Sanjeev Garg And Others vs State Of U.P. And Others
2013 Latest Caselaw 643 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 01.03.2013.
 
Delivered on 10.04.2013.
 

 
Case :- WRIT - C No. - 3 of 2011
 

 
Petitioner :- Sanjeev Garg And Others
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Madan Mohan,Anamika Singh,Manish Goyal
 
Respondent Counsel :- C.S.C.
 

 
With
 
Case :- WRIT - C No. - 30427 of 2011
 

 
Petitioner :- Ashok Kumar Garg
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- R.K. Awasthi,Malay Prasad,R.K. Jain
 
Respondent Counsel :- C.S.C.
 

 
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Hon'ble Ashok Bhushan,J.

Hon'ble Abhinava Upadhya,J.

(Delivered by Hon'ble Ashok Bhushan, J.)

This is second round of litigation relating to land acquisition proceedings initiated in the year 1981 for construction of Police Line at village Harsaon, district Ghaziabad. The first round of litigation commenced by filing Writ Petition No.6900 of 1981 by predecessor in interest of the petitioners in this Court challenging the notification issued under Section 4 of the Land Acquisition Act, 1984 (hereinafter referred to as the Act) dated 26th February, 1981 and declaration under Section 6 of the Act dated 26th March, 1981. The said writ petition was disposed of by judgment and order dated 12th January, 2007 directing the State Government to consider the prayer of the petitioners for release of the land. The State Government by order dated 10th December, 2010 rejected the claim of the petitioners to release the land under Section 48 of the Act. These two writ petitions have been filed challenging the order of the State Government dated 10th December, 2010. Apart from challenging the order dated 10th December, 2010 passed by the State Government refusing to release the land, the petitioners have also made a prayer for quashing the Section 4 notification and declaration under Section 6 of the Act. For deciding the issues raised in these writ petitions, it is necessary to recapitulate the relevant facts in chronological order.

The facts are; the State of U.P. created a new district, namely, Ghaziabad on 1st November, 1976. For establishing a Police Line, apart from lease of 23.77 acres of land by Ghaziabad Development Authority, the State Government issued a notification under Section 4 of the the Act for acquisition of 41 bighas and 5 biswas land which also included Plot No.800, area 13 bigha and 4 biswas and Plot No.801, area 3 bighas and 11 biswas belonging to the petitioners. Section 4 notification referred to the land as 'arable'. Section 17(4) of the Act was also invoked. The declaration under Section 6 of the Act was issued on 26th March, 1981. On 14th April, 1981 notice under Section 9 of the Act was issued. The objection dated 27th April, 1981 was filed by Nand Kishore, the predecessor in interest of the petitioners. The objections were heard on 29th April, 1981. On 5th May, 1981 the respondents claim to have taken possession of the land in question. Writ Petition No.6900 of 1981 was filed praying for quashing both the notifications. On 12th May, 1981, the Division Bench passed following interim order:-

"In the meantime, the respondents are restrained from changing the nature of the land, building or cutting trees standing thereon."

The writ petition was dismissed for default on 8th July, 1992. The Special Land Acquisition Officer passed an award on 13th March, 1985. The compensation was not received by the predecessor in interest of the petitioners and was deposited in the court. Representations were filed by the petitioners before the Chief Minister as well as the Governor of the State praying for de-notifying the land as per the provisions of Section 17 of the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as the 1973 Act). On the representation of the petitioners Hon'ble the Governor directed the Principal Secretary (Home) for taking necessary action in the matter. Writ Petition No.6900 of 1981 was restored on 30th April, 2003. In September, 2006, the petitioners again sent a representation to the Chief Minister for release of the land. The Division Bench of this Court heard the Writ Petition No.6900 of 1981 and taking note of the subsequent events disposed of the writ petition by order dated 12th January, 2007 permitting the petitioners to file a comprehensive representation before the Principal Secretary, Nagar Vikas and direction was issued to the competent authority to decide the same within two months in accordance with the relevant rules, Government orders, scheme/ policy after hearing the parties concerned. The Division Bench noted in the order that two issues need to be investigated (i) whether the process for acquiring the land is under the provisions of the master plan in force and (ii) whether the land of the petitioners can be exempted from acquisition notifications under the Act. The Division Bench while disposing of the writ petition further provided that interim order passed earlier shall continue and remain operative till the representation of the petitioners is decided and both the parties were directed not to change the nature of the land or create any third party right. In the said writ petition review as well as recall applications were filed by several applicants as well as petitioners praying for review of the judgment dated 12th January, 2007. By order dated 20th April, 2010, the review and the recall applications were disposed of with a direction to the State Government to take a final decision in the matter within a period of two months.

After the order dated 12th January, 2007 of the Division Bench, the petitioners filed a comprehensive representation dated 19th February, 2007 addressed to the Principal Secretary, Nagar Vikas, Government of U.P. On the representation submitted by the petitioners the Senior Superintendent of Police, Ghaziabad submitted his comments dated 22nd April, 2007 praying for rejection of the representation. The comments were also given by the Special Secretary (Home) dated 20th April, 2007. It was stated in the comments that petitioners' prayer for release of the land cannot be accepted. The petitioners submitted reply on 27th April, 2007 to the comments of the respondent No.1. Reply to the comments of Senior Superintendent of Police, Ghazaibad was also submitted by the petitioners on 30th April, 2007. The Principal Secretary, Nagar Vikas heard the parties on several dates, last being on 27th April, 2007. The department of Nagar Vikas referred the matter to the Housing and Urban Planning Department on 30th May, 2007 and 20th June, 2007 for deciding the representation. The Department of Housing and Urban Planning returned the matter with the note that notification under Sections 4 and 6 of the Act were issued by the Home (Police), Anubhag-VII and the land having been acquired by the Home Department, the representation of the petitioners need to be decided by the Home Department. An order dated 16th July, 2010 was passed by the Nagar Vikas Vibhag holding that Nagar Vikas Vibhag is not the competent authority and the land acquisition proceedings having been done by the Department of Home, the Department of Home is the authority competent to decide the representation of the petitioners. The petitioners filed a writ petition being Writ Petition No.52344 of 2010 on 26th August, 2010 praying for quashing the order dated 16th July, 2010 apart from other reliefs. This Court passed an order on 28th August, 2010 observing that it shall be open for the competent authority to decide the representations of the petitioners within four weeks from the date a certified copy of the order is produced. After the order dated 28th August, 2010 of this Court, the Principal Secretary (Home) decided the representations by order dated 10th December, 2010. These two writ petitions have been filed challenging the order dated 10th December, 2010.

In Writ Petition No.3 of 2011 pleadings being complete, the said writ petition is treated as leading writ petition. Following are the relief, which have been claimed in leading writ petition:-

"a) issue a writ, order or direction in the nature of certiorari calling for the records of the case and quashing the order dated 10.12.2010, passed by the respondent no.1 (Annexure-1 to the present writ petition).

b) issue a writ, order or direction in the nature of certiorari calling for the records and quashing the order dated 16.7.2010, passed by the respondent no.2 (Annexure-18 to the present writ petition).

c) issue a writ, order or direction in the nature of certiorari calling for the records and quashing the declaration under section 6 of the Land Acquisition Act read with Section 17(1) of the Land Acquisition Act dated 26.3.1981 (Annexure-6 to the present writ petition).

d) issue a writ, order or direction in the nature of certiorari calling for the records and quashing the notification under section 4 read with section 17(4) of the Land Acquisition Act dated 26.2.1981 (Annexure-5 to the present writ petition).

e) issue a writ, order or direction in the nature of prohibition restraining the respondents from taking any action against the petitioners pursuant to the impugned orders dated 10.12.2010 and notifications dated 26.2.1981 and 26.3.1981.

.........."

In the leading writ petition two counter affidavits have been filed, one on behalf of Home Department and Senior Superintendent of Police, Ghaziabad sworn by Arvind Kumar Pandey, Deputy Superintendent of Police, Ghaziabad and another on behalf of of respondents No.1 to 5 sworn by Shyam Awadh Chauhan, Tahsildar. Rejoinder affidavits have also been filed to the counter affidavits. The petitioners have also filed supplementary affidavit.

Sri Manish Goyal learned counsel for the petitioners, in support of the writ petition, raised following submissions:-

This Court vide its judgment and order dated 12th January, 2007 in Writ Petition No.6900 of 1981 had directed the representation of the petitioners for release of the land to be decided by the Principal Secretary, Nagar Vikas, hence the order dated 10th December, 2010 passed by the Principal Secretary (Home), deserves to be set-aside on this ground alone. The land was acquired by the Home Department of the State for construction of Police Line at district Ghaziabad, the Home Department itself being beneficiary of the acquisition, was incompetent to hear and decide the representation of the petitioners. While deciding the representation of the petitioners, the Home Department of the State became judge of its own cause, hence the order dated 10th December, 2012 is unsustainable. It is further submitted that the petitioners were not given hearing by the Home Department of the State while deciding the representation of the petitioners for release of the land. After submission of the representation by the petitioners dated 19th February, 2007, the Principal Secretary, Nagar Vikas called the petitioners, Senior Superintendent of Police, Ghaziabad and the Home Department of the State to appear and comments were filed by the Senior Superintendent of Police, Ghaziabad as well as the Home Department of the State and the parties were heard till April, 2007 by the Principal Secretary, Nagar Vikas. After April, 2007 no date for hearing was fixed in the matter and without fixing any date for hearing and without giving any notice or opportunity to the petitioners, the Principal Secretary (Home) has rejected the representation by order dated 10th December, 2010.

By order dated 16th July, 2010 a decision was taken by the State Government through the Principal Secretary, Nagar Vikas to the effect that acquisition having been made by the Home Department, the matter shall be heard by the Principal Secretary (Home) and the file was transferred to the Home Department in pursuance of the order dated 16th July, 2010 but after the said decision neither any notice was issued to the petitioners nor any hearing was given to them by the Home Department, hence the order dated 10th December, 2010 having been passed in violation of principles of natural justice, deserves to be set-aside. The petitioners' reply to the comments submitted by the Senior Superintendent of Police, Ghaziabad and the Home Department were not taken into consideration while deciding the representation.

This Court by order dated 12th January, 2007 while remitting the matter to the State Government had specifically framed two issues for consideration by the Government, namely (i) whether the process of acquiring the land is under the provisions of the Master Plan in force and (ii) whether the land of the petitioners can be exempted from acquisition notification under the Act? The order dated 10th December, 2010 does not specifically consider the issue as to whether the acquisition was in accordance with the use of the land as shown in the master plan prevalent at the relevant time. It is submitted by Sri Goyal that the land use of Plot Nos.800 and 801 was "green belt" under the master plan which was in force at the relevant time and without change of land use in the master plan, the land could not have been acquired for Police Line. It is submitted that the entire process of acquisition is vitiated due to the above reason and the State Government failed to consider the said issue in right perspective. Sri Goyal further submitted that Section 17 of the Act was wrongly invoked in view of the fact that the land was neither arable nor barren. The inquiry under Section 5A of the Act could not have been dispensed with since there was no case of such urgency. The Ghaziabad Development Authority had already granted a lease on 19th April, 1978 of 23.77 acres of land for construction of Police Line which land was available for construction of Police Line. There was sufficient time for hearing the objections of the tenure holders under Section 5A of the Act. The actual physical possession of the land was never taken from the petitioners. The possession memo dated 5th May, 1981 does not contain the signatures of the tenure holders and the land is still laying vacant.

Sri Manish Goyal further submitted that in view of the order dated 20th April, 2010 of this Court passed on the review application filed by the petitioners, the petitioners are entitled to challenge the notification dated 26th February, 1981 issued under Section 4 read with Section 17 and the notification dated 26th March, 1981 issued under Section 6 of the Act and raise all the grounds available for challenging the aforesaid two notifications which deserve to be set-aside by this Court in these writ petitions.

