............
8. Land to be marked out, measured and planned.- The Collector shall thereupon cause the land (unless it has been already marked out under section 4), to be marked out. He shall also cause it to be measured, and (if no plan has been made thereof), a plan to be made of the same.
9. Notice to persons interested: - (1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.
(2) ..........
...........
11-A. Period within which an award shall be made.- The Collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within the period, the entire proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, (68 of 1984), the award shall be made within a period of two years from such commencement.
Explanation.- In computing the period of two years referred to in this section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a Court, shall be excluded.
17. Special powers in cases of urgency.- (1) In cases of urgency, whenever the [appropriate Government] so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in section 9, sub-section (1), [take possession of any land needed for a public purpose]. Such land shall thereupon [vest absolutely in the [Government]], free from all encumbrances.
(2) .......
(3) .......
[(3-A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3),-
(a) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and
(b) pay it to them, unless prevented by some one or more of the contingencies mentioned in section 31, sub-section (2), and where the Collector is so prevented, the provisions of section 31, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section.
(3-B)........
(4). In the case of any land to which, in the opinion of the [appropriate Government], the provisions of sub-section (10 or sub-section (2) are applicable, the [appropriate Government] may direct that the provisions of section 5-A shall not apply, and if it does so direct, a declaration may be made under Section 6 in respect of land at any time [after the date of the publication of the notification] under Section 4, sub-section (1)".
Although the facts and the grounds taken by the petitioners relating to the invocation of the urgency clause under section 17(4) of the Act and dispensation of the provisions of section 5-A of the Act, as well as the question of actual physical possession having not been taken from the petitioners, have been conceded by the respondents, yet for proper appreciation of the case, we may give a broad outline of the facts relating to the question of invocation of urgency clause and taking over of possession.
The facts, as are borne out from the record, are that on 18.1.2006 a request was made by GNIDA to the Additional District Magistrate for acquisition of land for the purposes of planned industrial development, after invoking the urgency clause under the Land Acquisition Act. Then after a gap of one year and nine months, on 31st October, 2007, the District Magistrate wrote to the Directorate of Land Acquisition stating that the acquisition was necessary. It is after nearly one and half year of the said communication that the notification under section 4(1) of the Act was issued on 17.3.2009 invoking the urgency clause under section 17(4) of the Act. Then after a gap of another 8 months the declaration under section 6 of the Act was issued on 9.11.2009.
The submission of the learned counsel for the petitioners is that since the matter had been initiated in January 2006, and after more than three years the initial notification under section 4 of the Act was issued, and then also it took nearly 8 months to issue the notification under section 6 of the Act, the question of invoking the urgency clause could not have been there. It is not a case where the land was urgently required and the respondent-authorities had acted efficiently in the year 2006 itself by issuing the notifications and taking possession of the notified land, in which case it could have been said that the invocation of urgency clause was necessary. Such submission of the learned counsel for the petitioner has force. It is also noted by this Court that, vide communication dated 31.10.2007, the District Magistrate had mentioned that the acquisition of the land of the village in question, namely, Hazratpur was necessary but it does not state that it was urgent. Despite the same, urgency clause was invoked after one and half year. It is also not understood that when the notification under section 4 of the Act was issued in March, 2009 and thereafter the notification under section 6 of the Act was issued in November, 2009, why the objections could not have been invited and decided within the said period of eight months, and when the State was proceeding with such leisure, why was the statutory right of the petitioners to file and have their objections decided, taken away.
The question relating to urgency has been dealt with by the Full Bench in the case of Gajraj Singh (supra) while deciding issue no.5 framed in the said case, and after detailed discussion and considering the dictum of the apex court, in similar facts, it was held that invocation of the provisions of section 17(4) of the Act by the State Government dispensing with the enquiry under section 5-A of the Act while issuing the notification under section 4 of the Act had vitiated. Since the respondents do not dispute that the ratio of the said decision would be applicable to the facts of the present case also, we have not discussed the various provisions of the Act, as well as the case law in this regard and we hold that the issuance of the notifications for acquisition of land of the petitioners was not justified in law.
