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JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 132 of 19710/21/2011acquisition of property; acquisition generally precedes development."This Court observed :(para 23)"For planned development in an area other than a development area, it is only necessary to obtain the sanction orapproval of the local authority as provided in Section 12(3). The Central Government could acquire any propertyunder the Act and develop it after obtaining the approval of the local authority. "There cannot be any dispute to the proposition as laid down by the Apex Curt in the aforesaid cases. It ishowever, relevant to note that when the case of Aflatoon was delivered the NCRPB Act, 1985 was not enactedand in the case Bhagat Singh's case (supra) also the Court had no occasion to consider Section 40 of the NCRPBAct, 1985. Even if it is accepted that there is no prohibition on the right of the State to acquire the land for plannedindustrial development, in N.C.R. the proceeding of acquisition has to take place keeping in view the purpose andobject of Section 40 of the Act, 1985.The Division Bench judgment in Natthi's case (supra) (in which one of us Ashok Bhushan,J was also a party)although observed that the provisions of the 1985 Act does not require any prior approval by the Board but theearlier Division Bench judgment in Ravindra Kumar's case (supra), which had categorically held that withoutclearance from Board the Authority cannot proceed with the matter, was not brought into the notice of the DivisionBench nor had been referred to. The view taken by Division Bench judgment in Natthi's case that no approval isrequired of N.C.R.P. Board cannot be approved, in view of our observations and discussion as made above.Another Division Bench of this Court had considered the issue as to whether the Master Plan 2021 of the GreaterNOIDA had approval of the Board under the 1985 Act in the case of Sri Ram Chaudhary etc. vs. M/s TechnologyPark and others reported in 2010(7) ADJ 172. In the said case acquisition was also challenged pertaining of avillage of Greater NOIDA, which was initiated by Section 4 notification dated 10th April, 2006 and Section 6notification dated 30th November, 2008. One of the issues raised was that Master Plan 2021 of Greater NOIDA(which is being relief by the respondents in the present bunch of writ petitions) had not been approved by theBoard. The Division Bench noted following in paragraph 136 of the said judgment, which is quoted below:-"136. By citing all these sections Mr. Shashi Nandan has contended before this Court that let the records beproduced by the authority to show that the Master Plan-2021 has been approved by the National Capital RegionPlanning Board but the respondents authority in spite of bringing the record failed to establish before the Courtthat the Master Plan-2021 is approved by the National Capital Region Planning Board."In view of the foregoing discussion we are of the view that no clearance has yet been obtained by the Authority toits draft Master Plan for Greater Noida-2021 and steps taken by the Authority towards the acquisition of land aswell as carrying on development activities including the creation of third party rights were not in conformity withthe NCRPB Act, 1985.We are also of the considered view that the Authority has acted in a manner which is nothing but a deliberateviolation of the NCRPB Act, 1985 and in spite of the directions given by this Court in the the case of RavindraSingh (supra) on 01/10/1996 that an Officer at the level of Secretary of the Government should enquireconforming uses of land according to the NCRPB Act, 1985 no serious efforts have been taken by the State. Weare of the view that a thorough inquiry is necessary in the whole exercise undertaken by the Greater Noida by theOfficers of the highest level at the State Government.We direct the Chief Secretary of the State to appoint officers not below the level of Principal Secretary (except theofficers of Industrial Development Department who has dealt with the relevant files) to conduct a thorough inquiryregarding the acts of Greater Noida in proceeding to implement Plan 2021 without approval of N.C.R.P. Boardand decisions taken to change the land use and builders' allotments made as well as indiscriminate proposals foracquisition of land and take an appropriate action in the matter.We are further of the view that Greater Noida Authority cannot proceed to implement Master Plan 2021 till it ispermitted by N.C.R.P. Board. Greater Noida Authority shall ensure that no development by it or by its allottees beundertaken as per draft Master Plan 2021 till the same receives clearance by N.C.R.P. Board. We make it clearthat it shall be open to carry on developments by Authority and its allottees as per earlier plan approved byN.C.R.P. Board.5. Invocation of Urgency Clause under Section 17(1) and 17(4):One of the main ground of attack to the notifications issued under Section 4 read with Sections 17(1) and 17(4) inalmost all the writ petitions is that the State Government in routine manner without there being any urgency
