HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 05.5.2011 Judgment delivered on 13.5.2011 CIVIL MISC. WRIT PETITION NO. 48204 OF 2009 M/s R.P. Electronics & anr v. State of UP & ors Connected with CIVIL MISC. WRIT PETITION Nos. 59597 of 2008; 48294 of 2009; 48352 of 2009; 49854 of 2009; 49855 of 2009; 49902 of 2009; 49904 of 2009; 49984 of 2009; 50068 of 2009; 50324 of 2009; 50643 of 2009; 50645 of 2009; 50650 of 2009; 50667 of 2009; 50754 of 2009; 50759 of 2009; 50791 of 2009; 51079 of 2009; 51080 of 2009; 53378 of 2009; 53929 of 2009; 54378 of 2009; 54381 of 2009; 54383 of 2009; 54385 of 2009; 54387 of 2009; 54391 of 2009; 54394 of 2009; 54422 of 2009; 54423 of 2009; 54653 of 2009; 54675 of 2009; 57111 of 2009; 58959 of 2009; 59251 of 2009; 59252 of 2009; 59991 of 2009; 60001 of 2009; 66664 of 2009; 68207 of 2009; 68208 of 2009 Hon'ble Sunil Ambwani, J.
Hon'ble Kashi Nath Pandey, J.
1. We have heard Shri K.N. Tripathi, Senior Advocate assisted by Shri K.K. Arora in Writ Petition No. 48204 of 2009. Shri Uma Nath Pandey and Shri Pankaj Dube appears for the petitioners in the connected writ petitions. Shri Jafer Naiyer, Additional Advocate General assisted by Shri M.C. Tripathi, Additional Chief Standing Counsel appears for the State respondents. Shri Ramendra Pratap Singh appears for Greater Noida Industrial Development Authority (GNOIDA).
2. In these writ petitions the original tenure holders, purchasers of the land and the companies, namely M/s R.P. Electronics and M/s Salora Floritech Limited, have challenged the notification issued by the State Government on 15.1.2009 under sub-section (1) of Section 4 with the opinion that provisions of sub-section (1) of Section 17 are applicable, as the land is urgently required and directing under sub-section (4) of Section 17 to dispense with provisions of Section 5A of the Land Acquisition act, 1894 (in short the Act), for public purpose namely for planned industrial development in District Gautam Budh Nagar through Greater Noida Industrial Development Authority, the substance of which was published in the newspapers and by beat of drums lastly on 02.2.2009. The notification proposed to acquire 72.0912 hectares in Village Surajpur Pargana and Tehsil Dadri, District Gautam Budh Nagar. They have also challenged the notification declaring Section 6 applying with provisions under Section 17 (1) and directing the Collector of Gautam Budh Nagar, though no award under Section 11 has been made to take over possession of 67.8092 hectares of land on the expiry of 15 days from the date of publication of the notice under sub section (1) of Section 9 of the Act, published on 28.8.2009.
3. In Writ Petition No. 48204 of 2009 M/s R.P. Electronics-a registered partnership firm is owner of the land forming part of Khasra No. 269, 283, 253-B, 304, 305, 275, 273, 272, 271, 274, 270, 277, 276, 306, 307, 308, 309, situated in village Surajpur, Tehsil Dadri, District Gautam Budh Nagar. M/s R.P. Electronics is also proprietor of petitioner no. 2 M/s Salora Floritech Limited-the lessee of the land in dispute running floriculture and other allied activities on the land in dispute. M/s Salora Floritech Limited registered under the Companies Act acquired land on twenty years lease at village Surajpur and installed a floriculture Unit at the cost of Rs. 7.42 crores. The project was started in technical and financial collaboration with Camtec Com. AG. East Ltd., 17 Kehilat Venezia, St. Tel Aviv 69400, Israel. The project has approval from the Reserve Bank of India and that the Ministry of Industry through its letter dated 16.4.1996 has granted status of 100% Export Oriented Unit to the petitioners-company. On 14.10.1996 the company was given permission to import plants and machinery of worth Rs. 303.62 lacs. The Excise Department accorded bonded ware house status to the petitioners company vide its letter dated 6.11.1996. The petitioners are registered with the Central Sales Tax Department and have industrial power connection of 282 KVA granted by NPCL on 21.12.1996. The share capital of the company is Rs. 3.08 crores of which 12.06% share is held by PICUP and 5.80% share by foreign collaboration. The Chairman of the company is always appointed by the PICUP, and that the PICUP always has one more Director on the Board of Directors in the company. The Canara Bank has extended a term loan of Rs. 3.17 crores and working capital loan of Rs. 4.70 crores to the company. The National Horticulture Board has also sanctioned a term loan of Rs. 1 crore to the company.
