Case: Om Prakash &amp; Others Vs. State of Uttar Pradesh &amp; Others

5. NOIDA is an authority entrusted with the task of developing lands in the district of Ghaziabad in the State of Uttar Pradesh. In the year 1976, NOIDA had acquired large tracts of lands in Ghaziabad District including lands of Village Chhalera Banger for the planned industrial development of Ghaziabad. At that stage, the State of Uttar Pradesh, at the instance of NOIDA, had invoked the provisions of sub-sections (1) and (4) of Section 17 of the Act as acquisition for the purposes of NOIDA was considered to be of an urgent nature. Thereafter, again in the year 1987, further lands were acquired from the same village for the purpose of NOIDA by the State of Uttar Pradesh issuing notification under Section 4 of the Act on 30-10-1987. The said notification was issued without invoking Section 17(4) of the Act. After hearing the objections put forward against the acquisition by the objectors concerned, ultimately the State of Uttar Pradesh issued notification under Section 6 of the Act on 14-12-1989. On that occasion, 353 acres of lands consisting of diverse survey numbers were acquired from the occupants of the lands in Village Chhalera Banger. It was thereafter that NOIDA submitted a proposal to acquire the lands under the present acquisition on 14-6-1988. It also made a written request in this connection on 14-12-1989 to the State authorities. By a communication dated 14-12-1989 addressed by the Personnel Officer, NOIDA to the Special Land Acquisition Officer, NOIDA, Ghaziabad, it was submitted that 494.26 acres of land of Village Chhalera Banger were urgently required for the development of Sector 43 and other sectors of NOIDA. Therefore, it was requested that necessary notification under Section 4 read with Section 17 of the Act may be got issued immediately. It was thereafter that on 5-1-1991, the impugned notification was issued by the Government of Uttar Pradesh in exercise of powers under sub-section (1) of Section 4 of the Act. It was stated therein that the lands mentioned in the Schedule to the notification were required for public interest, that is, for the planned industrial development of District Ghaziabad through NOIDA. It was recited in the said notification that the Governor was of the opinion that the sub-clauses of sub-section (1) of Section 17 of the Act shall apply to the aforementioned land because the said land was essentially urgently required for the planned industrial development in District Ghaziabad through NOIDA and in view of this urgency and essential requirement, it was also necessary that possible delay for inspection under Section 5-A may be condoned. Therefore, in exercise of powers under sub-section (4) of Section 17 of the Act, the Governor also directed that provisions of Section 5-A of the said Act shall not be applicable and were dispensed with. This notification was followed by another notification dated 7-1-1992 under Section 6 of the Act. It was declared therein that the land mentioned in the notification was required in public interest, i.e., for the planned development of District Ghaziabad through NOIDA. It was also stated that the Governor was satisfied that this matter was to be disposed of urgently, therefore, in exercise of powers under sub-section (1) of Section 17 of the Act, he was also pleased to direct that though no decision had been given under Section 11, the Collector of Ghaziabad could take possession of the aforesaid land mentioned in the Schedule for public interest after 15 days of the publication of the notice under sub-section (1) of Section 9

Reasoning:
12. So far as the question of dispensing with inquiry under Section 5-A is concerned, the scheme of the Land Acquisition Act has to be kept in view. Sub-section (1) of Section 4 of the Act lays down that whenever it appears to the appropriate Government that land in a locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect has to be published in the Official Gazette and also to proceed further according to the mode laid down in the said provision. Then follows Section 5-A. Sub-section (1) thereof provides that any person interested in any land which has been notified under Section 4 sub-section (1), as being needed or is likely to be needed for a public purpose may, within 30 days from the date of publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. Sub-section (2) of Section 5-A of the Act lays down the procedure in connection with such inquiry. The objections under Section 5-A are to be lodged in writing with the Collector and the Collector is required to give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by a pleader and shall after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4 sub-section (1), or make different reports to the Government and in the light of the said report, the appropriate Government has to come to its own decision on the objections and such decision is made final under the Act. Then follows Section 6 sub-section (1) which lays down that subject to the provisions of Part VII of the Act, when the appropriate Government is satisfied after considering the report, if any, made under Section 5-A sub-section (2) that any particular land is needed for a public purpose or for a company, a declaration can be made by the appropriate Government for acquiring such lands. It is, therefore, obvious that under the normal scheme of land acquisition