Bhagwan Das Sharma & Others vs State Of U.P. & Others
2016 Latest Caselaw 7187 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 10
 

 
Case :- WRIT - C No. - 31212 of 2009
 

 
Petitioner :- Bhagwan Das Sharma & Others
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- R.D. Tiwari,M.D. Singh "Shekhar"
 
Counsel for Respondent :- C.S.C.,Ramendra Pratap Singh
 

 
Hon'ble Arun Tandon,J.

Hon'ble Mrs. Sangeeta Chandra,J.

Heard Sri M.D. Singh "Shekhar", learned Senior Advocate assisted by Sri R.D. Tiwari, learned Advocate on behalf of the petitioners, Sri M.C. Chaturvedi, learned Senior Advocate assisted by Sri Ramendra Pratap Singh, learned Advocate on behalf of respondent-New Okhala Industrial Development Authority and Smt. Subhash Rathi, learned Additional Chief Standing Counsel on behalf of the State-responses.

The present writ petition has been filed by 12 petitioners challenging the notification issued under Section 4 of the U.P. Land Acquisition Act, 1894 (hereinafter referred to as the "Act, 1894") dated 13th June, 2008 as well as the notification issued under Section 6 of Act, 1894 dated 26th March, 2009.

During the pendency of the present writ petition, petitioner nos. 1 and 2 have expired. Their legal heirs have been substituted under the order of the Court dated 15th October, 2015.

Facts relevant for deciding the present writ petition are as follows:

Plot No. 579, village Chhalera Banger (Sector-39 NOIDA), Tehsil Dadri, District Gautambudh Nagar is subject matter of dispute in the preset writ petition.

Petitioners, before this Court claim to be the recorded tenure holders of the said plot. Area of 13090 square meters of the said plot no. 579 is subject matter of acquisition proceedings under the aforesaid notifications.

According to the petitioners, the same land was earlier subject matter of acquisition proceedings in the year 1988 . The purpose for acquisition as disclosed was for construction of approach link road to Okhla Bairaj. These acquisition proceedings had to be dropped for non-deposit of the money by the authority for which land was proposed to be acquired.

A proposal in respect of the acquisition of the same land was submitted by the New Okhala Industrial Development Authority (for short "NOIDA") on 29th September, 2006. Survey was done in the respect of the land in question and ultimately after more than one and half years to be precise on 13th June, 2008 notification under Section 4 of the Act, 1894 after invoking the powers in exercise of powers under Section 17 of Act, 1894 was published, which was followed by notification under Section 6 read with Section 17 of the Act, 1894 dated 26th March, 2009.

According to the petitioners there was no justification for exempting the provisions of Section 5-A of the Act, 1894 in the facts of the case for two reasons:

(a) same land was proposed to be acquired for construction of a road in the year 1988 and for nearly 18 years no attempt was made by the State Government to acquire the land afresh and the proceedings were dropped with reference to the notification of 1988 and

(b) proposal in respect of acquisition in question was submitted in the month of September, 2006. It took nearly one year and nine months for the State Government o came out with notification under Section 4 of Act, 1894 and thereafter ti took another nine months time to issue notification under Section 6. The purpose disclosed for the acquisition of the land under notifications is planned development of the area sought to be acquired through NOIDA.

Learned counsel for the petitioners submits that the facts as noticed above, clearly demonstrate that there was absolutely no urgency for the acquisition of the land, and therefore, invocation of the power under Section 17 of Act, 1894 was totally uncalled for.

Learned Standing Counsel as well as learned counsel for the NOIDA in reply to the said contention raised on behalf of the petitioners point out that after the acquisition in the year 1988 the road had been constructed but the completion thereof had to be dropped because of acquisition proceedings could not be completed. It is then stated that time taken between the notification issued under Section 4 of Act, 1894 and the notification issued under Section 6 of Act, 1894 is admittedly 9 months and there was an urgency in the matter of providing a bye-pass from NOIDA to Delhi (Kalindi Kunj) in order to avoid heavy traffic and congestion on the road. It is further submitted that except for under-pass major portion of the bye-pass had already been completed. Because of the interim order passed in the present writ petition, the said under-pass and utilization of the bye-pass has been put to on hold. It is contended that in larger public interest this Court may not interfere with the acquisition proceedings in question.

