Brij Pal Singh & Another vs State Of U.P. & Others
2011 Latest Caselaw 1634 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Judgment reserved on 18.04.2011
 
Judgment delivered on 12.05.2011
 

 
Civil Misc. Writ Petition No.3235 of 2010
 
Brij Pal Singh & Anr. Vs. State of U.P. & Ors.
 

 
Civil Misc. Writ Petition No.6244 of 2010
 
Badan Singh & Ors. Vs. State of U.P. & Ors.
 

 

 
Hon. Sunil Ambwani, J.

Hon. K. N. Pandey, J.

1. We have heard Shri Shashi Nandan assisted by Shri Vishwa Pratap Singh for the petitioners. Shri B.D. Mandhyan assisted by Shri Satish Mandhyan appears for Rajya Krishi Utpadan Mandi Parishad and Krishi Utpadan Mandi Samiti, Badaun. Learned Standing Counsel represents State respondents.

2. Shri Brij Pal Singh and Shri Brijendra Pal Singh, both sons of Late Deep Singh, the petitioners in Writ Petition No.3235 of 2010 are owners of plot No.73 area 3.8290 hects. situate in Village Miaun, Tehsil Dtaganj, Distt. Badaun and the trees standing, on it as well as the alleged constructions of graves and temple recorded as grove land in their name in khatauni (record of title) and khasra (record of possession) of 1410 F.

3. Shri Badan Singh and 8 others in Writ Petition No.6244 of 2010 are land owners of grove land in Plot No.74 area 0.2740 hects.; Plot No.74M area 0.2740 hects; Plot No.74A area 0.3650 hects.; Plot No.74B area 0.1850 hects and Plot No.75 area 0.8300 hcts., the adjoining land in the same village. There are many trees of mango, sheesham, jamun, neem etc. on the land.

4. By these writ petitions, the petitioners have challenged the notifications dated 30.11.2009 under Section 4 (1) applying Section 17 (1) of the Land Acquisition Act, 1894 (in short the Act) proposing to acquire 5.7570 hcts. of land in the plots for public purpose namely for construction of Sub-Mandi Yard, Miyaun of Krishi Utpadan Mandi Samiti, Badaun in Distt. Badaun. The notification records that the said land is urgently required for construction of Sub Mandi Yard, Miyaun of Krishi Utpadan Mandi Samiti, Badaun, and that in view of the pressing urgency it is necessary to eliminate the delay likely to be caused by an enquiry under Section 5-A of the Act, for which the Governor has pleased to direct under sub-section (4) of Section 17, that the provisions of Section 5A of the Act shall not apply. The notification under Section 6 (1) read with Section 17 (4) of the Act directing the Collector to take over possession of the land on the expiry of 15 days from the publication of the notice under sub-section of Section 9, though no award has been made under Section 11 was published on 11th January, 2010. By interim orders dated 25.1.2010 in Writ Petition No.3235 of 2010, and dated 9.2.2010 in Writ Petition No.6244 of 2010, the Court directed the parties to maintain status quo in view of the judgment in Babu Ram and Anr. Vs. State of Haryana & Ors., (2009) 10 SCC 115, as it was alleged that there was no material to dispense with hearing under Section 5A of the Land Acquisition Act.

5. The petitioners have not challenged the acquisition of land on the ground that land is not required for public purpose namely for construction of Sub Market Yard at Miaon of Krishi Utpadan Mandi Samiti, Badaun. They have questioned the selection of the land, which is alleged to be on political pressure, and on the ground that there is no urgency, much less emergency to acquire the land by applying the provisions of Section 17 (1) and (4) of the Act dispensing with hearing of the objections and for taking immediate possession without making award for compensation. It is submitted by learned counsel for the petitioner that the invocation of sub-section (1) and 4 of Section 17 of the Act is actually a colourable exercise of powers by the State Government. There was no material before the State Government on the basis of which it could have reached to a conclusion that urgency was such so as to take immediate possession of the land.