proceedings under the Act before any land can be acquired, by issuing notification under Section 6, the gamut of hearing of objections to such proposed acquisition as laid down by Section 5-A has to be followed.Therefore, so far as the State of Uttar Pradesh is concerned, any type of land after 19-11-1954 even though, not being waste or arable could be subjected to the provisions of Section 17 sub-section (1). However, so far as sub-section (4) of Section 17 was concerned, no amendment was made in the State of Uttar Pradesh till 26-4-1974, when by the Land Acquisition (U.P. Amendment and Validation) Act 8 of 1974, Section 17 sub-section (4) was also amended by subsisting the words, brackets and figures "sub-section (1), sub-section (1-A) or sub-section (2)" as applicable to the State of Uttar Pradesh. The net result of these two State amendments is that after 26-4-1974, if lands of any type, apart from being waste or arable, were sought to be acquired under the Land Acquisition Act as applicable to the State of Uttar Pradesh, in case of urgency, provisions of Section 5-A could be dispensed with provided such lands were acquired for or in connection with sanitary improvements of any kind or planned development. Thus, this enabling provision was available to the appropriate Government functioning in the State of Uttar Pradesh, if it was satisfied that the situation was so urgent that Section 5-A inquiry was to be dispensed with in connection with acquisitions of any type of lands for the planned development of any area. However, still one basic requirement remained for being satisfied before such power could be exercised, namely, that there should be a case of urgency. Even if the acquisition was for the planned development of any area and there was no material before the appropriate Government for dispensing with inquiry under Section 5-A on the touchstone of any urgency as found by the appropriate Government, the provisions of Section 17 sub-section (4) as amended by the Amending Act 8 of 1974 could not have been invoked. However, the parent Act itself underwent an amendment in 1984, as noted earlier, and the words "waste or arable" were taken out from the sweep of Section 17 sub-section (1) read with sub-section (4) thereof. The net result is that after 1984, for acquisition of any type of lands if the appropriate authority is satisfied about the existence of urgency requiring acceleration of taking of possession as per Section 17(1) before award or acceleration of issuance of notification under Section 6 as per Section 17(4), whether such acquisition was for the planned development of any area or for sanitary improvements in the area or for any other public purpose or for a companySo far as the present proceedings are concerned, the situation was tried to be salvaged further in the counter-affidavit filed on behalf of NOIDA. Its Working Secretary Rama Shankar has filed a counter-affidavit in the present proceedings explaining the necessity to apply emergency provisions. It has been averred in para 9 of the counter to the effect that what necessitated application of emergency provisions was imminent possibility of unauthorised construction and/or encroachment upon the suit land which would have hammered the speedy and planned industrial development of the area which was the purpose of acquisition proceedings. This stand is in line with the earlier stand of NOIDA in its written requisition dated 14-12-1989. We have already seen that the said stand reflects a ground which is patently irrelevant for the purpose of arriving at the relevant subjective satisfaction by the State authorities about dispensing with Section 5-A inquiry. We could have appreciated the stand of the State authorities for invoking the urgency clause under Section 17(4) of the Act on the ground that when about 500 acres of land were to be acquired for further planned development of Sector 43 and other sectors of NOIDA, as mentioned in the impugned notification, hearing of objectors who might have filed written objections when there are a large number of occupants of these lands and who possess about 438 plots of land under acquisition, would have indefinitely delayed the acquisition proceedings and years would have rolled by before Section 6 notification could have been issued. Under these circumstances, the entire further development of the area would have, on the peculiar facts and circumstances of these cases, come to a grinding halt. Such a stand would have justified the subjective satisfaction of the authorities for invoking Section 17(4) of the Act. Such satisfaction then could not have been gone behind by a court of law. But unfortunately for the respondents, such was not their case nor did they even whisper in these cases that these aspects were kept in view while dispensing with Section 5-A inquiry. The Court cannot obviously, therefore, make out a new case for them which is not pleaded in these proceedings to justify theirIt is no doubt true that the aforesaid decision of the three-Judge Bench of this Court was explained by a latter two-Judge Bench decision of this Court in State of U. P. v. Pista Devi as being confined to the fact situation in those days when it was rendered. However, it is trite to note that the latter Bench of two learned Judges of this Court could not have laid down any legal proposition by way of a ratio which was contrary to the earlier decision of the three-Judge Bench