Case: Nand Kishore Gupta  Vs. State Of U.P

is a strong possibility of encroachment on the land, which will affect the Project of Y.E.I.D.A. in public interest. In para 4 it was stated that hearing of oral and written objections will take several years causing indefinite delay in construction of interchange. The proposal was forwarded with recommendation signed by the Under Secretary, Industrial Development, Government of U.P., Special Secretary, Industrial Development ; Shri Arun Kumar Sinha, Secretary, Rehabilitation and Industrial Development Department; Government of U.P.; Shri V.N. Garg, Principal Secretary, Rehabilitation and Development, Government of U.P. on 12.2.2009 and by Shri Shailesh Krishna, the Principal Secretary to Chief Minister on 18.2.2009.As regard the acquisition of land for Y.E.I.D.A. for interchange in village Malupur for construction of Yamuna Expressway, Pargana Atmadpur, district Agra for acquisition of 4.5322 hects. of land the proposal with recommendation of District Magistrate, Agra on Form-X and the justification similar to and in the same language as in the case of village Kuberpur, district Agra was placed before the State Government alongwith the notings. The proposal bears recommendations and signature of Under Secretary, Industrial Development Department, Government of U.P. on 23.10.2008 ; Special Secretary, Industrial Development, Government of U.P. on 24.10.2008; Principal Secretary, Industrial Development and Commissioner on 30.11.2008 ; Special Secretary, Industrial Development on 10.12.2008 and the Secretary to Chief Minister on 15.12.2008.For village Tappal in Tehsil Khair, district Aligarh proposal for acquisition of 48.572 hect. of land for Y.E.I.D.A. for construction of Yamuna Expressway with the recommendation of the District Magistrate and justification for invoking urgency clause was placed before the State Government and was recommended and signed by the Under Secretary and Special Secretary, Industrial Development Department on 16.1.2009 ; Secretary, Rehabilitation and Industrial Development, Department of Government of U.P. on 16.1.2009 ; Principal Secretary, Industrial Development on 16.1.2009 and by the Secretary to the Chief Minister on the same day on 16.1.2009. The proposals were accepted by the State Government for acquisition and for invoking urgency clause for construction of Yamuna Expressway by Y.E.I.D.A." Ultimately, the High Court wrote a finding in the following words:- "The record produced before us by the State Government enclosing the material of invoking urgency clause and the satisfaction of the State Government on the said material, has satisfied us that the State Government had sufficient material and had applied its mind to record its opinion that there was urgency to acquire the land to dispense with the enquiry under Section 5A of the Act." We have deliberately quoted the above part of the High Court judgment only to show the meticulous care taken by the High Court in examining as to whether there was material before the State Government to dispense with the enquiry under Section 5A of the Act. We are completely convinced that there was necessity in this Project considering the various reasons like enormousness of the Project, likelihood of the encroachments, number of appellants who would have required to be heard and the time taken for that purpose, and the fact that the Project had lingered already from 2001 till 2008. We do not see any reason why we should take a different view than what is taken by the High Court. The law on this subject was thoroughly discussed in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. [2009 (10) SCC 689 ], to which one of us (V.S. Sirpurkar) was a party. In that decision also, we had reiterated that the satisfaction required on the part of Executive in dispensing with the enquiry under Section 5A is a matter subject to satisfaction and can be assailed only on the ground that there was no sufficient material to dispense with the enquiry or that the order suffered from malice. It was also found on facts in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. (cited supra) that there was no charge of malafide levelled against the exercise of power and there was material available in support of the satisfaction on the part of the Executive justifying the invocation of the provisions of Section 17. The position is no different in the present case. The High Court in the present matter went a step ahead and examined the bulky original record itself to find that there was full material available.40. We are not impressed by the argument that the encroachment issue was not a relevant factor. This argument was based on the reported decision in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra). It must be said that the actual scenario in that case was different. In that case, the Court was considering the acquisition of area of about 500 acres comprising of 437 plots, whereas, in the present case, the area to be acquired for the Expressway alone was more than 1,600 hectares. This is apart from the 25 million