6. Learned counsel for the petitioner has relied upon the judgments of the Supreme Court in ESCCO Fabs Pvt. Ltd. Vs. State of Haryana, (2009) 2 SCC 377; Babu Ram & Ors. Vs. State of Haryana, (2009) 10 SCC 115; Anand Singh & Ors. Vs. State of U.P. & Ors., JT 2010 (8) SC 15; State of West Bengal & Ors. Vs. Prafulla Churan Lal, 2011 (3) AD (SC) 296 decided on 4.2.2011; Dev Sharan & Ors. Vs. State of U.P. & Ors., (2011) SCC L.Com 189 and Radhey Shyam (dead) through LRs Vs. State of U.P., Civil Appeal No.3261 of 2011 decided on 14.4.2011 in support of their submission on invoking Section 17 (1) and (4) of the Act. It is submitted that in all these cases the Supreme Court has held that though in exercise of the power of eminent domain, the government can acquire the private property for public purpose, the State Government is not entitled to invoke the urgency provisions unless there is real urgency to dispense with the requirement of hearing of the land owner or other interest persons. Before excluding the application of Section 5A the concerned authority must be fully satisfied that the time of few weeks or months likely to be taken in conducting enquiry under Section 5A will in all probability frustrate the public purpose for which the land is proposed to be acquired. The satisfaction of the State Government is a condition precedent to exercise powers under Section 17 (1). 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 5A would not apply. The invocation of Section 17 (4) is not a necessary condition of the exercise of power under Section 17 (1).

7.	Shri Shashi Nandan  submits that in the present case the public purpose to be achieved in construction of Sub Market Yard at Miaon is not so emergent that the provisions of Section 17 (1) and (4),    be applied to take away   the rights of the petitioners to object     for the acquisition of the land.
 
8.	Shri M.C. Tripathi appearing for the State respondents submits that   as per the revenue records  there is no  entry  of mosque   and temple.    A detailed survey was conducted for acquiring  the land and  it was found   that in Gata No.73  there was small temple and ''samadhi'. Both were  constructed in an area of only 180 sq. mtr.  Form 14 has been issued by the Collector, Badaun, clearly reflecting that there is no temple, mosque or grave yard on the plots.  The land in question was urgently required for larger public purpose, namely   for the construction of market yard of Krishi Utpadan  Mandi Samiti, Badaun and thus  provisions  of Section 17 (1)  and (4)   were invoked  dispensing   with the enquiry under Section 5A of the Act.   With  establishment of Mandi Yard at Miyaun, local needs of farmers will be  catered   and the same will give great impetus to the economic growth at the local level.  The construction of Sub Market Yard    has a larger  public purpose and thus in the   public interest   the urgency clause   has been invoked. 
 
9.	A counter  affidavit of Shri Gaya Prasad Kamal, Deputy Secretary, Agriculture Marketing and Foreign Trade,  U.P. Government, Lucknow  stating in paras 6 and 7 as follows:-
 
	"6.  That it is pertinent to mention here that the Form No.10 had also been issued by the District Magistrate Badaun for invoking the urgency clause especially Section 17 (1) and 17 (4) of the Land Acquisition Act, 1894  (hereinafter  referred as Act, 1894).    A photocopy  of the Form No.10  is being filed herewith and marked as Annexure No.CA-3  to this affidavit. 
 

7. That on the subjective satisfaction for invoking the urgency clause the State Government was satisfied that the land in question was urgently required for the establishment of sub market yard in the interest of farmers and therefore in the public interest and in the catena of decision by the Hon'ble Apex Court as well as by this Hon'ble Court this controversy is moreover resolved that the construction of sub market yard is a public purpose, therefore, the urgency clause can be invoked under the Act of 1894 under these circumstances the Section 5A of the Act was dispensed with. In the present matter there is no market yard and during the rainy season the plight of the producers are more acute they do not have place where they can sit and transact their business in wholesale of the agriculture produce, there is no proper parking space, no godown, old road have also been very congested only under these background the present piece of land had been identified for the establishment of sub market yard. In the present scenario where the production of the food grains and vegetable have not increased at the pace of population increase, therefore, there is a urgent requirement of providing the best facilities to the producers so that the food grains and vegetable may not be destroyed and may reach to the users properly within time. Therefore, the infrastructure is required to be strengthened to provide the best facilities to all the farmers. Therefore, under these background invocation of the urgency clause and dispensation of an enquiry is fully justified and sustainable in the eye of law."