4. M/s R.P. Electronics has challenged the acquisition of their land situate in a corner of the total area sought to be acquired. It is stated in para-16 that towards north or north west, and even the north east of the petitioners' land no other plot is sought to be acquired. The entire area proposed to be acquired is situate towards the west, south west and south east of the petitioners' plot. The petitioner is already using its plots for floriculture, which is an industrial purpose and thus the acquisition for industrial development would not serve any useful purpose of acquiring the land.
5. It is submitted that the proposal to acquire the land was made some times in the year 2006. It took GNOIDA three years to finalise the proposals. There was no urgency for planned industrial development to acquire the land and to apply Section 17 of the Act. There was no material before the State Government on the basis of which it could have recorded its satisfaction that the mater was urgent requiring invocation of Section 17 of the Act and to dispense with the right of objection given by the Act to the land owners under Section 5A of the Act.
6. In para-30 of the writ petition it is stated that by letter dated 11.12.2008 issued from the office of Chief Executive Officer, GNOIDA, recommendations were made to drop the acquisition proceedings in respect of plot Nos. 231, 232, 233, 234, 235, 236, 237 and 238 belonging to M/s Aarti Steel Rolling Mills Limited and forming part of same acquisition proceeding. There was absolutely no justification for drawing any distinction between the petitioners and M/s Aarti Steel Rolling Mills Limited. The petitioners have been discriminated in dropping the proceedings in respect to the land belonging to M/s Aarti Steel Rolling Mills Limited. Both the industrial units are similarly situate. The spot zoning of only M/s Aarti Steel Rolling Mills Limited is, therefore, illegal, arbitrary and discriminatory. The petitioners had also made similar request for exemption from acquisition vide their representations dated 6.3.2009 made to the Chief Secretary, Government of UP, Lucknow. The petitioner had earlier filed a Writ Petition No. 46512 of 2009 challenging the notification under Section 4 of the Act in which by an interim order dated 2.9.2009 the parties were required to maintain status qua. The writ petition No. 48204 of 2009 was filed after the notification under Section 6 was published.
7. In the counter affidavit of Shri G.P. Srivastava, Land Consultant in Greater Noida Industrial Development Authority, Gautam Budh Nagar, it is stated that the address of M/s R.P. Electronics is given as 7/9 Ansari Road, Dariyaganj, Delhi. The plots in question are recorded in the revenue entries as bhumidhar with transferable rights. The petitioners have not annexed any Government Order to show that the industrial status has been granted to floriculture sector. The lease deed, in respect of the plots mentioned in para-7 of the counter affidavit for 47696 sq. yards (9.85 acres) along with three rooms constructed over it dated 29.1.1997, shows that the plots are not in the name of M/s R.P. Electronics. The land was taken by M/s R.P. Electronics on rent at the rate of Rs. 10,000/- per month for a period of 20 years to be extended by another five years. The supplementary lease deed dated 30.1.1997 was executed on the deposit of Rs. 60 lacs. The lease deed is against the provisions of Section 156 of the U.P. Zamindari Abolition & Land Reforms Act, 1950. By supplementary lease deed Rs. 60 lacs was substituted in place of Rs. 10,000/- per month. This supplementary lease deed is not registered and is liable to be impounded. According to the land mentioned, the plot numbers mentioned in the lease deeds are different than the land which has been acquired and is entered in the name of different agriculturist. The notification under Section 4/17 was issued on 15.1.2009 proposing to acquire 72.0912 hectares. The notification was published in 'Dainik Jagaran' and 'Amar Ujala' on 23.1.2009 and the people were informed by beat of drums and notice pasted on public building on 2.2.2009. The declaration under Section 6 acquiring 67.8092 hectares was issued on 28.8.2009. The notice under Section 9 fixing the date of hearing on 16.2.2009; the possession of 48.3009 hectares was taken by the State Government and handed over to the GNOIDA on 23.9.2009. The possession of the entire land covered in the schedule under Section 6 could not be taken as this Court had granted orders to maintain status qua in some of the writ petitions. The land in the notification is situated in the middle of the previously acquired land. The land use is 'Recreational Green.