square meters of land which was liable to be acquired for the purposes of development of 5 land parcels. There was interlinking between the acquisition of land for the highway and the acquisition of land for establishing the 5 townships. In Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra), there was unexplained delay after issuance of Section 4 notification, which is not the case here. Therefore, we do not think that what has been said in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra) would be apposite here. Every case has to be decided on its own facts. This is apart from the fact that it is not specifically laid down in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra) that the encroachment was never a relevant factor for dispensing with the enquiry under Section 5A. Again we hasten to add that this was not the only factor considered by the State Government and even the High Court has not held the same to be the only factor for dispensing with the enquiry.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]23. We have now to see as to whether the challenge posed by the appellants herein about this acquisition not being for public purpose is justified or not. Shri Ranjit Kumar, Shri Debol Banerjee, learned Senior Counsel and Ms. Meenakshi Arora, learned Counsel appearing on behalf of the appellants, vehemently urged that this acquisition, in the first place, is colourable exercise of power. All the learned Counsel urged that the very nature the whole transaction showed was that the whole acquisition was tailor made for the respondent Company. The learned Counsel further urged that it was meant only for the benefit of the Company, inasmuch as, though the acquisition should have been made under the provisions of Part VII of the Act, it was carried out in terms of the provisions of the Part II of the Act, citing this to be an acquisition for public purpose. According to the learned Counsel, there already existed a road which was a functional road and Yamuna Expressway is only an excuse to develop the feeder road to connect the five proposed townships. The learned Counsel urged that the huge land of 25 million square meters has virtually been handed over to the respondent Company on a platter and, therefore, all this exercise was clearly not for the public purpose. It was further urged that theConcession Agreement dated 7.2.2003 wasinasmuch as, even if it was terminated, the land which was given to the Company for development, would have remained unaffected. It was further urged that considering the length of the lease period of 90 years, the land was virtually given to the Company for ever, and it was nothing but transferring the same in favour of the Company. It was then pointed out that it was only the Expressway which would revert back to the Government after 36 years, but not the land measuring about 25 million square meters, which would be wholly managed by the Company. In fact, the learned Counsel argued that this cannot be said to be an integrated Project, as the land for Expressway and the land for development have been treated on an entirely different and unequal footing. It was also pointed out that the present purpose was not a public purpose as envisaged in Section 3(f) of the Act. The learned Counsel pointed out that from the Agreement itself, it is clear that the entire cost of the acquisition is going to be borne by the Company and, therefore, there can be no doubt that the acquisition is for the Company and not for the public purpose. The learned Counsel argued that merely because the Company has paid the entire cost of acquisition alongwithRs.100/- per hectareper year by way of premium, it cannot be denied that it is only the private respondent who is bearing the entire cost of the acquisition and the State Government/YEIDA has not contributed anything. Heavily relying on the decision in Pratibha Nema & Ors. Vs. State of M.P. & Ors. [2003 (10) SCC 626 ], the learned Counsel argued that this issue needs to be addressed by this Court on the backdrop of this case.The High Court has refuted all these contentions by giving good reasons. We will not go into these individual cases once the High Court has decided not to entertain these plea and, in our opinion, correctly. After all, this was an acquisition for building up a highway and the abovementioned Writ Petitions pertained to the land required for interchange. It is obvious that the alignment of the highway cannot be changed, as its design has been prepared after consideration of so many factors by the experts in building the road. Its direction or alignment, therefore, cannot be changed, with the result, the area which is required for interchange, also cannot be changed. This is a typical example of the individual having to sacrifice his land for the public good. There can be no dispute that this road would add to the betterment of the citizens of the East Yamuna area in particular and Uttar Pradesh in general. This is apart from the fact that the majority of the persons whose lands have been acquired, have either not objected to it