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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 150 of 19710/21/2011In this context, it is relevant to refer to a Division Bench judgment of this Court in the case of Smt. Manju LataAgarwal vs. State of U.P. and others reported in 2007(9) ADJ 447 and judgment of the Apex Court in the case ofSibban Lal Saxena vs. State of U.P. and others reported in AIR 1954 SC 179 in which it has been held that evenin event of the grounds on the basis of which subjective satisfaction has arrived is held to be irrelevant, the entiresatisfaction is vitiated. Following was laid down by the Apex Court in paragraph 8, which is as under:-"8. ..... The Government itself, in its communication dated the 13th of March, 1953, has plainly admitted that oneof the grounds upon which the original order of detention Was passed is unsubstantial or nonexistent and cannotbe made a ground of detention. The question is, whether in such circumstances the original order made undersection 3 (1) (a) of the Act can be allowed to stand. The answer, in our opinion, can only be in the negative. Thedetaining authority gave here two grounds for detaining the petitioner. We can neither decide whether thesegrounds are good or bad, nor can we attempt to assess in what manner and to what extent each of these groundsoperated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis ofwhich the detention order was made. To say that the other ground, which still remains, is quite sufficient to sustainthe order, would be to substitute an objective judicial test for the subject decision of the executive authority whichis against the legislative policy underlying the statute. In such cases, we think, the position would be the same asif one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiatethe detention order as a whole. Principle, which was order as a whole. This principle, which was recognised bythe Federal Court in the case of Keshav Talpade v. The Kingb Emperor (2), seems to us to be quite sound andapplicable to the facts of this case. (1) Vide state of Bombay v. Atma Ram Sridhar Vaidya, [1951] S.C.R."The next recent judgment of the Apex Court to be noticed is the judgment in the case of Greater Noida IndustrialDevelopment Authority vs. Devendra Kumar and others reported in 2011(6) (SC) ADJ 480. The aforesaid casealso was a case pertaining to village Shahberi of district Gautam Budh Nagar in which notifications were issuedfor the same purpose. The writ petition was filed challenging the notifications which was allowed by the High Courtholding the invocation of urgency clause as illegal. The Greater NOIDA filed the appeal which was dismissed. Thejudgment of Radhy Shyam's case (supra) was referred to and relied. In the aforesaid case the ground ofunauthorised colony and illegal construction was put forward by the appellant which was not accepted. Followingwas observed in paragraph 24 of the said judgment:-"24. At the outset, we deem it proper to observe that none of the Senior Counsel appearing for the petitionersassailed the finding recorded by the High Court that the decision of the State Government to invoke the urgencyprovisions contained in Section 17(1) and to dispense with the application of Section 5A was vitiated due toarbitrary exercise of power and non application of mind. Of course, Shri L.N. Rao and Shri Dushyant A. Dave,learned Senior Counsel did suggest that Section 17(1) and (4) was invoked to check mushroom growth ofunauthorised colonies in the area around Greater Noida Phase I, but in our view, this did not provide a validjustification to invoke Section 17(1) and to dispense with the application of Section 5A and the High Court rightlynullified this exercise by relying upon the judgments of this Court in Anand Singh's case and Radhy Shyam'scase. We may add that unauthorised plotting of agricultural land or large scale illegal constructions could not havebeen possible without active or tacit connivance of the functionaries and officers of the State and/or itsagencies/instrumentalities. If the Authority wanted to prevent unauthorised colonization of agricultural land orillegal constructions, then nothing prevented it from taking action under Section 9 of the 1976 Act. No explanationhas been given by the State Government and the Authority as to why appropaite measures were not taken toprevent unauthorised colonization of land in Shahberi and elsewhere. The inefficiency of the State apparatus totake action in accordance with law cannot be used as a tool to justify denial of opportunity of hearing to thelandowners and other interested persons in terms of Section 5A of the 1894 Act."Apart from the original record of village Patwari, we have perused the original records of other villages. Forexample, land acquisition proceedings of village Roja Yakubpur along with the proposal of land acquisitionforwarded by Director, Land Acquisition Directorate dated 14th February, 2006, certificate in Prapatra-10 by theCollector in which same wordings were repeated that for completion of project the possession of the land is to beimmediately taken and on invocation of Section 17 the provisions of Section 5A are dispensed with and he is fullysatisfied with the justification for dispensation of inquiry. In the Note submitted by Greater NOIDA regardingjustification for issuing notification under Section 4/17 it was mentioned that several applicants want allotment ofplots which is not being possible due to acquisition of the land. It was stated that specially the reputed industrialorganisations of foreign countries want allotment and to invest in the State and in case the land is not allottedimmediately, the units might go to other States. These were the reasons which have been repeated in all suchcertificates. It is also to be noticed that all the certificate, which have been submitted in all the case, does not bearany date and appears to have been mechanically prepared using the same words. It is also relevant to notice thatpetitioners in the writ petition have pleaded that there was no such need of the GNOIDA which necessitated suchlarge scale acquisition of fertile agricultural land. It has further been pleaded that the respondents in their counter