8. In para 12 of the counter affidavit, it is stated that the GNOIDA has been constituted under Section 3 of UP Act No. 6 of 1976 with the aim to set up new planned industrial township. The development in the area are made by the GNOIDA according to the Master Plan 2021. All the development is being made in accordance with the Master Plan. The land of the petitioner is situate in the centre of the scheme and cannot be exempted from the acquisition. In para 13 it is stated that the acquisition has been made by the State Government on the recommendations of the subordinate authorities, who were subjectively satisfied on the objective appraisal of the fact and that the State Government has taken a decision after considering the material invoking urgency clause and issuing notification as per law accordingly. The decision of the State Government cannot be challenged on vague allegations without placing any material on record or without alleging any malafides against the respondents. The urgency clause has rightly been invoked by the State Government for planned industrial development of the GNOIDA, which is a public purpose. It is further stated:- the land use of Village Surajpur is Recreational Green according to the Master Plan 2021 of Greater Noida Authority. The Master Plan has been approved by the State Government and as in process of approval by NCREB.
9. The GNOIDA has deposited Rs. 7.5 crores as 10% compensation and 10% acquisition costs on 29.11.2006; Rs. 47.60 crores towards 70% of the acquisition on 2.3.2009; and Rs. 0.29 crores towards NPRR 2003 on 2.3.2009 for rehabilitation.
10. In the counter affidavit of Shri Man Mohan Chaudhary, Additional District Magistrate (Land Acquisition)/ Officer on Special Duty (Land Acquisition), Greater Noida, Gautam Budh Nagar filed in Writ Petition No. 54394 of 2009, it is stated that village Surajpur of Gautam Budh Nagar is a part of notified area under GNOIDA for the purpose of planned industrial development in District Gautam Budh Nagar. The 83.0495 hectare of land in village Surajpur, Pargana and Tehsil Dadri, District Gautam Budh Nagar was proposed for acquisition by Greater Noida Authority vide letter No. 799 dated 11.10.2006 to the office of the ADM(LA)/OSD, Gautam Budh Nagar along with a note of justification for invoking provisions of Section 17 (4) of the Act as the land was needed urgently. After reconciliation from the revenue records the area was revised to 79.0577 hectare. The proposal was forwarded to the Directorate of Land Acquisition camp Greater Noida on 17.11.2009 along with certificate (Prapatra-10) for invoking the provision of Section 17 (4). The Directorate of Land Acquisition submitted the proposal to State Government on 17.11.2009. The complete records were placed before the State Government through the Directorate of Land Acquisition and upon consideration of the complete materials the State Government recorded its subjective satisfaction for invoking urgency clause of Section 17 and the approval was granted by the State Government for issuance of notification under Section 4 (1)/17 (4) and initiation of acquisition proceeding for 72.0512 hectare.
11. The GNOIDA deposited 80% (which includes 10% before Section 4) of the compensation amount required as per the rules before sending the proposal for declaration under Section 6. The proposal was sent to the State Government on 26.3.2009 and the State Government after being satisfied with the proposal issued declaration under Section 6 (1)/17(4) on 28.8.2009. The possession of the land was transferred to GNOIDA on 23.9.2009 for area of 67.8092 hectare. In para-19 of the counter affidavit, it is stated that once the provisions of Section 17 (4) have been invoked, the right to file objection under Section 5A is dispensed with and is no longer available to the tenure holder. According to the survey report there are a few rooms constructed and few trees over the land.