or have accepted the compensation without any demur. It will, therefore, not be possible for us to go into these individual grievances, which have been rightly rejected by the High Court. In fact, in Balbir Singhs case, it was pointed out that out of the 12,315 affected farmers in 133 villages over the total area of 1,638 hectares of the Expressway, 11387 have already received compensation and only 142 farmers have raised the issues. The High Court has rightly held that the private interest is always affected to some extent in such large schemes requiring the acquisition of land. The High Court has rightly held that a holistic view had to be taken to look for an all round development without forgetting about our heritage, culture and traditions. We also, therefore, would not entertain the objections, feebly raised before us, individually.This takes us to the next point pertaining to the application of Sections 17(1) and 17(4) of the Act. The learned Counsel for the appellants have vociferously urged that there was no necessity whatsoever to apply the urgency clause to these acquisitions and further to avoid the enquiry under Section 5A of the Act. According to the learned Counsel, this dispensation of Section 5A enquiry was not only unjust, but added to the sufferings of the appellants who had lost their fertile land. It was pointed out that this Project was slumbering since 2001 and it was in order to infuse fictitious urgency that a reference to the Commonwealth Games was made. According to the appellants, Right to be heard was akin to the Fundamental Rights and its breach has rendered the whole acquisition exercise illegal. Numbers of authorities were relied upon by the appellants. The respondents, on the other hand, argued that there was material available before the Government justifying the invocation of the urgency clause. The respondents argued that, in fact, the High Court has returned the finding that there was material before the State Government for dispensing with the enquiry under Section 5A of the Act and that finding was based on the examination by the High Court of the records of the State Government. It was pointed out that going through the ordinary procedure for acquisition of land would have taken years for disposal of the objections while land was urgently required for public purpose, in this case, the construction of interchange under the Yamuna Expressway Project, which was absolutely essential for the purposes of running the highway. It was also pointed out by the respondents that because of the unnecessary litigation in the enquiries, the Project was hopelessly delayed and the cost had gone up from Rs.1,700 crores to whopping Rs.9,700 crores. It was also further pointed out that any waste of time would have invited the encroachments on the land, which would have added to the further trouble. The enormousness of the Project which required acquisition of 1,604 hectares of land involving 12,283 farmers, would have taken years if the enquiry under Section 5A was permitted and thereby, the cost would have still further soared up. Numbers of authorities were relied upon by the. The first and foremost thing which we must keep in mind while deciding these matters is that at least in the present two matters (Balbir Singhs case decided on 5.10.2009 and Nand Kishores case decided on 30.11.2009), the subject related only to the acquisition of few hectares of land as compared to the acquisition of large chunk which has not been challenged. Further, it is an admitted position that majority of the acquisition proceedings are over. In Balbir Singhs case also, the persons who challenged the Project, were 9 in number, owning about 7.09 hectares of land i.e. about 0.42% of the total land. It has been strongly argued on behalf of the State, the Company and YEIDA that the major activity of land acquisition process is over. It has been noted in Balbir Singhs case that out of the 12,315 affected farmers in 133 villages over the total area of 1,638 hectares of the Expressway, 11387 have already received compensation and only 142 farmers out of such a large number of villages have raised the issues, leaving 139 farmers who had not taken the compensation. This is apart from the fact that only 9 Writ Petitioners came in that Writ Petition. The story in Nand Kishores Writ Petition which was disposed of by the High Court alongwith other Writ Petitions is no different. The learned Counsel appearing on behalf of the appellants could not deny the fact that the total number of petitioners concerned in these acquisition proceedings, coming up before the High Court, was extremely insignificant as compared to those who had accepted the compensation. Of course, that by itself may not be the only reason to hold against the appellants (petitioners), however, that fact will have to be kept in mind while deciding the issues which cover the whole acquisition process, which acquisition is for the purpose of development of 25 million square meters of land. The High Court has also noticed this aspect. We have mentioned this aspect only