10. Shri B.D. Mandhyan appearing for the Krishi Utpadan Mandi Samiti, Badaun submit that in respect of Sub Market Yard, has declared and notified under the U.P. Krishi Utpadan Mandi Adhiniyam, 1964, as there is no regular market for sale and purchase of specified agricultural produce at Miyaun in District Badaun. The Mandi at Miyaun is big mandi with arrivals of paddy and other specified agricultural produce. Markets are held on two days in a week that is Monday and Thursday in open. There are no shops, no covered place, and that looking to the arrivals and clean of market it was decided that there must be a well planned sub market yard at Miyaun, where the sellers and purchases of agricultural produce may have facilities of making wholesale transactions. The Committee looked for several places for construction of Sub Market Yard and ultimately selected Plot Nos.73, 74 and 75. Since the matter was urgent, and there was no well planned market yard it was necessary to have sub market yard. Since there was acute urgency for having Sub Market Yard, where agricultural producers can make wholesale transactions and there may be sufficient space, godowns for storage cover, tin shed and boundary wall for safety of the arrivals and a centralized place for wholesale transactions, and to avoid illegal deductions such as dharmada, weighment charges and several other charges which the purchasers are being subjected by the middlemen, it was found appropriate, and that the District Magistrate rightly recommended to the State Government for issuing notifications under Sections 4 and 6 invoking provisions of Section 17 (1) and (4) of the Land Acquisition Act.

11. Shri B.D. Mandhyan submits that condition of agricultural market throughout the State of U.P. is not conducive to wholesale transactions. Most of the markets including Sub Market Yard at Miyaun are in open and not organised. There was no planned development of marks and on scientific pattern providing for all the facilities. Thus the construction of market yards was found necessary. In para 19 and 20 of the counter affidavit it is denied that plot No.73 is grove land. The number of trees and their age shows that they are mostly planted a few years back and that there was no temple or ''samadhi' on the land recommended for acquisition.

12. Shri M.C. Tripathi assisted by Shri Ram Krishna and Shri B.D. Mandhyan has relied upon large number of judgments namely State of U.P. Vs. Smt. Pista Devi, AIR 1986 SC 2025; Chameli Singh Vs. State of U.P., AIR 1996 SC 1015; Union of India Vs. Praveen Gupta, JT 1996 (9) SC 624; First Land Acquisition Officer Vs. Nirodhi Prakash Gangoli, 2002 (47) ALR 758; Smt. Manju Lata Agrawal Vs. State, 2007 (9) ADJ 447; Sudhir Chanda Agrawal Vs. State of U.P., 2008 (3) ADJ 289; M/s Sheikhar Hotels Gul Mohar Enclave Vs. State, 2008 (6) ADJ 307; Jasraj Singh Vs. State, 2008 (8) ADJ p. 329; Jagriti Sahkari Awas Samiti Vs. State, 2008 (9) ADJ 43; Swtantra Bharat Paper Mills Vs. State, 2009 (7) ADJ 416; Balbir Singh Vs. State of U.P., 2009 (10) ADJ 441; Ram Nath Vs. State of U.P., 2010 (79) ALR 3 and Mahaveer Singh Vs. State of U.P., 2010 (79) ALR 113 in support of their submissions and justification for invoking Section 17 (1) and (4) of the Act.