12. The petitioner has filed the Food Processing & Agro based Industrial Policy No. 023/96-97 dated November, 1996 of the State Government. Under this policy the floriculture is not only included as industry but has been given specially marked status along with the other products. The policy extends several concessions including sales tax exemption for investment of not less than Rs. 2.5 crores. The floriculture based on green house technology is mentioned at serial no. 9 as selected industry. It is alleged in the rejoinder affidavit, that the petitioner's investment of Rs. 8 crores falls under this category and qualifies for exemptions. The petitioners have also annexed the balance sheet of M/s Salora Floritech Limited as on 31.3.1998 showing the domestic sales of Rs.1854842/-; export sale of Rs. 1455942/-. The losses are shown at Rs. 1909998/-. The company disclosed production of 28,50,000 stems of Cut Flowers (Roses) by the year ending 31.3.1998. The earning from foreign currency was shown in the same year for Rs. 8, 62, 282/-.
13. A supplementary affidavit was filed on 28.9.2010 annexing therewith the information supplied by the GNOIDA to Shri Chetan Kumar Jain of Salora Floritech Ltd. On 26.11.2009 stating that the lay out plan and the Sajra super-imposed of village Surajpur has not been prepared and is not available. A survey report prior to the acquisition of the land is also annexed showing the extent of constructions over the plots acquired by the State Government and which include the petitioner's plot shown as "Salora Company Phulo Ki". In the same document the plots belonging to M/s Aarti Steels & Rolling Mills namely plot Nos. 231 to 238 and M/s Aarti Steels & Rolling Mills was found closed.
14. Shri K.N. Tripathi appearing for the petitioners submits that M/s R.P. Electronics and M/S Salora Floritech Limited are running industries. The floriculture has been given industrial status in the industrial policy of the State Government. The unit was in existence in the year 2009 when the proposal for acquisition was published under Sections 4/17 of the Act. The petitioner has invested Rs. 7.65 crores in the industry in which PICUP (a State Financial institution) has 12.06% shares and that has two Directors on the board of the company. M/s Satyawati Rice Mill and M/s Aarti Steel & Rolling Mills were similarly situate industries. The land owned by Satyawati Rice Mill and M/s Aarti Steel & Rolling Mills was included in the notification under Section 4/17 of the Act. The notification under Section 6/17 declaring the acquisition did not include the land of these two industries. It appears that they made representations on which various inspections were made and that on the recommendation made by GNOIDA the land belonging to Satyawati Rice Mill and Aarti Steel & Rolling Mills was exempted causing hostile discrimination without there being any distinction between them.
15. Shri K.N. Tripathi further submits that for planned industrial development with no specific purpose of utilisation of land in mind or any proposals, the application of Section 17 (1) and (4) is arbitrary and violative of Article 14 and Article 300A of the Constitution of India. He submits that the State Government and the GNOIDA have not been able to demonstrate the purpose for which the land is to be utilised. The planned industrial development is a concept and not a purpose. He submits that in view of the judgement of the Supreme Court in Anand Singh & another vs. State of UP and others JT 2010 (8) SC 15: 2010 (10) SCC 242; State of West Bengal vs. Prafulla Churan Law 2011 (3) AD SC 296; Dev Sharan vs. State of UP and ors 2011 SCC L. Com 189 and Shri Radhey Shyam (Dead) through LRs vs. State of UP, Civil Appeal No. 3261 of 2011 decided by the Supreme Court on 14.4.2011, the provisions of Section 17 (1) and (4) dispensing with requirement of objection under Section 5A are not attracted in the case of planned industrial development. In Radhey Shyam's case (supra) the Supreme Court allowed the appeal against the judgment of High Court and has struck down the acquisition of land by the State Government for planned industrial development by GNOIDA applying provisions of Section 17 (1) and (4) of the Act. The judgment in Radhey Shyam's case is squarely applicable to the facts of the present case. All the other counsels appearing in the connected writ petitions, representing the land owners, covered by the subject notifications have adopted the arguments advanced by Shri K.N. Tripathi, regarding the arbitrary and discriminatory procedure adopted by State Government, and the invocation of Section 17 (1) and (4) of the Act for 'planned industrial development'. All of them have relied upon Anand Singh's (supra), and Radhey Shyam's case.