in Narayan Govind Gavate. In fact, both these decisions referred to the fact situations in the light of which they wereIn the light of the aforesaid discussion, therefore, the conclusion becomes inevitable that the action of dispensing with inquiry under Section 5-A of the Act in the present cases was not based on any real and genuine subjective satisfaction depending upon any relevant data available to the State authorities at the time when they issued the impugned notification under Section 4(1) of the Act and dispensed with Section 5-A inquiry by resorting to Section 17 sub-section (4) thereof. The first point is, therefore, answered in the negative, in favour of the appellants and against the contestingSo far as this point is concerned, Shri Shanti Bhushan, learned Senior Counsel for the appellants, submitted that much prior to the issuance of Section 4 notification and after the earlier acquisition of 15 bighas of land from the appellants own Survey No. 488, as the appellant was apprehending further acquisition of a portion of land on which his construction stood, the appellant was constrained to file a civil suit against NOIDA for a declaration that the appellant was the owner and in possession of land measuring 4 bighas 10 biswas comprising in Khasra No. 488 situated in Village Chhalera Banger, and abadi stood therein for about 5-6 years. The said suit was registered as Case No. 46 of 1989 in the Court of Munsif, Ghaziabad. After hearing the plaintiff and NOIDA, the civil court came to the conclusion on evidence that there was abadi in the disputed property. The civil court also noted the contention of NOIDA which was the defendant in that case, that if disputed land was abadi land of the plaintiff, then he could file objections under Section 5-A of the Land Acquisition Act against the proposed acquisition proceedings and if his abadi was proved on the disputed land, then his abadi land could be left out. Our attention was also invited to the further fact that the said decision of the civil court dated 14-12-1989 was confirmed by the District Court in appeal on 17-11-1990. Thus the final court of facts came to the conclusion that there was abadi of the appellant on the land in question even prior to the date of Section 4 notification in the present case. It is, of course, true as informed to us by Shri Mohta, learned Senior Counsel for NOIDA, that the said decision of the District Court is not final and second appeal against the said decision is pending in the Allahabad High Court. Be that as it may, the contention of Shri Shanti Bhushan, learned Senior Counsel for the appellants, was that there was sufficient evidence one the record of this case to show that the disputed land under acquisition was having abadi since a number of years and that was prior to the issuance of Section 4 notification dated 5-1-1991. He also invited our attention to the further fact that pending the proceeding before the High Court, a site inspection report was prepared in connection with diverse lands under acquisition and the appellants Khasra No. 488 was one of them. This report dated 11-3-1996 was submitted by the Officer on Special Duty, Land Acquisition Department, Revenue Board, U.P. which clearly shows that at the time when the inspection was made of Khasra No. 488 belonging to the appellant, on the extent of 4 acres and 10 bighas of land a factory was located and the property was being used also for residential purpose. There was a telephone number, there were three electric meters installed, about 60 workers were found working in the factory. Besides, 8 shops and 5 residential houses were existing where families were living. It was also noted that the construction was very old and people were residing there for a long time and a factory was also being run. Learned Senior Counsel for NOIDA submitted that the aforesaid inspection report was one-sided and it did not indicate whether NOIDA authorities were also present at the time of the said report. The learned counsel appearing for the appellants in the remaining appeals also submitted that there was abadi on the lands occupied by these appellants also. It is submitted on behalf of the appellants by their a learned counsel that there is a policy followed by the State of Uttar Pradesh not to acquire lands which are having abadi and consequently if Section 5-A inquiry was held, the appellants could have requested the appropriate authorities not to acquire theseRepelling the aforesaid contention, learned Senior Counsel for NOIDA, submitted that there is some misconception about the concept of abadi. That abadi is a term which refers to village-site lands utilised for residential purposes. He, of course, stated that it is true that there is a policy adopted by the State of Uttar Pradesh not to acquire lands on which there is abadi, namely, village-site lands having residential construction thereon. But according to him, the civil courts decree which has not become final tries to equate construction with abadi but in the strict sense of the term, it would not be abadi which would be covered by the State policy of not acquiring lands having such abadi as any stray construction made on agricultural lands outside the village sites reserved for putting up construction of residential quarters in villages would not be covered by the State policy of not acquiring such abadi lands. He stated that whatever stand NOIDA authorities might