted to the Collector, Gautam Budh Nagar, and that the State Government was aware that the land will be used for constructing housing complexes, it may not have given permission to apply Section 17, and to acquire the land of the tenure holders without giving them any opportunity of hearing and to take over possession of the land without making an award offering compensation.

29

42.

In Anand Singh (supra) the Supreme Court held in paragraphs

29. `Eminent domain' is right or power of a sovereign State to appropriate the private property within the territorial sovereignty to public uses or purposes. It is exercise of strong arm of government to take property for public uses without owner's consent. It requires no constitutional recognition; it is an attribute of sovereignty and essential to the sovereign government. (Words and Phrases, Permanent Edition, Volume 14, 1952 (West Publishing Co.,). 30. The power of eminent domain, being inherent in the government, is exercisable in the public interest, general welfare and for public purpose. Acquisition of private property by the State in the public interest or for public purpose is nothing but an enforcement of the right of eminent domain. In India, the Act provides directly for acquisition of particular property for public purpose. Though right to property is no longer fundamental right but Article 300A of the Constitution mandates that no person shall be deprived of his property save by authority of law. That Section 5A of the Act confers a valuable right to an individual is beyond any doubt. As a matter of fact, this Court has time and again reiterated that Section 5A confers an important right in favour of a person whose land is sought to be acquired. When the government proceeds for compulsory acquisition of particular property for public purpose, the only right that the owner or the person interested in the property has, is to submit his objections within the prescribed time under Section 5A of the Act and persuade the State authorities to drop the acquisition of that particular land by setting forth the reasons such as the unsuitability of the land for the stated public purpose; the grave hardship that may be caused to him by such expropriation, availability of alternative land for achieving public purpose etc. Moreover, right conferred on the owner or person interested to file objections to the proposed acquisition is not only an important and valuable right but also makes the provision for compulsory acquisition just and in conformity with the fundamental principles of natural justice. The exceptional and extraordinary power of doing away with an enquiry under Section 5A in a case where possession of the land is required urgently or in unforeseen emergency is provided in Section 17 of the Act. Such power is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The guideline is inbuilt in Section 17 itself for exercise of the exceptional power in dispensing with enquiry

29, 30, 31 as follows:-

30

under Section 5A. Exceptional the power, the more circumspect the government must be in its exercise. The government obviously, therefore, has to apply its mind before it dispenses with enquiry under Section 5A on the aspect whether the urgency is of such a nature that justifies elimination of summary enquiry under Section 5A. A repetition of statutory phrase in the notification that the state government is satisfied that the land specified in the notification is urgently needed and provision contained in Section 5A shall not apply, though may initially raise a presumption in favour of the government that pre-requisite conditions for exercise of such power have been satisfied, but such presumption may be displaced by the circumstances themselves having no reasonable nexus with the purpose for which power has been exercised. 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 the enquiry under Section 5A has been formed by the government after due application of mind on the material placed before it. 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. 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 5A 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 5A 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. The special provision has been made in Section 17 to eliminate enquiry under Section 5A 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 5A. We have already noticed few decisions of this Court. There is conflict of view in the two decisions of this Court viz.; Narayan Govind Gavate3 and Pista Devi6. In Om Prakash10 this Court held that decision in Pista Devi6 must be confined to

31

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 Gavate3. We agree. As regards the issue whether pre- notification and postnotification 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 factsituation 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 5A. 31. In a country as big as ours, the roof over head is a distant dream for large number of people. The urban development continues to be haphazard. There is no doubt that planned development and housing are matters of priority in developing nation. The question is as to whether in all cases of `planned development of the city' or `for the development of residential area', the power of urgency may be invoked by the government and even where such power is invoked, should the enquiry contemplated under Section 5A be dispensed with invariably. We do not think so. Whether `planned development of city' or `development of residential area' cannot brook delay of few months to complete the enquiry under Section 5A? In our opinion, ordinarily it can. The government must, therefore, do a balancing act and resort to the special power of urgency under Section 17 in the matters of acquisition of land for the public purpose viz.; `planned development of city' or `for development of residential area' in exceptional situation. Use of the power by the government under Section 17 for `planned development of the city' or `the development of residential area' or for `housing' must not be as a rule but by way of an exception. Such exceptional situation may be for the public purpose viz., rehabilitation of natural calamity affected persons; rehabilitation of persons uprooted due to commissioning of dam or housing for lower strata of the society urgently; rehabilitation of persons affected by time bound projects, etc. The list is only illustrative and not exhaustive. In any case, sans real urgency and need for immediate possession of the land for carrying out the stated purpose, heavy onus lies on the government to justify exercise of such power. It must, therefore, be held that the use of the power of urgency and dispensation of enquiry under Section 5A by the government in a routine manner for the `planned development of city' or `development of residential area' and thereby depriving the owner or person interested a very

32

valuable right under Section 5A may not meet the statutory test nor could be readily sustained.

