Case: Devendra Kumar Tyagi  Vs. State Of U.P

2) This Court is monitoring the re-location of the bone mills and allied industries in the various parts of State of Uttar Pradesh including the district of Ghaziabad in the public interest proceedings, which were initiated in the year 1994. Since then, this Court has time and again issued various orders and directions including inspection of polluting bone industries in Ghaziabad by the U.P. Pollution Control Board (hereinafter referred to as) and Central Pollution Control Board (hereinafter referred to as. This Court, vide its Order dated 17.08.2004 in the Civil Appeal No. 3633-3634 of 1999 (U.P. Pollution Control Board v. Anil K. Karnwal & Ors.), which is still pending before us, had directed the respondents to relocate the bone mills and allied industries as per the recommendations of the CPCB and further directed the respondents to identify the definite area suitable for relocation of the said industries. Pursuant to this Order, the respondents had filed an affidavit before this Court in the month of December, 2004, inter alia, proposing the Leather City Project for relocation of the said bone industries3) In this backdrop, the respondents had issued a Notification dated 03.7.2006 under Section 4 read with Section 17 (4) of the LA Act for acquisition of 28.804 hectares of the land at village Imtori, Chitoli, Sabli of Hapur- Pargana in the district of Ghaziabad for the public purpose of planned development of the Leather City Project by invoking the urgency provision under the LA Act, thereby, dispensing with inquiry under Section 5-A of the LA Act. The same was published in two daily Hindi newspapers on 04.07.2006. Subsequently, the English version of the said Notification was also published in two daily newspapers dated 24.01.2007. The relevant part of the Notification is extracted below:e Governor is pleased to order the publication of the following English translation of Notification No. 1588/VIII-3-2006-183 LA-2005, dated July 03, 2006:No. 1588/VIII-3-2006-183 LA-2005Dated Lucknow, July 3, 2006Under subsection (1) of section 4 of the Land Acquisition Act, 1894 (Act No. 1 of 1894), the Governor is pleased to notify for general information that the land mentioned in the schedule below is needed for the public purpose namely, for construction of Leather City Scheme at Villages-Chitoli, Sabli and Imtori, Pargana-Hapur, district-Ghaziabad by the Hapur-Pilkhuwa Development Authority, HapurThe Governor being of the opinion that provisions of subsection (1) of section 17 of the said Act are applicable to the said land in as much as the said land is urgently required for construction of Leather City Scheme at Villages-Chitoli, Sabli and Imtori, Pargana-Hapur, district-Ghaziabad by the Hapur-Pilkhuwa Development Authority, Hapur under planned development Scheme, it is as well necessary to eliminate to delay likely to be caused by an enquiry under section 5-A of the said Act the Governor is further pleased to direct, under subsection (4) of section 17 of said Act, that the provisions of section 5-A shall not) Thereafter, the respondent had issued a Notification dated 18.12.2007 under Section 6 read with Section 17 (1) of the LA Act, whereby, it directed the Collector of Ghaziabad to take possession of the said land on the expiry of 15 days from the date of publication of the Notice under Section 9(1) even though no award has been made under Section 11. The same was published in two newspapers on 05.01.2008. The relevant portion of the Notification is extracted below:e Governor is pleased to order the publication of the following English translation of notification No. 2647/VIII-3-2006-136L.A.-2006, dated September 18, 2006:Dated Lucknow, September 18, 2006UNDER, sub-section (1) section 4 of the Land Acquisition Act, 1894 (Act No. 1 of 1894) the Governot is pleased to notify for general information that the land mentioned in the schedule below, is needed for a public purpose namely for construction of planned Leather City scheme at village Rampur, Paragana Hapur, District Ghaziabad by the Hapur Pilkhuwa Development Authority, Hapur2. The Governor, being of the opinion that the proivision of sub-section (1) of section 17 of the said Act are applicable to the said land in as much as the said land is urgently required, for the construction of planned Leather City scheme at village Rampur, Paragna Hapur, District Ghaziabad by the Hapur Pilkhuwa Development Authority, Hapur under planned development scheme, it is as well necessary to eliminate the delay likely to be caused by an inquiry under section 5A of the said Act. The Governor is further pleased to direct under sub-section (4) of section 17 of the said Act that the provisions of section 5A of the said Act shall not) Since the Petitioners land situated at Hapur is included in these Notifications, the petitioners have filed present Writ Petition under Article 32 of the Constitution praying for issuance of appropriate writ or directions to quash these Notifications issued under Section 4 and Section 6 of the LA Act.