15. Shri Jafer Naiyer, Additional Advocate General submits that the facts of present case are different. The land in the judgment rendered by the Supreme Court in respect of Village Makora in Radhey Shyam's case was a barren land. In the present case, the land on the other side of the road is fully developed. The land proposed to be acquired, lies very close to the land, which has been developed. The Village Surajpur is in the middle of the GNOIDA. The industrial development has to be carried out in phases. If the court interferes with the acquisition the industrial growth of the area will stagnate. The planned industrial development means that the roads, sewer line and other infrastructural facilities have to be provided. The public money has also been spent on development of GNOIDA and that the Surajpur being in the middle of the GNOIDA, the entire investment will be wasted. The public interest cannot be crucified on the alter of private interest. The entire private investment in the present case is unauthorised. The plans for development were not sanctioned. After the notification of the Greater Noida Industrial Development Authority under the Industrial Planning and Development Act, there is no declaration under Section 143 of the U.P. Zamindari Abolition & Land Reforms Act for the land in question to be abadi land.
17. Shri Jafer Naiyer submits that there are no pleadings or allegations of malafide. The petitioners have not led any evidence of malafide and colourable exercise of powers. He has produced the record of the State Government to show that all the concerned authorities in the State Government and the Minister concerned had applied its mind to the urgency to acquire the land for planned industrial development by GNOIDA.
18. We have considered the respective arguments and perused the records. The original record produced by the State Government shows as follows:-
(1) The Director, Land Acquisition Directorate by its letter dated 20.11.2006 forwarded the proposal of the District Magistrate, Gautam Budh Nagar for acquisition of 79.0577 hectare of land in revenue village Surajpur, Pargana Dadri, Tehsil Sadar, District Gautam Budh Nagar and for issuing notification under Section 4/17. The proposal included Schedule-I in accordance with Para-14 of the Land Acquisition Manual forwarding proposal to the Collector; the preliminary report by the Land Acquisition Amin; the total area, ownership and land use verified from the revenue records; the proof of deposit of 10% of the estimated compensation and further 10% of the acquisition cost; certificate such as whether the land belongs to the State Government/ceiling or is of Gram Samaj; the justification for invoking Section 17; the details also included the fact that 168 families will be affected by the land acquisition. There are no Scheduled Caste/Scheduled Tribe tenure holder to be affected. The number of small farmers was reported to be 49.
(2) The representations were received by the Special Secretary, Industrial Development Department, Government U.P. dated 5.10.2006 from Rakesh Kumar and Brijesh; dated 20.11.2006 of Satya Traders and Satyawati Rice Mill and dated 21.11.2006 Sushree Shashi Rani. The Secretary, Industrial Development, Government of UP observed that the rice mill has been given no objection certificate by the NOIDA and thus there does not appear to be justification to include rice mill in the notification and that though the proposals for exemptions should be discouraged, no one should be allowed to suffer injustice on account of violation of rules. He directed the NOIDA authority to submit the report on all the applications after inspections made by some senior officers.
(3) In the month of November,2006, the Directorate received some more applications for exemption from Gurmedh Singh, Ram Singh, Jashmail Singh, Ashray Sahkari Awas Samiti, Smt. Sheela Devi, Sube Singh and Amit Garg and the letters from the Additional District Magistrate, Land Acquisition and Director, Land Acquisition Directorate. The representations were also received in the month of November and December,2006 from Shri Parvinder Singh, Shri Amit Garg, Shri Brijesh Kumar, Shri Satya Prakash, Shri Kamal Prakash and M/s Satyawati Rice Mill, Satya Traders and Aarti Steel. The Principal Secretary, Small Industries and Expert Promotion, Government of U.P. directed the District Magistrate to carry out spot zoning and to submit the report regarding justification of acquisition of land of the industrial units.
