Civil Misc. Writ Petition Nos. 67419, 67417, 67420 of 2009, 314, 500, 11866, 6108, 6107, 16963, 33708, 13122, 29907, 35175, 17932, 17934, 17936, 17939, 29905, 33372, 31627, 33710, 32312, 32826, 26190, 14140, 17332, 17518, 18181, 35675, 21734 and 62782 of 2010. Case: Devendra Kumar and Ors. Vs State of U.P. and Ors.. High Court of Allahabad (India)
| Case Number | Civil Misc. Writ Petition Nos. 67419, 67417, 67420 of 2009, 314, 500, 11866, 6108, 6107, 16963, 33708, 13122, 29907, 35175, 17932, 17934, 17936, 17939, 29905, 33372, 31627, 33710, 32312, 32826, 26190, 14140, 17332, 17518, 18181, 35675, 21734 and 62782 of 2010 |
| Judges | Sunil Ambwani and Kashi Nath Pandey, JJ. |
| Issue | Land Acquisition Act, 1894 - Sections 4(1), 5A, 6, 6(1), 9(1), 11, 17, 17(1), 17(1A), 17(2), 17(4) and 48(1); Uttar Pradesh Industrial Area Development Act, 1976 - Sections 3, 6F and 7; Constitution of India - Articles 14, 226 and 300A |
| Judgement Date | May 12, 2011 |
| Court | High Court of Allahabad (India) |
Judgment:
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The Petitioners are original tenure holders, purchasers, and Societies recorded as owners in revenue records of the land in village Shahberi, Pargana Dadri, District Gautam Budh Nagar. By these writ petitions, under Article 226 of the Constitution of India, they have challenged the notification dated 10.6.2009 under Section 4 (1), applying Section 17 (1) of the Land Acquisition Act, 1894 (in short, the Act) proposing to acquire a total area of about 156.903 hectares of land in the village Shahberi, Pargana Dadri, District Gautam Budh Nagar, for public purpose namely for the 'Planned Industrial Development' in Greater Noida Industrial Development Authority (GNOIDA), District Gautam Budh Nagar, recording the opinion of the Governor, that the provisions of Sub-section (1) of Section 17, of the Act are applicable to the said land inasmuch as the land is urgently required for the construction in Greater NOIDA in District Gautam Budh Nagar through GNOIDA, and in order to eliminate the delay likely to be caused by an enquiry under Section 5-A of the Act, the Governor is further pleased to direct under Sub-section (4) of Section 17 of the Act, that the provisions of Section 5A of the Act shall not apply. They have also challenged the notification published in the Official Gazette dated 9.11.2009 under Section 6 read with Section 17 (4) of the Act, declaring the acquisition of land; recording the satisfaction that Sub-section (1) of Section 17 is applicable and directing the Collector of Gautam Budh Nagar, though no award under Section 11 has been made, may, on the expiry of 15 days from the date of publication of the notice under Sub-section (1) of Section 9, take possession of the land mentioned in the Schedule appended to the notification.
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Earlier a Writ Petition No. 46693 of 2009, filed by Shri Sanjay Sharma and Ors. (the Petitioners in Writ Petition No. 6108 of 2010). By an order dated 3.9.2009 the Court directed the State Government to produce the entire records of acquisition to demonstrate that the satisfaction was recorded by the State Government by applying its own independent mind under Section 4 (1) for invoking urgency clause under Section 17 (4) of the Act, dispensing with enquiry under Section 5-A of the Act. Similar orders were passed on 16.9.2009 in Writ Petition No. 49574 of 2009 filed by some 20 persons. On 27.10.2009 another Writ Petition No. 37512 of 2009 challenging the notification under Section 4 (1) read with Section 17 (4) of the Act came U.P. for hearing. After hearing the counsels for the parties the Court dismissed the writ petition No. 49347 of 2009, as premature, without deciding any point on merits, with liberty to raise all the grounds, which have been taken in the writ petition or such ground, which may become available to the Petitioners after notification declaring the acquisition of land under Section 6 (1) is published.