As regards the question of taking over possession from the petitioners and handing over to respondent-GNIDA, much has been argued by the learned counsel for the petitioners to the effect that neither there was proper publication of the notice under section 9(1) of the Act, nor as required under section 17(1) of the Act, before taking possession, 15 days time was provided after any such publication of notice under section 9(1) of the Act. In response, the respondents have tried to establish from the record that a notice under section 9(1) of the Act was issued on 12.11.2009, but this Court is not satisfied with the same. In this regard, what has been placed before us is an undated report of the Officer on Special Duty (Land Acquisition), to show that on 12.11.2009 a 'Munadi' was held in the village. The certificate in this regard, which has been signed by the Pradhan, is also undated. The same only certifies that notice by 'Munadi' with regard to sections 6/17 of the Act was made on the said date and payment of Rs. 50/- has been made to the person who conducted the 'Munadi', whose left thumb impression has been affixed on said certificate. (It is not understood as to how a person, who does not even sign and affixes his thumb impression, would read out the notice for the information of the public. ) Even otherwise, the said certificate is with regard to notice under section 6/17 of the Act and not with regard to section 9(1) of the Act. In the counter affidavit also in reply to specific stand of the petitioners that no notice whatsoever under section 9(1) of the Act was issued, a vague reply has been given stating that notice under section 9(1) of the Act was issued to the effect that the hearing of the objections was to take place on 27.11.2009. Neither has it been filed along with the counter affidavit nor has the State placed the copy of any such notice from the original record for our perusal, nor even the date of notice under section 9(1) of the Act has been mentioned in the counter affidavit. As such, it is established from the record that there was no notice given to the petitioners under section 9(1) of the Act. Thus taking over of the possession vide Possession Memo dated 1.12.2009 cannot be said to be legally valid document to prove the taking over of possession. Even otherwise, as has been discussed at length in the Full Bench judgment in the case of Gajraj Singh (supra) while deciding issue no. 8 framed in the said case, it has been held in Paragraph 362 of the said judgment that procedure for possession, as had been adopted in the case before the Full Bench, (which is similar to the one in the case at hand), would not be a proper possession as per the law, as the Possession Memo prepared in such a manner cannot be justified. In such a case, when the State itself cannot be said to have taken over possession of land, the question of handing over possession by the State to the respondent-GNIDA does not arise.
We may make a mention here that the record does not show that the Collector, at any stage, had caused the plots of the petitioners to be measured and a plan of the same be made out as provided under section 8 of the Act. We may also note that from the record it is not borne out that before taking possession of the plots of the petitioners, any offer or tender for payment of 80% of the compensation for such land as estimated by the Collector had been made to the petitioners, as is required under section 17(3-A) of the Act.
In view of the aforesaid, since the notification invoking the urgency clause and dispensation of the provisions of section 5-A of the Act itself was illegal, and the possession of notified land of the petitioners has, beyond doubt, yet not been taken from the petitioners, the notifications for acquisition deserve to be quashed.
In the present case, an interim order was passed in favour of the petitioners on 14.12.2009, in pursuance of which the petitioners are still continuing to be in possession. After the judgment of the Full Bench in the case of Gajraj Singh (supra) delivered on 21.10.2011, there has been no development activity, as there was an injunction in this regard. Nothing has been brought on record to show that the requisite permission for carrying out further development work (after the judgment of the Full Bench) was obtained from the concerned authorities with regard to the village in question and that any development activity has actually been carried out thereafter.
Sri Ravindra Kumar, learned counsel for the respondent-GNIDA has vehemently argued that even in cases where notifications were held to be bad on account of having wrongly invoked the urgency clause, and actual physical possession having not been taken, still the Full Bench of this Court in the case of Gajraj Singh (supra), after balancing the equities between the parties, in cases where third party interest had been created and there was development activity carried out by GNIDA after the issuance of the notifications, the Full Bench stopped short of quashing the notifications and saved the same in the interest of justice.
It is submitted that the Full Bench in the case of Gajraj Singh (supra) had carved out three sets of cases. The first set of cases were such where no development activity or third party rights had been created and the possession continued with the petitioners therein. Such petitions were allowed and the notifications were quashed with the direction for restoration of the land to the land owners. The second set of cases were those where there were laches in approaching the Court. Such writ petitions were dismissed. The third set of cases were such where the court found that though actually the possession had not been taken, still development activities on the plots of the land-owners had been carried out and third party rights had also been created. The Full Bench had, in such case, held that such land-owners would be entitled for payment of additional compensation to the extent of 64.70%, which had been granted to other similarly situated persons by the authority itself. It was further directed that said land owners would also be entitled to 10% developed land to the maximum of 2500 sq. meters.