(4) The State Government again sent letters with the approval of the same authority for spot zoning and to find out whether the entrepreneur would require the land for expansion and whether in this regard a certificate has been obtained from the Director of Industries. The record shows that the reminders were sent in pursuance to the decision taken on 23.3.2007 and were repeated on 09.4.2007 and 30.5.2007.
(5) On 09.7.2007 the Secretary, Industrial Development, Government of U.P. made a note on the record that in respect of Satya Traders, the Director of Industries has not made any recommendation and thus there is no justification to exempt Khasra No. 291. For the rest Satyawati Rice Mill and Aarti Rolling Mill on the basis of the Government Order issued by the revenue department and the recommendations of the Director of Industries, the development authority may be asked to submit the decision of spot zoning within three days.
(6) The District Magistrate reported that land in Khasra Nos. 521 to 528 are in the use of Aarti Steel Rolling Mill and Khasra Nos. 520-Ka to 520-Kha are in use by Satyawati Rice Mill. These plots have been exempted from the acquisition. On Khasra No. 521, only a part of the land is used by the Rice Mill. He reported that Khasra No. 231 to 238 and 528 are vacant on the spot and thus there is no justification to exempt these plots.
(7) In pursuance to the enquiries made by Hon'ble the Chief Minister on 27.7.2007 about the delay after receiving proposals in February 2007, a report was submitted by the Deputy Chief Development Officer, GNOIDA on 13.3.2007 that there is no land recorded in the name of M/s Satyawati Rice Mill. The land is recorded in the name of S/Shri Rakesh Kumar, Brijesh Kumar, Vimal Prakash and Kamal Prakash sons of Kanti Prasad. They have filed affidavits that they have given the land without any rent to Satyawati Rice Mill. The land covered by the use of Satyawati Rice Mill has already been exempted from the acquisition and thus there is no justification to exempt the remaining land in Khasra Nos. 521 and 291 in the name of private persons. In the circumstances, the proposal of acquisition for 79.0577 hectare was again submitted before the Chief Minister and was approved by the Chief Minister under the signatures of her Secretary on 24.8.2007. The notification, however, could not be issued as the matter of exemption of land of M/s Satyawati Rice Mill remained pending. Fresh proposals were submitted after excluding 43382 sq. mtrs of M/s Satyawati Rice Mill and 4.5649 hectares of M/s Aarti Rolling Mills Ltd. vide recommendation of CEO, GNOIDA dated 25.11.2008 and 11.11.2008 respectively. The Hon'ble Chief Minister again through her Secretary approved proposal to issue notification under Section 4/17, on 5.1.2009, and that the notification was published on 15.1.2009.
(8) A Writ Petition No. 34907 of 2009 was filed by M/s Satya Traders and a Writ Petition No. 37512 of 2009 was filed by Amit Kumar and others vs. State of UP challenging notification under Section 4. The Court directed status qua to be maintained in respect of the disputed land. These writ petitions included land in Khasra No. 291 (1.4208 hectare); 51-Ka (area 46.0 meters) and Khasra No. 65 (area 2434 meters). A proposal was, therefore, forwarded by the Special Secretary, Industrial Development dated 12.8.2009 to exclude these plots from the notification under Section 6/17.
(9) The correspondence on the record would show that once again on the basis of these two writ petitions proposals were initiated to inspect the plots. By this time writ petitions were also filed by Shri Parvinder Singh, Gurbhedh Singh, Ram Singh, Jasmail Singh, Satya Traders and Amit Kumar and similar interim orders were obtained in respect of Khasra Nos. 516, 290, 299, 301, 291, 51-Kha and 65.
