Hon'ble Het Singh Yadav, J.
1. The petitioner has prayed for directions to quash notifications under Section 4 (1) read with Section 17 (4) of the Land Acquisition Act, 1894 (for short, the Act) dated 12.3.2008, and the notification under Section 6 read with Section 17 (1) of the Act dated 3.2.2009, in so far as the petitioner's land, in Plot No. 1508 area 3.365 hectares and Plot No. 1528 area 1.252 hectares in Village Chhaprola, Tehsil and Pargana Dadri, District Gautam Budh Nagar, has been acquired by the State Government out of the total area of 68.129 hectares included in the notifications.
2. The notification under Section 4 (1) read with Section 17 (4) dated 12.3.2008 and the notification under Section 6 read with Section 17 (1) dated 3.2.2009 declare that the land is required in public interest for 'planned industrial development' of GNIDA. The notification under Section 4 (1) read with Section 17 (4) dated 12.3.2008 dispense with enquiry under Section 5-A of the Act and the notification under Section 6 (1) provides for directions under Section 17 (1) authorising the Collector to take over possession of the land within 15 days after publication of the notice under Section 9 (1), even if the award has not been declared under Section 11 of the Act.
3. The award under Section 11 of the Act was declared on 31.3.2011. The petitioner has not received the compensation. It is stated in the writ petition and is emphatically stated by Shri Ashwani Kumar Misra that there has been no development over the acquired plots and no allotment has been made to any person for carrying out any development.
4. We have heard Shri Ashwani Kumar Misra, learned counsel appearing for the petitioner. Standing Counsel appears for the State respondents. Shri Ramendra Pratap Singh appears for the Greater Noida Industrial Development Authority, District Gautam Budh Nagar (GNIDA).
5. The writ petition was filed on 03.3.2009 within a month of the notification under Section 6 (1) dated 3.2.2009 under the Act, with the averments that the petitioner is recorded as bhumidhar of plot nos. 1508 and 1528 for last more than 30 years. The plots in question are surrounded by boundary wall, within which the petitioner is running an Agro based industry in the name of 'Sonal Fruit processor' which is duly registered with the Ministry of Food Processing Industry, Government of India, New Delhi as well as with the Director of Industries, U.P. The industry was registered on 10.1.1991 as Sonal Food Processor under the Food Product Order, 1955 as a proprietary concern. It is also registered with the District Industries Centre vide certificate of the General Manager, District Industries Centre, Ghaziabad dated 26.3.1993.
6. It is stated that the petitioner is also running floriculture wherein various kinds of hybrid seeds of flowers are produced and are being widely dispatched within the country and beyond the country. The petitioner has been supplying seeds to many important persons including the President of India in which a certificate was issued by the President's Secretariat, certifying quality of petitioner's seeds on 21.9.1982. The floriculture unit "Pushpalaya" is registered as seed importer with the District Horticulture Office and a certificate was granted by the District Horticulture Officer, Ghaziabad on 19.2.1996.
7. The petitioner, having come to know that the land is proposed to be acquired, made a representation to GNIDA on 11.4.2008, giving the details of the business of floriculture and food processing carried out on the land. A similar representation was also sent to the State Government.
8. Shri Ashwani Kumar Misra has challenged the notifications acquiring the land on the grounds that there was no material with the State Government to satisfy itself, that the land was urgently required for planned industrial development, nor there was any plan for the land acquired by the impugned notifications in village Chhaprola. He submits that there could be no urgency to dispense with enquiry under Section 5A, invoking urgency clause under Section 17. The entire exercise has been made by way of administrative routine without there being any material available on record and that such exercise of powers, therefore, absolutely arbitrary, illegal, malafide and cannot be sustained. An interim order was passed by this Court on 5.3.2009 directing that until further orders, the parties are directed to maintain status qua. The petitioner is still in possession of the land.
9. Shri Ashwani Kumar Misra submits that though the State Government has stated in its reply that the possession was taken on 9.3.2009, i.e. after the interim order was passed on 5.3.2009. On that day the respondents could not have taken over possession as the interim order was passed on 5.3.2009, and was operative. The GNIDA in the affidavit of Shri G.P. Srivastava, Land Consultant in the office of GNIDA has clearly admitted in paragraph-4, that the possession of petitioner's land was not taken as stay order of the High Court was operating.