Sri C.B. Yadav, Additional Advocate General, refuting the submissions raised by the learned counsel for the petitioners, supported the order of the State Government dated 10th December, 2010. Learned Advocate General submitted that the land acquisition proceedings were initiated by the Department of Home for the purposes of construction of Police Line at Ghaziabad and the Department which had initiated the land acquisition proceedings is the department which is competent to decide an application under Section 48 of the Act for release of the land. He submits that the State Government acts through various departments and the competent authority for deciding an application for release of the land is the Home Department and thus the State Government took a decision on 16th July, 2010 that representation is to be decided by the Home Department consequently the Home Department has passed the order. It is submitted that allegations raised by the petitioners of bias against the Home Department is without any substance. The department which had initiated the land acquisition proceeding is the department which is aware of the needs and is competent to decide as to whether the land should be released or not. Other departments being not aware of the details and requirement of the State, are not competent to decide the application under Section 48 of the Act for release of the land. He has also, during the course of submissions, referred to the Government order dated 15th September, 2006 and 3rd July, 2007. He submits that the State Government has already taken a decision by the aforesaid Government orders that for release of the land under Section 48 of the Act, the department which has acquired the land is a competent department. A copy of the notification dated 26th March, 1981 issued under Section 4 read with Section 17 of the Act has also been placed before us and it has been submitted that the said notification has been issued by the "State of U.P. Grih/Police Anubhag-VII". It is submitted that Department of Home being the department which had issued the notification under Section 4 of the Act, the decision to release the land has to be taken by the Home Department.

Replying the submissions of learned counsel for the petitioners regarding hearing, it is submitted that petitioners were given full opportunity by the State Government. The petitioners filed their representation and thereafter filed reply to the comments/ objections of the Home Department and the Senior Superintendent of Police, Ghaziabad on 27th April, 2007 and 30th April, 2007 and were given personal hearing also by the State Government. While deciding the representation all relevant materials were taken into consideration and the submission that petitioners were not given due opportunity is incorrect. He submits that the petitioners have placed on the record before the State Government all pleas and raised submissions which have been taken into consideration while deciding the representation. The plea of the petitioners that principles of natural justice have been violated cannot be accepted.

It is further submitted that the land use of the land in question was not green belt at the relevant time. In this context reference of letter of the Ghaziabad Development Authority dated 12th March, 2007 filed along with the counter affidavit has been made and relied. The Additional Advocate General further submitted that even if the land use at the relevant time was green belt, there is no legal prohibition in acquiring the land. The restriction is on the use of the land which issue shall arise after the acquisition is made but the mere fact that land use in the master plan is different from the land use for which the land is being acquired, is no prohibition in proceeding with the acquisition of the land. It is submitted that after the acquisition of the land, the State Government can proceed by seeking appropriate amendment in the land use. In any case the land use in the Master Plan 2021 being not green belt, the State Government can very well proceed with the construction of the Police Line. It is submitted that actual physical possession of the land was taken on 5th May, 1981 after issuance of notice under Section 9 of the Act and the land is being used for different purposes of Police Line at present. It is submitted that the land is being used as a Training Center and other connected purposes including Traffic Police Line. The nature of the land has not been changed on account of the interim order passed by this Court on 12th May, 1981 but the entire land is used for carrying out the purpose and object of the Police Line at present. The land is still needed by the Government for Police Line and has rightly not been released under Section 48 of the Act.

Learned Additional Advocate General has submitted that the writ petition having been disposed of by this Court on 12th January, 2007 remitting the matter for consideration by the State Government for release of the land under Section 48 of the Act, it is not open for the petitioners to challenge the notifications issued under Sections 4 and 6 of the Act. The Division Bench judgment dated 12th January, 1007 having become final between the parties, the petitioners cannot go beyond the scope of the said judgment which confines consideration of the representation of the petitioners for purposes of release of the land under Section 48 of the Act. The Division Bench vide its judgment dated 12th January, 2007 did not quash the notifications issued under Sections 4 and 6 of the Act, hence it will be deemed that prayer of the petitioners for quashing the notification has been refused and the petitioners cannot be allowed to pray for the aforesaid relief.

Learned Additional Advocate General further submitted that that the State Government has rightly rejected the representation of the petitioners. The petitioners are not entitled for any relief in these writ petitions. The public purpose for which the land was acquired is still there and has not yet been fulfilled. The decision of the State not to release the land is in accordance with law. Only one tenure holder raised objection against the acquisition whereas the land of several tenure holders were acquired in the year 1981. No other tenure holder except the petitioners have raised the objection.

Learned counsel for the parties in support of their respective submissions, have relied on various judgments of the Apex Court and this Court which shall be referred to while considering the submission in detail.

From the pleadings of the parties and the submissions made by learned counsel for the parties, following main issues emerge for consideration in these two writ petitions:-

(i)Whether the representation of the petitioners dated 17th February, 2007 for release of the land and denotification of the land could have been decided by the Principal Secretary (Home) or the decision was to be taken by the Principal Secretary, Nagar Vikas?

(ii)Whether on the allegation of official bias, the Home Department of the State was ineligible for deciding the representation under Section 48 of the Act?

(iii)Whether the petitioners were given due notice and ample opportunity before passing the order dated 10th December, 2010 by the Principal Secretary (Home)?

(iv)Whether the acquisition of land is bad due to the reason that in the Master Plan prevalent at the relevant time, the land use of the land was green belt?

(v)Whether the petitioners are entitled for relief of quashing the notifications issued under Sections 4 and 6 of the Act on the submissions as noted above?

(vi)To what relief the petitioners are entitled in these writ petitions?

The first issue to be answered is as to whether the Principal Secretary (Home) was the competent authority to decide the representation dated 17th February, 2007 or it was the Principal Secretary, Nagar Vikas who was competent to decide the representation of the petitioners. The representation of the petitioners for release of the land was made to exercise the power by the State Government under Section 48 of the Act. The competent authority has to be found out in context of Section 48 of the Act. Learned counsel for the petitioners submitted that this Court vide its judgment dated 12th January, 2007 has specifically directed the Principal Secretary, Nagar Vikas to decide the representation, hence the representation was required to be decided by the Principal Secretary, Nagar Vikas and the impugned decision taken by the Principal Secretary (Home) is without any authority and jurisdiction. It is useful to quote the operative portion of the judgment dated 12th January, 2007 by which petitioners were directed to file a comprehensive representation. Following was the direction of this Court:-

"In view of the above we direct the petitioners to file a comprehensive representation before the Principal Secretary, Nagar Vikas, State of U.P. along with certified copy of this order as well as complete compilation (containing record of the writ petition including counter and rejoinder affidavits etc.) filed before this Court within six weeks from today and on such representation being filed, as stipulated above, the concerned competent authority shall decide the same within two months of the receipt of the representation as contemplated above, exercising its in fettered discretion on the basis of record before him in accordance with relevant Rules, Government orders, Scheme/Policy after hearing the parties concerned without being influenced by any of the observations in this judgment."

The Division Bench directed the petitioners to file a comprehensive representation before the Principal Secretary, Nagar Vikas along with certified copy of the order and the representation was actually filed before the Principal Secretary, Nagar Vikas by the petitioners. Whether the Division Bench vide its judgment dated 12th January, 2007 intended that decision on the representation be taken by the Principal Secretary, Nagar Vikas only is the question to be answered. It is relevant to note that although the Division Bench directed the petitioners to file representation before the Principal Secretary, Nagar Vikas but in the same paragraph the Division Bench has used the expression "the concerned competent authority shall decide the same" and further in the last line of the same paragraph it has been directed "in accordance with relevant Rules, Government orders, Scheme/Policy". The order of the Division Bench dated 12th January, 2007 cannot be read to mean that the Division Bench determined the competent authority who was to decide the matter, rather the Division Bench intended that the competent authority should decide the matter. The mere fact that petitioners were permitted to submit representation before the Principal Secretary, Nagar Vikas, it does not mean that Division Bench directed that Principal Secretary, Nagar Vikas shall decide the representation and furthermore when in the last sentence the Division Bench clearly used the expression "in accordance with the relevant Rules, Government orders, Scheme/Police", we have to find out who was the authority to determine the matter.

The word "State Government" has been defined in Section 3(60) of the General Clauses Act, 1897 which is as under:-

"3(60) "State Government",-- (a) as respects anything done before the commencement of the Constitution, shall mean, in a Part A State, the Provincial Government of the corresponding Province, in a Part B State, the authority or person authorized at the relevant date to exercise executive government in the corresponding Acceding State, and in a Part C State, the Central Government;

(b) as respects anything done after the commencement of the Constitution and before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a Part A State, the Governor, in a Part B State, the Rajpramukh, and in a Part C State, the Central Government;

(c) as respects anything done or to be done after the commencement of the Constitution (Seventh Amendment) Act, 1956 , shall mean, in a State, the Governor, and in a Union territory, the Central Government;

and shall, in relation to functions entrusted under article 258-A of the Constitution to the Government of India, include the Central Government acting within the scope of the authority given to it under that article:]"

Section 48(1) of the Act under which the Government has power to release the land is as follows:-

"48. Completion of acquisition not compulsory, but compensation to be awarded when not completed. - (1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken."

From the definition of the State Government in the General Clauses Act, 1897, it is obvious that the State Government means the Governor of the State.

All executive functions of the Government of a State are required to be taken in the name of Governor as required by Article 166 of the Constitution of India. Article 166(3) of the Constitution of India provides that Government shall make rules for the more convenient transaction of the business of the Government of the State insofar as it is not business with respect to which the Governor is by or under the Constitution required to act in his discretion. In the State of U.P. in exercise of power under Article 166(3), the rules have been framed, namely, the Uttar Pradesh Rules of Business, 1975. The Rule 10 of the 1975 Rules provides as under:-

"Responsibility of Department Secretaries - In each department, the Secretary (which term includes a Special Secretary or Joint Secretary, if any, in independent charge) shall be the administrative head thereof, and shall be responsible for the proper transaction of business and the careful observance of these rules in that department and if he considers that there has been any material departure from them he shall personally bring the matter to the notice of the Minister-in-charge and the Chief Secretary."

Under the Land Acquisition Act, 1894 a complete procedure has been laid down for acquisition of land beginning from publication of preliminary notification under Section 4 of the Act. Section 4 of the Act uses the word "appropriate Government" which in context of the State of U.P. Shall mean the Government of State of U.P. In the present case notification under Section 4 of the Act was issued by the Department of Home. A photo copy of the original notification dated 26th February, 1981 issued by the State Government published in the U.P. Gazette Extraordinary dated 28th February, 1981 as well as Section 6 notification published in the U.P. Gazette dated 26th March, 1981 have been placed for perusal of the Court. Both the above notifications were issued by the "Uttar Pradesh Sarkar Grih (Police) Anubhag-VII". It is not even disputed that notification under Section 4 of the Act was issued by the Home Department. The question is as to whether under Section 48 of the Act when power by the State Government to withdraw from acquisition any land is to be exercised, the said power shall be exercised by which department of the State. A question arose before the Apex Court that at the time of withdrawing from the acquisition any land whether any notification is required to be published in the gazette or not. The said issue was answered by the Apex Court in several judgments holding that publication of notification in the gazette for withdrawing from acquisition under Section 48 of the Act has to be done in the same manner as notification is published under Sections 4 and 6 of the Act. The Apex Court in the case of Rajinder Singh Bhatti and others vs. State of Haryana and others reported in 2009(11) SCC 480 held that withdrawal from land acquisition proceeding by taking resort to Section 48 of the Act must be in the like manner. Following observations were made by the Apex Court in paragraph 31 of the said judgment:-

"31. It is true that Section 48 does not in express terms require the decision of the government for withdrawal of acquisition to be published in the official gazette. In Abdul Majeed, this Court has held that there should be publication of the withdrawal of the notification published under Section 4(1) and declaration under Section 6 by exercising power under Section 48(1). Even on first principles, such requirement appears to be implicit. The Act provides for the publication of notification and declaration under Sections 4 and 6 of the Act in official gazette. Obviously the withdrawal from land acquisition proceedings by taking resort to Section 48(1) of the Act also must be in the like manner. As a matter of fact, this aspect is no more res integra."