(10) It appears that the petitioners in these writ petitions were aware of the land acquisition proceedings and as soon as they came to know that a proposal has been made to exempt the land covered by the stay order (area 4.282 hectares) from notification under Section 6/17, a statement was made by learned counsel for the petitioner that since the proposal has been made for exempting the land from notification under Section 6/17 and that notification has been made on 28.8.2009 only for 67.8092 hectare, the writ petitions be dismissed as infructuous. On the same day the High Court dismissed the writ petition as premature without deciding any points on merit with liberty to challenge the acquisition, if the State Government issues notification. The writ petition filed by Satya Traders was dismissed as infructuous on 27.10.2009. The writ petition of Amit Kumar was also dismissed as infructuous on the same day. A review petition was filed by Shri Amit Kumar in which on 6.11.2009 the Court recalled the order and dismissed the writ petition as infructuous, recording the statement of counsel that in notification under Section 6 petitioner's plot is not included.
(11) A proposal was again made to include 4.282 hectare of land exempted from notification under Section 6/17 on which the opinion was expressed that there is no justification to include the land in the notification as more than one year has passed after the notification under Section 4/17 was published. The approval for publication of Section 6/17, for 67.8092 was given on 28.8.2009, and the notification which appears to be made ready was published on the same day on 28.8.2009.
19. The sequence of events clearly demonstrates and establishes that the GNOIDA did not make any proposal for any specific use of the land proposed to be acquired. The proposal was made to acquire the land for planned industrial development. Prior to the publication of notification under sub-section (1) of Sections 4 and sub-section (1) of Section 17 were published dispensing with Section 5A under sub-section (4) of Section 17 of the Act; representations received from Satyawati Rice Mill and Aarti Steel & Rolling Mills to exempt the land as they were using the land for industrial purpose were entertained and processed. The State Government arbitrarily decided to entertain and consider the representations. Initially the reports were submitted that the plots of land sought to be exempted were not being used for industrial purposes, and that it will not be appropriate nor justified to exempt such plots. The State Government insisted on carrying out spot zoning on which the Chief Executive Officer, GNOIDA by his letter dated 11.12.2008 carried out sport zoning of 4.5649 hectares of plot No. 231 to 238 and found that there are 11 rooms, 3 bathrooms, 3 toilets, 2 room with bathroom, 1 watchman room with bathroom, 2 room without doors, 3 halls, 7 rooms without windows/doors, 10 bathrooms without doors, 1 weighing room, 1 iron door, and several trees existing on the land. The khasra No. 239 was neither recorded in the name of M/s Aarti Steel Rolling Mills Ltd nor is given in their representation. He reported that the Additional Director, Industries had made recommendation on 28.6.2007 to keep the lands in plot No. 231 to 238 exempted from acquisition and that though he had earlier sent his representation on 23.2.2007, he had received a fax on 2.3.2007, to send modified recommendation on same day by fax after taking into account the spot zoning. The Chief Executive Officer, in the special circumstances in which he was required to submit a report on the same day by fax, submitted a modified proposal reporting that industrial unit was established on Khasra No. 231 to 335 and 238 at the time of spot zoning; the khasra Nos. 236 and 237 are in the middle of these plots; the industrial unit was established only on plot No. 231 to 235 and 238. He reported that the estimation of the use by extension of the industry had to be made by the Director of Industries. The Additional Director, Industries has made recommendations to exempt plot Nos. 231 to 238 and thus in view of the said recommendations the State Government may consider to exempt Khasra Nos. 231 to 238 before issuing notification under Section 4 (1)/17. The proposals thus remained pending from 21.11.2006, when representations for exemptions were first received, till the approval by Hon'ble Chief Minister dated 5.1.2009, with no urgency in sight or any consideration by State Government in contemplation.
20. The recommendation as above made prior to notification under Section 4/17 was accepted by the State Government, and these plots were not included in the notification under Section 4. For more than two years the proposals were pending in files of State Government.
21. In Anand Singh (supra) the Supreme Court held in paragraphs 29, 30, 31 as follows:-
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 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 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 Gavate3. We agree. 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 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 valuable right under Section 5A may not meet the statutory test nor could be readily sustained."
22. On 14.4.2011 the Supreme Court has delivered a landmark 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.
(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.
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."
23. 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 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 khatauni 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 non- acquisition 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.
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 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 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."