10. Shri Ashwani Kumar Misra has relied upon the judgment in Anand Singh v. State of U.P., (2010) 11 SCC 242; Dev Sharan v. State of U.P., (2011) 4 SCC 769; Radhey Shyam (dead) through LRs. v. State of U.P., (2011) 5 SCC 553; Devendra Kumar Tyagi and ors vs. State of UP (2011) 9 SCC 164; Devendra Singh and ors vs. State of UP and ors (2011) 9 SCC 551; Greater Noida Industrial Development Authority vs. Devendra Kumar and ors (2011) 12 SCC 375; Darshan Lal Nagpal Vs. Government of NCT of Delhi and others, (2012) 2 SCC 327, and the judgment of this Court in Ram Singh and ors vs. State of UP & ors 2012 (3) ADJ 588, in support of his submission that the similar material for invoking Section 17 was produced in all these cases relating to acquisition of land in GNIDA in which identical pleadings and reports were sent by GNIDA and the Collector, Gautam Budh Nagar to the State Government that the land is required for planned industrial development; large number of industries have applied for land, which will go away to some other States, if the land is not urgently provided and further that there is likelihood of unauthorised constructions and encroachments being made on the land. The Supreme Court has in all the judgments beginning from Anand Singh's case (supra) held that on such material there could be no urgency, even if there was public purpose in acquiring the land, to dispense with enquiry under Section 5A of the Act. The Supreme Court has held that the right to file representation is concomitant to the principles of natural justice, and has approved the judgments of the High Court, quashing the notifications on the ground that there was no apparent or real urgency. The Supreme Court has further held that planned industrial development cannot be made within a short time and ordinarily takes a long time within which the enquiry under Section 5A could be held. Shri Misra submits that this case is covered by the judgments cited by him. There are no distinguishing features, in this case, to take any other view.
11. In the counter affidavit of Shri Manmohan Chaudhary, Additional District Magistrate (Land Acquisition)/Officer on Special Duty (Land Acquisition), Gautam Budh Nagar, it is stated in paragraph-8 as follows:-
"8. That the allegations in paragraphs 11 and 12 of the writ petition are misleading and are also incorrect. The land acquisition proceedings have been taken in accordance with law. As already stated before the issuance of notifications under Sections 4 and 6 of the Act, a joint survey of entire area was made and a report was prepared. A request for acquisition was made by Greater NOIDA vide letter dated 26.4.2006 on which some objections were made by the respondent no. 4 and again by letter dated 18.5.2006 the Greater NOIDA sent its request again for acquisition. Copies of the aforesaid letters are annexed as Annexure-CA-3 & CA-4, to this affidavit. Thereafter a report was sent by the respondent no. 4 on 23.5.2007 to the Land Acquisition Directorate, Board of Revenue, Lucknow about the land in question. A copy of the aforesaid letter is annexed as Annexure-CA-5, to this affidavit. The land acquisition Directorate raised certain queries vide letter dated 4.7.2007 from the respondent no.3. The respondent no. 3 again by his letter dated 21.9.2007 rectified the earlier shortcomings and sent the letter dated 21.9.2007 to Land Acquisition Directorate, Lucknow. Copies of aforesaid letters dated 4.7.2007 and 21.9.2007 are annexed as Annexures CA-6 and CA-7, to this affidavit. Again by his letter dated 2.11.2007 the Land Acquisition Directorate sought further clarification from respondent no. 3 who vide his letter dated 28.12.2007 has explained the matter and sent the proposal for land acquisition. Copies of aforesaid letters dated 2.11.2007 and 28.12.2007 are annexed as Annexures CA-8 and CA-9, to this affidavit. Thereafter the respondent no. 4 sent his reasons for issuance of notifications under Section 4 read with Section 17 of Land Acquisition Act. Copies of aforesaid certificate is annexed as Annexure CA-10, to this affidavit. Thereafter the entire materials were placed before the State Government, which had issued the impugned notifications. It is wrong to say that all of sudden the notifications were issued. Thereafter notice under Section 9 of the Land Acquisition Act was issued to the petitioner and on 9.3.2009 the possession has been transferred to Greater NOIDA, as stated earlier. Since the objection under Section 5 of the Act was dispensed with, hence there was no occasion to hear it. However, the petitioner has not annexed the representation made to State Government with the writ petition, hence the deponent is not in a position to reply the same."
12. The report on Form 16, a proposal under Section 4 (1)/17 for acquisition of the land, a survey report dated 11.11.2005 of the status of the land, prepared by the Deputy Chief Executive Officer, GNIDA; Tehsildar, Naib Tehsildar and Survey Amin, GNIDA, would show that there are 390 trees of Sagaun, 10 trees of mango, 1.5 metre high boundary wall over plot No. 1508. In the letter of the Special Land Acquisition Officer, GNIDA dated 26.4.2006 to Additional District Magistrate (Land Acquisition) GNIDA for acquisition of 68.928 hec. of land in village Chhaprola, it is stated that the land is immediately needed for development by the authority and that since there is likelihood of illegal and unauthorised constructions to be raised, which will affect the development scheme, it is necessary that the land be immediately handed over to the authority. In the letter dated 18.5.2006 sent by the same officer again a request was made enclosing various forms and information with regard to the land to be acquired. The District Magistrate in his letter dated 23.5.2007 to the Director, Land Acquisition Directorate, Board of Revenue, UP Lucknow recorded his conclusion that after making enquiries he has come to conclusion that the land is absolutely necessary to be acquired in public interest. He verified that the GNIDA has deposited 10% as advance compensation and 10% as cost of acquisition of Rs. 7, 35, 30, 212/- and that the report and certificate of Incharge Officer (Ceiling) Gautam Budh Nagar and the check list is enclosed.
