Hon'ble Aditya Nath Mittal, J.
1. We have heard S/Sri Ramendra Asthana and Pankaj Dubey for the petitioners in Civil Misc. Writ Petitions No. 74622 of 2010 and 74625 of 2010. Sri Jagdish Pathak appears for the petitioners of Civil Misc. Writ Petition No. 74623 of 2010. Sri M.C. Tripathi, Additional Standing Counsel, appears for the State-respondent and Sri A.K. Mishra appears for the Muzaffarnagar Development Authority.
2. The petitioners in all these three writ petitions have challenged the Notification dated 6.12.2007 under Section 4(1) read with Section 17(1) of the Land Acquisition Act, 1894 (in short 'the Act'), published in the news paper on 19.12.2007, and in the locality on 18.1.2007, and the Notification dated 7.12.2010 under Section 6(1) read with Section 17(1) of the Act by which plots no. 203, 210 and 211, areas 2.9734, 1.034 and 1.577 Hectares respectively, in Writ Petition No. 74622 of 2010; plots no. 183 & 189, area 0.092 and 0.464 Hectares in Writ Petition No. 74623 of 2010; and plots no. 204, 205, 206 and 207, areas 0.082, 0.072, 0.062 and 0.062 Hectares owned by the petitioners in these writ petitions were acquired by the State Government for planned residential development scheme, to be developed by the Muzaffarnagar Development Authority, Muzaffarnagar (in short 'MDA')..
The acquisition of the land has been challenged on the following grounds :
(1) The village Almaspur in district Muzaffarnagar was not included in the development area of MDA under Section 3 of the U.P. Urban Planning and Development Act, 1973. It came to be included in the development area of MDA by notification dated 15.4.2008, much after the notification under Section 4 of the Act was published on 6.12.2007. The MDA was thus not authorised to prepare the plan for residential development scheme for village Almaspur, Pargana and Tehsil Muzaffarnagar, and, consequently, the land could not have been acquired for the said purpose.
(2) The Notification under Section 6(1) of the Act has been published beyond the period of one year of the publication of the notification under Section 4(1) of the Act, in violation of Explanation 1 to the second proviso to Section 6(1) of the Act.
(3) There was and could be no real urgency nor there was any material to arrive at the opinion of such urgency to acquire the land for residential development scheme, which ordinarily takes a long time and, thus, in view of Ram Dhari Jindal Memorial Trust v. Union of India and others in Civil Appeal No. 3813 of 2007, decided by the Supreme Court on March 21, 2012 (paragraph 21), the dispensation of enquiry under Section 5A of the Act was illegal. Consequently since the petitioners were not given any opportunity of hearing, the notification under Section 4/6 are illegal, inoperative and void in law.
3. The petitioners are owners of the land situate in village Almaspur, Tehsil Sadar, District Muzaffarnagar. A Notification under Section 4 of the Act was published on 6.12.2007 invoking the provisions of Section 17(1) and (4) of the Act, dispensing with enquiry under Section 5A. The notification was challenged in Writ Petition No. 186 of 2008, which was dismissed by the High Court on 4.1.2008 on the ground that the writ petition was premature as the notification under Section 6 of the Act was not published.
4. The petitioner, Ashok Kumar, in Writ Petition No. 186 of 2008 filed Special Leave to Appeal (Civil) No. 4670 of 2008, in which the Supreme Court issued notice on 3.3.2008 and directed that in the meanwhile, status quo be maintained by both the parties. The Special Leave to Appeal (Civil) No. 4670 of 2008 was dismissed on 1.2.2010 with the following order :
"Heard learned counsel for the parties.
We find no merit in the Special Leave Petition.
The Special Leave Petition is dismissed accordingly."
5. An application was filed in the Supreme Court to recall the order dated 1.2.2010. By order dated 24.9.2010, the Supreme Court has disposed of the application with the following order :
"This Interlocutory Application has been filed for recall of our order dated 01st February, 2010.
By that order, we had rejected the special leave petition of the petitioner against the impugned judgment of the High Court of Allahabad dated 4.1.2008 passed in Writ Petition No. 186 of 2008 dismissing the writ petition pre-mature.
