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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 182 of 19710/21/2011In Union of India Vs. Mukesh Hansh (supra), the argument was made before the apex court that when theappropriate Government comes to the conclusion that there is an urgency or unforeseen emergency underSection 17(1) and 17(2) the dispensation of the inquiry under Section 5-A becomes automatic. This argument wasrepelled by the Apex court in paragraph 33 which is quoted as below :An argument was sought to be advanced on behalf of the appellants that once the appropriate Governmentcomes to the conclusion that there is an urgency or unforeseen emergency under Section 17(1) and (2), thedispensation of enquiry under Section 5A becomes automatic and the same can be done by a composite ordermeaning thereby that there no need for the appropriate Government to separately apply its mind for any furtheremergency for dispensation with an inquiry under Section 5A. We are unable to agree with the above argumentbecause sub- section (4) of Section 17 itself indicates that the "government may direct that provisions of Section5A shall not apply" which makes it clear that not in every case where the appropriate Government has come tothe conclusion that there is urgency and under sub- section (1) or unforeseen emergency under sub-section (2) ofSection 17 the Government will ipso facto have to direct the dispensation of inquiry. For this we do find supportfrom a judgment of this Court in the case of Nandeshwar Prasad & Anr. vs. The State of U.P. & Ors. { 1964 ( 3)SCR 425) wherein considering the language of Section 17 of the Act which was then referable to waste or arableland and the U.P.Amendment to the said section held thus :"It will be seen that s. 17(1) gives power to the Government to direct the Collector, though no award has beenmade under s. 11, to take possession of any waste or arable land needed for public purpose and such landthereupon vests absolutely in the Government free from all encumbrances. If action is taken under s. 17(1), takingpossession and vesting which are provided in s. 16 after the award under s. 11 are accelerated and can takeplace fifteen days after the publication of the notice under s. 9. Then comes s.17(4) which provides that in case ofany land to which the provisions of sub-s. (1) are applicable, the Government may direct that the provisions of s.5-A shall not apply and if it does so direct, a declaration may be made under s. 6 in respect of the land at any timeafter the publication of the notification under s. 4(1). It will be seen that it is not necessary even where theGovernment makes a direction under s. 17(1) that it should also make a direction under s. 17(4). If theGovernment makes a direction only under s. 17(1) the procedure under s. 5-A would still have to be followedbefore a notification under s. 6 is issued, though after that procedure has been followed and a notification under s.6 is issued the Collector gets the power to take possession of the land after the notice under s. 9 without waitingfor the award and on such taking possession the land shall vest absolutely in Government free from allencumbrances. It is only when the Government also makes a declaration under s. 17(4) that it becomesunnecessary to take action under s. 5-A and make a report thereunder. It may be that generally where an order ismade under s. 17(1), an order under s. 17(4) is also passed; but in law it is not necessary that this should be so. Itwill also be seen that under the Land Acquisition Act an order under s. 17(1) or s. 17(4) can only be passed withrespect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and onwhich buildings stand."Thus the view taken in Harischand case as extracted above that the District Magistrate having arrived atconclusion that land was required urgently and there was justification for acquiring the land was not sufficientrecommendation for dispensation of inquiry under Section 5-A and there being no application of mind to theaforesaid aspect which is specifically required to be considered, the judgement of the Division Bench inHarishchand can not the said to be in accordance with law as laid down by Apex court in Narayan Govind GavateVs. State of Maharashtra and Union of India Vs. Mukesh Hansh.The division Bench judgment in Harakaran Singh's case have referred to Anand Singh's case (supra) which hadrelied on Narayan Singh Gautey's case. The Division Bench in Harakaran Singh has also relied on RadheyShyam case (supra) which was fully applicable on the issues which have arisen in the present case. In view of theaforesaid discussion we are of the view that Division Bench judgment in Harishchand can not be approved andthe Division Bench judgment in Harakaran Singh is to be followed.In so far as other Division Bench judgments which had been relied by learned counsel for the respondents asreferred above upholding the notification we are of the view that said judgments had binding effect between theparties in the aforesaid cases. The present petitioners are not being party to those proceedings the said judgmentmay not be binding on the present petitioners. It is, however, relevant to notice one or two judgments in whichnotifications were upheld. One of the Division Bench judgments is relied by the respondent is Munshi Singh Vs.State of U.P. and others 2009 Volume VIII A.D.J. 360 by which judgment the notifications dated 20 June 2007under Section 4 and notification dated 18 June 2008 under Section 6 was challenged. The Division Benchdismissed the writ petition. The Division Bench while dismissing the writ petition has relied on Division Bench ofthis Court in Radhey Shyam and others Vs. State of U.P. 2009 Volume 2 A.D.J. 388. Against the judgment of
