Civil Misc. Writ Petition No. 50090 of 2009. Case: Pankaj Kumar and Ors. Vs State of U.P. and Ors.. High Court of Allahabad (India)
| Case Number | Civil Misc. Writ Petition No. 50090 of 2009 |
| Judges | Sunil Ambwani and Kashi Nath Pandey, JJ. |
| Issue | Land Acquisition Act, 1894 - Sections 4(1), 5A, 6, 9(1), 11, 17(1), 17(2) and 17(4); Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Section 143; Uttar Pradesh Industrial Areas Development Act, 1976; Constitution of India - Article 14; Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 |
| Judgement Date | May 13, 2011 |
| Court | High Court of Allahabad (India) |
Judgment:
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We have heard Shri Mirza Fahim Beg, learned Counsel for the Petitioners. Learned Standing Counsel appears for the State Respondents. Shri B.D. Mandhyan assisted by Shri Satish Mandhyan has entered appearance on behalf of Krishi Utpadan mandi Samiti, Tundla through its Secretary.
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The Petitioners had earlier filed a Writ Petition No. 25226 of 2009 (Pankaj Kumar and Ors. v. State of U.P. and Ors.) for quashing the notification dated 29.7.2008 under Section 4 (1) read with Section 17 (1) of the Land Acquisition Act, 1894 (in short, the Act) published in daily newspapers 'Dainik Jagaran' dated 20.9.2008. The writ petition was dismissed as premature on 14.5.2009, on the ground that by that time notification under Section 6 of the Act was not published.
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In this writ petition the Petitioners, as bhumidhars of plot No. 47 area 0.1150 hectare, and plot No. 50/1 area 4.0800 hectares of land in Village Basai, Pargana Tundla Tehsil Tundla, District Firozabad, are challenging the notifications under Section 4 (1) dated 29.7.2008 with the opinion of the State Government, that the provisions of Sub-section (1) of Section 17 of the Act are applicable, also applying Sub-section (4) of Section 17 dispensing with enquiry under Section 5A of the Act, for acquiring plot Nos. 47, 50/1, and 51 total area 7.6090 hectares for construction of new market yard of Krishi Utpadan Mandi Samiti, Tundla in District Firozabad. The Petitioners have also challenged the notification of declaration under Section 6 of the Act dated 3.8.2009 with the satisfaction of the Governor of U.P. that the case is one of the urgency applying Sub-section (1) of Section 17 directing that the Collector of Firozabad, though no award has been made under Section 11 of the Act, may, on the expiration of 15 days from the date of publication of notice under Sub-section (1) of Section 9, take possession of the land mentioned in the Schedule for said public purpose.
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The notifications acquiring the land have been challenged on the ground that there was no urgency in the matter of acquisition. The proposal for acquisition at the stage of Collector was initiated way back on 29.11.2007. The Collector had written on 29.11.2007 to the Director of Land Acquisition for issuing notification under Section 4/17 of the Act acquiring the same area of the land in Village Basai for construction of new market yard by Krishi Utpadan Mandi Samiti, Tundla, District Firozabad. The State Government took eight months' time between the date of proposal for acquisition in issuing the notification, whereas the period of filing objections under Section 5A is only 30 days. After taking such a long time, which shows that there was no urgency for acquisition of the land for the purpose of constructions of new market yard, the applicability of Section 17 (1), dispensing with enquiry and opportunity to file objections under Section 5A, is totally arbitrary and illegal exercise of power.
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Learned Counsel for the Petitioner submits that plot No. 47 is the abadi land and is the only source of livelihood of the Petitioners. The plot Nos. 7 to 10, 12 to 19, 33, 34, 37, 39, 40, 41, 44, 45, and 46 have been converted into abadi and various residential colonies have come up in adjoining area for last more than 4-5 years. These colonies are getting thickly populated day by day. The new building for tehsil compound at Tundla was constructed in the year 2006-07, at a distance of 8 Kms away from the land in dispute towards Etah. The State Government did not have any material to invoke the powers of urgency and to dispense with enquiry under Section 5A of the Act.
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In the counter affidavit of Shri Devendra Kumar Pandey, Secretary, Krishi Utpadan Mandi Samiti, Tundla, District Firozabad, it is stated in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10, as follows:
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That before giving parawise reply, it is stated that it has been held in several decision of this Hon'ble Court as well as of Hon'ble Apex Court that construction of the principal market yard is national urgency, therefore for the construction of market yard, it has been found necessary to apply provisions of Section 17 (2) (4) of the Act.
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That this Hon'ble Court may take judicial notice of the fact that all the existing market yard have become in adequate to carry on wholesale trade in specified agricultural produce as arrival of the agricultural produce have multiplied manifold and now in the age of scientific application, arrival of agricultural produce are huge and existing market are incapable of handling over the same, therefore, it is crying need that new market yard be constructed at every places wherever Mandi Samiti have been established.
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That in the existing markets there are no sufficient shops, go downs, parking places and mostly near the existing market residential colonies has developed, therefore, there is congestion in the existing market yards. Old markets had become incapable particularly during rainy season, it is not possible to approach wholesale market, there are no places for parking trucks, trolleys, tractor as mostly arrivals are now not by bullock-card but by vehicle but the roads are so narrow, it is not possible to have smooth passage for vehicle carrying specified agricultural produce to Naveen Mandi Sthal.
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That it is stated that every where market yard may be constructed on scientific lying having sufficient open land and also places for construction of shops, platforms, go downs, and parking places, therefore, everywhere huge land is acquired keeping in mind at least next hundred years, so that there may be no shortage of space to carry on whole sale trade. Therefore, it has been upheld up to Hon'ble Apex Court that land may be acquired by applying urgency clause so that it may be acquired and possession may be taken and Mandi Samiti have got sufficient funds to raise construction on the market yard.
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That if the provisions of Section 5 (A) is applies, it consumes lot of time and it is said to be believed that for objection 21 or 30 days are needed and once the process begins then it become impossible to acquire land as several political pressures are applied by the tenure holders and in the age of democracy the acquisition become almost impossible if the process of considering objections, providing hearing, passing order and get the land in forcible future.
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That construction of market yard is under the planned development scheme and an Indian wants development, therefore, just to avoid delay to carry out development plan, it has become now almost national urgency and central government has taken positive decisions that acquisition may be completed with speed so that principal market yard may be completed to facilitate the arrivals of agricultural produce for the benefit of purchaser and seller and for the purchasing public. The World Bank also provides loan for the purpose of construction of principal market yard. If Section 17 of the Act is not applied, the development activities would be hampered and desired result would not be achieved in forcible future, therefore, acquisition for construction of principal market yard has always been upheld and in all the cases urgency clause has been applied. The urgency is apparent as existing market has become absolutely incapable of handling mechanized agricultural produce and due to the delay agriculturist are hard sufferer as besides the market yard...
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