Reasoning:
11) It is not in dispute that the declaration of the Notification under Section 6 was issued on 18.12.2007. It is also not in dispute that the Notification under Section 4 was issued on 03.07.2006 and the same was published in two daily newspapers in Hindi language on 04.07.2006 having circulation in the locality where the land is situated. Also, the people at Pargana Hapur in the Ghaziabad district are well conversant with the Hindi language. In our considered view, the publication of the Notification in two newspapers having circulation in the locality where the land is situated and where people are well conversant with Hindi amounts to ample compliance with the requirement of the publication under Section 4(1) of the LA Act. In view of this, the subsequent publication of English translation of the said Notification under Section 4 in two newspapers on 05.01.2007 is unnecessary and will not assist the respondents to extend the period of limitation envisaged in the proviso to Section 6(1) of the LA Act. Hence, the last date of publication for the purpose Section 4(1) of the LA Act, which can be treated as date of publication, is the date on which, the second Notification under Section 4 was published in the newspaper, that is, 04.07.2006. Therefore, the period of limitation commences from 04.07.2006, which is the date of publication of the Notification under Section 4(1) of the LA Act. If the declaration under Section 6 of the LA Act is made before the expiry of the period of one year starting from 04.07.2006, then, only such declaration will be considered as valid for the purpose of the acquisition of land. However, in the present case, the declaration under Section 6 was issued on 18.12.2007 which is clearly beyond the period of limitation of one year as mandated by the proviso to Section 6(1) of the LA Act. Therefore, the declaration of Notification under Section 6 and its subsequent publications are clearly beyond the period of limitation of one year starting from the date of publication of Notification under Section 4 of the LA Act. In our opinion, due to the aforesaid reasons, the reliance placed by Shri. Pallav Sisodia, learned senior counsel for respondents, on the decisions of this Court in S.H. Rangappa v. State of Karnataka & Anr., (2002) 1 SCC 538  and Sriniwas Ramnath Khatod v. State of Maharashtra & Ors., (2002) 1 SCC 689  in support of his contention that the proviso to Section 6(1) whilst prescribing time-limit, contemplates and refers only to the date of declaration and not publication under Section 6 of the LA Act will not come to the rescue of the respondents.14) We have heard the learned counsel for the parties before us. The second point in issue before us is no more res integra as it has already been decided by this Court in Radhy Shyam v. State of U.P. (2011) 5 SCC 553 , to which one of us was the party (G.S. Singhvi, J.), wherein this Court has considered the development of the jurisprudence and law, with respect to invoking of the urgency provisions under Section 17 vis-à-vis right of the landowner to file objections and opportunity of hearing and enquiry under Section 5-A, by reference to a plethora of earlier decisions of this Court. This Court had culled out the various principles governing the acquisition of the land for public purpose by invoking urgency thus:. 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 owners consent provided that such assertion is on account of public exigency and for public goodShrinivas v. Sholapur Spg. and Wvg. Co. Ltd., Charanjit Lal Chowdhury v. Union of India and Jilubhai Nanbhai Khachar v. State of Gujarat(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 strictlyDLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, State of Maharashtra v. B.E. Billimoria and Dev Sharan v. State of U.P(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 ones 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 scrutinise the LA Action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the landowner 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 LA 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 landowner 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 a few weeks or months. Therefore, before excluding the application of Section 5-A, the authority concerned 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 authorities concerned did not apply their mind to the relevant factors and the recordsvii) The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5-A of the LA 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 wordin 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 Sections 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 Sections 5-A(1) and (2) is not at all warranted in such) In view of the above it is well settled that acquisition of land for public purpose by itself shall not justify the exercise of power of eliminating enquiry under Section 5-A in terms of Section 17 (1) and Section 17 (4) of the LA Act. The Court should take judicial notice of the fact that certain schemes or projects, such as the construction of the Leather City Project for public purpose, which contemplate the development of residential, commercial, industrial or institutional areas, by their intrinsic nature and character