with a limited objective of showing that the criticism against the whole scheme which would invalidate the acquisition would be difficult to be accepted, particularly in this case, in view of the fact that majority of the land owners have parted with possession, taken the compensation and thus, the whole scheme has progressed to a substantial level, wherefrom it will be extremely difficult now to turn back to square one.28. We must point out that at the time when the Project conceived in 2001, the present Company was not in existence. It came in existence only later on. This is an admitted position also. Therefore, it cannot be said that the whole Project was envisaged keeping this Company in view. That would be the first reason to reject the argument that the whole scheme was a result of colourable exercise of power. We also cannot ignore the fact that aenquiry was got done by the State by constituting a Commission of Enquiry under the Chairmanship of Mr. Justice Sidheshwar Narain. The said Commission of Enquiry submitted its Report in October, 2006 and it was duly accepted by both the Houses of the Legislature of the State of Uttar Pradesh. Again, we also cannot ignore that the aspects of the transparency have been examined by the Division Bench of the Allahabad High Court in a P.I.L., which was dismissed by a wellconsidered judgment, which remained unchallenged. We have already made reference to that judgment. Nobody has so far argued that any specific partial treatment was offered to the Company nor has it been pointed out at any stage that there was anything amiss with the tendering process or that the tender of contract to the Company herein was a foregone conclusion. We, therefore, cannot subscribe to the contention that this acquisition was a colourable exercise of power. We must say that there was a full transparency in the whole process and the whole process was checked, rechecked andleaving no scope to infer any bias in favour of the Company.29. It was pointed out that initially the award was preceded by issuance of an advertisement in the leading newspapers throughout the country. It was also pointed out that the offers were invited on the basis of a global tender and as many as 19 parties entered the fray, and that it is only thereafter that the present respondent Company was chosen for the award of the tender. Again, the essential features of the transaction appear to be that (i) Project was to be implemented on the Build Operate and Transfer model, (ii) Project conceived of the construction of the Expressway as well as development of land parcels at five different locations and (iii) the land for development was to be provided to the selected bidder on a lease of 90 years upon payment of acquisition cost and necessary lease rentals. There was, thus, a complete transparency in the whole affair. It is also to be seen that this was not a case where the exercise of power of eminent domain by the State was for any of the purposes set down in Section 40 of the Act. Further, it is not as if the power of acquisition was exercised by the State Government for the work or Project of the Company. Lastly, it is not a case where the power of exercise was exercised by the State Government so that the acquired land was to belong or vest permanently in the Company for its own purpose. It was pointed out that the lease is going to be for 90 years after which the whole land is going to revert back to the State Government, so also the whole land acquired and used actually for the purpose of the highway would also go back to the State after the period of 36 years, during which the Company would have the right to levy and collect the toll. It is not as if a public purpose is relevant in Part VII, where under Section 39, the previous consent of appropriate Government is required for execution of an agreement between the Government and the40 of the Act then puts a specific rider that the State Government shall not give the consent unless it is satisfied of any of the contingencies described in(a), (aa) and (b) thereof, which are as(1) Such consent shall not be given unless the appropriate Government be satisfied, either on the report of the Collector under Section 5A,(2), or by an enquiry held as hereinafterthat the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or(aa) that such acquisition is needed for the construction of some building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, or(b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public.This would suggest that even when the acquisition is meant for the Company, the concept of public purpose has to be at the back of mind of the acquiring body like Government. Here, of course, there is no question of any agreement with the Company as the three eventualities described under Section 40 of the Act are not available for the simple reason that the basic idea for the acquisition under Part VII of the Act is the total transfer of the ownership of the acquiring land in favour of the Company. That is obviously not present here. We do not see any factual background for