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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 134 of 19710/21/2011which is unsustainable. It is further submitted that there was no sufficient material before the State Governmenton the basis of which any reasonable opinion can be formed that the matter was of such urgency that right ofobjection should be dispensed with. The submission has also been made that there has been pre-notification aswell as post-notification delay which clearly proved that there was no such urgency as to invoke Section 17(4) ofthe Act. In the main writ petition, learned counsel for the petitioners submitted that the fact that land was allottedto various private builders for construction of multi-storey building and group housing flats in the year 2010 clearlyproved that there was no such urgency which required invocation of Section 17(4). The petitioners have filed copyof one of the leases dated 31st March, 2010 granted to one Supertech Limited by which Group Housing PlotNo.GH-08 area 2,04,000 square meters was allotted for residential/large housing plots.The submission made by counsel for the petitioners has been refuted by learned counsel for the State as well aslearned counsel for the GNOIDA. It is submitted by learned Senior Counsel for the State that there was sufficientmaterials before the State Government to form an opinion that it was a fit case where direction under Section 17(4) was required to be issued. It is submitted that opinion formed by the State Government under Section 17(4) ofthe Act is subjective opinion which can be challenged only on the ground of malafide and there being noallegation of malafide against the State, the subjective opinion formed by the State under Section 17(4) cannot bechallenged. It is submitted that insofar as the allotment made to the builders in 2010 is concerned, the said fact iswholly irrelevant for the purposes of formation of opinion of the State Government at the relevant time since theabove event is a subsequent event which could not have been taken into consideration at the relevant time. Onany subsequent event subjective satisfaction of the State arrived at the relevant time can neither be faulted withnor can be challenged. It is submitted that pre-notification delay and post-notification delay cannot be a basis forinvalidating the notification. It is submitted that delay caused by lethargic officials has been held to be not relevantfor determining as to whether there was urgency or not at the relevant time. The delay in taking steps itselfaccelerate the urgency. Learned counsel for the respondents submits that notifications issued under Section 4read with Sections 17(1) and 17(4) of the Act cannot be faulted and the challenge made by the petitioners to thesaid notifications deserves to be rejected. Learned counsel for interveners repeated the same submissions.Learned counsel for the parties have referred to and relied on various decisions of the Apex Court as well as thisCourt which shall be referred to hereinafter while considering the submission in detail.For appreciating the above issue, it is sufficient to refer to the notifications in the main writ petition and the originalrecords perused by us of village concerned. All the notifications which are under challenge, are similarly wordedexcept the area and the village. Section 4 notification dated 12th March, 2004, which is under challenge in themain writ petition, is to the following effect:-"No.664/LXXVII-3-08-86 Arjan.-08Dated Lucknow, March 12, 2008Under sub-section (1) of section 4 of the Land Acquisition Act, 1894 (Act no.1 of 1894), the Governor is pleasedto notify for general information that the land mentioned in the Schedule below, is needed for a public purposenamely for the planned industrial development in district Gautambudh Nagar through Greater Noida IndustrialDevelopment Authority.2. The Governor, being of the opinion that the provisions of sub-section (1) of section 17 of the said Act, areapplicable to said land inasmuch as the said land is urgently required, for the planned industrial development indistrict Gautambudh Nagar through Greater Noida Industrial Development Authority and it is as well necessary toeliminate the delay likely to be caused by an inquiry under section 5-A of the said Act, the Governor is furtherpleased to direct under sub-section (4) of Section 17 of the said Act that the provision of section 5-A of the saidAct shall not apply."Before we proceed to consider pleadings in the main writ petition and the materials brought before the Courtincluding the original records, it is necessary to refer to relevant principles which have been laid down by the ApexCourt on interpretation of Sections 17(1) and 17(4) of the Act, which principles can thereafter be applied in thefacts of the present case.The Land Acquisition Act, 1894 initially did not provide for any opportunity to land holders to file objection againstthe acquisition of their land. Eminent domain is a right recognised and accepted in every sovereign to takeappropriate property belonging to citizens for public use. The sovereign is entitled to reassert its dominion overany portion of the soil of the State including private property without owner's consent provided that such assertionis on account of public exigency and for public good. Section 5A of the Act providing for filing objection by anyperson interested in any land was inserted in the Act by Act No.XXXVII of 1923. The scheme of the Act providesthat after issue of a preliminary notification under Section 4 any person interested in the land, within 30 days from