13. In the letter of the District Magistrate, Gautam Budh Nagar dated 28.12.2007 to the Director, Land Acquisition Directorate, Board of Revenue, Lucknow, he mentioned to the five points of the objections raised in the letter of Director dated 2.11.2007 and stated that relevant khautani verified by Tehsildar, the amended calculation of Form-V with the chalans for the cost of land acquisition, the Ceiling Officer's letter with a signature and the amended khataunies as well as Sajra plan is enclosed.
14. In the justification given by the Collector, Gautam Budh Nagar, for applying urgency clause under Section 4/17, the request is identical as in the case of judgment in Devendra Kumar Tyagi's case (supra) decided by the Supreme Court. Only blanks have been filled up giving the details of the Gata number, Khata number, number of farmers, the number of total families, and SC/ST families. The rest of the contents are the same, namely that the object of the Act is to make industrial and urban development. The GNIDA, under the said Act, has been given powers to acquire the land; plan and identify the land for industrial/commercial/residential units; provide infrastructural facilities, sale or purchase or dispose of the land in village Chhaprola, Pargana Dadri in District Gautam Budh Nagar. In order to make planned industrial development the land is urgently required. In case of delay there is possibility of encroachments on the land, which will adversely affect the concept of planned industrial development. The land around the village has been acquired and in respect of some of the land the proceedings of acquisition are in progress and in such situation to maintain the continuity of infrastructural services, it is necessary to acquire the land. In the second paragraph, the Collector stated that for integrity development, roads, sewerage, electricity, and for planned development and allotment, the land is required. The work is delayed due to non-acquisition of the land. The reputed industrial units of the country want to invest money and it is necessary to make the land available to them. If the land is not available to these units, they will establish their industrial units in other States affecting the investment of capital and employment opportunities in the State.
15. In the counter affidavit of Shri G.P. Srivastava, Land Consultant aged 67 years against whom an objection has been raised that he is a retired employee of GNIDA, and has filed the affidavit without any accountability, it is stated in paragraphs 4, 5, and 9 as follows:-
"4. That in reply to the contents of para 3 of the writ petition it is stated that a proposal was made and plot-to-plot survey was also conducted. After survey the proposal was sent to the State Government by district administration after examination, scrutiny and spot inspection. The State Government after the examination of the proposal, found material on record and recommendations formed opinion that matter is urgent one for acquisition of land for planned industrial development for Greater NOIDA. The State Government was subjectively satisfied and came to the correct conclusion for invoking urgency clause. The urgency clause was invoked and enquiries were dispensed with. The Khasra no. 1508 area 3.365 hectare, Khasra no. 1528 area 1.252 hectare, village Chhaprola for which the notification under Section 4 (1)/17 was issued on 12.3.2008 and was published in well-circulated news paper 'Amar Ujala' and 'Rashtriya Sahara' on 18.3.2008. The local publication was made on 25.3.2008 and people were informed by the drum beats on 25.3.2008. The declaration under Section 6 was issued on 3.2.2009 and the same was published in the news papers on 20.2.2009. The notice under Section 9 was issued fixing 5.3.2009 for hearing the objections. The possession of land, which was acquired through notification under Section 4 and 6 of village Chhapraula and in which no stay order was operating, was taken by the State Government and was handed over to Greater Noida Authority on 9.3.2009. The possession of the petitioner's land was not taken as the stay order of Hon'ble High Court was operating. The land was required for planned industrial development for Greater NOIDA, the notifications have rightly been issued. Today the time has come for developing countries to have good infrastructure, to compete with other countries to develop good infrastructure in our country, some time land are acquired by the State Government so that good infrastructure may be given to the foreign investors, so that they invest the money in the State. Moreover, in a law laid down by Hon'ble Supreme Court reported in a view law laid down, by Hon'ble Supreme Court reported in 1997 (1) SCC page 134, Ramniklal N. Bhutta and another vs. State of Maharashtra and others, has said that whatever, may have been the practice in the past, a time has come where the Court should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in a matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, it case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say.