have taken as the defendants in the suit cannot bind the State authorities. Dr. Ghatate, learned Senior Counsel appearing for the State of Uttar Pradesh, also submitted that the State was not a party to the civil court litigation. He, of course, stated that there is a State policy in existence as on date under which genuine abadi lands on which abadi is situated within the village sites may not be acquired but only because there are some stray constructions on agricultural lands beyond the village sites, they would not be covered by such State policy. It was also submitted by Shri Mohta, learned Senior Counsel for NOIDA and Dr. Ghatate, learned Senior Counsel for the State of U.P., that what is necessary to be seen is whether there was any real abadi on the lands under acquisition on the date of Section 4 notification dated 5-1-1991 as any subsequent construction put up thereafter by any of the occupants would not create any equitable rights in their favour and any subsequent construction and change of user of the land covered by Section 4 notification cannot be of anyIn view of the aforesaid rival contentions, therefore, it appears to us that in the present proceedings arising out of petitions under Article 226 of the Constitution of India, it is not possible to come to a definite conclusion on these highly disputed questions of fact, namely, whether the lands in dispute were part of village-site lands reserved for construction of residential houses and whether they were covered by the term "abadi" so as to be subjected to any policy decision of the State for excluding such abadi lands from acquisition proceedings. Even the civil court litigation which is still sub-judice before the High Court would by itself not bind the State authorities as the State of U.P. was not a party to these proceedings as rightly contended by learned Senior Counsel, Dr. Ghatate. Not only that, but the High Court in the impugned judgment has referred to the set of evidence on record and has held that there is no evidence showing the extent of construction on the lands. On the other hand, there is a 17-point report by the Tehsildar, Dadri, which is Annexure 7 to the model counter-affidavit filed by the State in which he clearly pointed out that the land sought to be acquired was agricultural and that only the boundary wall had been constructed in 11 plots. The High Court has also observed that in exercise of the powers under clause (d) of Section 2 read with Section 3 of the U.P. Industrial Area Development Act, 1976, the notification of 17-4-1976 was published to declare the area comprising the villages mentioned in the Schedule annexed thereto, to be called the New Okhla Industrial Development Area. Village Chhalera Banger, land of which is shown in khasra entries, is one of the villages comprised in the Schedule. The submission of the learned Standing Counsel is that this area was already declared as industrial development area and after the notification of 1976 was issued, such area could not have been converted into abadi. Therefore, a further disputed question would arise as to whether the so-called abadi on these lands sought to be acquired out of the agricultural holdings of the occupants in Village Chhalera Banger were subjected to construction of abadi prior to 1976 notification or subsequent thereto. Consequently, no direction can be issued to the State authorities straightaway to release these lands from acquisition by coming to a firm finding that there were existing old abadi on these lands and which were squarely covered by any State policy of not acquiring lands having abadiWe may also mention at this stage that apart from the appellants in civil appeal arising out of SLP (C) No. 20905 of 1995, in cases of the other appellants, no civil suits were filed and, therefore, in their cases the question even about construction, if any, is totally at large. That the moot question is whether the lands under acquisition in the present case were having abadi at the time of issuance of Section 4(1) notification and whether such construction, if any, could be said to be abadi as covered by a policy decision of the State of U.P. not to acquire such lands. In fairness to Shri Shanti Bhushan, it was submitted by him that we may not answer this question one way or the other if the appellants are to be relegated to the remedy of filing objections under Section 5-A of the Act. It is, of course, true as found by us on Point 1, that Section 17 sub-section (4) was not rightly invoked by the authorities in the present cases. However, as will be seen hereafter, while considering Point 3, we are not inclined to give opportunity under Section 5-A to the appellants on the peculiar facts of these cases. All that we can observe at this stage is that the question whether the appellants lands are covered by any existing policy decision of the State of U.P. for not acquiring lands having abadi thereon, is required to be kept open for consideration of the proper State authorities, as will be indicated by us hereinafter while considering Points 3 and 4. Point 2 is answeredfind considerable force in the contention of learned Senior Counsel for the respondent that it is neither advisable nor feasible to interfere with the acquisition of such large tracts of lands when the occupants of 9/10th of the acquired lands have not thought it fit to challenge these acquisition proceedings and the occupants of only 