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JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10.20... Page 90 of 197http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do10/21/2011(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from arural area to an urban area;(b) a Municipal Council for a smaller urban area; and(c) a Municipal Corporation for a larger urban area,in accordance with the provisions of this Part:Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as theGovernor may, having regard to the size of the area and the municipal services being provided or proposed to beprovided by an industrial establishment in that area and such other factors as he may deem fit, by publicnotification, specify to be an industrial township.(2) In this article, "a transitional area", "a smaller urban area" or "a larger urban area" means such area as theGovernor may, having regard to the population of the area, the density of the population therein, the revenuegenerated for local administration, the percentage of employment in non-agricultural activities, the economicimportance or such other factors as he may deem fit, specify by public notification for the purposes of this Part."The proviso to Article 243Q(1) is an exception for requirement of constituting a Municipality in every State.Exception has been provided in cases where municipal services are being provided by an industrial establishmentin that area. Neither any Panchayat nor any municipality has been constituted in the area of the Authority in viewof the proviso to Article 243Q (1). The proviso to Article 243Q(1) is for a purpose and object. The purpose andobject being that industrial establishment in an area, which is looking after the area should be left free to carry onits activities unhindered by constitution of any Municipality or Panchayat, which may adopt their own regulatorymeasures to hamper the industrial development. This scheme goes to indicate that purpose and object for givingsuch exemption to the Authority is again to be industrial development. Article 243Q(1) proviso came forconsideration before the apex Court in (1999) 2 Supreme Court Cases 366 Saij Gram Panchayat vs The State OfGujarat & Ors. In the State of Gujrat, under Gujarat Industrial Development Act, 1962 notified industrial area wereconverted by notification into industrial township. Saij Gram Panchayat filed a writ petition challenging thenotifications issued under Gujrat Industrial Development Act. Further notification was issued excluding the notifiedarea from Saij Gram Panchayat under section 9(2) of the Gujrat Gram Panchayat Act, 1961. The GramPanchayat challenged the notifications on the ground that Gujrat Industrial Development Act is contrary to part IXand Part IXA of the Constitution of India. The above argument was rejected. The apex Court further held thatGujrat Industrial Development Corporation has been given power to develop land for the purpose of facilitating thelocation of industries and commercial sectors. The plea of violation of the Constitutional provision was rejectedand following was laid down in paragraph 16:"16. The contention is based on a misconception about the relationship of the provisions of Parts IX and IXA ofthe Constitution with any legislation pertaining to industrial development. The Gujarat Industrial Development Actoperates in a totally different sphere from Parts IX and IXA of the Constitution as well as the Gujarat PanchayatsAct, 1961 and the Gujarat Municipalities Act, 1962 - the latter being provisions dealing with local self Governmentwhile the former being an Act for industrial development, and orderly establishment and organisation of industriesin a State. The industrial areas which have been notified under Section 16 of the Gujarat Industrial DevelopmentAct on 7.9.1993 were notified as industrial areas under the Gujarat Industrial Development Act long back in theyear 1972. These industrial areas have been developed by the Gujarat Industrial Development Corporation andthey can hardly be looked upon as rural areas covered by Part IX of the Constitution. It is only such industrialareas which can be notified under Section 16 of the Gujarat Industrial Development Act, 1963. If by a notificationissued under Section 16, these industrial areas are deemed to be notified areas under the Gujarat MunicipalitiesAct and are equated with industrial townships under the proviso to Clause (1) of Article 243Q, the constitutionalscheme is not violated. In fact, under Chapter 3 of the Gujarat Industrial Development Act, 1962, the GujaratIndustrial Development Corporation, has been given power, inter alia, to develop land for the purpose offacilitating the location of industries and commercial centers. It has also been given the power to provideamenities and common facilities in such areas including provision of roads, lighting, water supply, drainagefacilities and so on. It may do this either jointly with Government or local authorities or on an agency basis infurtherance of the purposes for which the corporation is established. The industrial area thus has separateprovision for municipal services being provided by the Industrial Development Corporation. Once such an area isa deemed notified area under the Gujarat Municipalities Act, 1964, it is equated with an industrial township underPart IXA of the Constitution, where municipal services may be provided by industries. We do not see any violationof a constitutional provision in this scheme."