5.That the content of para 4 of the writ petition is false hence emphatically denied in the manner stated. The plot no. 1508 area 3.365 hectare, plot no. 1528 area 1.252 hectare of village Chhitraula is recorded in the name of the petitioner resident of R-13/2 Rajnagar, Ghaziabad. When the survey was made in plot no. 1508 and 390 trees of sagaun, 10 trees of mango and boundary with 1.5 mtr height was found. In plot no. 1528 no construction was found from bare perusal of annexure 5 of the writ petition by which grant of licence under the Fruit Product Order, 1955. Processing Industries o/o the Deputy Director, F & V.P. (NR) 10/126, Jamnagar House, New Delhi. The licence has expired in 1991 as the licence was required to be renewed every calender year.
9. That the contents of paras 11 and 12 of the writ petition are false hence emphatically denied. The land of the petitioner situates amidst, the scheme is part and parcel of planning and is very useful hence, the land of the petitioner cannot be exempted or de-notified. When survey was made at that time nothing was found on the plots running such any industry. In plot no. 1508, 390 trees of sagaun, 10 trees of mango and boundary with 1.5 mtr height was found and in plot no. 1528 no construction was found. In the aforesaid plot no food processing unit or thriving floriculture were found. The Section 4 (1)/17 of Land Acquisition Act has rightly been issued."
16. We are informed by Shri Ramendra Pratap Singh appearing for GNIDA that a reference was made by the Division Bench to the Three-Judges to decide the bunch of cases challenging the acquisition of land for planned industrial development of GNIDA. The Three-Judges Bench in Gajraj and ors vs. State of UP and others 2011 (11) ADJ 1 decided 461 petitions. The Court upheld the view taken in Division Bench judgment in Harkaran Singh's case in respect to village Patwari that inclusion of Section 17 (4) was not justified and quashed the notifications of Group-40, Group-38 in sub-paras 2 (i), 2 (ii), 2 (iii) of paragraph-482 relating to various villages including village Devla, Village Usufpur (Chak Sahberi) and Village Asdullapur. The writ petitions filed with considerable delay were dismissed on the ground of laches in sub-paras (i) and those writ petitions in which the land involved was allotted and was developed and in which the construction work had started and residential plots or flats were being developed, the Court disposed of the writ petitions with additional compensation of 64.70% as in the case of village Patwari and with further directions to allot developed abadi plots to the extent of 10% of the acquired land of the petitioners subject to maximum of 2500 square meters as against the allotment of abadi plots to the extent of 6%.
17. It is submitted that in one of the writ petitions notifications relating to village Chhaprola under Sections 4 and 6 dated 12.3.2008 and 3.2.2009 proposing to acquire 68.129 hectares of land of village Chhaprola was included in Group-18. In the Writ Petition No. 46775 of 2011 (Jai Pal and others v. State of UP and others) relating to these notifications of village Chhaprola, the facts were discussed in paragraph-50, which are quoted as below:-
"50. The writ petitions of Group-18 relate to village Chhapraula. In Writ Petition No.46775 of 2011 (Jai Pal And Others vs. State of U.P. and others) pleadings are complete which is treated as leading writ petition of village Chhapraula. This writ petition has been filed by 48 tenure holders challenging the notification dated 12th March, 2008 issued under Section 4 read with Sections 17(1) and 17(4) of the Act proposing acquisition of 68.129 hectares land of village Chhapraula. The declaration under Section 6 of the Act was issued on 3rd February, 2009. The State Government by Government order dated 8th September, 1997 and 9th February, 2005 has issued specific directions to the acquiring bodies not to include the land covered by abadi in the acquisition and in case it is utmost necessary for acquisition displaced person be given comparable land. The petitioners claim to be in actual possession of the land. It has been pleaded that it has become fashionable to discriminatingly apply the provisions of Section 17(4) of the Act in every case of acquisition. The land has been allotted to private builders whereas the purpose of acquisition was planned industrial development. In the counter affidavit filed by the State it has been stated that possession of the land was taken on 9th March, 2009 and award was declared on 21st March, 2011. Copies of the possession memo and award have been brought on the record. According to paragraph 24 of the counter affidavit, the land use of part of Sector Tech Zone was changed from institutional to residential and similarly land use of part of Sector Echotech-13 was changed from industrial to institutional which changes were approved by the Board on 11th February, 2010 and also the same were approved by the Government on 30th March, 2010. The compensation has been disbursed to the extent of 76%. An application for intervention has been filed on behalf of M/s Marion Biotech Private Limited which claim allotment of land by allotment letter dated 31st March, 2011 of an area of 10,000 square meters as an industrial plot in Echotech-16. The applicant claims that 200-300 persons shall be employed in the project."