holding that any agreement was contemplated in between the State Government and the Company or for that matter, YEIDA and the Company, as envisaged in Sections 39, 40 and 41 of the Act. It was tried to be canvassed before us that there would be a difference in concepts of a public purpose and the work useful to the public. We are not much impressed by this argument in view of the fact that there is absolutely no evidence to suggest that this is an acquisition for the Company, basically on account of the fact that the acquired land is not to vest with the Company. This was clearly a Project conceived and justified by the State Government, while the concessionaire was to be chosen only to implement the Project. The Project was going to be implemented on the basis of principles of BOT. Therefore, after the operating period is over, the assets of the Project were to be transferred to the State Government. There was going to be no vesting of land as in case that if the acquisition was being effected under Part VII of the Act. We, therefore, do not accept the argument that this was either a colourable exercise of power or was meant for the Company. We are not impressed by the argument that this was an acquisition for the Company. The High Court, in Balbir Singhs judgment, has correctly come to the conclusion that this acquisition was not meant only for the Company and on that count, it could not be said that this is not for the public purpose. The learned Counsel, however, vehemently argued that the whole compensation had come from the Company and, therefore, this acquisition cannot be said to be for a public purpose. We shall tackle this point a little later. However, before we proceed to do that, we must express on the utility of the Expressway, which was conceived, as also the development of five parcels of land.30. During the debate, our attention was invited to Section 3(f) of the Act, which contains a definition for `public purpose. It was pointed out that where the acquisition is for the Company, it cannot amount to a public purpose. There can be no dispute about this proposition that where the acquisition of land is for the companies, it cannot amount to a public purpose. It was, therefore, our endeavour to find out whether this land was for the Company and we are quite satisfied with a finding recorded by the High Court that this acquisition was not for the Company but was for the public purpose. The Expressway is a work of immense public importance. The State gains advantages from the construction of an Expressway and so does the general public. Creation of a corridor for fast moving traffic resulting into curtailing the traveling time, as also the transport of the goods, would be some factors which speak in favour of the Project being for the public purpose. Much was stated about the 25 million square meters of land being acquired for the five parcels of land. In fact, in our opinion, as has rightly been commented upon by the High Court, the creation of the five zones for industry, residence, amusement etc., would be complimentary to the creation of the Expressway. It cannot be forgotten that the creation of land parcels would give impetus to the industrial development of the State creating more jobs and helping the economy and thereby helping the general public. There can be no doubt that the implementation of the Project would result in coming into existence of five developed parcels/centers in the State for the use of the citizens. There shall, thus, be the planned development of this otherwise industrially backward area. The creation of these five parcels will certainly help the maximum utilization of the Expressway and the existence of an Expressway for the fast moving traffic would help the industrial culture created in the five parcels. Thus, both will be complimentary to each other and can be viewed as parts of an integral scheme. Therefore, it cannot be said that it is not a public purpose.31. We must, at this stage, take into account the argument that the whole compensation is coming wholly from the Company and not from the Government or from YEIDA. The appellants invited our attention to Clause 4.1(d) of the Concession Agreement. On that basis, it was argued that the Company has paid the compensation cost and, therefore, the acquisition is clearly covered under Part VII of the Act, and there may be no public purpose if the acquisition is made for the Company and it is the Company who has to shell out the whole compensation. Now, this argument is clearly incorrect. Even if we accept for the sake of argument that all this compensation is coming from the Company, we must firstly bear it in mind that the Company gets no proprietary or ownership rights over the Project assets. Now, if it is presumed that the compensation is coming from the Company, then it will have to be held that the whole assets would go to the Company. At least that is envisaged in Part VII of the Act. Here, that is not the case. The assets are to revert back to the acquiring body or, as the case may be, the Government. Even the lands