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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 152 of 19710/21/2011State Government under Section 17(4) can have no effect on forming any opinion which was formed earlier butthe fact that land was allotted years after acquisition and taking possession proves the case of the petitioners thatthere was no urgency in the matter as to invoke Section 17(4) of the Act dispensing with inquiry. This Court evensubsequent to the decision of the State Government invoking Section 17(4) of the Act can verify and test thestrength of submissions made by the petitioners that invocation of urgency clause under Section 17(4) of the Actwas in routine manner and without application of mind.Shri. A.K. Mishra learned counsel appearing for an intervener laid emphasis on Section 17(1A) which was addedin the statute by U.P. Act 22 of 1954. It is submitted that urgency in case of Planned Development having beenstatutorily recognised, it is not open to the petitioners to contend that there was no urgency to invoke Section 17(1) and 17(4) for planned industrial development. It is relevant to note that Section 17(1A) was added by U.P. Act22 of 1954 since in Section 17 of the Act power to take possession was available only for waste or arable land,and the U.P. Amendment was brought to enable the Government to exercise power under Section 17(1) forplanned development which otherwise was not available under Section 17. It is further to note that byParliamentary Act 68 of 1984 the words ''waste and arable' land has been deleted and substituted by ''any landneeded for Public Purpose". This is not disputed by any one that Section 17(1) can be applied in case land isneeded for planned development. Moreover, Section 17(1A) and now Section 17 as amended at best empowersthe State to take possession but that does not mean that in all cases of planned development the enquiry underSection 5A shall also stand dispensed with. Thus Section 17(1A) as added in Uttar Pradesh does not change thestatus of acquisition for a planned development on any higher plan than all the acquisitions now covered bySection 17 as amended by Parliamentary Act 68 of 1984.In view of forgoing discussions, we are of the view that exercise of power by the State Government invokingSection 17(4) of the Act dispensing with inquiry under Section 5A of the Act is vitiated due to following reasons asdiscussed above:-(i)The original records of the State Government indicate that officers of the State Government did not advert to theissue of dispensation of inquiry under Section 5A of the Act nor gave any recommendation to that effect whichfurther indicate that direction issued by the State Government under Section 17(4) of the Act was made withoutapplication of mind;(ii)In the certificate given by the Collector (In Prapatra-10) only observation made was that it is necessary to takepossession immediately to complete the project without delay. However, in his certificate the Collector has notgiven any reason as to why inquiry under Section 5A of the Act be dispensed with, rather observation in thecertificate was that by invoking Section 17 of the Act the right of objection under Section 5A are automaticallydispensed with and he is in agreement with dispensation of inquiry. The Collector himself having not applied hismind, who was required to consider all aspects and no reasons/recommendations having been there in thenotings of the officers of the State Government as noticed above, there was no material on record to dispensewith the inquiry under Section 5A of the Act;(iii)Even assuming without admitting that reasons given by the GNOIDA in its Note of Justification for issuingnotification under Section 4/17 were considered and relied by the State Government for arriving on its subjectivesatisfaction to dispense with the inquiry under Section 5A, the subjective satisfaction is vitiated since the groundthat unless the land is not immediately provided, the land shall be encroached has been held by the Apex Court tobe a irrelevant ground in Om Prakash's & Radhy Shyam's cases (supra). The subjective satisfaction based on anirrelevant ground is vitiated in law.As observed above, the notifications issued under Section 4 read with Section 17(1) and 17(4) were identical withall acquisitions and the materials on record before the State Government including the certificates issued by theCollector in Prapatra-10 as well as the Note of Justification submitted by the authorities were in identical term,hence the invocation of Section 17(4) has to be held to be vitiated in all the above cases.Considering the dictum of the Apex Court, as noticed above and the facts as noticed above, we hold thatinvocation of Section 17(4) by the State Government dispensing with the inquiry under Section 5A of the Act whileissuing notification under Section 4 is vitiated. The dispensation of inquiry being invalid, all the petitioners wereentitled for an opportunity to file objection under Section 5A of the Act.6. Pre-notification and Post-notification delay:The petitioners in the writ petition have submitted that there was no urgency for invoking Sections 17(1) and 17(4), while issuing notification under section 4 which is also fully proved by the fact of delay which has occasionedeven before issuance of notification under section 4 and subsequent to section 4 notifications. The petitionershave submitted that in main writ petition of Gajraj, the Greater Noida Authority sent recommendation on 31.3.2006