When the notification under Section 48 of the Act also is required to be published in the gazette in the like manner, it is obvious that the State Government has to adopt the same process by which a decision was taken to acquire the land. The Department of Home having taken decision to acquire the land, for release of the land from acquisition decision by the Home Department appears to be necessary. There is one more reason for coming to the conclusion that the same department which has acquired the land should take a decision under Section 48 of the Act to withdraw from acquisition i.e. liberty is given to the State Government to withdraw from acquisition under Section 48 of the Act is a decision to be based on relevant considerations. The department which has acquired the land is the department which best knows as to whether the Government should withdraw from acquisition of land or not. In a case where the land is acquired by one department of the State, for example, Education Department, decision to withdrawn from acquisition of land by another department, for example, Industries Department, shall neither be practicable nor reasonable. The Government functions through various departments and the policies and the scheme of each department are to be implemented by the said department primarily and the needs/requirement of land which is acquired and the decision to withdraw has to be left to the same department which is in the best position to take a decision in the matter.

Learned Additional Advocate General while addressing on behalf of the State drew attention of the Court towards the Government order dated 15th September, 2006 which was issued on the subject "delegation of powers under Land Acquisition Act, 1984 (as amended) under Section 48(1)". In the said Government order a decision was taken by the Government that for release of the land (withdraw from acquisition), the department which has acquired the land is the department which can take appropriate and early decision in the matter. The decision of the State Government dated 16th July, 2010 has been brought on the record as Annexure-18 to the writ petition which after taking note of the judgment of this Court dated 12th January, 2007 has taken the view that since the land acquisition proceedings were under taken by the Home Department, hence the Principal Secretary, Nagar Vikas is not the competent authority and the competent authority to decide the representation is the Principal Secretary (Home). The said decision has also been challenged by the petitioners in this writ petition.

In view of foregoing discussions, we are of the view that Principal Secretary (Home) is the competent authority to decide the representation of the petitioners and representation of the petitioners was not to be decided by any other department of the State.

The next submission on which emphasis was laid by counsel for the petitioners is that the Principal Secretary (Home) is not the competent authority to take a decision on account of the principles that "no one should be judge in his own cause". He submitted that the land was acquired for construction of the Police Line and Police Department being under the Home Department it had official bias regarding subject matter of dispute. The decision by the Principal Secretary (Home) is to be set-aside on account of principle of bias. It is submitted that initially when the representation was submitted before the Principal Secretary, Nagar Vikas and dates were fixed for hearing by the Principal Secretary, Nagar Vikas, the Department of Home has filed its objection to the representation of the petitioners. Thus it has interest in the subject matter and its decision suffers from bias.

Learned counsel for the petitioner has placed reliance on a judgment of the Apex Court in the case of Kumaon Mandal Vikas Nigam vs. Girja Shanker Pant reported in 2001(1) SCC 182. The said was a case where the decision taken by the Managing Director of the Nigam terminating the services of the respondent was held to have suffered from personal bias. The challenge to the order was on the ground of bias and malice. In paragraph 9 and 10 of the judgment the Apex Court noted the issues and meaning of bias which are quoted below:-

"9. Before adverting to the rival contentions, be it noted that the matter in question involves two principal issues: (a) the issue of bias and malice and (b) the issue of natural justice. Admittedly, the points in issue would over-lap each other while detailing the same, but the facts, as hereinafter noticed, are such that the same is otherwise unavoidable.

10. The word Bias in popular English parlance stands included within the attributes and broader purview of the word malice, which in common acceptation mean and imply spite or ill-will (Strouds Judicial Dictionary (5th Ed.)Volume 3) and it is now well settled that mere general statements will not be sufficient for the purposes of indication of ill-will. There must be cogent evidence available on record o come to the conclusion as to whether in fact there was existing a bias which resulted in the miscarriage of justice."

The Apex Court in the aforesaid case held in paragraphs 26, 27 and 36 that action of Managing Director in terminating the services suffered from malice. The case of Kumaon Mandal Vikas Nigam was thus a case of personal bias and malice in passing the order and is clearly distinguishable.

In the present case there are no personal allegation against any particular officer. The submission is on the basis of official bias and on the principle that "no one should be judge in his own cause". The principle that "no one should be judge in his own cause" is one of the well recognised principles of natural justice. The bias alleged in the present case is departmental/institutional bias and not any malice on the part of any official of the Government. In 2004(11) SCC 625; Delhi Financial Corporation and others vs. Rajiv Anand the principle "no one can be judge in his own cause" came for consideration. In the said case the Delhi Financial Corporation has initiated proceedings for recovery of its dues against the respondents. Under Section 32G of the State Financial Corporation Act, the State Government had appointed respective Managing Directors as the authority under Section 32G to issue certificate of recovery. The certificates of recovery issued by the Managing Directors of the Corporation were challenged by the respondents in Delhi High Court. It was contended that appointing Managing Director of the Corporation as an authority to issue recovery certificate is nothing but permitting the Manging Director to be judge in his own cause. The appeal was filed by Delhi Financial Corporation against the judgment of the Delhi High Court. Along with the appeal of Delhi Financial Corporation certain other cases were connected before the Apex Court one of which was against the judgment of Punjab and Haryana High Court where Punjab and Haryana High Court disagreed with the judgment of the Delhi High Court and has upheld the decision of the Managing Director. The Apex Court considered the submissions and held that the Managing Director being a high ranking officer, is not personally interested in the transaction and there is no question of any bias and conflict between his interest and duty. Following was laid down in paragraph 8 and 9 of the said judgment:-

"8. This question again came up for consideration before a Constitution Bench of this Court in the case of Lachhman Das on behalf of Firm Tilak Ram Bux v. State of Punjab and Ors. The facts of this case are almost identical to the facts of the present case. In Lachhman Das's case (supra) the statute provided a special procedure of recovery. Under the provisions of the statute the head of the department, was authorised to determine the exact amount due and recoverable from defaulters. Under the statute the head of the department was the Managing Director of the Patiala State Bank. The Constitutional validity of that procedure was challenged. The question was whether in such cases the doctrine that "no man can be a judge in his own cause" applies. The Constitution Bench of this Court considered this question and unanimously held as follows:-

"34. We must next refer to the hierarchy of officers constituted under the Act. At the top are the Ministers; then there is a Board of Directors; next comes the Managing Director, and subordinate to him are a host of officers in charge of the several departments and branches. The Board of Directors is to consist of the Prime Minister, Finance Minister three members nominated by the Ruler, two of whom are non-officials representing important clients of the Bank, and the Managing Director. The Managing Director has power to sanction loans on personal security up to Rs. 3,000/- and on pledge of goods up to Rs. 25,000/-. Beyond that limit it is the Board that can sanction loans.

35. We may now examine how far the contention of the appellants that the procedure prescribed by the Act and the Rules is opposed to rules of natural justice is well founded. The first complaint is that it is it the Managing Director, who is in charge of the day to day administration of the Bank, and that therefore he is not the proper person to decide the dispute, because his own action must be under challenge. We see no force in this contention. The Managing Director is a high ranking official on a salary scale of Rs. 1,600-100-2,500, with a free furnished residence. He has no personal interest in the transaction and there is no question of bias, or any conflict between his interest and duty. Loans are sanctioned by the appropriate authorities under the Rules, and the customer operates on the account through cheques and deposit receipts, and there could be no question of any attack on the actions of the Managing Director. How unsubstantial this objection is will be seen from the fact that the loan dated May 23, 1953, with which we are concerned could have been sanctioned under the Rules, not by the Managing Director, but only by the Board."

At this stage even though this does not concern this point the further observations made may also be reproduced as they have a bearing on other points urged before us: -

"36. It is then said that the hearing before the Managing Director is perfunctory, that under Rule 6, he is only to examine the objections stated in the written statement "in the light of the relevant records of the department" and decide the dispute, and that there is thus no real opportunity afforded to the parties to present their case. This argument proceeds on a misconception of the true scope of Rule 6. It does not bar the parties from examining witnesses or producing other documentary evidence. The Managing Director, has, under this Rule, to examine the statement and the records of the Bank, in so far as they bear on the points in dispute and that normally, would be all that is relevant. But he is not precluded by the Rule from examining witnesses or taking into account other documentary evidence, if he consider that that is necessary for a proper determination of the dispute. And whether he should do so or not is a matter left to his discretion. Discussing a somewhat similar question arising on the language of Section 68-D(2) of the Motor Vehicles Act, 1939, this Court observed in Malik Ram v. State of Rajasthan:

"It will therefore be for the State Government, or as in this case the officer concerned, to decide in case any party desires to lead evidence whether firstly the evidence is necessary and relevant to the inquiry before it. If it considers that evidence is necessary, it will give a reasonable opportunity to the party desiring to produce evidence to give evidence relevant to the enquiry and within reason and it would have all the powers of controlling and giving and the recording of evidence that any court has. Subject therefore to this over-riding power of the State Government or the officer giving the hearing, the parties entitled to give evidence either documentary or oral during a hearing under Section 68-D(2)."

9. Faced with this authority, it was submitted that the observations made by the Constitution Bench are per incuriam inasmuch as this authority has not taken note of the Judgment in Gullapalli Nageswara Rao's case (supra). We are unable to accept this submission. It is to be seen that there is a big difference in the facts of the two cases. The doctrine that 'no man can be a judge in his own cause' can be applied only to cases where the person concerned has a personal interest or has himself already done some act or taken a decision in the matter concerned. Merely because an officer of a Corporation is named to be the authority, does not by itself bring into the operation the doctrine 'no man can be a judge in his own cause'. Of course in individual cases bias may be shown against a particular officer but in the absence of any proof of personal bias or connection merely because officers of a particular Corporation is named as the authority does not mean that those officers would be biased. As has been held by the Constitution Bench a Managing Director is a high ranking officer. He is not personally interested in the transaction. There is no question of any bias or conflict between his interest and his duty. In Gullapalli Nageswar Rao's case (supra) the Secretary who had framed the scheme then proceeded to hear the objections and advise the Chief Minister. It is because of the personal involvement of the Secretary that the majority took the view. Even then two Judges held that it did not follow that he was an improper person to hear the objections."

In 2006(6) SCC 25; Crawford Bayley Company and others vs. Union of India and others the doctrine "no one can be judge in his own cause" again came for consideration in context of Public Premises Eviction of Unauthorised Occupant Act, 1971. In the said case the appellants were leased out a premises which belonged to the State Bank of India. The State Bank of India by notice terminated the lease. A show cause notice under the 1971 Act was issued to the appellants, the said show cause notice was challenged by the appellants before the High Court. The writ petitions were dismissed and thereafter the appellants challenged the said order in the Apex Court. It was contended before the Apex Court that Section 3 of the 1971 Act are violative of Article 14 of the Constitution as it makes the Estate Officer of the statutory authority as a judge in his own cause. Repelling the above contention, Apex Court laid down following in paragraphs 18 and 19:-

"18. In this connection, a reference was made to a case of Delhi Financial Corporation and Anr. v. Rajiv Anand and Ors. Reported in (2004)11SCC625 with regard to personal bias i.e. an officer of the Statutory Authority has been appointed as an Estate Officer, therefore, they will carry their personal bias. However, this Court in the aforesaid case held that a doctrine 'no man can be a judge in his own cause' can be applied only to cases where the person concerned has a personal interest or has himself already done some act or taken a decision in the matter concerned. Merely because an officer of a corporation is named to be the authority, does not by itself bring into operation the doctrine, "no man can be a judge in his own cause". For that doctrine to come into play it must be shown that the officer concerned has a personal bias or connection or a personal interest or has personally acted in the matter concerned and /or has already taken a decision one way or the other which he may be interested in supporting.