In the impugned judgment dated 4.1.2008, the High Court has observed that only notification under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') was issued but no notification under Section 6 of the Act was issued and hence the writ petition was dismissed as pre-mature and we dismissed the special leav e petition against that order.
In the present application for recalling of our order dated 01st February, 2010, we see no reason to recall the order as we are of the opinion that it is a correct order. The writ petition was, in fact, pre-mature because we are informed that no declaration under Section 6 of the Act nor any notice under Section 9 of the Act was issued by the State.
Mr. Jayant Bhushan, learned senior counsel appearing for the petitioner submits that some fresh developments have taken place. If that is so, he is at liberty to seek appropriate remedy before appropriate forum on the basis of those developments.
The Interlocutory Application No. 2 is disposed of accordingly."
6. The State Government, on being informed with the dismissal of the Special Leave Petition and i.a., proceeded further in the matter and issued a Notification under Section 6 read with Section 17 of the Act on 7.12.2010, giving rise to these writ petitions.
7. It is submitted by Sri Ramendra Asthana, learned counsel appearing for the petitioners, that, during pendency of the special leave petition, the State Government in view of the fact that village Almaspur was not in the notified development area of MDA had taken a decision on 22.4.2008 to withdraw the Notification under Section 4 of the Act and since the Notification under Section 4 was withdrawn, the notification under Section 6 of the Act could not be issued.
8. We directed the entire record of the case to be produced in Court. Sri M.C. Tripathi, Additional Chief Standing Counsel, has produced the record, a perusal of which shows that a decision was taken by the State Government and an order was prepared and signed by the Principal Secretary, Awas Evam Sahariya Niyogan Anubhag-3, Government of U.P., on 22.4.2008 to withdraw the notification under Section 4 of the Act. The order was passed after approval was given on the note by the concerned Minister. The order, however, was not issued, circulated and was not acted upon. On 30.4.2008 the Principal Secretary made a note to request the Vice-Chairman of the MDA to reconsider the matter, on which, on 2.5.2008, the Principal Secretary, Awas Evam Sahariya Niyogan, Government of U.P., put a note that the Vice-Chairman, MDA, be asked to send a clear note in the matter. On 5.5.2008, the Special Secretary, Awas Evam Sahariya Niyogan Anubhag, Government of U.P., referred the matter to S.O. 3, to be sent to the Vice-Chairman, MDA. The notings dated 26.5.2008 and 27.5.2008 by the Under Secretary and Special Secretary respectively of the Department shows that the Vice-Chairman. ,MDA, informed the State Government that village Almaspur is situate within 1 Km. of the periphery of the Nagar Palika Parishad as it is clear from the notification dated 21.11.1996. On this note, the District Magistrate was required to give a certificate as to whether village Almaspur was included within the development area of MDA. The matter was sent for opinion of the Law Department along with the original plan.
9. The original record further shows that the Law Department gave its opinion that since there is an order, passed by the Supreme Court, to maintain status quo, further steps may not be taken. The State Government had some doubts regarding the legal opinion, on which the matter was referred for opinion of the Advocate General. The record does not show that the opinion of the Advocate General was obtained. The Department, however, accepted the opinion of the Legal Department that since an order of 'status quo' has been passed by the Supreme Court, it will be appropriate to wait for the decision of the apex Court. This decision, taken by the Principal Secretary of the Department on 29.9.2008, received approval of the concerned Minister on the same day.
10. The record further shows that the State Government had a doubt whether village Almaspur is included within the notified development area of MDA. The Notification dated 21.11.1996, under Section 3 of the U.P. Urban Planning and Development Act, 1973, includes 17 villages within the periphery of 1 Km. of the area of Nagar Palika Parishad, Muzaffarnagar. The name of village Almaspur was not specifically mentioned in the notification dated 21.11.1996.
11. It appears that during the period when the opinion was taken as to whether any action should be taken for withdrawal of the notification under Section 4 of the Act, a notification was issued by the State Government on 15.4.2008, by which earlier the Notification dated 21.11.1996, under Section 3 of the U.P. Urban Planning and Development Act, 1973, was amended and that, in place of 17 villages in the notification dated 21.11.1996, 105 villages were included in the development area of MDA, including village Almaspur.