18. The Writ Petition No. 46775 of 2011 (Jai Pal and others vs. State of UP and others) included in residuary sub-para (3) of Paragraph-482 in which all petitions were disposed of with directions to pay additional compensation and allotment of additional area.
19. The Counsels, appearing for State Government and GNIDA in this writ petition, admit that apart from Paragraph-50, there is no discussion with regard to the notifications acquiring the land of village Chhaprola. The Court included the writ petition challenging acquisition of land by State Government in Village Chhaprola, in the residuary clause and disposed it of with direction of higher compensation and additional allotment of land without any discussion on merits.
20. It is submitted by Shri Ashwani Kumar Misra that in the present case admittedly the petitioners are still in possession of her plot nos. 1508 and 1528 of which the possession was not taken. There is no averment in the counter affidavit of the State of UP, and GNIDA that any allotment has taken place on these plots or any development has taken place, which may affect the scheme. No third party rights have been intervened on the land. There is no averment that the land in these two plots fall in Sector-Tech Zone or Sector-Eco-Tech-13, of which the land use was changed. There is no intervention application filed by any person claiming allotment of the land. In paragraph-50 of the judgment in Gajraj vs. State of UP(supra) the statement of facts would show that only one hectare of land was allotted on 31.3.2011 to M/s Marion Bioteck Private Limited as an industrial plot of the entire land of 68.129 hec. There are no details of any development on the land.
21.It is submitted by Shri Ashwani Kumar Misra that the petitioner's case thus qua the plots in the notification falls within the second category of cases in which even in Gajraj vs. State of UP the Court had dismissed the writ petitions following Harkaran Singh's case.
22. In Anand Singh & anr. v. State of Uttar Pradesh & another (supra); State of West Bengal and others v. Prafulla Churan Law 2011 (3) AD (SC) 296 and Dev Sharan & ors vs. State of UP & ors (supra), the Supreme Court has considered the matter of invoking the urgency clause under Section 17 (1) and (4) along with Section 4 of the Act dispensing with hearing of objections under Section 5A. The Supreme Court, considering its earlier judgments held in paragraphs 29, 30, 31 of the Anand Singh's case (Supra) as follows:-
29. `Eminent domain' is right or power of a sovereign State to appropriate the private property within the territorial sovereignty to public uses or purposes. It is exercise of strong arm of government to take property for public uses without owner's consent. It requires no constitutional recognition; it is an attribute of sovereignty and essential to the sovereign government. (Words and Phrases, Permanent Edition, Volume 14, 1952 (West Publishing Co.,).
30. The power of eminent domain, being inherent in the government, is exercisable in the public interest, general welfare and for public purpose. Acquisition of private property by the State in the public interest or for public purpose is nothing but an enforcement of the right of eminent domain. In India, the Act provides directly for acquisition of particular property for public purpose. Though right to property is no longer fundamental right but Article 300A of the Constitution mandates that no person shall be deprived of his property save by authority of law. That Section 5A of the Act confers a valuable right to an individual is beyond any doubt. As a matter of fact, this Court has time and again reiterated that Section 5A confers an important right in favour of a person whose land is sought to be acquired. When the government proceeds for compulsory acquisition of particular property for public purpose, the only right that the owner or the person interested in the property has, is to submit his objections within the prescribed time under Section 5A of the Act and persuade the State authorities to drop the acquisition of that particular land by setting forth the reasons such as the unsuitability of the land for the stated public purpose; the grave hardship that may be caused to him by such expropriation, availability of alternative land for achieving public purpose etc. Moreover, right conferred on the owner or person interested to file objections to the proposed acquisition is not only an important and valuable right but also makes the provision for compulsory acquisition just and in conformity with the fundamental principles of natural justice. The exceptional and extraordinary power of doing away with an enquiry under Section 5A in a case where possession of the land is required urgently or in unforeseen emergency is provided in Section 17 of the Act. Such power is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The guideline is inbuilt in Section 17 itself for exercise of the exceptional power in dispensing with enquiry under Section 5A. Exceptional the power, the more circumspect the government must be in its exercise. The government obviously, therefore, has to apply its mind before it dispenses with enquiry under Section 5A on the aspect whether the urgency is of such a nature that justifies elimination of summary enquiry under Section 5A. A repetition of statutory phrase in the notification that the state government is satisfied that the land specified in the notification is urgently needed and provision contained in Section 5A shall not apply, though may initially raise a presumption in favour of the government that pre-requisite conditions for exercise of such power have been satisfied, but such presumption may be displaced by the circumstances themselves having no reasonable nexus with the purpose for which power has been exercised. Upon challenge being made to the use of power under Section 17, the government must produce appropriate material before the court that the opinion for dispensing with the enquiry under Section 5A has been formed by the government after due application of mind on the material placed before it. It is true that power conferred upon the government under Section 17 is administrative and its opinion is entitled to due weight, but in a case where the opinion is formed regarding the urgency based on considerations not germane to the purpose, the judicial review of such administrative decision may become necessary. As to in what circumstances the power of emergency can be invoked are specified in Section 17(2) but circumstances necessitating invocation of urgency under Section 17(1) are not stated in the provision itself. Generally speaking, the development of an area (for residential purposes) or a planned development of city, takes many years if not decades and, therefore, there is no reason why summary enquiry as contemplated under Section 5A may not be held and objections of land owners/persons interested may not be considered. In many cases on general assumption, likely delay