19. In view of the aforesaid observation made by this Court that 'no man can be a judge in his own cause' certain parameters has to be observed i.e. a personal bias of the person concerned or personal interest or person acted in the matter concerned and has already taken a decision which he may be interested in supporting the same. These parameters have to be observed before coming to the conclusion that ' no man can be a judge in his own cause'. This is a matter of factual inquiry. Be that as it may. Mr. Gopal Subramanian learned Addl. Solicitor General of India with his usual fairness has submitted that the officer who has been appointed as an Estate Officer though alleged to have been associated as an officer dealing with the eviction matters will not be presiding over as an Estate Officer. Therefore, in view of this submission made by Mr. Subramanian we do not think that the matter is required to be prosecuted further."

As noted above, the decision under Section 48 of the Act to withdraw from acquisition is to be taken by the department which had initiated the acquisition proceeding since the said department is the best suited authority to determine as to whether land be released or not, the mere fact that decision is to be taken by the same department which has acquired the land does not furnish sufficient ground to substantiate the plea that decision suffers from departmental bias. The Principal Secretary who is head of the office and a high ranking officer cannot be presumed to have any bias because of the fact that he is the Principal Secretary of the Home Department. Thus the decision of the Principal Secretary (Home) deciding the representation of the petitioners cannot be set-aside on the plea of bias as raised by counsel for the petitioners.

Now comes the next submission i.e. violation of principles of natural justice insofar as the petitioners were not given adequate opportunity of hearing by the Principal Secretary (Home) while passing the order dated 10th December, 2010. As have been noted above, the representation was filed before the Principal Secretary, Nagar Vikas who had issued notice to the petitioners and heard the parties on various dates lastly in April, 2007. The dates on which Principal Secretary, Nagar Vikas heard the parties has been noted in paragraph 2 of the impugned order i.e. 28th February, 2007, 13th February, 2007, 23rd March, 2007, 4th April, 2007 and 27th April, 2007. The Principal Secretary, Nagar Vikas did not decide the representation and referred the matter to the Principal Secretary, Housing and Urban Planning. The matter was referred on 30th May, 2007 and 28th June, 2007 as has been mentioned in paragraph 2 of the order of the State Government. The file was returned from the Department of Housing and Urban Planning on 11th June, 2007 and 10th July, 2007 to the Department of Nagar Vikas stating that notification under Sections 4 and 6 were issued by the Home (Police) Anubhag-VII, hence the representation of the petitioners is to be decided by the Home Department. Again it is mentioned that a decision was taken on 19th February, 2008 that representation is to be decided by the Home Department and thereafter the matter was referred to the Home Department. The Home Department has initially shown its reluctance but again decision was taken on 3rd June, 2010 by Principal Secretary, Nagar Vikas that representation cannot be decided at the level of the Nagar Vikas and thereafter order dated 16th July, 2010 was passed that decision be taken by the Home Department. The order impugned does not mention any hearing in the matter after 16th July, 2010 i.e. after the order was passed by the State Government that the matter will be decided by the Principal Secretary (Home). No hearing actually took place after 16th July, 2010 by the Principal Secretary (Home) nor any such hearing is claimed by the State. The petitioners have made specific pleadings that no hearing was given after 27th April, 2007 in paragraph 36 of the writ petition. Two counter affidavits have been filed by the State first sworn by Deputy Superintendent of Police, Arvind Kumar Pandey in which paragraph 36 of the writ petition has been replied in paragraph 31 which is to the following effect:-

"31. That the contents of paragraph No.36 of the writ petition are wrong and denied. It is wrong to say that the respondents have not given opportunity of hearing. The petitioners have himself stated that they have got opportunity of hearing on 27.4.2007. The petitioners have been given full opportunity of hearing and their each and every objection has been considered in detail by the respondent No.1. It is wrong to say that the Home Department is under influence of State Government or bias towards the issues involved in the writ petition."

In another counter affidavit dated 16th April, 2012 sworn by Tahsildar, Shyam Awadh Chauhan paragraph 36 of the writ petition has been replied in paragraph 15 wherein there was no specific reply to the allegations of the petitioners. The petitioners' categorical plea in the writ petition that no hearing was done by the Principal Secretary (Home) who has decided the matter is un-rebutted on behalf of the State. It is relevant to note that Division Bench while disposing of the writ petition on 12th January, 2007 has directed the competent authority to decide "after hearing the parties concerned" and hearing by the Principal Secretary Home was more necessary due to the fact that earlier hearing was conducted by the Principal Secretary, Nagar Vikas who was not competent to decide the matter as per decision taken by the State itself. Any hearing conducted by an authority who was not competent to decide the matter was meaningless hearing and earlier hearing lost its whole relevance when it was decided by the State Government that matter is to be heard by the Principal Secretary (Home). From the chronological events as unfolded in the pleadings of the parties, it is clear that neither any date was fixed by the Principal Secretary (Home) for hearing nor petitioners were afforded any opportunity of hearing before passing the oder dated 10th December, 2010 by the Principal Secretary (Home). It is relevant to note that after the order dated 16th July, 2010 was passed by the State Government taking a decision that representation is to be decided by the Principal Secretary (Home), a writ petition was filed by the petitioners in this Court being Writ Petition No.52344 of 2010 wherein this Court passed an order on 20th August, 2010 that competent authority to decide the representation of the petitioners within four weeks. The order dated 20th August, 2010 has been referred to while passing the order dated 10th December, 2010. However, the decision on the representation was to be taken in accordance with the earlier order dated 12th January, 2007 which required parties to be heard. No hearing having been afforded to the petitioners before passing the order dated 10th December, 2010 by the Principal Secretary (Home), the order impugned dated 10th December, 2010 deserves to be set-aside on this ground alone.

Another limb of submission made by learned counsel for the petitioners challenging the order dated 10th December, 2010 also needs to be noted. It is submitted by Sri Manish Goyal that in passing the order dated 10th December, 2010 the Principal Secretary (Home) has quoted the comments which were earlier submitted by the Special Secretary (Home) dated 20th April, 2007 and the said comments were quoted in verbatim in the impugned order. There is no independent consideration except extracting the comments of the Home Department and thereafter recording the conclusion. The submission need not be dealt any further since we have already taken the view that the order dated 10th December, 2010 is not sustainable having been passed in violation of principles of natural justice.

The next submission of learned counsel for the petitioners is that the land which has been acquired, was earmarked in the master plan prevalent at the relevant time as green belt, hence without amending the land use of plots No.800 and 801, the same could not have been acquired. Learned counsel for the petitioners submitted that although this was the specific issue framed by the Division Bench while remitting the matter to the State Government for deciding the representation of the petitioners for release of land but the said issue has not been decided by the State Government. The Division Bench in its judgment and order dated 12th January, 2007 has noted two issues which were required to be considered by the State Government. Following is the order of the Division Bench regarding two issues which were required to be determined by the State Government:-

"Both the issues, namely, whether the process of acquiring the land is under the provisions of the Master plan in force and whether the land of the petitioners can be exempted from acquisition notifications under the Act require investigation into the facts. In the above matter, we find that the petitioners are handicapped as the record is with the authorities of the respondents as well as with the concerned local body, and in that view of the matter we deem it appropriate that these issues be decided by the State Government itself by affording reasonable opportunity to the petitioners and also to respondent no.3 for whose benefit the land has been acquired, after perusing the original record in connection with the two contentions of the petitioners (noted above)."

The issue to be considered by the State Government was as to whether the process of acquiring the land is under the provisions of the master plan in force. The petitioners in the writ petition have pleaded that land in dispute was situate within the regulated area of Ghaziabad and in the master plan the land in question (Plots No.800 and 801) was shown as green belt. Specific pleading in this context has been made in paragraphs 6 and 40(1) of the writ petition. Paragraph 6 has been replied by counter affidavit sworn by Arvind Kumar Pandey, Deputy Superintendent of Police in paragraph 7. The allegations were denied and it has been stated that the land in dispute was never included in the master plan as green belt. Reliance has been placed on a letter dated 12th March, 2007 of the Ghaziabad Development Authority which has been filed as Annexure CA-4 to the counter affidavit in which letter it was mentioned by the Ghaziabad Development Authority that land use of Plots No.800 and 801 according to Master Plan 2021 is 5 meter wide road and rest for office use and Plot No.800 is for office use. The petitioners in the representation before the State Government pleaded that land use of the plots under the master plan was as green belt. The State Government in paragraph 6 sub-paragraph (9) of its order dated 10th December, 2010 noted that in objection dated 27th April, 2007 of the petitioners it was not pleaded that land use of the land in question in the master plan is green belt. Reference to the letter dated 12th March, 2007 of the Ghaziabad Development Authority has also been made in the aforesaid paragraph in which the land use in the Master Plan 2021 was not as a green belt as noted above. Except noticing the above facts, no specific finding has been given by the State Government in its order that the land use of Plots No.800 and 801 at the relevant time i.e. on 26th February, 1981 was not the green belt. Reliance on the letter of the Ghaziabad Development Authority dated 12th March, 2007 at best can be the present land use of the land in dispute. In view of the aforesaid we proceed to consider the submission of the petitioners on the premise that land use of Plot No.800 and 801 at the relevant time was green belt.

Sri Manish Goyal, learned counsel for the petitioner submitted that land use of the plots being green belt under the master plan prevalent at the time of issuance of notification under Section 4, the land acquisition proceedings could not have been initiated unless the land use was permitted to be changed in accordance with the provisions of 1973 Act. It is submitted that acquisition of land is not permissible contrary to the land use as indicated in the master plan. Sri Goyal has placed reliance on the provisions of Sections 14, 16 and 17 of the 1973 Act. He submitted that Section 16 of the 1973 Act prohibits use of any land or building otherwise than in consonance with the master plan. Sri Goyal has placed reliance on the judgment of the Apex Court in the cases of State of Tamil Nadu and another vs. A. Mohammed Yousef and others reported in 1991(4) SCC 224, Maharashtra Housing and Area Development Authority and another vs. Gangaram and othes reported in 1994(2) SCC 489, State of Punjab and others vs. Sanjeet Singh Grewal and othes reported in 2007(6) SCC 292, Devender Kumar Tyagi and others vs. State of U.P. And others reported in 2011(9) SCC 164 and the Full Bench judgment of this Court in the case of Gajraj and others vs. State of U.P. and others reported in 2011(11) ADJ 1.

Sri C.B. Yadav, Additional Advocate General, refuting the submissions, has contended that there is no prohibition in acquiring the land even if the land is acquired for the purpose different to one as mentioned in the master plan. He submitted that prohibition in the master plan at best restrict the development of the land unless the land use is permitted to be changed in the master plan but there is no embargo on the State to exercise its right of eminent domain. It is submitted that the acquisition in the present case was not in exercise of powers under the U.P. Urban Planning and Development Act, 1973 and the provisions of the said 1973 Act does not prohibit acquisition of land. He has placed reliance on a Division Bench judgment of this Court in the case of Manju Lata Agrawal vs. State of U.P. And others reported in (2008)1 UPLBEC 211.