13. Shri B.D. Mandhyan submits that in Bhagat Singh Vs. State of U.P. & Ors., AIR 1999 SC 436 the Supreme Court held relying upon the earlier judgment in Hari Singh Vs. State of U.P., AIR 1984 SC 1020; Aflatoon Vs. Ltd. Governor of Delhi, (1975) 4 SCC 285; Om Prakash Vs. State of U.P., 1998 AIR SCW 2507 that where there are no allegations of malafides and that with reference to the plan for construction of market yard, the plots are necessary in as much as the market had to be approached from a side, where appellant's property was located and the government was able to get some land in ceiling proceedings and from Gaon Sabha, it cannot be said that there was no need to acquire appellant's land for the market and the remaining land was sufficient. The Supreme Court further held in para 9 and 10 that establishment of market yard is not merely one of mere urgency but one which makes it necessary to dispense with enqiry under Section 5 A. The Supreme Court held, "the existing market yard is situated in a very congested locality having no scope for expansion and the place where the market is now located is not sufficient to cater to the growing needs of its constituents. There is no adequate space for free movement and parking of trucks/ bullock carts etc. nor for providing necessary shelter for those who come to the market. The existing market is also devoid of any amenities necessary for hundreds of people who visit the market every day or for the bullocks which are being used to draw the carts. During rainy season it becomes well-neigh impossible to find out suitable shelters for the farmers and producers of vegetables. It has become necessary to provide amenities and also construct roads in a planned manner." In para 10 of the judgment the Supreme Court recorded its opinion with the subjective satisfaction for dispensing with the enquiry under Section 5-A is based on sufficient material and cannot be faulted. The photographs as to the filthy state of the present Mandi with garbage and stray cattle and pigs show that the place is so loathsome that it will be precarious and perhaps hazardous to store vegetables or food grains in the existing market. The Supreme Court was therefore, of the view in the circumstances of the case, that the urgency clause was rightly invoked by the State Government. There was also enough precedents in connection with acquisition of land for markets where S.5-A has been dispensed with and such action was upheld.

14. In para 11 the Supreme Court held that in case of similar acquisition of market, where Section 5-A enquiry was dispensed with on the ground of urgency, the High Court in Satyendra Prasad Jain Vs. State of U.P., 1987 All WC 382, held as follows:-

"The question herein is whether the state was justified in dispensing the requirements of enquiry contemplated under S. 5-A. It could be taken judicial notice of, that in regard to agricultural produce there were no proper market facilities. There were innumerable charges, levies and exactions which the agriculturists were required to pay without having any say in the proper utilisation of the amount paid by them.The Government of India and the various committees and commissions appointed to study the condition of agricultural markets in the country had stressed the need to provide proper market yards for the sale and purchase of agricultural produce. The planning commission also stressed long ago in this regard. The Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 has been enacted to provide for the regulation of sale and purchase of agricultural produce and for the establishment, superintendence and control of markets therefor, in Uttar Pradesh. The proposed construction of market and market yard by the Mandi Samiti is, therefore, a step forward to ameliorate the conditions of producers with due representation to them in the Mandi Samities for the fair settlement of disputes relating to their transactions. It is a long felt need which is said to have been included in the planned Development Scheme."

15. Shri Mandhyan submits that in Bhagat Singh, the Supreme Court further observed that in Kailaswati Vs. State of U.P. AIR 1978 All 181, similar observations were made justifying the dispensation of enquiry under Section 5-A in as much as there was immediate urgency, as there was acute scarcity of godowns and warehouses, where foodgrains purchased by the Government had to be stocked.

16. Shri Mandhyan has also relied upon the judgment in Nirodhi Prakash Gangoli (Supra); Mahendra Singh Vs. State of U.P., 2002 (47) ALR 706; Manvir Singh Vs. State of U.P., 2003 (1) AWC 116; Smt. Manjulata Agrawal (Supra); Smt. Manorama Devi Vs. State of U.P., AIR 1994 Alld. 359 and Ranjeet Singh Chauhan Vs. State of U.P., 1997 ALR 1716. He has also relied upon unreported judgment in Kailash Jaiswal Vs. State of U.P., Writ Petition No.37007 of 2008 decided on 4.9.2008 by the High Court upholding the application of section 17 (1) (4) dispensing with the enquiry under Section 5-A of the Act for construction of market yard.