which are utilized for the construction of the Expressway are to go back to the Government barely after 36 years i.e. after the Company has utilized its rights to recover the toll on the Expressway. Secondly, it must be borne in mind that the Concession Agreement has been executed in February, 2003, whereas the acquisition process started somewhere in the month of September, 2007. When the Concession Agreement was executed, the cost factor was not known. The acquiring body was only to make available the land to the concessionaire to implement the Project. There would be number of difficulties arising, as for example, it would be clearly not contemplated that the land would be made available without any value or that there would no scheme for the State Government for recovering the expenses that it would incur in obtaining the land. The learned Counsel appearing for the State as also for the Company and YEIDA argued that in order to overcome and iron out such difficulties, the Agreement provides that the land would be leased on a premium equivalent to the acquisition cost. This argument proceeds on the basis of Clause 4.3 C of the Concession Agreement. It is to be noted then that the premium of the land was not going to be just the acquisition cost, but also the lease rent ofe. Therefore, theState Government was to earnfor the total acquired land, which was about 25 million square meters over and above the compensation to be decided. The mention of the compensation amount in addition to the lease money ofwould clearly provide that the whole compensation was not going to be paid by the Company alone. This is apart from the fact that through this agreement, only the extent of the compensation payable by the Company to YEIDA was decided. However, once all the amounts went to the coffers of YEIDA, it would lose its independent character as a premium. When it goes into the coffers of YEIDA, it is the YEIDA who would make the payments of the estimated compensation and thereby it would be as if the compensation is paid not by the Company, but by YEIDA. The respondents have relied on the law laid down in Pratibha Nemas Case [cited supra], more particularly, paragraphs 24 and 25 therein. The respondents also argued relying upon the decision in Naihati Municipality & Ors. Vs. Chinmoyee Mukherjee & Ors. [1996 (10) SCC 632 ]. The respondents argued that the law laid down in Pratibha Nemas Case (cited supra) emanates from the judgment in Naihati Municipality & Ors. Vs. Chinmoyee Mukherjee & Ors. (cited supra).32. Two judgments in State of Karnataka & Ors. Vs. All India Manufacturers Organization & Ors. [cited supra] and Sooraram Pratap Reddy & Ors. Vs. District Collector, Ranga Reddy District & Ors. etc. etc. (cited supra) were pressed in service by the respondents.The respondents then fall back upon the nature of the transaction, saying that since the whole transaction is on the BOT basis, the Government has merely chosen a third party agency to implement the Project instead of taking up itself the task of building, designing, financing or running the Project. It was pointed out that in such contracts, the assets did not go to the private enterprise which was chosen by the Government. On the other hand, the assets revert to the Government and, therefore, the BOT Project can never be akin to the acquisition of land for a Company under Part VII of the Act, where the land and the assets vest and belong to the Company. The respondents argued that when a BOT contract is tested in the light of the provisions of Part VII of the Act, as also the Land Acquisition (Companies) Rules, 1963, it would come out that there has to be an agreement between the State and the Company, which necessarily provides for the payment of cost of acquisition to the Government. It must entail the transfer of such land to the Company. Similarly, under Rule 5 of the Rules of 1963, the agreement must itself make provision that the land will be utilized only for the purposes for which it was acquired and if the Company commits breach of any condition of the agreement, the Government would be entitled to declare the transfer of land to it to be null and void, so also if the Company fails to utilize the entire land acquired, the unutilized portion would revert to the Government. The respondents argued that in a BOT contract, the land is only leased to a third party agency for the purposes of implementation of the Project. There is no occasion for declaring the transfer of land to be null and void. There would also be no occasion for reversion of the utilized land of the State Government. The respondents, therefore, argued that a BOT contract can never be contemplated as falling under Part VII of thehave already discussed the factual situation here for pointing out that this acquisition was indeed for the public purpose and cannot be held to be for respondent Company. In that view, the criticism is not justified. The decision in Pandit Jhandu Lal Vs. State of Punjab (cited supra) was also referred to and, more particularly, the observations in Paragraph 8 therein. There