Before we proceed to consider the above submissions, it is useful to refer to the provisions of U.P. Urban Planning and Development Act, 1973 as relied by Sri Goyal. Section 14(1) of the 1973 Act provides that after the declaration of any area as development area, no development of land shall be undertaken or carried out or continued in that area by any person or body unless permission for such development has been obtained in writing from the Vice Chairman. Section 16 of the 1973 Act contains a prohibition regarding use of land otherwise than in conformity with such plan. Section 17 deals with compulsory acquisition of land. Sections 16 of and 17 of the 1973 Act are quoted below:-

16. Uses of land and buildings in contravention of plans.-After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise that in conformity with such plan :

Provided that it shall be lawful to continue to use, upon such terms and conditions as may be prescribed by bye-laws made in that behalf, any land or building for the purposes and to the extent for and to which it is being used upon the date on which such plan comes into force

17. Compulsory acquisition of land.- (1) If in the opinion of the State Government any land is required for the purpose of development or for any other purpose, under this Act the State Government may acquire such land under the Provisions of the Land Acquisition Act,1894:

Provided that any person from whom any land is so acquired may after the expiration of a period of five years room the date of such acquisition apply to the State Government for restoration of that land to him on the ground that the land has not been utilized within the period for the purpose for which it was acquired, and if the State Government is satisfied to that effect it shall order restoration of the land to him on re-payment of the charges which were incurred in connection with the acquisition together with interest at the rate of twelve in connection with the acquisition together with interest at the rate of twelve per cent per annum and such development charges as if any may have been incurred after acquisition.

(2) Where any land has been acquired by the State Government, that Government may, after it has taken possession of the land transfer the land to the Authority or any local authority for the purpose for which the land has been acquired on payment by Authority or the local Authority of the compensation awarded under that Act and of the charges incurred by the Government in connection with the acquisition."

A perusal of the above provisions of the 1973 Act indicate that prohibition contained in the aforesaid provisions is regarding development of land/use of land. Section 17 of the 1973 Act empowers the State Government to acquire land under the provisions of the Land Acquisition Act if any land is required for the purposes of development or for any other purposes under the 1973 Act. The acquisition under Section 17 of the 1973 Act thus is restricted when the Government is satisfied that the land is required for development or for any other purpose under the 1973 Act. The provisions of 1973 Act thus are applicable if the land is required under the 1973 Act. The acquisition in the present case has not been made on a request of any development authority or on the request of department of Urban Planning and Development in accordance with 1973 Act. The State has categorically taken the plea that acquisition of land is not under the 1973 Act. It is also relevant to note that petitioners have made an application before the State Government claiming release of the land under proviso to Section 17 of the 1973 Act on the ground that the land has not been used for 5 years. The said request was not acceded by the State Government on the ground that land having not been acquired under the 1973 Act, there is no occasion to consider the prayer for release of land under Section 17 of the 1973 Act.

The Constitution Bench of the Apex Court had occasion to consider the right of acquisition by the State Government in context of master plan in the case of Aflatoon and others vs. Lt. Governor of Delhi and others reported in AIR 1974 SC 2077. In the said case the land was acquired for planned development of Delhi. The acquisition was challenged in the Delhi High Court by filing a writ petition. The challenge was repelled by the High Court. Writ petitions and appeals were filed in the Apex Court challenging the acquisition. One of the submissions raised before the Apex Court was that there could be no planned development in Delhi otherwise than in accordance with the provisions of the Delhi Development Act which required preparation of master plan/development plan. There was similar provisions in Section 12(4) of the Delhi Development Act, 1975 akin to Section 16 of the 1973 Act and Section 15 of the Delhi Development Act akin to Section 17 of the 1973 Act. Section 12(4) and Section 15 of the Delhi Development Act are quoted below:-

"12(4) After the coming into operation of any of the plans in any area no development shall be undertaken or carried out in that area unless such development is also in accordance with such plans.

15(1) If in the opinion of the Central Government, any land is required for the purpose of development, or for any other purpose, under this Act, the Central Government may acquire such land under the provisions of the Land Acquisition Act, 1894.

(2) Where any land has been acquired by the Central Government, that Government may, after it has taken possession of the land, transfer the land to the Authority or any local authority for the, purpose for Which the land has been acquired on payment by the Authority or the local authority of the compensation awarded under that Act and of the charges incurred by the Government in connection with the acquisition."

The Apex Court repelling the submission, laid down following in paragraph 23 of the Aflatoon's case (supra):-

"23. The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force, but there was no inhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready (see the decision in Patna Improvement Trust v. Smt. Lakshmi Devi and Others(1). In other words, the fact that actual development is permissible in an area other than a development area with the approval or sanction of the local authority did not preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development. It has nothing to do with acquisition of property; acquisition generally precedes development. For planned development in an area other than a development area it is only necessary to obtain the sanction or approval of the local authority as provided in S. 12(3). The Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority. We do not think it necessary to go into the question whether the power to acquire the land under s. 15 was delegated by the Central Government to the Chief Commissioner of Delhi. We have already held that the appellants and the writ petitioners cannot be allowed to challenge the validity of the notification under s. 4 on the ground of laches and acquiescence. The plea that the Chief Commissioner of Delhi had no authority to initiate the proceeding for acquisition by issuing the notification under s. 4 of the Act as s. 15 of the Delhi Development Act gives that-power only to the Central Government relates primarily to the validity of the notification. Even assuming that the Chief Commissioner of Delhi was not authorized by the Central Government to issue the notification under s. 4 of the Land Acquisition Act, since the appellants and the writ petitioners are precluded by their laches and acquiescence from questioning the notification, the contention must, in any event, be negatived and we do so."

The Apex Court held in the aforesaid case that there was no inhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready.

In the case of State of Tamil Nadu vs. A. Mohammed Yousef (supra) relied by learned counsel for the petitioners acquisition of land in context of Madras State Housing Board Act, 1961 was under consideration. In paragraphs 4 and 7 of the judgment the Apex Court noted the salient feature of the 1961 Act which are quoted below:-

"4. As is indicated by the preamble of the Housing Board Act, the object of establishment of the Housing Board is to provide for the execution of housing and improvement schemes. The Act envisages eight types of schemes detailed in section 40, the housing scheme, as in the present case, being one of them. The framing of the schemes is dealt with in Chapter VII (Section 35 to 69) and Chapter VIII contain- ing sections 70, 71 and 72 provides for acquisition and disposal of land. Section 70 states that land required by the Board for any of the purposes of this Act may be ac- quired under the provisions of the Land Acquisition Act and accordingly the present land acquisition proceeding was commenced."

7. As has been stated earlier, Chapter VII containing sections 35 to 69 deals with the framing of the scheme. The Act has laid down separate procedures for the different types of schemes, according to necessity and suitability. Some of the schemes do not require acquisition of land, which is however, essential for constructing residential buildings under the housing scheme. Section 39 of the Act, therefore, while enumerating the matters to be included in the scheme, specifically mentions acquisition of land in clause (a). If the acquisition is contemplated as a subject matter of the scheme itself, it follows that it must await the preparation of the scheme wherein it will be included."

The Apex Court in the said case held that proceeding under the Land Acquisition Act read with Section 7 of the Madras State Housing Board Act, 1961 can be commenced only after framing the scheme for which the land is required. There are two reasons due to which the said judgment does not help the petitioners in the present case. Firstly the land acquisition in the said case was under the Madras State Housing Board Act, 1961 and secondly the acquisition in the said case was initiated for construction of houses by Tamil Nadu Housing Board constituted under Section 3 of the Madras State Housing Board Act, 1961. When the land was acquired under the Madras State Housing Board Act, 1961, the requirement of preparation of the scheme was held to be fulfilled before the steps were taken for acquisition. The present is not a case where the land is acquired for any development authority under the 1973 Act, hence the said case is not applicable and is clearly distinguishable.

The above judgment in State of Tamil Nadu vs. A. Mohammed Yousef case (supra) was subsequently referred to a three Judge Bench of the Apex Court for consideration in the case of State of Tamil Nadu and others vs. L. Krishnan and others reported in (1996)1 SCC 250. In State of Tamil Nadu vs. L. Krishnan case challenge to the acquisition proceeding was made before the High Court on the ground that there did not exist any final and effective scheme prepared under the Tamil Nadu State Housing Board Act, hence the acquisition was bad. The High Court relying on State of Tamil Nadu vs. A. Mohammed Yousef case (supra) allowed the writ petition and set-aside the acquisition. The State of Tamil Nadu and Tamil Nadu Housing Board filed appeal before the Apex Court. The Apex Court while allowing the appeal laid down following in paragraphs 16, 30 and 33:-

"16. In such circumstances, it would not be right to contend that unless a final and effective scheme prepared in accordance with the provisions of Chapter-VII of the Housing Board Act is in existence, the Government cannot issue a notification under Section 4 of the Land Acquisition Act for acquiring the land required for execution of the schemes by the Housing Board. To repeat, the Housing Board is obliged to execute not only the housing or improvement schemes prepared under the said chapter but also certain other schemes referred to in Sections 35 and 36. For example, the Government may conceive of a particular scheme and ask the Housing Board to execute on such terms and conditions as the Government may specify. In such a situation, there is no question of preparing a housing or improvement scheme by the Housing Board in accordance with the provisions of the Housing Board over again. So far as the scheme framed by the Government is concerned, there is no enactment governing it. It can, therefore, be a scheme as ordinarily understood. Similar would be the case where the scheme undertaken by a local authority is made over to the Housing Board by mutual agreement.

30. In Aflatoon and Ors. v. Lt. Governor of Delhi and Ors. MANU/SC/0437/1974 : [1975]1SCR802 , another Constitution dealt with a similar contention, viz., that before publishing the notification under Section 4, the Government had not declared any area in Delhi as a development area under Section 12(1) of the Delhi Development Act nor was there a Master Plan drawn up in accordance with Section 7 of that Act. The notification under Section 4 was attacked on that basis. It was argued that under Section 12(3) of the Delhi Development Act, no development of land can be undertaken or carried out except as provided in that Sub-section. This argument was negatived by the Constitution Bench holding that :

"The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force, but there was no inhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready (see the decision in Patna Improvement Trust v. Smt. Lakshmi Devi and Ors. MANU/SC/0389/1962 : [1963] Suppl. 2 SCR 812. In oilier words, the fad that actual development is permissible in an area other than a development area with the approval or sanction of the local authority did not preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development. It has nothing to do with acquisition of property; acquisition generally precedes development. For planned development in an area other than a development area it is only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3). The Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority."

33. For all the above reasons, we find it difficult to read the holding in Mohammed Yousef as saying that in no event can the land be acquired for the purpose of the Act/Board unless a final and effective scheme is framed by the Housing Board under the provisions of Sections 37 to 56. The said limitation applies only where the land is sought to be acquired avowedly for the purpose of execution of a housing or improvement scheme prepared by the Housing Board under Chapter-VII of the Tamil Nadu Housing Board Act. In other words, unless the notification under Section 4 of the Land Acquisition Act expressly states that land proposed to be acquired is required for executing a housing or improvement scheme (i.e., a final and effective scheme) framed by the Housing Board under the provisions of the Tamil Nadu Housing Board Act, the principle and ratio of Mohammed Yousef is not attracted. Mere statement in the notification that land is required for the purpose of the Housing Board would not by itself attract the said principle and ratio. In the instant appeals, the notifications do not even state that the land proposed to be acquired is meant for the purpose of the Housing Board."

In State of Tamil Nadu and others vs. L. Krishnan and others, the earlier two Judge judgment in State of Tamil Nadu vs. A. Mohammed Yousef was not followed.