17. We summoned the original file in which the State Government has recorded its satisfaction of applying Section 17 (1) dispensing with enquiry under Section 5-A of the Act for taking over possession though no award has been made under Section 5-A of the Act. The original record shows that the Secretary, Krishi Utpadan Mandi Samiti, Badaun made an application for acquisition of land for public purpose for construction of Naveen Up Mandi Sthal, Miyaon. He proposed acquisition of 5.75 hects. of land and stated in para 9 that it is necessary to obtain immediate possession as there is urgent need for construction of mandi for modern management and arrangement of sale and purchase between the farmers and the traders. The Special Land Acquisition Officer, Badaun submitted a report on the 23 points namely the name and place, correctness of the land records, the land revenue, the nature of the land; the construction if any, on the land; any rights or easementary rights over the land; and whether the land could have been acquired by negotiations etc. The information also disclosed that there is no SC, ST or freedom fighter as owner of the land, the total number of small farmers and those who will loose the entire land is 12 out of 15 and further that three is no land of Gram Sabha or LMC available. By another certificate he disclosed that out of 15 farmers to be affected by acquisition of land there are two big tenure holders and 13 small and out of which 12 will be totally deprived of their land. The information was based on several Forms prepared by Lekhpal and Tehsildar of the village, namely Form Nos.4, 6A, 6B, 7, 8 and 9. The proceedings of the Land Selection Committee consisting of the members of the Vyapar Mandal, District Agricultural Officer, District Horticulture Officer, Regional Accounts Officer, Finance Controller, Chief Engineer, Deputy Director (Admn.) and District Magistrate through their representatives in the meeting.

18. The entire documents were forwarded by the Deputy Secretary, Agricultural Marketing and Agriculture and Export Trade Department, Government of U.P. on 6.11.2009 and placed before the Special Secretary, Agricultural Marketing and Export Trade Department, Government of U.P. The note prepared by the Deputy Secretary and forwarded by the Special Secretary stated that proposal of 5.7570 hects. of land for construction of Sub Market Yard at Village Miyaon, Tehsil Dataganj, Distt. Badaun has been made available by the District Magistrate, Badaun forwarded by the Commissioner and Director, Land Acquisition Directorate, Board of Revenue, U.P. after its examination with proposed notifications in both Hindi and English under Section 4 (1)/ 17. The proposals were submitted along with directions issued by the Rehabilitation Commissioner/ Divisional Commissioner, Bareily Division, Bareilly. The Rehabilitation Administrator/ District Magistrate, Badaun dated 10.11.2009 informed that District Magistrate had certified that under resettlement and rehabilitation policy the proposed expenditure for the affected families has been prepared, which has been provided in the budget of Rajya Krishi Utpadan Mandi Parishad, U.P. The amount will be deposited as per the letter of the Directorate dated 5.7.2008 and the affected persons will be paid the amount so far as possible before the possession of the land is taken. The draft of acquisition was compared and found to be correct for the government may approve proposal of the District Magistrate, Badaun along with the proposal of the Commissioner and Director, Land Acquisition, Directorate, Board of Revenue. The proposal forwarded by the Special Secretary on 20.11.2009 was signed by the Secretary of the Department on 24.11.2009 and by the Minister concerned namely the Minister of Social Welfare, Child Development and Agricultural Marketing Department, Government of U.P. on 24.11.2009.

19. The original record contains the proposal on Form No.1 under Para 14 of the Land Acquisition Manual for proposing acquisition under Section 4 (1) /17, giving the urgency in Clause-9 to the effect that the Sub Market Yard is immediately required to be constructed for modern management of sale and purchase between the farmers and traders. We find, that apart from this information provided by the Secretary, Krishi Utpadan Mandi Samiti and the Special Land Acquisition Officer as a proposal forwarded and signed by the Special Land Acquisition Officer, Badaun Bareilly along with From 1 to 14 and in which From No.14 is recommendation by the Collector/ District Magistrate, Badaun certifying that there are no religious building Mandir, Masjid or Kabristan, there is no material, which may show that there was any such urgency much less emergency for construction of Sub Market Yard. There is nothing on record in support of the allegations that market is congested or that conditions in notified Sub Market Yard, Miyaon are such to immediately construct Sub Market Yard without any delay. The perusal of entire original file does not show any other material nor application of mind by the State Government and its satisfaction recorded in the notes prepared by the Deputy Secretary and Special Secretary for applying the provisions of Section 17 (1) and (4) of the Act.