While hearing the present writ petition, we did make an attempt to ascertain as to what would be the area required by the NOIDA for construction of bye-pass. From the affidavit filed by the District Magistrate, Gautambudh Nagar under our order dated 24th October, 2016, it is apparent that total area of 2300 square meters of plot no. 579, village Chhalera Banger would be required for the purpose.

The issue with regard to the invocation of urgency clause by exercising powers under Section 17 of Act, 1894 and dispensing of the right to which the recorded tenure holder would be entitled under Act, 1894 before their land is acquired has been dealt with by the Apex Court in the case of Radhey Shyam (Dead) Through Lrs. And Others versus State of Uttar Pradesh And Others reported in (2011) 5 SCC 553. For ready reference, the relevant paragraphs of the said judgment are being quoted herein below:

"77. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out:

(i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner's consent provided that such assertion is on account of public exigency and for public good. - Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal Chowdhuri v. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat (1995) Supp. (1) SCC 596.

(ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly - DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana (2003) 5 SCC 622; State of Maharashtra v. B.E. Billimoria (2003) 7 SCC 336 and Dev Sharan v. State of U.P., Civil Appeal No.2334 of 2011 decided on 7.3.2011.

(iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one's property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner is likely to become landless and deprived of the only source of his livelihood and/or shelter.

(iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the land owner or other interested persons.

(v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired.

(vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the concerned authorities did not apply mind to the relevant factors and the records.

(vii) The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word "may" in sub- section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub-section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1).

(viii) The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Section 17(1) and/or 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years. Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Section 5-A (1) and (2) is not at all warranted in such matters.

(ix) If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition.

78. The stage is now set for consideration of the issue whether the State Government was justified in invoking the urgency provision contained in Section 17(1) and excluding the application of Section 5-A for the acquisition of land for planned industrial development of District Gautam Budh Nagar. A recapitulation of the facts shows that upon receipt of proposal from the Development Authority, the State Government issued directions to the concerned authorities to take action for the acquisition of land in different villages including village Makora. The comments/certificate signed by three officers, which was submitted in the context of Government Order dated 21.12.2006 was accompanied by several documents including proposal for the acquisition of land, preliminary inquiry report submitted by the Amin, Land Acquisition, copies of khasra khatauni and lay out plan, 10 per cent of the estimated compensation and a host of other documents. In the note dated nil jointly signed by Deputy Chief Executive Officer, Greater Noida, Collector, Gautam Budh Nagar and four other officers/officials, the following factors were cited in justification of invoking the urgency provisions:

(a) The area was notified under Uttar Pradesh Industrial Areas Development Act, 1976 for planned industrial development.

(b) If there is any delay in the acquisition of land then the same is likely to be encroached and that will adversely affect the concept of planned industrial development of the district.

(c) Large tracts of land of the nearby villages have already been acquired and in respect of some villages, the acquisition proceedings are under progress.

(d) The Development Authority urgently requires land for overall development, i.e. construction of roads, laying of sewerages, providing electricity, etc. in the area.

(e) The development scheme has been duly approved by the State Government but the work has been stalled due to non- acquisition of land of village Makora.

(f) Numerous reputed and leading industrial units of the country want to invest in the State of Uttar Pradesh and, therefore, it is extremely urgent and necessary that land is acquired immediately.

(g) If land is not made available to the incoming leading and reputed industrial concerns of the country, then they will definitely establish their units in other States and if this happens, then it will adversely affect employment opportunities in the State and will also go against the investment policy of the Government.

(h) If written/oral objections are invited from the farmers and are scrutinized, then it will take unprecedented long time and disposal thereof will hamper planned development of the area.

(i) As per the provisions of the Act, there shall be at least one year's time gap between publication of the notifications under Sections 4 and 17 and Section 6.

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

80. In this case, the Development Authority sent proposal some time in 2006. The authorities up to the level of the Commissioner completed the exercise of survey and preparation of documents by the end of December, 2006 but it took one year and almost three months to the State Government to issue notification under Section 4 read with Section 17(1) and 17(4). If this much time was consumed between the receipt of proposal for the acquisition of land and issue of notification, it is not possible to accept the argument that four to five weeks within which the objections could be filed under sub-section (1) of Section 5-A and the time spent by the Collector in making inquiry under sub-section (2) of Section 5-A would have defeated the object of acquisition.