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 183 of 19710/21/2011Radheya Shyam and others by which Division Bench of the High Court dismissed the writ petition upholding thenotification, special leave petition was filed in the Supreme Court and the Division Bench Judgement of the HighCourt has been reversed by Apex Court in Radhey Shyam Vs. State of U.P. 2011 Volume 5, S.C.C. 553.Another Division Bench judgment of this court which is relevant is Sudhir Chandra Agarwal Vs. State of U.P. andanother 2008 Volume III A.D.J. 289 by which the acquisition notification under Sections 4 and 6 relating to VillageTushiana were upheld one of the arguments raised by the petitioners was that the invocation of Section 17 subclause 4 by dispensing of the inquiry under Section 5-A was illegal. The Division Bench felt satisfied with thematerials which was before the State Government and held that subjective satisfaction of State Government informing the opinion that Section 17(4) be invoked can not be challenged. The Division Bench although inparagraph 25 of the judgment itself noted that one of the reasons given for invocation of urgency that in case theland is not made available then various foreign industrialist who intend to establish industries shall go to someother State, was considered and it was held that the said ground could not be substantiated by the authority. It isuseful to quote paragraphs 24,25,26 which is to the following effect :"24. The averment in the counter affidavit and the record produced before us would go to show that land use ofthe land in Village Tushiana in the master plan was reserved as, 'institutional'. The land was part of notification ofthe industrial area under Section 3 of U.P. Act No.6 of 1976. The development of the area was proposed forallotment to various industries and institutions and that it was stated that in case the development plan is notmade available, the investors would establish their industries in some other States affecting the development ofthe industrial area.25.On our request, a list of industries with their proposals was provided by the GNIDA alongwith 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.26.The sufficiency or insufficiency of the material, and the names of industries, which may have applied withconcrete proposals for establishment of industrial units, is not material for the purposes of judicial review of thesubjective satisfaction of the State Government. When there exists material before the State Government, in theshape of recommendations and that material is relevant for applying the mind for recording subjective satisfactionof invoking the urgency clause for acquisition of the land, the law does not permit the Court to consider thematerial as if it was weighing the evidence for the purposes of recording subjective satisfaction of invoking theurgency clause for acquisition of the land. If the material is relevant, on which competent authority, as reasonableperson may invoke the urgency clause for acquisition of the land, the Court would not put such material on thescales, to weigh or measure such urgency. The court is not competent to carry out judicial review of thesufficiency or insufficiency on the material placed before it. What the Court required to see is whether suchmaterial is relevant, and that the competent authority in the State Government could have formed an opinionwithout their being any motive or ill-will for invoking the urgency clause. In the present case the State has given inthe counter affidavit, the material on which it had placed reliance and has produced the material before us, whichwe find to be relevant for the purpose of invoking urgency clause. Even if we may, after perusing the record arriveon different conclusion, we would restrain ourselves from interfering, as in such case we would be substituting ouropinion in place of opinion of the competent authority in the State Government. If we do so, we would be sitting inappeal over the subjective satisfaction recorded by the State Government. The legal position obtained from thejudicial precedents restrain us from doing so.We are of the view that one of the grounds which was basis for arriving at subjective satisfaction for invokingSection 17(4) having not been substantiated by the authority, the subjective satisfaction was clearly vitiated ashas been laid down by the apex court in Sibban Lal Saxena's case (supra).It is also relevant to note that against the Division Bench judgment in Sudhir Chandra Agarwal case special leaveto appeal Civil no.11551 of 2008 was filed in the Apex Court which was dismissed by following order dated 12May 2008:"Heard. The Special Leave petition is dismissed. However, the petitioner be given ex-post-facto hearing within twomonths from today."
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