43.

The judgment in these cases was reserved on 8.4.2011. On

14.4.2011 the Supreme Court delivered judgment in Sri Radhey Shyam (Dead) through LR vs. State of UP Civil Appeal No. 3261 of 2011. In this case 205.0288 hectares of land in village Makora, Pargana Dankaur, Tehsil and District Gautam Budh Nagar was acquired by the State Government by issuing notification under Section 4/17 dated 12.3.2008 for planned industrial development of District Gautam Budh Nagar,GNOIDA. The High Court had upheld the notification under Sections 4/17 and 6/17 dispensing with the requirement of hearing under Section 5A. The Supreme Court noticed all the previous judgments delivered by the Supreme Court in the past and laid down following principles:53. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out: (i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner's consent provided that such assertion is on account of public exigency and for public good. - Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal 65Chowdhuri v. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat (1995) Supp. (1) SCC 596. (ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly - DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana (2003) 5 SCC 622; State of Maharashtra v. B.E. Billimoria (2003) 7 SCC 336 and Dev Sharan v. State of U.P., Civil Appeal No.2334 of 2011 decided on 7.3.2011.

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(iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one's property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner is likely to become landless and deprived of the only source of his livelihood and/or shelter. (iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the land owner or other interested persons. (v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired. (vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the concerned authorities did not apply mind to the relevant factors and the records. (vii) The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection.

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The use of word "may" in sub-section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub-section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1). (viii) The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Section 17(1) and/or 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years. Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Section 5-A (1) and (2) is not at all warranted in such matters. (ix) If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition.

44.

The Supreme Court thereafter observed in the facts of that

case, that there was no justification for the State Government to invoke the urgency provisions contained in Section 17 (1) excluding the application of Section 5A for the acquisition of land for planned industrial development of District Gautam Budh Nagar. Paragraphs 54 to 62 of the judgment are quoted:54. The stage is now set for consideration of the issue whether the State Government was justified in invoking the urgency provision contained in Section 17(1) and excluding the application of Section 5-A for the acquisition of land for planned industrial development of District Gautam Budh Nagar. A recapitulation of the facts shows that upon receipt of proposal from the Development Authority, the State

35

Government issued directions to the concerned authorities to take action for the acquisition of land in different villages including village Makora. The comments/certificate signed by three officers, which was submitted in the context of Government Order dated 21.12.2006 was accompanied by several documents including proposal for the acquisition of land, preliminary inquiry report submitted by the Amin, Land Acquisition, copies of khasra 69khatauni and lay out plan, 10 per cent of the estimated compensation and a host of other documents. In the note dated nil jointly signed by Deputy Chief Executive Officer, Greater Noida, Collector, Gautam Budh Nagar and four other officers/officials, the following factors were cited in justification of invoking the urgency provisions: a. The area was notified under Uttar Pradesh Industrial Areas Development Act, 1976 for planned industrial development. b. If there is any delay in the acquisition of land then the same is likely to be encroached and that will adversely affect the concept of planned industrial development of the district. c. Large tracts of land of the nearby villages have already been acquired and in respect of some villages, the acquisition proceedings are under progress. d. The Development Authority urgently requires land for overall development, i.e. construction of roads, laying of sewerages, providing electricity, etc. in the area. e. The development scheme has been duly approved by the State Government but the work has been stalled due to nonacquisition of land of village Makora. f. Numerous reputed and leading industrial units of the country want to invest in the State of Uttar Pradesh and, therefore, it is 70 extremely urgent and necessary that land is acquired immediately. g. If land is not made available to the incoming leading and reputed industrial concerns of the country, then they will definitely establish their units in other States and if this happens, then it will adversely affect employment opportunities in the State and will also go against the investment policy of the Government. h. If written/oral objections are invited from the farmers and are scrutinized, then it will take unprecedented long time and disposal thereof will hamper planned development of the area.