12. It is submitted by learned counsel for the petitioner that the village Almaspur was included in the development area of MDA by the Notification dated 15.4.2008, which is prospective in nature. He submits that MDA was not competent to prepare residential scheme before 15.4.2008, and, thus, the Notification dated 6.12.2007 under Section 4(1) of the Act, prepared for an area including village Almaspur, cannot be treated as a valid and legal scheme. According to learned counsel for the petitioner, the MDA had no authority to prepare residential scheme for an area which was not included within the development area of MDA, under Section 3 of the U.P. Urban Planning and Development Act, 1973.
13. Sri A.K. Mishra, appearing for MDA, on the other hand submits that village Almaspur is within 1 Km. of the periphery of Nagar Palika Parishad, Muzaffarnagar, and was included in the development area of MDA in the Notification dated 21.11.1996 that the notification dated 15.4.2008 is by way of a clarification.
14. We have examined both the Notifications, and find that the Notification dated 21.11.1996 mentions 17 villages within 1 Km. of the periphery of Nagar Palika Parishad. The subsequent notification dated 25.4.2008 refers to and includes by name 105 villages falling within 1 Km. of the periphery of Nagar Palika Parishad, Muzaffarnagar. We are of the view that village Almaspur was not included in the development area of MDA, notified by notification dated 21.11.1996, and, thus, MDA was not competent to frame the residential scheme, for which land was proposed to be acquired by notification dated 6.12.2007.
15. The Notification under Section 4(1) of the Act was published in the official Gazette on 6.12.2007 and in the news papers on 19.12.2007. It is specifically stated in paragraph 4 of the counter affidavit, filed on behalf of MDA, that the notification was published in the locality on 18.1.2007.
16. The writ petition, challenging the notification, was dismissed as premature on 4.1.2008. In SLP (Civil) No. 4670 of 2008, the Supreme Court issued notice on 3.3.2008 and directed that in the meantime status quo be maintained by both the parties. The Supreme Court thereafter dismissed SLP (Civil) No. 4670 of 2008 on 1.2.2010 and also dismissed the review petition on 24.9.2010. There was, however, an interim order operating between 3.3.2008 and 1.2.2010 directing the parties to maintain status quo. The Notification under Section 6 of the Act was published on 7.12.2010.
17. If we exclude the period during which the stay order, passed by the Supreme Court, was operative, i.e. between 3.3.2008 and 1.2.2010, the notification under Section 6 of the Act is found to be published within one year from the last of the dates of publication of the Notification under Section 4(1) of the Act. The Notification under Section 6 of the Act, therefore, is within the period of limitation prescribed in Explanation I to the second proviso to Section 6(1) of the Act.
18. In Ram Dhari Jindal Memorial Trust v. Union of India & others (supra) the Supreme Court revisited the question of dispensation of the question of powers of the State Government to dispense with the enquiry under Section 5A of the Act, and to resort to urgency provision, contained in Section 17 of the Act, in the case of residential scheme. While considering the "Rohini Residential Scheme" of the Delhi Development Authority (in short 'DDA'), the Supreme Court held that the special provision has been made in Section 17 of the Act to eliminate enquiry under Section 5A of the Act in deserving and cases of real urgency. The Government has to apply its mind on the aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5A of the Act. The Supreme Court observed that there is A conflict of view in the two decisions of the Court, viz. Narayan Govind Gavate v. State of Maharashtra, (1977) 1 SCC 133, and State of U.P. v. Pista Devi, (1986) 4 SCC 251. In Om Prakash v. State of U.P., (1998) 6 SCC 1, the Supreme Court held that the decision in Pista Devi (supra) must be confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate (supra). The Supreme Court agreed with the opinion in Om Prakash v. State of U.P. (supra). In Ram Dhari Jindal Memorial Trust (supra), the Supreme Court has held as follows :
"In a country as big as ours, a roof over the head is a distant dream for a large number of people. The urban development continues to be haphazard. There is no doubt that planned development and housing are matters of priority in a developing nation. The question is as to whether in all cases of 'planned development of the city' or 'for the development of residential area', the power of urgency may be invoked by the Government and even where such power is invoked, should the enquiry contemplated under Section 5-A be dispensed with invariably. We do not think so. Whether 'planned development of city' or `development of residential area' cannot brook delay of a few months to complete the enquiry under Section 5- A? In our opinion, ordinarily it can. The Government must, therefore, do a balancing act and resort to the special power of urgency under Section 17 in the matters of acquisition of land for the public purpose viz. 'planned development of city' or 'for development of residential area' in exceptional situation.