The next judgment relied by Sri Goyal was a case of Maharashtra Housing and Area Development Authority and another vs. Gangaram and others reported in 1994(2) SCC 489. In the said case the Apex Court considered the Maharashtra Housing and Area Development Act, 1976 and following the judgment in State of Tamil Nadu vs. A. Mohammed Yousef held that it was incumbent before initiating the proceeding for acquisition under Section 41 of the Maharashtra Housing and Area Development Act, 1976 that there should be a scheme or plan prepared, approved by the Board and accepted by the State Government. Following was laid down in paragraph 3 of the said judgment:-

"3. .Section 28 of the MHADA Act postulates that subject to the provisions of the Town Planning Act and sub-sections (b) and (h) of Section 12(1) and Section 13 of the Metropolitan Act, the Authority has a duty to prepare or direct the Board to prepare and execute the proposals, plans or projects for providing housing accommodation in the State or any part thereof. Under clause (c) of Section 28(1) the proposals, plans or projects shall be prepared by the Board and are required to be approved under Section 28(1)(b) itself. Therefore, for any proposal for development of a housing accommodation scheme in the State or any part thereof the Authority or the Board is required to make a scheme and the scheme is to be approved by the Board. On approval thereof, it requires to be sent to the State Government. On the State Government agreeing with the proposal, then proceedings under Section 41 of the MHADA Act would be initiated to acquire the land for implementation of the approved scheme. In pari materia the T.N. Act, though envisages different schemes, the procedure to be followed is not different. In that Act also before initiating the proceedings under the Land Acquisition Act, 1894 as contemplated under Section 70 thereof approval of 1 (1 991) 4 SCC 224: JT (1 991) 3 SC 347 491 the Government for the proposed scheme is necessary. This Court interpreted similar language and held that the scheme was required to be approved by the State Government. It is, therefore, incumbent that before initiating the proceedings for acquisition under Section 41 of MHADA Act, there should be a scheme or a plan prepared and approved by the Board and accepted by the State Government. On its acceptance, action could be taken by the Government under Section 41 to acquire the land for the proposed scheme. It could be seen that the right to object for the proposed acquisition is not an empty formality. It is a valuable right given to the landowners. Once the scheme is formulated and proposal has been initiated for acquiring the land, it may be open to the landowners to point out by making relevant objections regarding the need of the land for the proposed acquisition. This Court had held in Mohd. Yousef case that in the absence of such an approved scheme, the proposal for acquisition is invalid and the objections were rightly held valid. The High Court has found in the judgment that "there is no proposal for area development scheme even in the documents so made available at the last moment purporting to be the proposal of the respondent-Authority. In this background it is difficult to uphold the validity of the preliminary notice dated April 17, 1984". In the light of this finding and in the light of the above view, the decision of the Bombay High Court in the impugned judgments cannot be said to be vitiated by any error of law warranting interference. It is made clear that this decision would apply to the notifications issued under Section 41 and published on and from January 12, 1994 and all notifications issued earlier would not become invalid or illegal. Equally all acquisitions relating to the proposals which became final, are not liable to be reopened, even though no approved scheme by the Board and accepted by the Government was in existence before publishing notification under Section 41. The appeals are accordingly dismissed but in the circumstances without costs."

The above case is distinguishable since in the said case also acquisition proceedings were initiated under Section 41 of the Maharashtra Housing and Area Development Act, 1976, hence the provisions of the 1976 Act were required to be followed. Moreso, State of Tamil Nadu vs. A. Mohammed Yousef having not been subsequently followed by three Judge Bench in the case of State of Tamil Nadu and others vs. L. Krishnan and others, the said judgment is also not applicable in facts of the present case.

The next judgment relied by Sri Goyal is in the case of State of Punjab and others vs. Sanjeet Singh Grewal and others. In the said case the State of Punjab had issued a notification under Section 4 of the Act for acquisition of about 9354 acres of land in 29 villages of district Ropar for public purpose, namely, for setting up a new town, Anandgarh. The acquisition was challenged on the ground that notifications have been issued in derogation of the provisions of the Punjab Regional and Town Planning and Development Act, 1995. It was contended that to set up a new town the site had to be selected by the Board constituted under the 1995 Act. The Apex Court in the said judgment held that 1995 Act was applicable, hence the acquisition had to take place in accordance with the 1995 Act. Following was laid down in paragraph 33 to 36 of the said judgment:-

"33. Having considered some of the important provisions of the Act of 1995 we shall now consider the submission urged on behalf of the appellants that the provisions of the Act of 1995 were not at all applicable to the acquisition in question. This submission must be rejected. It is not disputed that the land was sought to be acquired for setting up a new town. Admittedly, the impugned Notifications were issued at the behest of the Special Planning Agency constituted under Section 31 of the Act of 1995 invoking Section 42 of the Act which provides for acquisition of land for the purposes of the authority under the Act. The State Government exercising its power under Section 31 of the Act of 1995 constituted the New Town Planning and Development Authority, Anandgarh. It was this authority which made its recommendation to the State Government which was approved by the State Government. For the acquisition Section 42 of the Act of 1995 was invoked. In this factual background it is futile to contend that the provisions of Act of 1995 are not applicable to the acquisition in question. We agree with the High Court that the provisions of the Act of 1995 are clearly attracted to the acquisition in question, since the acquisition was for planning and development of a planning area under the Act of 1955.

34. We may also consider the submissions urged by the learned Additional Solicitor General at this stage. He submitted that the acquisition was sought to be made under the provisions of the Land Acquisition Act. According to him Section 56 of the Act of 1995 does not contemplate compulsory acquisition of land. The submission overlooks the fact that the various schemes contemplated by the Act of 1995 may, for their implementation, involve acquisition of land. It may be that some of the schemes within the contemplation of the Act of 1995 may not involve acquisition of land. This, however, does not justify the very wide submission that no acquisition of land is at all contemplated in connection with schemes declared under Section 56 of the Act. Depending on the nature of scheme framed for implementation, the planning authority may require land for its purposes and may, therefore, request the Government to invoke Section 42 of the Act which provides for acquisition of land for the purposes of the authority under the Act applying the provisions of the Land Acquisition Act. In this case admittedly the Planning Authority constituted under Section 31 of the Act requested the Government to acquire the lands in question by invoking Section 42 of the Act, for the purpose of setting up a new town, Anandgarh. The Scheme with which we are concerned in the instant case, therefore did involve acquisition of land and the Government did in fact issue the impugned Notifications for acquisition of land for the purposes of the aforesaid New Town Scheme.

35. The learned Additional Solicitor General also submitted that the High Court proceeded on the erroneous basis that a Scheme should first be formulated in detail before acquisition of land. We do not find that the High Court has committed such error. The High Court did not hold the acquisition to be bad on the ground that a detailed scheme had not been prepared, but on the ground that there was no valid scheme at all, and consequently no valid public purpose justifying the acquisition.

36. It was then contended that the State in exercise of its power of eminent domain may acquire lands under Section 4 of the Land Acquisition Act and it is not denuded of its power to acquire land merely because under the Scheme of some other Act a certain procedure had been prescribed for acquisition of land. In the facts of this case we are not persuaded to accept this submission. In the instant case, the lands were sought to be acquired for the purpose of implementation of a New Town Scheme and, therefore, the procedure laid down in the Act of 1995 had to be followed. The learned Additional Solicitor General submitted that if this be the correct legal position the State may be powerless in case the Board under the Act of 1995 did not select a site for a new town. This submission also has no force because under sub-section (2) of Section 14 of the Act of 1995, if required by the State Government the Board is bound to select a site for a new town. In the instant case, the State never called upon the Board to select a site, and instead a New Town Planning and Development Authority was constituted under Section 31 of the Act which arrogated to itself the powers and functions of the Board to select a site and make a recommendation to the State Government."

The said case is also clearly distinguishable since it was held that provisions of the Punjab Regional and Town Planning and Development Act, 1995 are attracted and site of new township was to be selected in accordance with the 1995 Act and acquisition proceedings were in breach of the 1995 Act.

In this context it is relevant to note another judgment of the apex Court in the case of Gandhi Grah Nirman Sahkari Samiti Ltd. And others vs. State of Rajasthan And others reported in (1993)2 SCC 662. In the said case the Apex Court had considered the Rajasthan Urban Improvement Act, 1959 in context of compulsory acquisition of land. Section 52 of the 1959 Act provided for compulsory acquisition of land. Section 52 of the 1959 Act, as quoted in paragraph 6 of the said judgment, was to the following effect:-

"52-Compulsory acquisition of land:- (1) where on a representation from the Trust or otherwise it appears to the State Government that any land is required for the purpose of improvement or for any other purpose under this Act, the State Government may acquire such land by publishing in the official Gazette a notice specifying the particular purposes for which such land is required and stating that the State Government had decided to acquire the land in pursuance of this section.

(2) Before publishing a notice under sub- section (1) the State Government shall by another notice call upon the owner of the land and any other person who in the opinion of the State Government may be specified in the notice, why the land should not be acquired.

Such notice shall be individually served upon the owner of the land and any other person, who in the opinion of the State Government may be interested therein. It shall also be published in the Official Gazette at least 30 days in advance and shall be posted on some conspicuous place in the locality, where the land to be acquired is situate. Such publication and pasting of notice shall be deemed as sufficient and proper service of notice upon the owner of the land and upon all other persons who may be interested therein'.

(3) Within the time specified in the notice, the owner of the land or any other person interested therein may show cause and make objections, why the land should not be acquired. Every such objections to the notice given under sub-section (2) shall be made in writing to the Officer-on Special Duty or any other officer appointed by the State Government for the purpose. Such officer shall give the objector an opportunity of being heard, either in person or by pleader and after hearing all such objections and after making such enquiry, as he deems necessary, submit the case for decision of the State Government together with the record of the proceedings held by him and a report, containing his recommendations on the objections. Thereafter, the State Government may pass such orders as it deems fit. The decision of the State Government thereon shall be final.

(4) When a notice under sub-section (1) is published in the Official Gazette, the land shall, on and from the date of such publication, vest absolutely in the State Government free from all encumbrances.

(5) Where any land is vested in the State Government under sub-section (4), the State Government may, by notice In writing, order any person who may be in possession of the land to surrender or deliver possession thereof to the State Government or any person duly authorised by it in this behalf thirty days of the service of the notice.

(6) If any person refuses or fails to comply with an order made under sub-section (5), the State Government may take possession of the land and may for that purpose use such force as may be necessary.

(7) After the land has been acquired and its possession taken, the State Government shall, on payment of the amount of compensation as determined under Section 53, the amount of interest thereon and of all other charges incurred by the State Government in this connection, transfer, it to the Trust or to any other prescribed authority or department for the purpose for which it is acquired.

(8) Any notice issued or published by the State Government under this section may also be issued or published for and on behalf of it by any officer subordinate to it, so authorised."

The argument was raised in the said case before the Apex Court that without framing a scheme under the 1959 Act the compulsory acquisition was not permissible by the State. The submission that framing of the scheme by the Trust under the Act is the sine qua non for compulsory acquisition of the land. The said argument was rejected and following was laid down in paragraphs 8 and 9 of the said judgment:-

"8. Improvement under the Act means, inter alia, the carrying out the building, engineering, mining or other operations in, on, over or under the land. The trust under Section 29 of the Act may frame schemes for the improvement of the urban area on its own initiative or on a representation made by the Municipal Board. Section 29 further makes it obligator on the trust to frame a scheme if so ordered by the State Government. Thus the State Government can take a decision at its own level to undertake an improvement and thereafter direct the trust to frame a scheme in that respect under the Act. Section 72 of the Act further indicates that apart from the trust any other department of the Government can undertake an improvement in accordance with the Master Plan. Section 52, which deals with compulsory acquisition of land, provides that the State Government may acquire land on a representation from the trust, or otherwise, which obviously means that the land under Section 52 of the Act can also be acquired when there is no representation from the trust and as such no scheme under Chapter V in existence.