in completion of enquiry under Section 5A is set up as a reason for invocation of extraordinary power in dispensing with the enquiry little realizing that an important and valuable right of the person interested in the land is being taken away and with some effort enquiry could always be completed expeditiously. The special provision has been made in Section 17 to eliminate enquiry under Section 5A 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. We have already noticed few decisions of this Court. There is conflict of view in the two decisions of this Court viz.; Narayan Govind Gavate and Pista Devi. In Om Prakash this Court held that decision in Pista Devi 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. We agree. As regards the issue whether pre- notification and post-notification delay would render the invocation of urgency power void, again the case law is not consistent. The view of this Court has differed on this aspect due to different fact-situation prevailing in those cases. In our opinion such delay will have material bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the appropriate government before the court justifying that urgency was of such nature that necessitated elimination of enquiry under Section 5A.
31. In a country as big as ours, the roof over head is a distant dream for 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 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 5A be dispensed with invariably. We do not think so. Whether `planned development of city' or `development of residential area' cannot brook delay of few months to complete the enquiry under Section 5A? 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 exercise of such power. It must, therefore, be held that the use of the power of urgency and dispensation of enquiry under Section 5A 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 a very valuable right under Section 5A may not meet the statutory test nor could be readily sustained."
23. The pleadings and material for dispensing the enquiry under Section 5-A, in the present case are same as in the case of Radhey Shyam (dead) through LR vs. State of UP & others (supra). The Supreme Court noticed the previous judgments delivered by the Supreme Court in the past and laid down following principles:-
"53. 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 owner's consent provided that such assertion is on account of public exigency and for public good. - Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal 65Chowdhuri v. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat (1995) Supp. (1) SCC 596.
(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 strictly - DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana (2003) 5 SCC 622; State of Maharashtra v. B.E. Billimoria (2003) 7 SCC 336 and Dev Sharan v. State of U.P., Civil Appeal No.2334 of 2011 decided on 7.3.2011.
(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 one's 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 scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner 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 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 land owner 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 few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority 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 concerned authorities did not apply mind to the relevant factors and the records.
(vii) The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5-A of the 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 word "may" in 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 Section 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 Section 5-A (1) and (2) is not at all warranted in such matters.
(ix) If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition."
24. The Supreme Court thereafter observed in the facts of that case, that there was no justification for the State Government to invoke the urgency provisions contained in Section 17 (1) excluding the application of Section 5A for the acquisition of land for planned industrial development of District Gautam Budh Nagar. Paragraphs 54 to 62 of the judgment are quoted:-
"54. The stage is now set for consideration of the issue whether the State Government was justified in invoking the urgency provision contained in Section 17(1) and excluding the application of Section 5-A for the acquisition of land for planned industrial development of District Gautam Budh Nagar. A recapitulation of the facts shows that upon receipt of proposal from the Development Authority, the State Government issued directions to the concerned authorities to take action for the acquisition of land in different villages including village Makora. The comments/certificate signed by three officers, which was submitted in the context of Government Order dated 21.12.2006 was accompanied by several documents including proposal for the acquisition of land, preliminary inquiry report submitted by the Amin, Land Acquisition, copies of khasra, 69 khatauni and lay out plan, 10 per cent of the estimated compensation and a host of other documents. In the note dated nil jointly signed by Deputy Chief Executive Officer, Greater Noida, Collector, Gautam Budh Nagar and four other officers/officials, the following factors were cited in justification of invoking the urgency provisions:
a. The area was notified under Uttar Pradesh Industrial Areas Development Act, 1976 for planned industrial development.
b. If there is any delay in the acquisition of land then the same is likely to be encroached and that will adversely affect the concept of planned industrial development of the district.
c. Large tracts of land of the nearby villages have already been acquired and in respect of some villages, the acquisition proceedings are under progress.
d. The Development Authority urgently requires land for overall development, i.e. construction of roads, laying of sewerages, providing electricity, etc. in the area.
e. The development scheme has been duly approved by the State Government but the work has been stalled due to non- acquisition of land of village Makora.
f. Numerous reputed and leading industrial units of the country want to invest in the State of Uttar Pradesh and, therefore, it is 70 extremely urgent and necessary that land is acquired immediately.
g. If land is not made available to the incoming leading and reputed industrial concerns of the country, then they will definitely establish their units in other States and if this happens, then it will adversely affect employment opportunities in the State and will also go against the investment policy of the Government.
h. If written/oral objections are invited from the farmers and are scrutinized, then it will take unprecedented long time and disposal thereof will hamper planned development of the area.
i. As per the provisions of the Act, there shall be at least one year's time gap between publication of the notifications under Sections 4 and 17 and Section 6.