81. In this context, it is appropriate to note that the time-limit for filing objection under Section 5-A(1) is only 30 days from the date of publication of the notification under Section 4(1). Of course, in terms of sub-section (2), the Collector is required to give opportunity of hearing to the objector and submit report to the Government after making such further inquiry, as he thinks necessary. This procedure is likely to consume some time, but as has been well said:

"8. ....Principles of natural justice are to some minds burdensome but this price--a small price indeed-- has to be paid if we desire a society governed by the rule of law."

Judged on the parameters of the legal position so laid down by the Apex Court in the case of Radhey Shyam (Supra), we have no hesitation to record that the State Government has hopelessly failed to establish any urgency for justifying the invocation of powers under Section 17 of Act, 1894 in the facts of the case.

We may also record that the same land was subject matter of acquisition proceedings of the year 1988 practically for the same purpose, namely constructions of road, which could not be completed because the Authority for which the land was proposed to be acquired, failed to deposit the requisite money. It took 18 years for fresh proposal for acquisition of the same land practically for the same purpose. Proposal was submitted in the month of September, 2006. The State Government took one year and 9 months to decide the objections thereto and ultimately came out with the notification under Section 4 of the Act, 1894 on 15th September, 2006. Thereafter it took nine months time to publish the notification under Section 6 of the Act, 1894.

We are more than satisfied that in view of the time lag between the date of proposal till the date of publication of notification under Section 6 of the Act, 1894, the Sate Government was not justified in invocation of powers under Section 17 of the Act, 1894.

We are, therefore, of the opinion that the exclusion of the opportunity of hearing as contemplated by Section 5-A of Act, 1894 in the facts of the present case is totally unjustified, as a result whereof the acquisition proceedings shall fall.

This takes the Court to the other issue, which is involved in the present writ petition, namely, should the Court permit the State Government to have possession of only 2300 square meters of land of plot no. 579, so that the constructions of under-pass, which is more than half complete, may be completed in larger public interest or not.

This question needs consideration in the background that even if we quash the notifications impugned, power of State to acquire the land in question afresh is not lost. But this will only take more time. We are also conscious of the principle that larger public interest must prevail over private interest.

In order to balance the equity between the larger public interest and private interest of the petitioners, we had inquired from the State Government and the NOIDA as to whether they would be ready and willing to pay compensation for 2300 squares meters of land of plot no. 579 for constructions of under-pass in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the "Act, 2013") or not.

We may record that both the learned Additional Chief Standing Counsel as well as learned counsel for the NOIDA made a categorical statement of fact before us that they are ready and willing to pay compensation for this 2300 square meters of land of plot no. 579, which is required for construction of under-pass in terms of the reported submitted by the District Magistrate in accordance with the provisions of Act, 2013.

In view of the statement so made we allow the present writ petition subject to the following directions:

1. The State Government shall be entitled to retain possession of 2300 square meters of the land of plot no. 579 in terms of the notification issued under Section 4 of Act, 1894 dated 13th June, 2008 followed by notification under Section 6 of the Act, 1894 dated 26th March, 2009 required for the under-pass.

2. For remaining area of plot no. 579, the acquisition proceedings under Section 4 of Act, 1894 dated 13th June, 2008 followed by notification under Section 6 of the Act, 1894 dated 26th March, 2009 are held to be bad and declared inoperative in the eyes of law.

3. The petitioners shall be entitled to retain possession of the land other than that required for constructions of under-pass i.e. 2300 square meters of land of plot no. 579.

4. The District Magistrate, Gautambudh Nagar shall demarcate the land which is required i.e. 2300 square meters of land of plot no. 579 for construction of under-pass and which the State can retain.

5. Compensation for this 2300 square meters of land shall be calculated as per the provisions of Act, 2013 and paid to the petitioners within two months from today through treasury cheques.

(Sangeeta Chandra, J.)                                  (Arun Tandon, J.)
 
Order Date :- 24.11.2016
 
Sushil/-
 

 

 

 
Case :- WRIT - C No. - 31212 of 2009
 

 
Petitioner :- Bhagwan Das Sharma & Others
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- R.D. Tiwari,M.D. Singh "Shekhar"
 
Counsel for Respondent :- C.S.C.,Ramendra Pratap Singh
 

 
Hon'ble Arun Tandon,J.
 
Hon'ble Mrs. Sangeeta Chandra,J.
 
Allowed.
 
For orders, see our or date passed on the separate sheets.
 
          
 

 
(Sangeeta Chandra, J.)            (Arun Tandon, J.)
 
Order Date :- 24.11.2016
 
Sushil/-