1/10th of lands are agitating their grievance since more than six years, firstly before the High Court and then before this Court. The appellants main grievance centres round the question whether their lands having alleged abadi could be acquired in the light of the State policy for not acquiring such lands. For such a contention, of course, grievance could have been made under Section 5-A inquiry if it was held. But that could have been urged years back before Section 6 notification saw the light of day in 1992. Now after a passage of more than six years, it would not be feasible to put the clock back and permit the appellants to agitate this contention which appears to be the sole contention for opposing the acquisition proceedings in the facts of the present cases by permitting them to urge this grievance in Section 5-A inquiry which according to them should be held at this stage. We will show presently that this solitary grievance of the appellants could be vindicated before the State authorities themselves by relegating the appellants to proper remedy by way of representation under Section 48 of the Act and when that remedy is available to the appellants and when that is the sole grievance of the appellants, at this stage no useful purpose would be served by striking down the notification under Section 4(1) qua the appellants so far as invocation of Section 17(4) is concerned and the consequent notification under Section 6. That we cannot permit upsetting the entire apple-cart of acquisition of 500 acres only at the behest of 1/10th of landowners whose lands are sought to be acquired. We may also keep in view the further salient fact that all the appellants have filed references for additional compensation under Section 18 of the Act. Shri Shanti Bhushan, learned Senior Counsel, was right when he contended that the appellants could not have taken the risk of getting their reference applications time-barred during the pendency of these proceedings. Therefore, without prejudice to their contentions in the present proceedings, they have filed such references. Be that as it may, that shows that an award is also made and references are pending. Under these circumstances, for enabling the appellants to have their say regarding release of their lands on the ground that they are having abadi and that the State policy helps them in this connection, the appellants can be permitted to have their grievances voiced before the State authorities under Section 48 rather than under Section 5-A of the Act at such a late stage. Consequently, despite our finding in favour of the appellants on Point 1, we do not think that this is a fit case to set aside the acquisition proceedings on the plea of the appellants about non-compliance with Section 5-A at this late stage. It is also obvious that if on this point, the notifications are quashed for non-compliance of Section 5-A, that would open a Pandoras box and those occupants who are uptil now sitting on the fence may also get a hint to file further proceedings on the ground of discriminatory treatment by the State authorities. All these complications are required to be avoided and hence while considering the question of exercise of our discretionary jurisdiction under Article 136 of the Constitution of India, we do not think that this is a fit case for interference in the present proceedings with the impugned notifications. Point 3, therefore, is answered in the affirmative against the appellants and in favour of theBefore parting with the present proceedings, we may mention one request made by learned Senior Counsel Shri K. K. Venugopal appearing for Respondent 5 whose intervention application was granted in SLP (C) No. 20905 of 1995. Learned Senior Counsel stated that many serious objections are required to be considered against the acquisition of the land of the intervener and it was his contention that lands were acquired for being allotted to persons closely related to the Chairman and other powers that be, but as these contentions raise disputed questions of fact and as Respondent 5 had not filed any writ petition in the High Court, he may be given liberty to file writ petition under Article 226 of the Constitution of India before the High Court. The said request is reasonable. In the present appeals arising out of the judgment of the High Court in writ petitions filed by the appellants, Respondent 5s independent grievance cannot be examined. It would, therefore, be appropriate to relegate Respondent 5-intervener to the remedy of filing a substantive writ petition under Article 226 of the Constitution of India before the High Court. The respondent-authorities had no objection to such course being adopted. Consequently, Respondent 5-interveners contentions are not being examined by us in these proceedings. It is trite to observe that as and when Respondent 5 files a substantive writ petition under Article 226 of the Constitution of India before the High Court, it will be for the High Court to decide the merits of the said writ petition including the question whether the writ petition at such a stage is required to be entertained or not. In short, we express no opinion on the merits of such writ petition that may be filed by the intervener, Respondent 5 in the High Court. The said petition will have to be decided on its merits including the question of its maintainability by the High Court after hearing the parties concerned.