55. In our view, the above noted factors do not furnish legally acceptable justification for the exercise of power by the State Government under Section 17(1) because the acquisition is primarily meant to cater private interest in the name of industrial development of the district. It is neither the pleaded case of the respondents nor any evidence has been produced before the Court to show that the State Government and/or agencies/instrumentalities of the State are intending to establish industrial 71units on the acquired land either by itself or through its agencies/instrumentalities. The respondents have justified the invoking of urgency provisions by making assertions, which are usually made in such cases by the executive authorities i.e. the inflow of funds in the State in the form of investment by private entrepreneurs and availability of larger employment opportunities to the people of the area. However, we do not find any plausible reason to accept this tailor-made justification for approving the impugned action which has resulted in depriving the appellants' of their constitutional right to property.
Even if planned industrial development of the district is treated as public purpose within the meaning of Section 4, there was no urgency which could justify the exercise of power by the State Government under Section 17(1) and 17(4). The objective of industrial development of an area cannot be achieved by pressing some buttons on computer screen. It needs lot of deliberations and planning keeping in view various scientific and technical parameters and environmental concerns. The private entrepreneurs, who are desirous of making investment in the State, take their own time in setting up the industrial units. Usually, the State Government and its agencies/instrumentalities would give them two to three years' to put up their factories, establishments etc. Therefore, time required for ensuring compliance of the provisions contained in Section 5-A cannot, by any stretch of imagination, be portrayed as delay which will frustrate the purpose of 72acquisition. In this context, it is apposite to note that the time limit for filing objection under Section 5-A (1) is only 30 days from the date of publication of the notification under Section 4(1). Of course, in terms of sub-section (2), the Collector is required to give opportunity of hearing to the objector and submit report to the Government after making such further inquiry, as he thinks necessary. This procedure is likely to consume some time, but as has been well said, "Principles of natural justice are to some minds burdensome but this price-a small price indeed-has to be paid if we desire a society governed by the rule of law."
56. In this case, the Development Authority sent proposal some time in 2006. The authorities up to the level of the Commissioner completed the exercise of survey and preparation of documents by the end of December, 2006 but it took one year and almost three months to the State Government to issue notification under Section 4 read with Section 17(1) and 17(4). If this much time was consumed between the receipt of proposal for the acquisition of land and issue of notification, it is not possible to accept the argument that four to five weeks within which the objections could be filed under sub-section (1) of Section 5-A and the time spent by the Collector in making inquiry under sub-section (2) of Section 5-A would have defeated the object of acquisition.
57. The apprehension of the respondents that delay in the acquisition of land will lead to enormous encroachment is totally unfounded. It is beyond the comprehension of any person of ordinary prudence to think that the land owners would encroach their own land with a view to frustrate the concept of planned industrial development of the district.
58. The perception of the respondents that there should be atleast one year's time gap between the issue of notifications under Sections 4 and 6 is clearly misconceived. The time limit of one year specified in clause (ii)) of the proviso to Section 6(1) is the outer limit for issue of declaration. This necessarily means that the State Government can complete the exercise under Sections 5-A and 6 in a shorter period.
59. The only possible conclusion which can be drawn from the above discussion is that there was no real and substantive urgency which could justify invoking of the urgency provision under Section 17(1) and in any case, there was no warrant to exclude the application of Section 5-A which, as mentioned above, represent the statutory embodiment of the rule of audi alteram partem.
60. We also find merit in the appellants' plea that the acquisition of their land is vitiated due to violation of the doctrine of equality enshrined in Article 14 of the Constitution. A reading of the survey report shows that the committee constituted by the State Government had recommended release of land measuring 18.9725 hectares. Many parcels of land were released from acquisition because the land owners had already raised constructions and were using the same as dwelling units. A large chunk of land measuring 4.3840 hectares was not acquired apparently because the same belong to an ex-member of the legislative assembly. The appellants had also raised constructions on their land and were using the same for residential and agricultural purposes. Why their land was not left out from acquisition has not been explained in the counter affidavit filed by the respondents. The High Court should have treated this as sufficient for recording a finding that the respondents had adopted the policy of pick and choose in acquiring some parcels of land and this amounted to violation of Article 14 of the Constitution. Indeed it has not been pleaded by the respondents that the appellants cannot invoke the doctrine of equality because the other parcels of land were illegally left out from acquisition.