The submission of the learned counsel for the respondent-GNIDA is that the case of the petitioners herein would fall in the third category, and at best the petitioners herein would be entitled to the benefit of additional compensation of 64.70% and grant of 10% developed land, subject to maximum of 2500 sq. meters.
Now we have to consider as to in which of the three categories, the case of the petitioners would fall. As has already been held (and also conceded by the respondents) possession of land was never taken over from the petitioners, and they still continue to be in possession. It is thus contended by the petitioners that their case would fall in the first category, as neither any third party interest has been created nor any development activity has been carried out on the plots of the petitioners.
Learned counsel for the respondent-GNIDA has, however, submitted that it is not a question of carrying out development activities on the particular plots of the petitioners but what is to be considered is the development activities carried out by the GNIDA in the surrounding area or, in this case, in the village where acquisition proceedings had been carried out. It is contended that nearly 50% of the land-owners have taken the compensation amount after the award was passed, or under agreement entered into under The Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules, 1997. According to the learned counsel for the respondent-GNIDA, sewer lines have been laid out for the 'abadi' area and roads have also been constructed and in a small area, some flats for economically weaker section have also been constructed. Such averments have been made for the first time in the supplementary affidavit filed today. In the said affidavit it is not indicated as to in which part of the village such alleged development activities have been carried out. The amount shown for laying of sewer line and construction of roads is only a few lacs. The location of the alleged construction of the flats for the economically weaker section has not been identified in the affidavit. It is not the case of the respondents that any construction or development activity has been carried out on or for the plots of the petitioners.
The contention of the learned counsel for the petitioner is that the development activity which has been carried out, has been done so for the 'abadi' area which has not been acquired, and that the respondent-GNIDA was in any case obliged to do so. It is not that the respondent-GNIDA has carried out any development activity for the area which has been acquired by the notifications impugned in this writ petition. Such submission of the learned counsel for the petitioners has force. If at all, the respondents had carried out any development activity on the plots of the petitioners or for that matter for the development of the land of the village for which notifications for acquisition had been issued, specific averments to that effect should have been made either in the counter affidavit or in the supplementary affidavit filed today. All that has been stated in the supplementary affidavit is to the effect that in respect of the village in question, development works amounting to Rs. 6.78 lacs has been spent on laying of sewer, Rs. 31.89 lacs on C.C. Road, Rs. 4.30 lacs on lines for water supply (totaling to about Rs. 43 lacs).
This averment made in paragraph 8 of the supplementary affidavit filed today gives strength to the submission of the learned counsel for the petitioners that such development is the village development activity (i.e. for the 'abadi' area of the village which has not been acquired) because no such development activity can be said to be carried out for a large area of over 73 hectares (notified to be acquired) in such a small budget. Even otherwise, there is no specific averment with regard to any development having been made in the area which has been acquired. It is a vague averment made in the affidavit stating that the village development work has been carried out, which in any case is the duty of the respondent-GNIDA to carry out in the notified area of GNIDA. In paragraph 9 of the supplementary affidavit it has been state that about Rs. 230 lacs has been spent in the area that falls in the acquired land of village Hazratpur, out of which about Rs. 23 lacs has been spent on laying down of electricity transmission lines, and about Rs. 200 lacs for the construction of flats for economically weaker section of the society. Where these flats have been constructed and whether any third party rights have been created, has not been specified.
Such vague statement made in the supplementary affidavit with regard to development activity having been carried out over the area notified to be acquired (the possession of which has already been held to be still with the land owners), cannot be accepted.
In such view of the matter, we are of the opinion that the case of the petitioners would not fall in the category where they can be compensated by payment of additional compensation, and giving the petitioners 10% developed land, as has been done in certain cases where substantial development work had been carried out and third party rights had been created. We are thus of the view that the case of the petitioners would fall in the first category of cases decided by the Full Bench of this Court in the case of Gajraj Singh (supra), whereby notifications have been quashed and the restoration of possession has been directed.