9. Mr. Shanti Bhushan, learned counsel appearing for the appellants, has contended that the framing of a scheme by the trust under Chapter V of the Act is the sine quo non for invoking the provisions of Section 52 of the Act. According to him the State Government has no authority to acquire land under Section 52 of the Act unless the same is required for the execution of a scheme framed and sanctioned under Chapter V of the Act. The crux of the argument is that the improvement in the urban area can only be carried out by executing the schemes framed under the Act and in no other way. We do not agree with Mr. Shanti Bhushan. Under the Scheme of the Act the improvement of the urban area can be undertaken by the trust and also by any of the departments of the Government. The framing of the scheme becomes mandatory only when the work is undertaken by the trust. The State Government, in any of its departments, may decide to develop the urban area under the Act and in that case it would not be necessary for the Government to have a scheme framed under Chapter V of the Act. The power of the State Government to acquire land under the Act has been designed to meet the scheme of the Act. Under Section 52 of the Act the land can be acquired by the State Government at the instance of the trust, or a department of the Government or any prescribed authority. The plain language of Section 52(1) of the Act negates the contention raised by Mr. Shanti Bhushan. Where on a representation from the Trust or otherwise it appears to the State Government that any land is required for the purpose of improvement or for any other purpose under the Act it can acquire such land by issuing a notification under Section 52(1) of the Act. It is, thus, clear that the State Government has the power to acquire land either for the execution of the schemes framed by the trust under Chapter V of the Act or for any other public purpose under the Act. No fault can be found with the procedure followed by the State Government in this case. The notification issued by the State Government under sub-section (1) of Section 52 of the Act specifically states that the land was being acquired for the construction of residential, commercial and administrative buildings. The Government having taken a policy decision to acquire land for the public purpose was justified in issuing the notification under Section 52(1) of the Act in respect of the land in dispute. We, therefore, see no force in the contention of Mr. Shanti Bhushan and reject the same."

Another judgment which has been relied by the learned counsel for the petitioner is the apex Court judgment in the case of Devender Kumar Tyagi and others vs. State of Uttar Pradesh and others. In the said case the Apex Court considered the acquisition of land in context of National Capital Region Planning Board Act, 1985. The National Capital Region Planning Board Act, 1985 was enacted by the Parliament to provide for constitution of a Planning Board for the preparation of a plan for the development of the National Capital Region and for coordinating and monitoring the implementation of such plan and for evolving harmonised policies for the control of land uses and development of infrastructure in the National Capital Region. The district Ghaziabad was included in the National Capital Region. A plan for Leather City Project was submitted to the National Capital Region Planning Board which could not be approved by the National Capital Region Planning Board. The notifications under Section 4/6 were issued by the State Government which was challenged before the Apex Court by filing writ petition under Article 32 of the Constitution. The argument was raised that unless approval of Leather City Project as a sub-regional plan was obtained from the National Capital Region Planning Board acquisition could not have been undertaken. The Apex Court noted the relevant provisions of the National Capital Region Planning Board Act and noticing the provisions of the Section 27, which gives overriding effect to the provisions of the said Act, had held the acquisition bad. Following was laid down in paragraph 35 of the said judgment:-

"35. In the facts and circumstances of the present case, the respondents, vide its resolution dated 19.04.2005, had authorized the NCRPB to prepare Sub-regional plan of construction of the Leather City Project at Hapur in the district of Ghaziabad for the HPDA. Subsequently, the NCRPB issued a draft Sub-regional plan, wherein the Leather City Project was not mentioned. The respondents had made several requests to NCRPB to include Leather City Project but no reply granting approval has come in terms of Section 19(2) of the NCRPB Act. Section 19 of the NCRPB Act contemplates the grant of approval by the NRCPB, and finalization by the State Government, of the Sub-Regional Plan if it is in consonance and consistent with the Regional Plan for the National Capital Region. Furthermore, Section 29 of the NCRPB Act contemplates that the State Government shall not undertake any development activity, which is inconsistent with the Regional Plan for the National Capital Regional. Also, Section 27 of the NCRPB Act has overriding effect on any other inconsistent law or instrument. The overall scheme of the NCRPB Act contemplates common plan, coordination and harmony in the formulation of policy of land uses and development of infrastructure in the National Capital Region. Therefore, in our opinion, the acquisition of land in the absence of express approval in terms of Section 19 and operation of Section 27 of the LA Act renders the entire acquisition proceedings illegal and hence vitiated."

The above case does not help the petitioners in the present case since in the present case Section 4 notification was issued on 26th February, 1981 and Section 6 declaration was issued on 26th March, 1981 i.e. much before enactment of National Capital Region Planning Board Act, 1985. The judgment in Devender Kumar Tyagi's case (supra) was on the provisions of the 1985 Act which are not attracted in the present case acquisition being in earlier point of time.

Learned counsel for the petitioners has also placed reliance on a Full Bench judgment of this Court in the case of Gajraj vs. State of U.P. And others in which one of us (Justice Ashok Bhushan) was also a member. The Full Bench had occasion to consider the provisions of National Capital Region Planning Board Act, 1985. The aforesaid Full Bench case also does not help the petitioners since in the said case the acquisition was subsequent to 1985 Act.

The Division Bench judgment of this Court in Manju Lal Agrawal's case (supra) relied by the learned Additional Advocate General do support the submission of the learned Additional Advocate General. Following was laid down by the Division Bench in paragraphs 67, 68, 69 and 70 of the said judgment:-

"67. The issue as to whether the acquisition of the land is permissible by the Government for a purpose which is not in conformity of the lane; use shown in the Master Plan, was considered by the Constitution Bench of the Hon'ble Supreme Court in Aflatoon and Ors. v. Lt. Governor of Delhi and Ors. , wherein the Supreme Court held as under:

"23. The planned development of Delhi had been decided upon by the Government before 1959,viz.; even before the Delhi Development Act came into force It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force but there was no inhibition in acquiring land for phoned development of Delhi under the Act before the Master Plan was ready See the decision in Patna Improvement Trust v. Smt. Laxmi Devi. In other words, the fact that actual development is permissible in an area other than a development area with the approval or sanction of the local authority die not preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development. It has nothing to do with acquisition of property, acquisition generally precedes development. For phoned development in an area other than a development area, it is only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3) The Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority."

68. A Division Bench of this Court in Technical Associates Pvt. Ltd. v. State of U.P. and Ors. 1984 ALJ 1093, also took a similar view observing that where the land had partly been earmarked for industrial purpose and partly as greenbelt, it can be acquired for housing scheme as the Master Plan can be altered/amended by the State Government subsequent to the acquisition of the land. The only restriction in law is that the land should net be used in contravention of the Master Plan existing on the date of its use.

69. In Kendriya Karamchari Evam Mitra Sahkari Avas Samiti Ltd. and Anr. v. State of U.P. and Anr. 1988 UPLBEC 645, another Division Bench of this Court considered a similar issue and held that amendment of a Muster Plan is permissible with the approval of the State Government under Section 13 of the U.P. Urban Planning and Development Act, 1973 and the area shown as a greenbelt can be altered or modified by changing the Master Plan even subsequent to the acquisition of the land. The law does not require modification of the Master Plan prior to initiation of the proceedings for acquisition as acquisition generally precedes development and, therefore, the land can be acquired in anticipation of the approval of the State Government for change of land use in the Master Plan prepared by the Development Authority. The Court further observed as under:

...Where, therefore as here, the circumstances justify that possession should be taken immediately, that is, before it is too late, the Government could invoke the urgency clause even prior to according sanction to the proposed amendment of the Master Plan. Further, the authority competent to sanction the proposed amendments in the Master Plan is the same, namely, the Government which was to take the decision regarding acquisition of land as well for a housing scheme under a planned development covered by Section 17(1-A) of the Land Acquisition Act and consequently the Government could take the decision under Section 17(4) ever before sanctioning the proposed amendments to the Master Plan.

70. In view of the above, it is evident that there is no prohibition in law to acquire the land for the public purpose which is not in conformity or in consonance with the purpose shown in the Master Plan as the acquisition can be made in anticipation of amendment/modification of the Master Plan."

The judgment of the Apex Court in the case of Bhagat Singh vs. State of U.P. And others reported in (1999)2 SCC 384 fully clinches the issue. The facts of the said case needs to be noted first. The District Magistrate, Agra sent proposals to the U.P. Government for acquisition of 10.175 hectares of land in village Bainpur for construction of a market yard for fruits and vegetables. Notification under Section 4 was issued on 5th October, 1993. Section 6 declaration was issued on 6th October, 1994. The acquisition was questioned before the High Court. One of the grounds of challenge was that in the master plan the land use was "green belt" and it was therefore not permissible to acquire the land for locating fruits and vegetables market. In paragraphs 5 and 6 of the judgment, followings were noted:-

"5. It was this acquisition that was questioned in the batch of writ petitions in the High Court. The writ petitions raised two general issues, namely, that there was no such urgency which required dispensing with the inquiry Under Section 5A of the Act and that, that die land of the petitioners which was sought to be acquired was marked in the Master Plan for Agra for the use of 'light industries' and later as 'green belt' and it was therefore not permissible to acquire the same for locating the Fruits and Vegetables Market Yard for that would amount to violating the Master Plan. Some special points were raised in some of the writ petitions.

6. The High Court of Allahabad, in an elaborate Judgment rejected the above contentions and referred to the reasons given by the respondents in their respective Counter affidavits as sufficient for dispensing with the Section 5A inquiry. The High Court also held, following rulings of this Court and of the Allahabad High Court that even if the user for a market yard was not one of the permissible uses of the land as per the Master Plan, still once the land was acquired, the Market Committee could take steps to have the Master Plan suitably amended. The High Court also rejected the special points raised in some of the writ petitions."

The contentions of the petitioners were rejected by the High Court and the writ petitions were dismissed. The petitioners filed special leave petition before the Apex Court where the argument was again raised that acquisition could not have been made contrary to the land use as mentioned in the master plan. The said submission was noted in paragraph 19 which is to the following effect:-

"19. The next question relates to the contention of the appellants that under the Master Plan for Agra City, the land of the appellants which is proposed for acquisition is in an area where the permitted use is for 'light industries' and therefore it will not be permissible to use the acquired land for purposes of a market Yard. It is pointed out that, in fact, later on the permitted use was modified and the land is now shown as 'green belt'. On the other hand, it is submitted for the respondents that if the land is proved to have been acquired for a valid public purpose, then the beneficiary of the land acquisition can later on move the concerned authority for change of land use."

Referring to earlier judgment of the Apex Court in Aflatoon's case (supra), the Apex Court rejected the submission and laid down following in paragraphs 20, 21 and 22 of the said judgment:-

"20. An analogous issue arose in the case Aflatoon v. Lt. Governor of Delhi, . In that case a notification was issued Under Section 4(1) of the Act for acquisition of a vast extent of land for the planned development of Delhi. The said acquisition was questioned. On of the contentions was that for such a purpose, development, action had to be taken only under the Delhi Development Act, 1957 and that too by the Chief Commissioner of Delhi under that Act and not by the Central Government under the Land Acquisition Act. It was there argued that inasmuch as there was no Master Plan nor Zonal Plan in existence on the date of notification, the acquisition was bad. This Court rejected objection raised by the owners and observed, after referring to Sections 12 and 15 of the Delhi Development Act. 1957, as follows (para 23):

"The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of the Delhi Development Act after that Act came into force but there is no inhibition in acquiring land for planned development of Delhi under the act before the Master Plan was ready. (See the decision in Patna Improvement Trust v. Smt. Lakshmi Devi, [1963] Suppl. 2 SCR 312). In Other Words, the fact that actual development is permissible in an area other than a development area with the approval of sanction of the local authority did not preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development. It has nothing to do with acquisition of property; acquisition generally precedes development."

This Court observed :

"For planned development in an area other than a development area, it is only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3). The Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority. "

21. This above decision of this Court was followed by the Allahabad High Court in Kendriya Karamchari Evam Mura Sahkari Avas Samithi Ltd. etc. v. State of U.P., (1988) U.P.L.B.E.C. 645. It was held in that case that the government could acquire any property under the Act and later develop the same after obtaining the necessary approval of die concerned local authority under the Development Act. It was stated (at page 651) :

"Amendment of Master plan is permissible with the approval of the State Government Under Section 13 of the U.P. Urban Planning and Development Act, 1973 and in the present case the master plan showing the area in question as green belt was modified with the approval of the State Government which approval no doubt was accorded subsequent to the issue of notification Under Section 4 and 6. However, as observed by their Lordships of the Supreme Court the mere fact that till the date of the issue of the notification Under Section 4 the necessary approval of the Government had not been obtained can not preclude the Government from acquiring the land for planned development under the Land Acquisition Act. Acquisition generally precedes development and consequently the land in question could be acquired in anticipation of the approval of the State Government for the change of die land use of the Master plan prepared by the Development Authority."