Use of the power by the Government under Section 17 for `planned development of the city' or `the development of residential area' or for `housing' must not be as a rule but by way of an exception. Such exceptional situation may be for the public purpose viz. rehabilitation of natural calamity affected persons; rehabilitation of persons uprooted due to commissioning of dam or housing for lower strata of the society urgently; rehabilitation of persons affected by time bound projects, etc. The list is only illustrative and not exhaustive. In any case, sans real urgency and need for immediate possession of the land for carrying out the stated purpose, heavy onus lies on the Government to justify the exercise of such power.
It must, therefore, be held that the use of the power of urgency and dispensation of enquiry under Section 5-A by the Government in a routine manner for the 'planned development of city' or 'development of residential area' and thereby depriving the owner or person interested of a very valuable right under Section 5-A may not meet the statutory test nor could be readily sustained."
18. If the government seeks to invoke its power of urgency, it has to first form the opinion that the land for the stated public purpose is urgently needed. Such opinion has to be founded on the need for immediate possession of the land for carrying out the purpose for which land is sought to be compulsorily acquired. The use of power of urgency under Section 17(1) and (4) of the Act ipso facto does not result in elimination of enquiry under Section 5A and, therefore, if the government intends to eliminate enquiry, then it has to apply its mind on the aspect that urgency is of such nature that necessitates elimination of such enquiry. The satisfaction of the government on twin aspects viz; (i) need for immediate possession of the land for carrying out the stated purpose and (ii) urgency is such that necessitates dispensation of enquiry is a must and permits no departure for a valid exercise of power under Section 17(1) and (4). In paragraph 51 of the case of Anand Singh, it has been held that use of the power of urgency and dispensation of enquiry under Section 5A of the Act by the Government in a routine manner for the "planned development of city" or "development of residential area" and thereby depriving the owner or person interested of a very valuable right under Section 5-A may not meet the statutory test nor could be readily sustained (emphasis supplied). Ordinarily, therefore, invocation of urgency power by the government for a Residential Scheme - that does not fall in exceptional category as illustrated in para 50 of Anand Singh - cannot be held to be legally sustainable.
19. Adverting now to the Notification dated October 27, 1999, the statement made therein is to the effect "the Lt. Governor, Delhi is satisfied also that provisions of sub-section (1) of Section 17 of the said Act are applicable to this land and is further pleased under sub-section (4) of the said Section to direct that all the provisions of Section 5A shall not apply". For what has been stated just above in immediately preceding paragraph, the exercise of power by the Lt. Governor, Delhi under Section 17(1) and (4) has to be held bad in law. Moreover, except the above statement in the Notification, there is no other material available on record which indicates that there has been application of mind by the Lt. Governor, Delhi on the aspect that urgency was of such nature that necessitated dispensation of enquiry under Section 5A of the Act. The respondents have miserably failed to show that the stated purpose 'Rohini Residential Scheme' could not have brooked the delay of few months and the conclusion of the enquiry under Section 5A of the Act would have frustrated the said public purpose.
20. Where the government invokes urgency power under Section 17(1) and (4) for the public purpose like 'planned development of city' or 'development of residential area' or 'Residential Scheme', the initial presumption in favour of the government does not arise and the burden lies on the government to prove that the use of power was justified and dispensation of enquiry was necessary. In the present case, the respondents have miserably failed to show to the satisfaction of the Court that power of urgency and dispensation of enquiry under Section 5A has been exercised with justification. The action of the Lt. Governor, Delhi, in the facts of the case whereby he directed that the provisions of Section 5A shall not apply, if allowed to stand, it would amount to depriving a person of his property without authority of law.
