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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 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.