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i. As per the provisions of the Act, there shall be at least one year's time gap between publication of the notifications under Sections 4 and 17 and Section 6. 55. In our view, the above noted factors do not furnish legally acceptable justification for the exercise of power by the State Government under Section 17(1) because the acquisition is primarily meant to cater private interest in the name of industrial development of the district. It is neither the pleaded case of the respondents nor any evidence has been produced before the Court to show that the State Government and/or agencies/instrumentalities of the State are intending to establish industrial 71units on the acquired land either by itself or through its agencies/instrumentalities. The respondents have justified the invoking of urgency provisions by making assertions, which are usually made in such cases by the executive authorities i.e. the inflow of funds in the State in the form of investment by private entrepreneurs and availability of larger employment opportunities to the people of the area. However, we do not find any plausible reason to accept this tailor-made justification for approving the impugned action which has resulted in depriving the appellants' of their constitutional right to property. Even if planned industrial development of the district is treated as public purpose within the meaning of Section 4, there was no urgency which could justify the exercise of power by the State Government under Section 17(1) and 17(4). The objective of industrial development of an area cannot be achieved by pressing some buttons on computer screen. It needs lot of deliberations and planning keeping in view various scientific and technical parameters and environmental concerns. The private entrepreneurs, who are desirous of making investment in the State, take their own time in setting up the industrial units. Usually, the State Government and its agencies/instrumentalities would give them two to three years' to put up their factories, establishments etc. Therefore, time required for ensuring compliance of the provisions contained in Section 5-A cannot, by any stretch of imagination, be portrayed as delay which will frustrate the purpose of 72acquisition. In this context, it is apposite to note that the time limit for filing objection under Section 5-A (1) is only 30 days from the date of publication of the notification under Section 4(1). Of course, in terms of sub-section (2), the Collector is required to give opportunity of hearing to the objector and submit report to the Government after making

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such further inquiry, as he thinks necessary. This procedure is likely to consume some time, but as has been well said, "Principles of natural justice are to some minds burdensome but this price-a small price indeed-has to be paid if we desire a society governed by the rule of law." 56. In this case, the Development Authority sent proposal some time in 2006. The authorities up to the level of the Commissioner completed the exercise of survey and preparation of documents by the end of December, 2006 but it took one year and almost three months to the State Government to issue notification under Section 4 read with Section 17(1) and 17(4). If this much time was consumed between the receipt of proposal for the acquisition of land and issue of notification, it is not possible to accept the argument that four to five weeks within which the objections could be filed under sub-section (1) of Section 5-A and the time spent by the Collector in making inquiry under sub-section (2) of Section 5-A would have defeated the object of acquisition. 57. The apprehension of the respondents that delay in the acquisition of land will lead to enormous encroachment is totally unfounded. It is beyond the comprehension of any person of ordinary prudence to think that the land owners would encroach their own land with a view to frustrate the concept of planned industrial development of the district. 58. The perception of the respondents that there should be atleast one year's time gap between the issue of notifications under Sections 4 and 6 is clearly misconceived. The time limit of one year specified in clause (ii)) of the proviso to Section 6(1) is the outer limit for issue of declaration. This necessarily means that the State Government can complete the exercise under Sections 5-A and 6 in a shorter period. 59. The only possible conclusion which can be drawn from the above discussion is that there was no real and substantive urgency which could justify invoking of the urgency provision under Section 17(1) and in any case, there was no warrant to exclude the application of Section 5-A which, as mentioned above, represent the statutory embodiment of the rule of audi alteram partem. 60. We also find merit in the appellants' plea that the acquisition of their land is vitiated due to violation of the doctrine of equality enshrined in Article 14 of the Constitution. A reading of the survey report shows that the committee constituted by the State Government had recommended release