21. The power of urgency by the Government under Section 17 for a public purpose like Residential Scheme cannot be invoked as a rule but has to be by way of exception. As noted above, no material is available on record that justifies dispensation of enquiry under Section 5A of the Act. The High Court was clearly wrong in holding that there was sufficient urgency in invoking the provisions of Section 17 of the Act.
22. Consequently, the appeal is allowed. The Notification dated October 27, 1999 to the effect "the Lt. Governor, Delhi is satisfied also that provisions of sub-section (1) of Section 17 of the said Act are applicable to this land and is further pleased under sub-section (4) of the said Section to direct that all the provisions of Section 5(A) shall not apply" insofar as appellant's land is concerned is quashed. The declaration dated April 3, 2000 issued and published under Section 6 of the Act concerning the subject property is also quashed. The Competent Authority may now invite objections under Section 5A of the Act pursuant to the Notification dated October 27, 1999 and proceed with the matter in accordance with law. No order as to costs."
19. On the facts and the legal position obtained in these three writ petitions, we find that village Almaspur in district Muzaffarnagar was not included in the development area of MDA, as notified in the Notification dated 21.11.1996, issued under Section 3 of the U.P. Urban Planning and Development Act, 1973. The Notification included only 17 villages within the periphery of 1 Km. of the area of Nagar Palika Parishad, Muzaffarnagar. The Notification dated 21.11.1996 was amended by the Notification dated 25.4.2008, including 105 villages within 1 Km. of the periphery of Nagar Palika Parishad, in the development area of MDA. The MDA, therefore, did not have the authority to frame residential scheme and to make proposals for acquisition of land, for such scheme, prior to 25.4.2008. The Notification under Section 4(1) of the Act invoking the provision of urgency under Section 17(1) of the Act, for residential scheme of an area which was not included within the development area of MDA, was not valid. The MDA could not have made a request for developing a residential scheme, which did not fall within its development area.
20. We also find that for a residential scheme, which ordinarily takes a long time for development, the State Government, even if residential scheme is for public purpose, was not justified in invoking the provision of Section 17(1) & (4) of the Act, dispensing with the enquiry under Section 5A of the Act. The valuable rights of the owners of the land, for making objections, and thereby serving the principle of natural justice in compulsory acquisition of land was taken away, without there being any real urgency. There was no other material except the request for having a residential colony at Muzaffarnagar before the Court to apply its mind to the satisfaction of such real urgency. The residential scheme does not fall within the exceptional category, as illustrated in paragraph 50 in Anand Singh & another v. State of U.P., (2010) 11 SCC 242.
21. The learned counsels appearing for the respondents have admitted that so far no development has taken place as the land acquired by the impugned Notifications. Some plots which are not part of the Scheme, covered by the land acquisition notifications have been allotted to the builders. They have admitted that there has been no development or construction activity on the land in village Almaspur acquired by MDA.
22. In view of the opinion expressed by a Constitution Bench of the Supreme Court in Padma Sunder Rao (dead) & others v. State of Tamil Nadu & others (2002) 3 SCC 533, and taking into account that the Notification under Section 4 of the Act was issued on 6.12.2007, and that even if we do not quash the Notification under Section 4, the Notification under Section 6 cannot be issued again, on the basis of the Notification under Section 4, dated 6.12.2007 due to expiry of statutory period prescribed in the first proviso of Section 6(1) of the Act, we have to quash both the Notifications under Sections 4 and 6 of the Act.
23. For the aforesaid reasons, all the three writ petitions are allowed. The notification dated 6.12.2007, under Section 4(1) read with Section 17(1) of the Act, and the notification dated 7.12.2010, under Section 6(1) read with Section 17(1) of the Act, are set aside. The respondents are directed to return the possession of land to the petitioners.
24. Each of the petitioners will be entitled to Rs. 10,000/- as costs of litigation.
Dated : 11.5.2012.
PG.