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10.20... Page 91 of 197http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.do10/21/2011From the above discussions, it is clear that the stand of the Authority that unless the land is acquired by theAuthority, it cannot carry any developmental works under 1976 Act is misconceived and incorrect. It is not far toseek that Authority labouring under above misconception has concentrated only on acquisition of land withouttaking care of other modes and means of industrial development and excessive acquisition of fertile agriculturalland is due to above mindset of the Authority.3. Delay and Laches:Whether delay and laches, in the facts of the present cases can bar invocation of constitutional remedy underArticle 226 of the Constitution of India is the question to be considered.From the facts of different cases, as noted above, it is clear that the delay has occasioned on the part of thepetitioners in invocation of jurisdiction of this Court under Article 226 of the Constitution, except in few caseswhere the petitioners have filed the writ petition without any delay. In some of the cases, there are inordinatedelay in invoking the jurisdiction of this Court.For illustrating the issue, the facts of the main Writ Petition i.e. 37443/2011, Gajraj & Ors Vs. State of U.P. & Ors,be taken first. In the said case the notification under Section 4 of the Land Acquisition Act, 1894 read withSections 17(1) and 17(4) was issued on 12/3/2008, which was published in the local newspaper 'Amar Ujala' on20/3/2008 and in 'Dainik Jagaran' on 20/3/2008 and declaration under Section 6 of the Act was issued on30/6/2008 which was published in the newspaper 'Amar Ujala' on 09/7/2008 and in 'Dainik Jagaran' on 09/7/2008.The possession is claimed to have been taken by the State and the Authority under Section 17 of the Act, 1894on 05/9/2008 and 12/1/2009. The compensation was paid to the tenure holders under the 1997 Rules to theextent of 87 percent. Out of 2048 tenure holders 1624 tenure holders have accepted compensation under the1997 Rules. With regard to petitioners following has been stated in paragraph 24 of the counter affidavit which isquoted below:"The petitioners have not applied for payment of compensation under the agreement, hence they would be paidcompensation in terms of the Award to be declared under the terms of the Section 11 which has already beenfinalised and submitted for approval of the competent authority".The counter affidavit of the State was sworn on 09/9/2011. Thus, according to the own case of the respondentsthe award under Section 11 of the Act with regard to Village in question has not yet been declared. The writpetition has been filed on 07/7/2011. Petitioners in the writ petition pleads that the respondents in order to fulfiltheir political obligations/promise to the private builders have dispensed with the inquiry under Section 5A of theAct,1894.In paragraph 14 of the writ petition, it has been pleaded that although the land was acquired for "PlannedIndustrial Development" in District Gautam Bugh Nagar, but they have transferred the same to private builders forconstruction and sale and since May, 2011 the employee of the respondents and private builders are trying todispossess the petitioners from their Abadi Land. One of the copy of the lease deed by which M/s Supertech Ltdwas allotted Builders Residential/Large Group Housing Plot No.GH08, area 204000 Sq meter has been annexedas Annexure 4 to the writ petition. It is useful to quote paragraph 14 of the writ petition which is to the followingeffect:"14.That, the respondents acquired the land for the public purpose, namely for the "Planned IndustrialDevelopment in District Gautam Budh Nagar through Greater Noida" and on another hand they transferred thesome acquired area to the private builders for construction and sale and in the May, 2011 the employee of theRespondents and Private Builders are trying to dispossess the petitioner from his Abadi Land".In the writ petition, notifications issued under Section 4 read with Sections 17 (1) and 17 (4) as well as Section 6have been termed as fraud and in colourable exercise of power. As per the averments made in paragraph 24 ofthe counter affidavit, it is clear that the petitioners did not accept the compensation under the 1997 Rules.However, the learned counsel for the petitioners has stated that some of the petitioners have accepted theadditional compensation which was offered to the petitioners after the order of this Court on 26/7/2011 in the mainwrit petition.From the facts stated above, the dates of notifications of different villages in which the land was acquired as wellas the dates during which the compensation was accepted by majority of land owners under the 1997 Rules aredifferent. However, the dates of notifications indicate that in majority of cases award under Section 11 of the Act,1894 has been declared in the year 2011, in some of the cases after filing of the writ petition, and in some caseseven during the course of hearing of these writ petitions. The dates of notifications, the date on which possession
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