can be no dispute about the principles laid down; however, as we have already pointed out, this case has been thoroughly considered in Sooraram Pratap Reddy & Ors. Vs. District Collector, Ranga Reddy District & Ors. etc. etc. (cited supra). We have already returned a finding that the compensation in this case does not come from the respondent Company alone. We approve of the finding returned by the High Court in that behalf. During the debate, the decision in Devinder Singh & Ors. Vs. State of Punjab & Ors. [2008(1) SCC 728] was also referred to. It was urged that there was a conflict in this decision and the decision in Pratibha Nemas Case (cited supra). This was a case where the petitioners who were the owner of the agricultural lands, had challenged the acquisition of lands for M/s. International Tractors Ltd. It was claimed that the land was being acquired for public purpose i.e. setting up the Ganesha Project of M/s. International Tractors Ltd. at various villages. The High Court had held that the land acquisition was for public purpose. This Court explained the public purpose as defined in Section 3(f) of the Act and noted that the aforementioned Ganesha Project was not a Project of the State, but the one undertaken by the Company M/s. International Tractors Ltd. The Court then went on to consider Sections 40 and 41 of the Act alongwith Rule 4 of the Land Acquisition (Companies) Rules, 1963 and came to the conclusion that the same could not be a public purpose as the whole compensation was coming from the coffers of the Company. In that view, the Court further came to the conclusion that the State not having followed the provisions of Sections 40 and 41 of the Act, the whole process had sufferedCourt, however, refused to go into the nicety of the question and observed that in a case of acquisition for a public Company, public purpose is not to be assumed and the point of distinction between acquisition of lands under Part II and Part VII of the Act would be the source of funds to cover the cost of acquisition. The Court also considered the judgment of this Court in Smt. Somavanti & Ors. Vs. The State of Punjab & Ors. (cited supra), Jage Ram & Ors. Vs. State of Haryana & Ors. [1971 (1) SCC 671 ] and Shyam Behari & Ors. Vs. State of Madhya Pradesh & Ors. [AIR 1965 SC 427 ]. Ultimately, the Court came to the conclusion that the necessary provisions not having been found, the view of the High Court was not correct, whereby it had upheld the land acquisition, holding it to be for the public purpose. We have closely seen the judgment; however, the factual situation in the judgment is quite different. In our opinion, the judgment will not help the appellants to contend that the present land acquisition is not for public purpose. We also do not think that there is any serious conflict between the decision in Pratibha Nemas Case (cited supra) and the decision in Devinder Singh & Ors. Vs. State of Punjab & Ors. (cited supra), so as to require a reference to the larger Bench. In our opinion, the decision in Pratibha Nemas Case (cited supra) applies to the fact situation in this case. Therefore, considering the overall factual situation, we are of the opinion that the High Court was right in holding that the acquisition was made for the public purpose. We find from the order of the High Court that the High Court has considered the question of public purpose keeping in mind the correct principles of law. We are, therefore, of the opinion that the contention raised by the learned Counsel for the appellants that this acquisition was not for the public purpose for various reasons which we have discussed, is not correct.38.parties.39. Before considering the issue, we must take stock of the finding returned by the High Court. In the judgment in Nand Kishore Gupta & Ors. Vs. State of U.P. & Ors. (Civil Misc. Writ Petition No.31314 of 2009), the High Court took stock of the allegations regarding malafides and dispensing with the enquiry under Section 5A of the Act by referring to Paragraph Nos. 20, 21, 28, 29, 30, 31 and 32 of the Reply filed on behalf of the State Government through an affidavit of one Shri Vinod Kumar Singh, ADM, Land Acquisition, Agra, wherein it was pointed out that the Project was on the mammoth scale and there was a great deal of possibility of encroachments if the Project was allowed to linger. The High Court took note of the contention that YEIDA deposited 70% of the estimated compensation on 29.5.2009 itself, since 10% of the estimated compensation was already deposited by the acquiring body (YEIDA). The High Court then referred to the various clauses of the Concession Agreement like Clause Nos. 2.1, 2.2, 3.1, 3.2, 3.6 and 4.1 (a), (b), (c) & (d) to know about the exact nature of the job which was required to be done for building the Expressway. It was after this that the High Court had recorded a finding that the integrated Project was to cover a large area of land and the requirement was of 25 million square meters of land to be acquired. The High Court, therefore, noted the plea raised to the effect