61. The argument of the learned senior counsel for the respondents that the Court may not annul the impugned acquisition because land of other villages had already been acquired and other land owners of village Makora have not come forward to challenge the acquisition of their land cannot be entertained and the Court cannot refuse to protect the legal and constitutional rights of the appellants' merely because the others have not come forward to challenge the illegitimate exercise of power by the State Government. It is quite possible that others may have, due to sheer poverty, ignorance and similar handicaps not been able to avail legal remedies for protection of their rights, but that cannot be made basis to deny what is due to the appellants.
62. In the result, the appeal is allowed. The impugned order is set aside and the writ petition filed by the appellants is allowed. Respondent No.1 is directed to pay cost of Rs. 5,00,000/- to the appellants for forcing unwarranted litigation on them. It is, however, made clear that the respondents shall be free to proceed from the stage of Section 4 notification and take appropriate action after complying with Section 5-A (1) and (2) of the Act. It is needless to say if the appellants' feel aggrieved by the fresh exercise undertaken by the State Government then they shall be free to avail appropriate legal remedy."
25. In Darshan Lal (dead) by Lrs Vs. Government of NCT of Delhi and others, Civil Appeal No. 11169 of 2001 decided on 3.1.2012, the Supreme Court again considered the question whether State Government can justify invocation of urgency provision contained in Section 17 (1) and (4) of the Act for the acquisition of the land reiterated the principles laid down in Anand Singh (Supra), Radhey Shyam (Supra), Dev Sharan (Supra), State of West Bengal Vs. Prafulla Churan Law (Supra) and Devendra Kumar Tyagi (Supra) and held that the acquisition of land for residential, commercial, industrial 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 powers of the Government under Section 17 (1) and/ or Section 17 (4), The Court can take judicial notice of the fact that planning, execution, implementation of the scheme 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 embodies in Section 5-A (1) and (2) is not warranted in such matters.
26. We are of the view, that the present case is squarely covered by the judgment in Deo Sharan and ors vs. State of UP and others (supra); Radhey Shyam (dead) and others vs. State of UP and others (supra); Devendra Kumar Tyagi and ors vs. State of UP and ors (supra); Devendra Singh and ors vs. State of UP & ors (supra). There was and there could be no urgency for planned industrial development of the land, and there was no material for the State Government to have come to conclusion that the land is urgently required applying Section 17 (4) and dispensing with enquiry under Section 5A of the Act. The exercise of power to invoke urgency clause was tainted with malafides.
27. The facts of this case are clearly distinguishable from those alleged in Writ Petition No. 46775 of 2011 (Jai Pal and others vs. State of UP and others) filed with the delay of two years and would rather fall in the category of cases decided by the Three Judges Bench in which the writ petitions were allowed following the reasoning given in Harkaran Singh's case and in which this Court had followed the law laid down in Anand Singh and others vs. State of UP (supra); Deo Sharan vs. State of UP (supra); Radhey Shyam (dead) vs. State of UP (supra) and Devendra Kumar Tyagi vs. State of UP (supra).
28. The Supreme Court has consistently held on the facts, which are identical to the facts of this case that on the material, namely that the land is urgently required to be developed for planned industrial development; the industrial units, which have applied, will go away to some other States; and further that there may be unauthorised constructions and encroachments; that such material does not in any circumstances justify invocation of Section 17 (4) dispensing with enquiry under Section 5A of the Act. We are further of the opinion that in view of the Constitution Bench decision of the Supreme Court in Padma Sunder Rao vs. State of T.N., 2002 (3) SSC 533, followed in Greater Noida Industrial Development Authority vs. Devendra Kumar and others (supra) (para 48) upholding the quashing of notifications by this Court in respect of village Patwari, the State Government cannot now reply upon the notification dated 12.3.2008 under Section 4 (1) of the Act for the purpose of notification under Section 6 (1) as the statutory period of one year in the proviso to Section 6 (1) has expired, it will be of no use to save the notification under Section 4 (1) of the Act.
29. The writ petition is consequently allowed. The notification dated 12.3.2008 under Section 4 (1) and Section 17 (4) of the Land Acquisition Act, 1894 and the notification dated 3.2.2009 under Section 6 read with Section 17 (1) of the Act are set aside. The petitioner is already in possession of the plot nos. 1508 and 1528 in respect of which the interim order is still operative. The respondents shall not disturb the possession of the petitioner on these plots.
30. The petitioner is entitled to Rs. 25, 000/- as cost of the petition from the respondents..
Dt.30.5.2012 RKP/