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 151 of 19710/21/2011affidavit had not given details of any such industrial unit of foreign country which has applied for allotment.Reference is made to Writ Petition No.45450 of 2011 (Phundan Singh and 48 others vs. State of U.P. and others),which has been filed challenging the notifications for acquisition of land of village Dabra. Following pleadings weremade in paragraphs 6, 7 and 9 of the writ petition:-"6. That the petitioners are holding the lands of the aforesaid khasra and using the same for agricultural purposes.The said land is the only source of their income, they have no other source of their livelihood. The petitioners arealso using some of the area of their lands for abadi purposes and purpose which are connected with theiragriculture. The respondents no.1 to 3 have illegally failed to consider the said aspect and to exempt their landswhich are covered for abadi purposes and upon which their constructions are situated, prior to issuance of theimpugned notifications.7. That it is pertinent to mention here that when the lands of the petitioners were acquired by the respondents,there was no demand of any industrialist in establishing the industry in the said area. The respondents have alsono approved scheme or project to establish and develop the industrial area. The respondent no.3 at the time ofthe said acquisition was in possession of vacant area which was sufficient and can be utilized for plannedindustrial development but, in spite of the same the respondent no.1 has issued the aforesaid notifications at therequest of respondent no.3.8. That there is no evidence on record regarding the requirement of the respondent no.3 to develop the plannedindustrial area. The notification under Section 4 of the Act was issued on 31.10.2005 while the notifcation underSection 6 of the Act was issued on 1.9.2006. The delay in issuance of the notification shows that there was nourgency to acquire the land of the petitioners, but the respondent no.1 illegally and arbitrarily by showing theurgency has dispensed with the provisions of section 5 of the Act by invoking the power under section 17 of theAct."Paragraph 7 of the writ petition has been replied by the GNOIDA by filing a counter affidavit in paragraph 39.Paragraph 39 of the counter affidavit filed by GNOIDA is to the following effect:-"39. That the contents of para 7 and 8 of the writ petition are wrong and denied. That it is denied that there was nodemand for establishment of any industry. It is also denied that no scheme was approved at the time ofacquisition. The purpose of the U.P. Industrial Area and Development Act, 1976 is to ensure the planneddevelopment of the notified industrial development area and the village Dabara was notified as part of theindustrial development area. The Authority has been constituted for the planned development and has adequatestaffs and officers which have either being posted on the deputation by the State Government or directlyappointed by the Authority. It is wrong and denied that prior to acquisition no enquiry or survey was conducted."In above context, it is relevant to note that the reason that several industrial Units belonging to foreign countryhave applied for allotment and unless the land is not immediately allotted to them they will establish theirindustries in another State, has been taken in every acquisition. A Division Bench of this Court, while hearingchallenge to the acquisition of village Tusiyana (which is also subject matter of challenge in this bunch of writpetitions) in the case of Sudhir Chandra Agarwala vs. State of U..P. and others reported in 2008(4) ALJ 315, hadoccasion to consider the above reason. Although the Division Bench had upheld invocation of Sections 17(1) and17(4) but on the aforesaid reason the Division Bench held that the Greater NOIDA could not demonstrate or givethe name of any foreign industry which may have shown their interest for allotment of land in Greater NOIDA.Following was noted in paragraph 25 of the said judgment:-"25. On our request, a list of industries with their proposals was provided by the GNIDA along with their firstsupplementary counter affidavit. A perusal of the list of the industries would show that the GNIDA relied uponnames of some of the industries, which have already set up their industrial units in other parts of Greater Noidaand that there were no foreign companies or institutions, which had proposed to set up an industrial unit in thearea. In fact GNIDA could not demonstrate or give the name of any foreign industry, which may have shown theirinterest for allotment of land in Greater Noida."Moreover, the fact that allotments were made to builders and colonisers in the year 2010 of the acquired land andallegation is being made by the respondents that after allotment the allottees have started construction on thespot itself proves that there was no such urgency of acquisition as was claimed by the GNOIDA or by the Statethat after taking possession on 5.9.2008, as alleged by the respondents, nothing was done for years althoughlearned counsel for the respondents submits that allotment was made in the year 2010 to builders and colonisershave no bearing on the question of urgency at the relevant time when State Government exercised its powerunder Section 17(4) of the Act. It may be true that event which happened subsequent to exercise of power by the
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