20. The Supreme Court in its latest judgments after ESSCCO Fabts (Supra), Babu Ram (Supra) and Anand Singh (Supra) has indicated a shift in approach in applying Section 17 (1) and Section 17 (4) of the Act for dispensing under Section 5-A in the matters of acquisition of land for public purpose. The approach has been noticed by this Court in Smt. Mithilesh Kumari & Ors. Vs. State of U.P. & Ors., 2010 (10) ADJ 426 (DB). In this case the land was required for construction of Sub Market Yard at Village Islamganj, Pargana and Tehsil Jalalabad, Distt. Saharanpur. The Court held that the two notes submitted by the Department of Agricultural Marketing and Agriculture Foreign Trade do not refer to any fact regarding urgency. The proposal of the Commissioner and the Director, Land Acquisition Directorate did not refer to any urgency invoking Section 17 (4) of the Act. Neither proposal submitted nor the case mentions Section 17 (4) of the Act. Following the judgment in Anand Singh Vs. State of U.P., Civil Appeal No.2523 of 2008 decided on 28.7.2010 by the Supreme Court and in Ramesh Vs. State of U.P., Writ Petition No.18918 of 2006 decided on 18.12.2007 (All.) (DB), the Court quashed the notification under Section 4 (1) in so far as declaration was made under Section 17 (4) dispensing with requirement of Section 5A, and directed that the petitioner and other tenure holders, whose land is sought to be required are entitled to file their objections under Section 5A (1) of the Act. The Court directed necessary corrigendum to be issued giving opportunity to the petitioners and other tenure holders to file objections within 30 days and to take further proceedings in accordance with law.

21. In Radhey Shyam (dead) through LRs (Supra) decided by the Supreme Court on 14.4.2011 the following principles were laid down:-

"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."

22. The Supreme Court thereafter observed in the facts of that case that there was no justification for the State Government to invoke urgency provisions containing Section 17 (1) excluding application of Section 5-A for acquisition of land for planned industrial development of Distt. Gautam Budh Nagar. In para 54 to 62 of the judgment the Supreme Court held:-

"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 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 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."

23. The facts of the present case are same as in Smt. Mithilesh Kumari (Supra). There is no such material on record, which may show the application of mind and justify the decision of the State Government to dispense with the opportunity to file objections under Section 5-A of the Act. We further find that in the facts of the present case as they have been brought out in the pleading also, there is no inference of urgency which could justify exercise of the power by the State Government to apply Section 17 (1) and 17 (4) of the Act to the acquisition of land. In the counter filed on behalf of the Krishi Utpadan Mandi Samiti the details of the arrivals in the markets, which are held only for two day on Monday and Thursday, have not been given either in terms of quantity or the collection of market fees. There are no such pathetic conditions at Miyaun such as in the case of Bhagat Singh (Supra), which may justify invocation of urgency for immediate construction of Sub Market Yard. The averments that there is no sufficient space, godowns, storage, tin shed, boundary wall for safety of arrivals and centralised place for wholesale transactions, have been made in the counter affidavit to justify invocation of Section 17 (1) and (4). These facts were to be placed before the State Government for invoking the urgency clause. The Mandi Samiti neither placed these facts before the District Magistrate nor he recorded his opinion and made any recommendations to such effect. Thus we find that the State Government did not have sufficient material nor recorded its satisfaction for invoking provisions of urgency for acquisition of land, applying Section 17 (1) and (4) of the Act. Infact there is no mention in the original file of the State Government either in the recommendations or in the notes, on which orders were passed by the State Government, invoking Section 17 (4) of the Act.

24. The ground of arbitrary selection of land and the availability of alternate land is taken in the writ petition, but was not seriously argued. In the matters of acquisition of land, for public purpose, unless the land is wholly unsuitable, or any alternative site equally good for use is offerred, the Courts do not ordinarily interfere with the choice made by the authorities.

25. Both the writ petitions are partly allowed. The invocation of sub-section (1) of Section 17, sub-section (4) of Section 17 of the Act in the notification under Section 4 of the Act dated 30.11.2009 is set aside. The notification under Section 6 of the Act dated 11.1.2010 is also consequently set aside. It will be open to the State Government to issue fresh notification under Section 4 (1) of the Act without applying the provisions of sub-section (1) and (4) of Section 17 of the Land Acquisition Act, 1894. It will be open to the State Government to give notice to the tenure holders, whose land is sought to be acquired informing them that they are entitled to file their objections under Section 5-A of the Act and thereafter to proceed in accordance with law. The petitioners are held entitled to costs of prosecuting the writ petitions in the High Court.

Dt.12.05.2011

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