We may also note here that a Division Bench of this Court in the case of Smt. Savitri Mohan vs. State of U.P. and others reported in 2012 (8) ADJ 318 has, while dealing with a case of village Chhaprola, District Gautam Budh Nagar where the Full Bench of this Court in the case of Gajraj Singh (supra) had placed land owners of the said village in the third category i.e. for payment of additional compensation of 64.70% plus 10% developed land, yet the Division Bench, after considering the fact that the possession of the land of the petitioners therein had not been actually taken over; no third party rights had been created and no substantial development activity had been carried out in area notified to be acquired or on the plots of the petitioners therein, held that the notification was bad with regard to the acquisition of the plots of the petitioners therein, and thus quashed the same. In our view, the present case would fall in the same category where the notifications with regard to the land of the petitioners herein also deserve to be quashed.
For the foregoing reasons, the writ petition stands allowed. The notifications dated 17.3.2009 and 9.11.2009 issued under sections 4 and 6 of the Act respectively stand quashed with regard to the acquisition of the plots of the petitioners, being Khasra plots no. 211 (0.177 hectares), 57 (0.5052 hectares), 151 (0.7640 hectares), 158 (0.2604 hectares), 173 (0.2895 hectares), 174 (0.2902 hectares), 177 (0.3522 hectares), 189 (0.0758 hectares), 190 (0.0789 hectares), 192 (0.0259 hectares), 188 (0.1044 hectares) and 157 (0.4920 hectares) of village Hazratpur, Pargana and Tehsil Dadri, District Gautam Budh Nagar. It has been stated by the learned Standing Counsel that plot no. 189 was not there in the notifications and as such the question of acquisition of the said plot does not arise. We make a note of the same and if that be so, the same being outside the notification, does not fall in the scope of acquisition by the said notifications.
We may, however, clarify that the quashing of the notifications for acquisition of the land of the petitioners would not come in the way of the respondent-authorities in acquiring the land of the petitioners under the provisions of the Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation and Resettlement Act, 2013. Such view has also been taken by the Apex Court also in the case of Bharat Kumar vs. State of Haryana (Civil Appeal no. 1971 of 2014 decided on 4.2.2014), where, after holding that the acquisition under the provisions of the Land Acquisition Act, 1894 was bad, the respondents have been permitted to initiate appropriate acquisition proceedings afresh in accordance with the provisions of the Act of 2013. We are of the view that here also, the respondents would be entitled to grant of such permission.
Before parting with the case, this Court may express its deep concern regarding large chunks of prime agricultural land being diverted for non-agricultural purposes by resorting to acquisition of agricultural land for the purpose of housing, industrializations etc. The State of Uttar Pradesh, besides being the most populous State in the country, is also the largest producer of food grains. With the indiscriminate acquisition of fertile cultivable land in the entire State, more particularly in the western parts of Uttar Pradesh which have been considered part of the green revolution, there has been an ecological imbalance and the production of food grains has been reduced alarmingly. Judicial notice can be taken of the fact that millions of hectares of fertile and cultivable land have been acquired in the State for non-agricultural purposes. It is very wrong to think that the land must be acquired for the industries, as the industrial sector alone can be a vehicle for higher growth. Industrialization is surely very important but there has to be a balance between industrialization and preserving the farming land of the State so as to ensure that the socio-economic balance is not disturbed. If this is not curbed at the right stage, the situation will go out of control and this State will be faced with a terrible food crisis in the years to come, seeds for which have already been sown. Industries can always be set up on non-agricultural or barren waste land and so can such land be used for urbanization. Acquisition of agricultural land should not be allowed for non-farming activity. If at all it is so essential to acquire the agriculture land for non-agricultural activity, this Court suggests that Government may, by appropriate legislation, ensure that the authority or institution for which the land is to be acquired, should ensure that at least three times of that area in barren or uncultivable land is necessarily converted as fertile land by such authority or institution, either in the neighbouring area of acquisition or anywhere in the State, within a specified period of time.
Learned Standing Counsel shall ensure that a copy of this order is sent to the Chief Secretary, Government of Uttar Pradesh, who shall, in turn, place it before the appropriate authority for necessary action.