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 133 of 19710/21/2011invoked Section 17(4) of the Act dispensing with the inquiry under Section 5A of the Act. It is further submittedthat the acquisition of land which was alleged to be planned industrial development in district Gautam Budh Nagarwas not such a matter which required invocation of Section 17(4). The submission of learned counsel for thepetitioners is that the provisions of Section 5A is mandatory and embodies a just and wholesome principle that aperson whose property is being or is intended to be acquired should have an occasion to pursue the authorityconcerned that his property be not touched for acquisition. In the main writ petition (Gajraj and others vs. State ofU.P. and others) specific pleadings have been made taking the aforesaid ground. It is useful to refer toparagraphs 9, 11, 12, 14, 20 and 26 of the main writ petition, which are as under:-"9. That, the said notification under Section 4 of the Act issued by the respondent no.1 without application of mindand there was no urgency in the acquisition of land for the planned industrial development on the ground of whichthe respondent invoked Section 17(1) and 4 of the Act by dispensing with an enquiry under Section 5A of the Act.The respondents in order to fulfil their political obligations/promise to the private builders have dispensed with theenquiry under Section 5A of the Act as well as overlooked the Master Plan concerned.11. That, there is no acute scarcity of land and there is not a very heavy pressure/demand of land for publicpurpose in question. The engineers and other subordinate staff for carrying out the scheme have neither beenappointed nor any advertisement for the such appointment has been made till the date. Neither any inquiry on thespot has been conducted nor any survey of the plots sought to be acquired has been got done and thus ittranspires that there was no material before the State Government to make an opinion to direct that the provisionsof Section 5-A shall not apply in the facts and circumstances of the present impugned notification under Section 4(1) read with Section 17(1) as well as under sub-section (4) of Section 17 of Land Acquisition Act. NotificationNo.664/77-3-08-86Arjan/08 Lucknow dated 12.03.2008 and there was no application of mind by StateGovernment.12. That, it is relevant to mention here that excluding the enquiry under Section 5-A can only be an exceptionwhere the urgency cannot brook any delay. The enquiry provides an opportunity to the owner of land to convincethe authorities concerned that the land in question is not suitable for purpose for which it is sought to be acquiredor the same sought to be acquired for the collateral purposes. It is pertinent to mention here that the respondentsNo.1 without the application of mind dispensed with the enquiry on the ground of urgency invoking the powerconferred by Section 17(1) or (2) of the Act. Further, the respondent no.1 without application of mind did notconsider the survey report of the village aforesaid.14. That, the respondents acquired the land for the public purpose, namely for the "Planned IndustrialDevelopment in District Gautam Budh Nagar through Greater Noida" and on another hand they transferred thesome acquired area to the private builders for construction and sale and in the May, 2011 the employee of theRespondents and Private Builders trying to dispossess the petitioner from his Abadi Land. A photo copy of theagreement to lease is being filed herewith and marked as ANNEXURE NO.4 to this writ petition.20. That, it is further submitted that it is settled law that the proceedings before the Land Acquisition, Collector forfiling and hearing of objections under Section 5-A is a blend of public and individual enquiry. The personinterested or known to be interested in the land is to be served personally of the notification, giving him theopportunity of objecting to the acquisition and awakening him to such right. The provision of section 5-A ismandatory and embodies a just and wholesome principle that a person whose property is being or is intended tobe acquired should have the occasion to persuade the authorities the authorities concerned that his property benot touched for acquisition. The Hon'ble Apex Court in the case of Nandeshwar Prasad vs. U.P. Government hasrecognised the said right reported in AIR 1964 SC 1217 and held that right to file objections and the right tohearing under Section 5-A of the Act has been recognised as valuable right.26. That, the impugned notification seeking to acquire the land under the Land Acquisition Act, is a colorableexercise of power and the entire exercise is based upon political considerations, which are of no legalconsequences, arbitrary, illegal and infringes the fundamental rights of the petitioners as enshrined in Article 14,19 and 300-A of the Constitution of India."Almost similar pleadings have been made by the petitioners in all the writ petitions challenging the notifications foracquisition of their land. The submission of learned counsel for the petitioners is that alleged planned industrialdevelopment is not such a matter in which there was such extreme urgency that right of objection of the landholders required to be dispensed with. It is submitted that there has to be application of mind on the issue as towhether right of objection under Section 5A be dispensed with and without there being application of mind to theabove aspect, the invocation of Section 17(4) in a routine manner is illegal and arbitrary. It is submitted that theState Government did not apply his mind to the relevant materials and has directed for invocation of Section 17(4)
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