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Leading the argument in Writ Petition No. 500 of 2010, Devendra Kumar and Ors. v. State of U.P. and Ors. Shri Veeresh Pratap Chaudhary, Senior Advocate assisted by Shri Kaushalendra Nath Singh, submits that U.P. Industrial Area Development Act, 1976 (Act of 1976) came into force on 01.4.1976. Section 3 of the Act of 1976 provides for constituting the development authority by a notification. The Greater Noida Industrial Development Authority (GNOIDA) was constituted by a notification dated 28.1.1991. By a notification dated 21.2.1994 various villages, including village Shahberi in District Gautam Budh Nagar, were notified as part of GNOIDA. Large areas of the notified villages have been acquired by the State Government for planned industrial development of the GNOIDA. The authority waited for 14 years before requesting the State Government for acquisition of 161.531 hectares of land in village Shahberi for development by its letter dated 24.10.2008 addressed to the Collector, District Gautam Budh Nagar. The letter stated that there is need to urgently acquire the land, and that there is likelihood of illegal and unauthorised constructions raised thereon, which will adversely affect the development. The Collector of District Gautam Budh Nagar, by his letter dated 18.5.2009 after a period of seven months from the date when the request was made by the authority, sent proposal for acquisition of 156.903 hectares of land of village Shahberi. The letter prepared by the officers of GNOIDA and forwarded by the Collector stated that the village Shahberi is included in the area notified for industrial development for the authority; the proposed area is urgently required for Planned Industrial Development; in the event of delay in acquisition there is a likelihood of increase in unauthorized occupation, which would adversely affect the concept of planned development; some land of nearby villages has already been acquired while for some others the land acquisition proceedings are going on. In that situation, keeping in view the continuity of infrastructure services, it is necessary to acquire the proposed land urgently. As per the plan approved by the Government, the authority requires the land for all round development like roads; sewerage; provision for electricity, and its distribution for development. The work is at a standstill due to acquisition not having taken place. The prominent industrialists of the country, who wish to invest their capital in Uttar Pradesh, have to be provided with land urgently according to their plan. If they are not provided the land according to their need, then they would establish their units in other States, which would adversely affect the policy of inviting liberally the investment of capital in the State and for providing employment opportunities. It was further stated that 156.903 hectares of land in village Shahberi is required for planned development. If objections were to be invited to the acquisition, their disposal would take many years and this would unreasonably delay the acquisition affecting planned development.
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The State of U.P. issued notification dated 10.6.2009 under Section 4 (1) read with Section 17 (4) of the Act proposing to acquire about 156.903 hectares of land in village Shahberi for the purpose of planned industrial development. The notification contained a recital that the land was urgently required for constructions for planned industrial development by Greater Noida Industrial Development Authority in District Gautam Budh Nagar and as it is necessary to eliminate the delay likely to be caused by an enquiry under Section 5-A of the Act, the Governor has been pleased to direct under Sub-section (4) of Section 17 that the provisions of Section 5-A would not apply.
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In Writ Petition No. 500 of 2010, Devendra Kumar and Ors. v. State of U.P. and Ors. and Writ Petition No. 6108 of 2010 Sanjay Sharma and Ors. v. State of U.P. and Ors. the Petitioners have purchased the land situated in Gata No. 11 (total area 9.0620 hectares) out of which 7.545 hectares has been acquired. The Gata was recorded earlier in the name of Arsh Prachar Sahitya Trust. By registered sale deeds dated 16.5.2008, 11.6.2008 and 31.7.2008, a total area 17.5 bigha was transferred to the Petitioners No. 1 to 3. They have in turn sold it to Petitioner Nos. 4 to 18. All these transactions were recorded prior to the issuance of the notification under Section 4 (1) of the Act dated 10.6.2009. In Writ Petition No. 6108 of 2010 18 bighas of land was transferred in the same Gata No. 11 to Petitioner Nos. 1 to 4. These Petitioners after developing the land sold it to the Petitioner Nos. 5 to 18 for residential purposes. These transactions were also recorded prior to the notification under Section 4 (1) of the Act dated 10.6.2009.
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Shri Chaudhari submits that there was no application of mind by the State Government either for acquiring the land in question under Section 4 (1) or for taking recourse for Section 17 (4) and for dispensing with provisions of Section 5A of the Act. The satisfaction was tainted with malafides for collateral purpose. The GNOIDA has acquired huge chunk of land for the purposes of industrial development after the year 1991. Out of the entire land acquired 60% of the land has not been developed, nor is used or allotted to any industry and is lying vacant. He submits that there was no urgency at all to take recourse to Section 17 (4) of the Act, and to dispense with Section 5A of the Act. The State Government did not have the recourse to recognise the land urgently required for planned industrial development. Nothing was mentioned to show that the authority had fulfilled its obligation mentioned in clauses-(b) to (e) of Act of 1976. In view of the provisions of Section 6-F and 7 of the Act of 1976, the State Government should have indicated the specific purpose as well for which the acquired land would be used, instead of merely saying that the land was required for planned industrial development. In the counter affidavits the detail, and particular of the record, which may have been placed by the authority before the State Government for applying its mind and considering its satisfaction for acquisition, has not been disclosed. The possibility of encroachment was not a relevant plea advanced by the authority for applying the emergency provision taking away valuable right of the owners of the land under Section 5-A of the Act.
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Shri Chaudhari has placed reliance upon the recent judgments of Supreme Court in Anand Singh and Anr. v. State of Uttar Pradesh and Ors. JT 2010 (8) SC 15 decided on 28.7.2010; State of West Bengal and Ors. v. Prafulla Churan Law 2011 (3) AD (SC) 296 decided on 4.2.2011 and Dev Sharan and Ors. v. State of U.P. and Ors. (2011) SCC L.Com 189 decided on 3.7.2011. He submits that in Anand Singh's case in the matter of invoking the urgency clause under Section 17 (1) and (4) along with Section 4 of the Act dispensing with the hearing of objections under Section 5A, the Supreme Court...
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