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 135 of 19710/21/2011the date of publication of the notification, object to the notification. By U.P. Act No.XXII of 1954 the period of 30days has been substituted by 21 days. Every objection under Section 5A made to the Collector is considered bygiving an opportunity to the objector of being heard and thereafter a report is submitted to the appropriateGovernment containing recommendation. The competent authority after considering the report, if any, if satisfiedthat any particular land is needed for public purpose, may issue declaration under Section 6 of the Act after whichdeclaration land is required to be marked and measured and thereafter a notice is issued by the Collector invitingclaims to compensation from all interested persons. After hearing the objection inquiry is made by the Collectorand award is given under Section 11 and thereafter under Section 16 of the Act, after the Collector has made theaward, he may take possession of the land which thereupon vest in the Government free from all encumbrances.The exception to the aforesaid general scheme is provided in Section 17 of the Act. Section 17 of the Act containsspecial power in cases of urgency. Section 17(1) provides that in cases of urgency whenever the appropriateGovernment directs the Collector, though no award has been made, to take possession of any land on expirationof 15 days from publication of the notice. Section 17(2) of the Act enumerates emergent situation which requirestaking of possession of any land like owing to any sudden change in the channel of any navigable river or otherunforeseen emergency. Under the said section the Collector is empowered to take possession immediately afterpublication of notice with the previous sanction of the appropriate Government provided the occupier is given atleast 48 hours notice. Section 17(4) of the Act provides that in case any land to which, in the opinion of theappropriate Government, the provisions of sub-section (1) and sub-section (2) are applicable, the Governmentmay direct that provisions of Section 5A shall not apply. Section 17(1), 17(2) and 17(4) of the Act, which arerelevant, are quoted below:-"17. Special powers in case of urgency. - (1) In cases of urgency whenever the appropriate Government, sodirects, the Collector, though no such award has been made, may, on the expiration of fifteen days from thepublication of the notice mentioned in section 9, sub-section (1), take possession of any land needed for a publicpurpose. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.(2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency,it becomes necessary for any Railway Administration to acquire the immediate possession of any land for themaintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providingconvenient connection with or access to any such station, or the appropriate Government considers it necessaryto acquire the immediate possession of any land for the purpose of maintaining any structure or system pertainingto irrigation, water supply, drainage, road communication or electricity, the Collector may immediately after thepublication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriateGovernment, enter upon and take possession of such land, which shall thereupon vest absolutely in theGovernment free from all encumbrances :Provided that the Collector shall not take possession of any building or part of a building under this sub-sectionwithout giving to the occupier thereof at least forty-eight hours notice of his intention so to do, or such longernotice as may be reasonably sufficient to enable such occupier to remove his movable property from suchbuilding without unnecessary inconvenience.(3) .......(4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section(1) or sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5Ashall not apply, and, if it does so direct, a declaration may be made under section 6 in respect of the land at anytime after the date of the publication of the notification under section 4, sub-section (1)."It is relevant to note at this stage that prior to amendments made in Section 17 of the Act by Act No.LXVIII of 1984the power under Section 17(1) could have been exercised only for waste and arable land. By U.P. Act No.XXII of1954 after Section 17(1), Section (1-A) has been added, which is to the following effect:-"17(1-A). The power to take possession under sub-section (1) may also be exercised in the case of land otherthan waste or arable land, where the land is acquired for or in connection with sanitary improvements of any kindor planned development."By U.P. Act No.I of 1966 in sub-section (4) of Section 17 of the Act sub-section (1-A) was also substituted.The submission, which has been much pressed by the learned counsel for the petitioners is regarding invocationof Section 17(4) dispensing with the inquiry under Section 5-A. The question to be considered is as to whether infacts of the present case dispensation of inquiry under Section 5A was valid or not. The opinion of the State
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