that the State Government took correct decision to invoke the urgency clause, as on an enquiry into disposal of individual objections as contemplated under Section 5A of the Act, the Project itself would have lost all value and efficacy. The High Court also noted the plea raised by YEIDA and the State Government about the likelihood of encroachment. The High Court then referred to the two decisions of this Court in Sheikhar Hotels Gulmohar Enclave & Anr. Vs. State of Uttar Pradesh & Ors. [2008(14) SCC 716] and First Land Acquisition Collector & Ors. Vs. Nirodhi Prakash Gangoli & Anr. [2002 (4) SCC 160 ]. The High Court also referred to the counter affidavit of one Shri V.C. Srivastava, Addl. General Manager, Jaypee Infratech Ltd. (owned by Jaiprakash Industries Ltd.). The High Court then took stock of the plea raised on behalf of the respondents on the basis of more than 25 judgments of this Court. The High Court then referred to the decision of this Court in State of Punjab & Anr. Vs. Gurdial Singh & Ors. [1980 (2) SCC 471 ] and Om Prakash & Anr. Vs. State of U.P. & Ors. [1998 (6) SCC 1 ], as also Babu Ram & Anr. Vs. State of Haryana & Anr. [2009 (10) SCC 115 ]. The High Court also referred to the decision in Manju Lata Agrawal Vs. State of U.P. & Ors. [2007(9) ADJ 447 (DB)], Sudhir Chandra Agrawal Vs. State of U.P. [2008 (3) ADJ 289 (DB)] and Munshi Singh Vs. State of U.P. [2009 (8) ADJ 360 (DB)], which all were the decisions of the Allahabad High Court itself. The Court then referred to the delay on account of the litigations from 2001 till 2008 and referred to the contention raised on behalf of the appellants relying on the judgment in Essco Fabs Pvt. Ltd. & Anr. Vs. State of Haryana & Anr. etc. etc. [2009 (2) SCC 377 ], Mahender Pal & Ors. Vs. State of Haryana & Ors. [2009 (14) SCC 281 ] and Babu Ram & Anr. Vs. State of Haryana & Anr. (citedhave deliberately quoted the above part of the High Court judgment only to show the meticulous care taken by the High Court in examining as to whether there was material before the State Government to dispense with the enquiry under Section 5A of the Act. We are completely convinced that there was necessity in this Project considering the various reasons like enormousness of the Project, likelihood of the encroachments, number of appellants who would have required to be heard and the time taken for that purpose, and the fact that the Project had lingered already from 2001 till 2008. We do not see any reason why we should take a different view than what is taken by the High Court. The law on this subject was thoroughly discussed in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. [2009 (10) SCC 689 ], to which one of us (V.S. Sirpurkar) was a party. In that decision also, we had reiterated that the satisfaction required on the part of Executive in dispensing with the enquiry under Section 5A is a matter subject to satisfaction and can be assailed only on the ground that there was no sufficient material to dispense with the enquiry or that the order suffered from malice. It was also found on facts in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. (cited supra) that there was no charge of malafide levelled against the exercise of power and there was material available in support of the satisfaction on the part of the Executive justifying the invocation of the provisions of Section 17. The position is no different in the present case. The High Court in the present matter went a step ahead and examined the bulky original record itself to find that there was full material available.40. We are not impressed by the argument that the encroachment issue was not a relevant factor. This argument was based on the reported decision in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra). It must be said that the actual scenario in that case was different. In that case, the Court was considering the acquisition of area of about 500 acres comprising of 437 plots, whereas, in the present case, the area to be acquired for the Expressway alone was more than 1,600 hectares. This is apart from the 25 million square meters of land which was liable to be acquired for the purposes of development of 5 land parcels. There was interlinking between the acquisition of land for the highway and the acquisition of land for establishing the 5 townships. In Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra), there was unexplained delay after issuance of Section 4 notification, which is not the case here. Therefore, we do not think that what has been said in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra) would be apposite here. Every case has to be decided on its own facts. This is apart from the fact that it is not specifically laid down in Om Prakash & Anr. Vs. State of U.P. & Ors. (cited supra) that the encroachment was never a relevant factor for dispensing with the enquiry under Section 5A. Again we hasten to add that this was not the only factor considered by the State Government and even the High Court has not held the same to be the only factor for dispensing with the enquiry.