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of land measuring 18.9725 hectares. Many parcels of land were released from acquisition because the land owners had already raised constructions and were using the same as dwelling units. A large chunk of land measuring 4.3840 hectares was not acquired apparently because the same belong to an ex-member of the legislative assembly. The appellants had also raised constructions on their land and were using the same for residential and agricultural purposes. Why their land was not left out from acquisition has not been explained in the counter affidavit filed by the respondents. The High Court should have treated this as sufficient for recording a finding that the respondents had adopted the policy of pick and choose in acquiring some parcels of land and this amounted to violation of Article 14 of the Constitution. Indeed it has not been pleaded by the respondents that the appellants cannot invoke the doctrine of equality because the other parcels of land were illegally left out from acquisition. 61. The argument of the learned senior counsel for the respondents that the Court may not annul the impugned acquisition because land of other villages had already been acquired and other land owners of village Makora have not come forward to challenge the acquisition of their land cannot be entertained and the Court cannot refuse to protect the legal and constitutional 75rights of the appellants' merely because the others have not come forward to challenge the illegitimate exercise of power by the State Government. It is quite possible that others may have, due to sheer poverty, ignorance and similar handicaps not been able to avail legal remedies for protection of their rights, but that cannot be made basis to deny what is due to the appellants. 62. In the result, the appeal is allowed. The impugned order is set aside and the writ petition filed by the appellants is allowed. Respondent No.1 is directed to pay cost of Rs. 5,00,000/- to the appellants for forcing unwarranted litigation on them. It is, however, made clear that the respondents shall be free to proceed from the stage of Section 4 notification and take appropriate action after complying with Section 5-A(1) and (2) of the Act. It is needless to say if the appellants' feel aggrieved by the fresh exercise undertaken by the State Government then they shall be free to avail appropriate legal remedy.

45.

The facts in the present case are the same as in the case of Shri

Radhey Shyam (supra). The same reasons were given as in the present case for applying Section 17 of the Act, namely that the

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development authority urgently requires the land for planned development; the development scheme has been duly approved by the State Government; if there is delay in acquisition of land, there is likelihood of encroachment, which will adversely affect the concept of planned industrial development and that numerous leading industrial units of the country who want to invest in the State of UP will establish their industries in other States, and therefore it is extremely urgent and necessary that the land be acquired immediately; the written and oral objections invited from the farmers will take unprecedented long time. The disposal thereof will hamper planned development of the area. 46. The observations of the Supreme Court are equally attracted in

this case, namely, that there was no plausible reason to accept the tailor made justification for approving the impugned action, which resulted in depriving the land owners constitutional right to property, even if planned industrial development of the district is treated as public purpose within the meaning of Section 4, there was no urgency which could justify the exercise of power by the State Government under Section 17 (1) and 17 (4); the objective of industrial development needs lot of deliberation and planning keeping in view various scientific and technical parameters and environmental concerns; the private entrepreneurs who are desirous of making investment in the State take their own time in setting their industrial units. 47. In the present case we further find that apart from

mechanically applying Section 17 of the Act on the facts and circumstances which were not approved in Radhey Shyam's case, the entire action of acquiring the land was in colourable exercise of

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powers. The GNOIDA was fully aware and was planning to use the land in village Shahberi and neibhouring villages for multistory housing complexes to be developed by the builders on relaxed conditions. The sequence of dates and events given in the preceding paragraphs establish that on one hand, a request was made for acquiring the land for public purpose for planned industrial development, on the other hand a few days before the proposals were put up before State Government for issuing notification under Section 6 (1) applying Section 17 (1) and (4) without informing the State Government the GNOIDA was preparing and held Board's meeting for converting the land use for residential purposes to lease of the land to builders for housing complexes for earning profits. The land is proposed to be acquired on the rates of about Rs. 850/per square meters, and to be given within a month to the builders at Rs. 10,000/- per square meters, and that too on payment of 5% of the price, on allotment. 48. We are informed that notional possession of the land was taken

on 01.12.2009. In all the writ petitions, a status quo order was passed. The builders, who have been allotted the plots out of the acquired land, have been impleaded as parties. They were served but have not participated in the proceedings. It is admitted that so far there has been no development on the land. 49. In the result all the writ petitions are allowed. On the findings

recorded by us that the entire acquisition of land was in colourable exercise of powers, we set aside the notifications under Sections 4 (1) applying Section 17 (1) and (4) of the Land Acquisition Act dated 10.6.2009, as well as notification under Section 6 (1) read with Section 17 (1) of the Act dated 9.11.2009, issued by the State

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Government and all consequential actions taken by GNOIDA. The respondents will hand over the possession of the land back to the land owners. Each of the set of writ petitioners in the writ petition is made entitled to the costs of prosecuting the cases in accordance with the rules of the Court. Dt.12.5.2011
RKP/