22. As pointed out in the above Judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the Master Plan or Zonal Plan for the said area. Nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master plan or Zonal plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is given to the p beneficiary. On the principle stated in Aflatoon 's case, it is clear that acquisition for a public purpose and obtaining permission from competent authority under the concerned Development Act for change of land use are different from one another and the former is not dependent upon the latter.

In view of the foregoing discussions, we are of the view that acquisition of land for Police Line could not be held to be bad on the ground that land use in the master plan was green belt. The State despite the land use as green belt in the master plan could have proceeded to acquire the land. As has been noted above in the master plan 2021, which is current, the land use of the land is no longer green belt.

In view of the aforesaid, we are of the view that the land acquisition proceeding cannot be faulted with on the above ground. No case is made out to grant any relief in this regard to the petitioners.

The issue next to be considered is as to whether the petitioners are entitled for relief of quashing the notification under Sections 4 and 6 of the Act in these writ petitions. The notifications under Sections 4 and 6 of the Act were challenged by the petitioners in Writ Petition No.6900 of 1981. While deciding the said writ petition, the Division Bench noticed several developments which had taken place after filing of the writ petition. The said writ petition remain pending in this Court for 25 years. The Division Bench in its judgment dated 12th January, 2007 noted the developments in following words:-

"During the period this writ petition remained pending (about 25 years) there have been certain developments worth to be noticed. The writ petition was filed in the year 1981 by the aforesaid petitioners. This Court passed an interim order to the effect that "In the meanwhile the respondents are restrained from changing the nature of the land, building or cutting trees standing thereon". The aforesaid interim order was passed in view of the pleadings of the petitioners that they had certain buildings and tube-well etc. on the said land.

This writ petition was dismissed in default on 8.7.1992. It was restored on 30.4.2003. It was again dismissed for default on 12.2.2004 and again restored on 14.5.2004.

It is also to be noted that during pendency of the present writ petition, petitioner no.1/Nand Kishore died and substitution application was allowed, as consequence of which Rakesh Kumar son of Nand Kishore on the one side and Satya Prakash, Mahesh Chand and Bharat Bhushan on the other side claiming to be legal representatives of Nand Kishore prayed for being substituted in place of their father Nand Kishore. All the aforesaid persons were allowed to be substituted as legal representatives of the deceased Nand Kishore/petitioner no.1 subject to the condition that interest dispute amongst the legal representatives (if any) shall not be decided by this Court while hearing the writ petition. It is to be noted that Satya Prakash, legal representative no.1/1 was un-necessarily sought to be substituted as legal representative of Nand Kishore in as much as he was already party to the writ petition being petitioner no.3 and was pursuing the writ petition in his own right. The legal representative Ashok Garg son of Om Prakash/petitioner no.2 approached this Court claiming that the land in question has fallen in his share and his father has no concern with it and on the basis of the same he was also substituted in place of Om Prakash.

During pendency of the writ petition, another noticeable development has been that the petitioners approached the State Government for exemption of the land in question and to get the same de-notified on the ground that the need of the police department has already been met and satisfied as they had already acquired 23.77 acres of land by way of lease from the Ghaziabad Development Authority. The above fact is borne borne out from the letters of the Addl. District Magistrate (Land Acquisition) addressed to the Senior Superintendent of Police, Ghaziabad dated 21.2.1995 and 6.3.1995 (Annexures 1 and 2 to the supplementary affidavit sworn by Ashok Garg as Pairokar of Om Prakash/petitioner no.2 (appearing at pages 109 and 113 of the typed paper book supplied by the petitioner, which is on record."

The Division Bench in its judgment and order dated 12th January, 2007 had further observed following:-

"The learned Standing Counsel by referring to the said letter dated 9.11.2004 had made endeavor to point out that the State Government has finally rejected the prayer made by the petitioners for exempting their plots from the acquisition. After perusing the documents filed from either side in support of their respective contentions as to whether the land belonging to the petitioners can be exempted or de-notified, mere decision of the State Government contained in this letter dated 8.11.2004 is not satisfactory, as there is nothing on record to show that the contention of the petitioners has adequately been considered and there has been application of mind to the objections raised by the petitioners and thereafter decision taken.

We are of the opinion that when once the application of the petitioners for exemption of the plots in question from the land acquisition had been moved and the State Government had initiated inquiry, the petitioners should have been enabled to place their case before the State Government in order to facilitate and enable the State Government to decide the matter efficaciously taking into account all the relevant materials and circumstances of the case."

The Division Bench thus noticing the fact that petitioners themselves had represented the State Government for release of the land, disposed of the writ petition directing the State Government to consider the petitioners' representation. Two issues were required to be considered by the State Government as noted above i.e. (i) Whether the process of acquiring the land is under the provisions of the Master plan in force and (ii) Whether the land of the petitioner can be exempted from acquisition notifications under the Act. We have already held that land use in the master plan as green belt was not an impediment in acquiring the land. The another issue which required consideration by the State Government was regarding exemption of the land of the petitioners from acquisition notifications.

Learned counsel for the petitioners submitted that petitioners in the representation had prayed for quashing the notifications issued under Sections 4 and 6 of the Act, hence the petitioners are entitled to pray for quashing the notification in these writ petitions also.

The Division Bench while passing the judgment and order dated 12th January, 2007 did not grant the relief of quashing the notifications and had disposed of the writ petition directing the State Government to consider two issues as remitted to the State Government. The issue that acquisition was not in consonance with the master plan having already considered and rejected by us, we are of the view that petitioners are not entitled for relief of quashing the notifications issued under Sections 4 and 6 of the Act in these writ petitions moreso when in the earlier writ petition no such relief was granted. Relief which has not been granted shall be deemed to have been refused by the Court.

In view of the aforesaid, we are of the view that other submissions of the petitioners relating to challenge of notifications issued under Sections 4 and 6 of the Act, need no further consideration.

Learned counsel for the petitioners has placed much reliance on the subsequent order of the Division Bench dated 20th April, 2010 passed on the review/modification application filed by the petitioners. Copy of the order dated 20th April, 2010 passed on the review application, has been brought on the record as Annexure-17 to the writ petition. The petitioners in the review application prayed that Court should recall/review the judgment. The review application was disposed of on 20th April, 2010 by following order:-

"The petitioner has challenged in writ petition that the acquisition was bad and urgency clause could not be invoked. It appears that during the pendency of the writ petition, the petitioner has moved an application before the State government for exemption of the land on the ground that it was a abadi land. The State Government rejected the application, which was placed by learned standing counsel before the court. The court went through the order and came to the conclusion that the order was a non-speaking order and directed the petitioner to make a fresh representation before the State Government which was to be decided by the State Government in accordance with law by a reasoned and speaking order. The State Government has not yet decided the application of the petitioner.

Learned counsel for the applicants have urged that since they have challenged the land acquisition proceedings. Therefore, this Court should review matter and hear the petition with regard to invoking of urgency clause raised by learned counsel for the petitioners.

Having heard learned counsel for the parties, we are of the considered opinion that once the final decision is taken by the State Government in the light of directions given by this Court on 12.01.2007. It shall be open to the petitioner that to challenge the order passed by the State Government by way of filing a fresh writ petition and it shall be open to petitioner to challenge the land acquisition proceedings as well. But, first the applicant should wait for the order of the State Government on his exemption application.

Learned standing counsel informed the Court that he is not in a position to state whether order had been passed by the State Government. If order had not been passed then the decision on the petitioners' application which has been pending since 2007 shall be taken by the State Government within a period of two months by passing a reasoned and speaking order.

The review and recall applications stands disposed of with a direction to the State Government to take a final decision in the matter within a period of two months and he shall send a copy of the order to the petitioner by registered post.

The aforesaid directions shall be complied by the State Government within the aforesaid period from the date a certified copy of this order is produced before the State Government."

A perusal of the above order indicates that by the aforesaid order dated 20th April, 2010 the Division Bench did not review/recall the earlier judgment dated 12th January, 2007. The judgment and order dated 12th January, 2007 thus remain in tact and was not diluted in any manner. The ultimate direction in the review/recall application was contained in last but one paragraph which was to the following effect:-

"The review and recall applications stands disposed of with a direction to the State Government to take a final decision in the matter within a period of two months and he shall send a copy of the order to the petitioner by registered post.

Thus the ultimate order in the review application was direction to the State Government to take a final decision within a period of two months. It is true that Division Bench has also made observation in 6th paragraph of the judgment that it shall be open to the petitioners to challenge the order passed by the State Government by filing a fresh writ petition and it shall also be open to the petitioners to challenge the land acquisition proceeding. The liberty was given to the petitioners to challenge the order of the State Government as well as land acquisition proceedings. The liberty given to challenge the order of the State Government and proceedings of acquisition can have no effect on the earlier final judgment between the parties dated 12th January, 2007. By judgment dated 12th January, 2007, the relief for quashing the notifications have been deemed to be refused, the petitioners cannot be granted the said relief of quashing the notifications in these writ petitions specially when the issue that acquisition was bad being contrary to land use in the master plan has already been considered and decided against the petitioners. The petitioners thus are not entitled for the relief of quashing the notifications issued under Sections 4 and 6 of the Act.

Learned counsel for both the parties have also raised submissions regarding possession of the land. Learned counsel for the petitioners submitted that possession of land was never taken by the State in accordance with law. It is submitted that possession memo dated 5th May, 1981 brought on the record along with the counter affidavit sworn by Arvind Kumar Pandey as Annexure CA-5 clearly indicates that the said possession memo is not signed by any of the petitioners, hence taking of possession is not in accordance with law. Learned counsel for the petitioners has placed reliance on the judgment of the Apex Court in the case of Banda Development Authority vs. Moti Lal Agarwal.

Learned Additional Advocate General on the other hand submitted that possession was taken by the State on 5th May, 1981 and the land is being utilised for purpose of training of police personnels although no construction could be made by the respondents in the land due to the interim order which was passed in the writ petition restraining the respondents from changing the nature of the land.

The State Government having not decided the application under Section 48 of the Act filed by the petitioners for release of the land in accordance with law, we are of the view that State Government is obliged to decide the petitioners' application under Section 48 of the Act despite the plea of the State that it is in possession of the land and using the land for the purposes of training center.

Now comes the question as to what relief the petitioners are entitled in these writ petitions in view of the discussions made above. We have already held that the order dated 10th December, 2012 passed by the State Government, has been passed in violation of principles of natural justice as the petitioners were not given any opportunity of hearing by the Principal Secretary (Home) after the file was sent from the Department of Nagar Vikas to the Department of Home nor even a date is claimed to have been fixed for hearing after the State Government took a decision that representation be decided by the Principal Secretary (Home). The order dated 10th December, 2010 having been passed in violation of principles of natural justice cannot be sustained and is hereby set-aside. The State Government is thus obliged to consider the petitioners' representation a fresh for release of the land under Section 48 of the Act.

In result, the order dated 10th December, 2010 is set-aside. The matter is remitted to the State Government to consider the representation of the petitioners for release of the land under Section 48 of the Act. A date for hearing be fixed by the State Government and the petitioners shall be afforded an opportunity of personal hearing before deciding the representation. The State Government shall take appropriate decision within a period of two months from the date of production of a certified copy of this order before it.

Both the writ petitions are partly allowed to the extent indicated above.

Order Date :- 10.4.2013

Rakesh