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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 148 of 19710/21/2011examine the proposal for land acquisition received the recommendation from the Collector vide letter dated 19thFebruary, 2008 and on 20th February, 2008 the Committee approved the proposal of 16 villages including villagePatwari which indicates mechanical and cursory manner in which the whole issue was dealt with. The acquisitionof huge agricultural land of 16 villages running in several thousands hectares was involved and the proposal waspushed through by completing only formality without application of mind.Now we revert to the judgment of the Apex Court in Radhy Shyam's case (supra) which relate to village Makaura(one of the villages of Greater NOIDA) for which proposal was submitted by District Level Committee along withthe village Patwari. The Apex Court in the aforesaid case had examined the question regarding invocation ofSection 17(4) and in paragraph 78 of the judgment the reason given for justification for invocation of urgencyclause in the aforesaid case has been noted in detail. In paragraphs 79 and 80 of the judgment the Apex Courthas held that factors which were mentioned in the certificates submitted to the State Government do not furnishlegally acceptable justification for exercise of power by the State Government under Section 17(1) of the Act.Paragraphs 78, 79 and 80 of the said judgment are quoted below:-"78. The stage is now set for consideration of the issue whether the State Government was justified in invokingthe urgency provision contained in Section 17(1) and excluding the application of Section 5-A for the acquisition ofland for planned industrial development of District Gautam Budh Nagar. A recapitulation of the facts shows thatupon receipt of proposal from the Development Authority, the State Government issued directions to theconcerned authorities to take action for the acquisition of land in different villages including village Makora. Thecomments/certificate signed by three officers, which was submitted in the context of Government Order dated21.12.2006 was accompanied by several documents including proposal for the acquisition of land, preliminaryinquiry report submitted by the Amin, Land Acquisition, copies of khasra khatauni and lay out plan, 10 per cent ofthe estimated compensation and a host of other documents. In the note dated nil jointly signed by Deputy ChiefExecutive Officer, Greater Noida, Collector, Gautam Budh Nagar and four other officers/officials, the followingfactors were cited in justification of invoking the urgency provisions:(a) The area was notified under Uttar Pradesh Industrial Areas Development Act, 1976 for planned industrialdevelopment.(b) If there is any delay in the acquisition of land then the same is likely to be encroached and that will adverselyaffect 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, theacquisition proceedings are under progress.(d) The Development Authority urgently requires land for overall development, i.e. construction of roads, laying ofsewerages, providing electricity, etc. in the area.(e) The development scheme has been duly approved by the State Government but the work has been stalleddue 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 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 theywill definitely establish their units in other States and if this happens, then it will adversely affect employmentopportunities 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 longtime 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 thenotifications under sections 4 and 17 and Section 6.79. In our view, the above noted factors do not furnish legally acceptable justification for the exercise of power bythe State Government under Section 17(1) because the acquisition is primarily meant to cater private interest inthe name of industrial development of the district. It is neither the pleaded case of the respondents nor anyevidence has been produced before the Court to show that the State Government and/oragencies/instrumentalities of the State are intending to establish industrial units on the acquired land either byitself or through its agencies/instrumentalities. The respondents have justified the invoking of urgency provisions
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 149 of 19710/21/2011by making assertions, which are usually made in such cases by the executive authorities i.e. the inflow of funds inthe State in the form of investment by private entrepreneurs and availability of larger employment opportunities tothe people of the area. However, we do not find any plausible reason to accept this tailor-made justification forapproving the impugned action which has resulted in depriving the appellants' of their constitutional right toproperty.80. Even if planned industrial development of the district is treated as public purpose within the meaning ofSection 4, there was no urgency which could justify the exercise of power by the State Government under Section17(1) and 17(4). The objective of industrial development of an area cannot be achieved by pressing some buttonson computer screen. It needs lot of deliberations and planning keeping in view various scientific and technicalparameters and environmental concerns. The private entrepreneurs, who are desirous of making investment inthe 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, timerequired 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 acquisition."As quoted above, the reasons given for invoking urgency clause were the same which were given in RadhyShyam's case (supra). The Apex Court considered the aforesaid reasons and has categorically held that the saidground do not furnish justification for invoking urgency clause under Section 17(4) of the Act. The present case isalso thus fully covered by the judgment of the Apex Court in Radhy Shyam's case (supra) and in view of clearpronouncement made in the aforesaid case, the conclusion is inescapable that in the present case no ground wasmade out for invoking Section 17(4) dispensing with the inquiry under Section 5A of the Act.One of the justifications given in the Note of Justification for invoking Section 17 was that if there is delay inacquisition of land, the land is likely to be encroached which would adversely affect the concept of planneddevelopment. The said reason was also given in Radhy Shyam's case (supra) which was disapproved. In thiscontext, learned counsel for the respondents has submitted that in the judgment of the Apex Court in the case ofNand Kishora Gupta and others vs. State of U.P. and others reported in (2010)10 SCC 282, the said ground washeld to be a relevant ground for invoking urgency clause. In Nand Kishore Gupta's case (supra) the High Courtnoticed the materials which were submitted for invoking urgency clause. The High Court had noticed one of thereasons as "in case of delay there is strong possibility of encroachment of the land which will affect the project".The Apex Court in Nand Kishora Gupta's case (supra) made following observations in paragraph 93, which are asunder:-"93. We have deliberately quoted the above part of the High Court judgment only to show the meticulous caretaken by the High Court in examining as to whether there was material before the State Government to dispensewith the enquiry under Section 5A of the Act. We are completely convinced that there was necessity in this Projectconsidering the various reasons like enormousness of the Project, likelihood of the encroachments, number ofappellants who would have required to be heard and the time taken for that purpose, and the fact that the Projecthad lingered already from 2001 till 2008. We do not see any reason why we should take a different view thanwhat is taken by the High Court."On the basis of the above observation made in paragraph 93 of the aforesaid judgment, learned counsel for therespondents submits that likelihood of encroachment is relevant material and the State cannot be said to be atfault in relying on the said paragraph. In this context, it is relevant to refer to the judgment of the Apex Court in OmPrakash's case (supra). In the said case the Apex Court had specifically held that possibility of unauthorisedencroachment is wholly irrelevant factor for invoking urgency under Section 17(4) of the Act. Following was laiddown by the Apex Court in paragraph 15 of the judgment in Om Prakash's case (supra), which is as under:-"15. So far as the present proceedings are concerned, the situation was tried to be salvaged further in thecounter- affidavit filed on behalf of NOIDA. Its working secretary Ram Shankar has filed a counter-affidavit in thepresent proceedings explaining the necessity to apply emergency provisions. It has been averred in para 9 of thecounter to the effect that what necessitated application of emergency provisions was imminent possibility ofunauthorised construction and/or encroachment upon the suit land which would have hammered the speedy andplanned industrial development of the area which was the purpose of acquisition proceedings. This stand is in linewith the earlier stand of NOIDA in its written requisition dated 14th December, 1989. We have already seen thatthe said stand reflects a ground which is patently irrelevant for the purpose of arriving at the relevant subjectivesatisfaction by the State authorities about dispensing with Section 5-A inquiry. ....."In Nand Kishore Gupta's case (supra) the judgment in Om Prakash's case (supra) has not been noticed.
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