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 153 of 19710/21/2011for invoking Sections 17(1) and 17(4) but the Collector forwarded the recommendation only on 22.2.2008 andthereafter notification under section 4 dated 12.3.2008 was issued which clearly proved that there was no suchurgency in the matter so as to dispense the inquiry under section 5A. It is further submitted that the notificationunder section 6 was issued after more than three and half months from section 4 notifications which itself beliesthe case of the State that the case was such urgent that no opportunity could have been given under section 5A.Learned Counsel for the petitioners submits that there are several other cases in which gap of about one year inthe notifications under section 4 as well as in the notification under section 6. For village Pali Notification undersection 4 was issued on 7.9.2006 whereas notification under section 6 was issued on 23.7.2007 i.e. after morethan ten months. In village Biraundi Chakrasenpur Section 4 notification was issued on 31.7.2007 whereasnotification under section 6 was issued on 15.1.2008. In Tusiyana section 4 notification was issued on 10.4.2006,whereas section 6 declaration was issued on 30.11.2006. In Village Dabara Section 4 notification was issued on31.10.2005, whereas section 6 notification was issued on 1.9.2006. In this context one case is to be specificallynoted i.e. writ petition No. 44093 of 2011 Beli Ram Vs. State of U.P. and others of village Kondali Banger. In thewrit petition, notification dated 8.9.2008 issued under section 4 read with Section 17(1) and section 17(4) andnotification dated 16.9.2009 read with Section 6 have been challenged. A counter affidavit has been filed by theState in which it has been pleaded that notification under section 4 was published in the Hindi newspaperRashtriya Sahara and Amarujala on 15.8.2009 and the Munadi in the village was carried out on 21.8.2009 andthereafter notification under section 6 was issued on 16.9.2009 which was published in the daily newspaperJansatta and Dainik Jagaran on 24.10.2009. From the above, it is clear that even publication of section 4notification was made in the newspaper on 15.8.2009 and Munadi was done on 21.8.2009 i.e. notification undersection 4 was published after 11 months and notification under section 6 was issued after more than one year ofthe gazette publication of section 4.The submission which has been pressed by the learned counsel for the petitioners are that section 6 has beennot immediately issued after section 4 clearly indicates that there was no urgency in the acqusition and theinvocation of urgency under section 17(1) and 17(4) was done in the routine manner without there being any realneed or urgency in the matter. The question of delay caused prior to issuance of notification under section 4 aswell as subsequent to section 4 had come for consideration before the apex Court in several cases. In AIR 1971SC 1033 Jage Ram and others Vs. State of Haryana in which apex Court observed the fact that StateGovernment or Authority concerned was lethargic at an earlier stage is not very relevant for deciding the questionwhether on the date when notification was issued there was urgency or not. Following was laid down in paragraph10:"The fact that the St-ate Government or the party concerned was lethargic at an earlier stage is not very relevantfor deciding the question whether on the date on which the notification was issued, there was urgency or not theconclusion of the Government in a given case that there was urgency entitled to weight, if not conclusive."In Deepak Pahwa etc. Vs. Lt. Governor of Delhi and others AIR 1984 SC 1721, the apex Court held that merepre-notification delay would not render the invocation of urgency provision void. However, the Court did not sayanything about post notification in delay. Following was laid down in paragraph 8:"The other ground of attack is that if regard is had to the considerable length of time spent on interdepartmentaldiscussion before the notification under S. 4 (1) was published, it would be apparent that there was no justificationfor invoking the urgency clause under s. 17 (4) and dispensing with the enquiry under s. 5-A. We are afraid, wecannot agree with this contention. Very often persons interested in the land proposed to be acquired makevarious representations to the concerned authorities against the proposed acquisition. This is bound to result in amultiplicity of enquiries, communications and discussions leading invariably to delay in the execution of evenurgent projects. Very often the delay makes the problem more and more acute and increases the urgency of thenecessity for acquisition. It is, therefore, not possible to agree with the submission that more pre-notification delaywould render the invocation of the urgency provisions void. We however wish to say nothing about postnotificationdelay. In Jaga Ram v. State of Haryana, this court pointed out "the fact that the State Government orthe party concerned was lethargic at an earlier stage is not very relevant for deciding the question whether on thedate on which the notification was issued, there was urgency or not." In Kash Reddy Papiah v Govt. of AndhraPradesh, it was held, "Delay on the part of the tardy officials to take further action in the matter of acquisition isnot sufficient to nullify the urgency which existed at the time of the issue of the notification and to hold that therewas never any urgency." In the result both the submissions of the learned counsel for the petitioners are rejectedand the special leave petitions are dismissed."The next case relied by learned counsel for the respondents is Chameli Singh & others Vs. State of U.P. andanother (1996) 2 Supreme Court Cases 549, the apex Court had occasion to consider the question of prenotificationand post notification delay. The apex Court laid down following in paragraphs 15, 16 and 17:
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