24. The facts in the present case are almost the same as in the case of Shri Radhey Shyam (supra). The same reasons has been given as in the present case for applying sub-section (1) of Section 17 and to issue directions under sub-section (4) of Section 17 of the Act, namely that the development authority urgently requires the land for planned industrial 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 State Government was further of the view that the written and oral objections invited from the farmers will take unprecedented long time. The disposal thereof will hamper planned development of the area.
25. The observations of the Supreme Court, that there was no plausible reason to accept the tailer made justification for approving the impugned action, which resulted in depriving the land owners' constitutional rights to property, even if planned industrial development of the District is treated as public purpose are equally applicable to the subject acquisition of land. There was no urgency which could justify the exercise of powers by the State Government under sub-section (1) and (4) of Section 17 of the Act. The Supreme Court's observations that industrial development needs lots of deliberation and planing keeping in view of various scientific and technical parameters and environmental concerns, are also equally attracted in this case.
26. The facts and circumstances of the case and the material on record for applicability of sub-section (1) and (4) of Section 17 of the Act, are thus the same as in Shri Radhey Shyam's case. No distinguishable feature has been brought to our notice to record a different finding. The fact and circumstances for applying the conclusions drawn by the Supreme Court on the legality of applicability of sub-section (1) and (4) of Section 17 of the Act is the same.
27. In the present case we further find that though the State Government expressed opinion that the provisions of sub section (1) of Section 17 are applicable, and that the urgency is such that the minimal hearing under Section 5A should be dispensed with, and that the possession should be taken, though no award has been declared after giving notice under Section 9 of the Act applying sub section (4) of Section 17. The State Government, however, allowed the proposal to remain pending for more than two years to consider the representations of Satyawati Rice Mill and Aarti Steel & Rolling Mills, before issuing declaration under Section 4 of the Act. The State Government sent both these representations to the Chief Executive Officer of GNOIDA for making spot zoning and for submitting modified proposals, and also permitted these two industries to obtain recommendations from the Director of Industries for exempting the land owned and possessed by them from acquisition. The State Government in fact exerted undue pressure upon the Chief Executive Officer to submit his modified proposal on the same day, and to send it by fax in the same evening. We find that when the State Government had applied its mind to apply sub-section (4) of Section 17 along with the proposal of acquisition under Section 4 and had shut down the hearing under Section 5A to all the land-owners on the ground of extreme urgency to acquire the land, it was not open for it to entertain and to process the representations of Satyawati Rice Mill, Aarti Steel & Rolling Mills and a few others. The State Government should not have heard the selected land owners. It was not open to it to choose a few individuals in allowing them to make representations and hear them, with urgently called modified proposals, and to exempt the plots owned and possessed by them from declaration under Section 4/17 and then some more plots in declaration under Section 6/17 of the Act. The State Government acted grossly arbitrarily in hearing the favoured few persons and in exempting their land. If the State Government could give opportunities to these two land owners, the same opportunity was required to be given to all the land owners including the petitioners. We find that the entire approach and the procedure adopted by the State Government in acquiring the land by applying Section 17 (1) was illegal, arbitrary, discriminatory and was in colourable exercise of power, rendering the entire proceedings ultra vires to the object and purpose of the acquisition stated in the notifications.
28. All the writ petitions are consequently allowed. On the findings recorded by us and on the reasoning given in Shri Radhey Shyam (Dead) through LRs (supra) decided by the Supreme Court, we set aside the opinion of the State Government to apply sub-section (1) of Section 17 and sub section (4) of Section 17 of the Land Acquisition Act, 1894 with the notification under Section 4 (1) of the Act dated 15.1.2009, and also quash the notification under Section 6 (1) of the Act read with Section 17 (4) of the Act dated 28.8.2009. It will be open to the State Government to proceed from the stage of Section 4 (1) of the Act; to invite, hear and decide the objections under Section 5A of the Act from all land owners affected by the proposed acquisition before proceedings further in the matter. All the petitioners are entitled to the costs of the writ petitions.
Dt.13.5.2011 RKP/