require the investment of time of a few years in their planning, execution and implementation. Therefore, the land acquisition for said public purpose does not justify the invoking of urgency provisions under the LA Act.In the facts and circumstances of the present case, it is clear that this Court, vide its Order dated 17.08.2004, has issued a direction to the respondents to relocate the bone mills and allied industries causing environment pollution and health hazards as per the recommendations of the CPCB and, inter alia, respondents were also directed to identify the area for relocation. Pursuant to this, respondents have filed an affidavit in the month of December, 2004 specifying the construction of the Leather City Project at Hapur in Ghaziabad. Subsequently, it was only after the lapse of two years, the State Government had issued a Notification under Section 4 on 03.07.2006 and the same was published on 04.7.2006. Thereafter, the State Government took more than 17 months in order to make a declaration of the Notification under Section 6 from the date of publication of the Notification under Section 4 of the LA Act. In view of the above circumstances, it is crystal clear that the government functionary has proceeded at very slow pace at two levels, that is, prior to the issuance of the Notification under Section 4 and post the issuance of the Notification under Section 4, for acquisition of the land for construction of the Leather City Project, which undoubtedly is a public purpose. Therefore, the above series of the events amply exhibit the lethargical and lackadaisical attitude of the State Government. In the light of the above circumstances, the respondents are not justified in invoking the urgency provisions under Section 17 of the LA Act, thereby, depriving the appellants of their valuable right to raise objections and opportunity of hearing before the authorities in order to persuade them that their property may not be acquired.We are afraid that this decision will not come to the rescue of the respondents. In that case, this Court had monitored the setting up of sewage treatment plant and also directed the Delhi Administration to acquire land on war footing mentioning urgent situation of supply of pure water and avoiding any health hazards. The said urgency pointed out by this Court was duly reciprocated by the Delhi Administration by issuing a Notification under Section 4 and subsequently, a Notification under Section 6 of the LA Act within a time period of 2 months19) The directions or orders issued by this Court must be abided by within the four corners of the legal framework and statutory provisions. The State Government is not allowed to transgress the express legal provisions and procedure thereunder in the garb or guise of implementing our guidelines or directions. The directions of this Court are issued with a purpose and the said purpose is supposed to be followed in the realm of legal structure and principles. Therefore, the respondents are not justified in invoking the urgency provisions of the LA Act in an arbitrary manner by referring to our earlier directions as a defense for their illegal and arbitrary act of acquiring land without giving an opportunity of raising objections and hearing to the petitioners in terms of Section 5-A of the LA Act20) Admittedly, the respondents had not obtained the approval of the NCRPB for construction of the Leather City Project as Sub- regional plan in terms of Section 19 (2) of the NCRPB Act. The purpose or aim of the NCRPB Act is to provide for co-ordinated, harmonized and common plan development of the National Capital Region at the central level in order to avoid haphazard development of infrastructure and land uses in the said region, which includes the district of Ghaziabad in the Uttar Pradesh. Under this Act, the NCRPB has been constituted with the Union Minister for Urban Development as the Chairperson and the Chief Ministers of Haryana, Rajasthan and Uttar Pradesh and Lt. Governor of Delhi as its members in order to undertake the task of development of the National Capital Region. The object of the NCRPB is to prepare, modify, revise and review a regional and functional plan for the development of said region and, further, to co-ordinate and monitor its implementation. Section 19(1) mandates the State government or Union Territory to submit their sub-regional plan to the NCRPB for examination in order to ensure that it is in conformity with the regional plan. Once the NCRPB affirms the conformity of the said plan with regional plan, only then the State government can finalize it. Thereafter, the State Government is entitled to implement the Sub-regional plan by virtue of Section 20 of the NCRPB Act.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 vitiated24) In view of above discussion, we hold that the declaration of Notification dated 18.12.2006 under Section 6 of the LA Act is beyond the period of limitation as envisaged by proviso to Section 6(1) of the LA Act. We also hold that the State Government was not justified, in the facts and circumstances of this case, to invoke the urgency provision of Section 17(4) of the LA Act. Therefore, the appellants cannot be denied of their valuable right under Section 5-A of the LA Act.