2011 (10) TMI 753 - HC - Indian Laws

Large scale acquisition of agricultural and Abadi land of farmers of different villages in the name of planned industrial development - challenged the various similar notifications issued u/s 4 read with Sections 17 and 17(4) and Section 6 - Object and Purpose of the 1976 Act - Delay and Laches - National Capital Regional Planning Board Act, 1985, its Consequences - Invocation of Sections 17(1) and 17(4) - Pre-notification and Post-notification delay - Colourable Exercise of Power - Taking of Possession - Vesting - Waiver - Acquiescence - Third Party Rights, Development Constructions - Effect of Upholding of some of the notifications in some writ petitions earlier decided - Conflicts in views of Division Benches - Relief - Object and Purpose of the 1976 Act - HELD THAT - We have no doubt in our mind that development of industries being primary object the activities of the Authority has to wear round along with industrial development. Any activity dehors the industrial development cannot be said to be within the bonafide and legitimate purpose of the Act. The development of the residential area, commercial area and other areas have to be developed as subservient to industrial development. It is useful to note that in preamble of the Act two words have been used i.e. industrial and urban township . The words industrial and urban township are conjunctive and not disjunctive. The development of urban township is a corollary and conjunctive to industrial development. We thus are of conclusive opinion that dominant purpose of the Act is industrial development and the authority in its action has not bonafide and truthfully followed the objective of the Act and its several actions do not fall in line with the object of the Act which shall be referred to in this judgment in some detail hereinafter. It was stated in the writ petition that land was no more required for industrial purposes and acquisition has been made subject to Ghaziabad Development Authority. In the aforesaid context, the Division Bench held that when the land was acquired and taken over by the acquiring body for the purposes of industrial development, then it can be public or commercial and residential accommodation connected with the said industrial development but it cannot be enter into simple housing development scheme performing the job of the development authorities and Nagar Nigams. Whether it is compulsory and necessary for the Authority to acquire the land for carrying out the development as contemplated under 1976 Act - The object and purpose of the Act is much more than only to acquire the land and thereafter carry on developments. The Legislature intended that authority may be constituted to step up the industrial development of the State. Appropriate measures and planning in that regard is contemplated. The Authority under misconception that industrial developments could be done by it only when it acquires the land has proceeded with the acquisition of land in routine manner. Thus, it is clear that the stand of the Authority that unless the land is acquired by the Authority, it cannot carry any developmental works under 1976 Act is misconceived and incorrect. It is not far to seek that Authority labouring under above misconception has concentrated only on acquisition of land without taking care of other modes and means of industrial development and excessive acquisition of fertile agricultural land is due to above mindset of the Authority. Delay and Laches Whether delay and laches, can bar invocation of constitutional remedy under Article 226 of the Constitution of India is the question to be considered - The substance of the pleadings in different writ petitions is to the effect that the petitioners were under the belief that the land is being acquired for Planned Industrial Development which shall serve the public purpose and provide employment to their children due to establishment of several industries in the area. The land owners accepted the same as their fate and did not immediately rush to the court. The reason given by most of the petitioners for coming to the Court is that subsequently when the land was started being transferred to private builders and colonisers it transpired that the land is not being utilised for the purpose for which it was acquired and instead of industries coming in the area only builders have come up. Petitioners have also pleaded that the authority has given meagre some of few hundred rupees per square yard to the land owners, but they have been transferring the land to the builders for hefty amount ranging from ₹ 10,000 to 20,000 per square metre. On the aforesaid ground and other grounds as noticed above, petitioners have approached the Court with delay, but the petitioners case is that since the facts elaborated above indicate that the respondents have played fraud and the acquisition was in colourable exercise of power, the delay in approaching the Court may not stand in their way in granting relief to them for which they are entitled in law. It is also relevant to note that in some of the cases in this bunch there are cases where the petitioners have immediately rushed to this Court and there is no delay in filing the writ petition for example with regard to Village Patwari which is under challenge, there are some writ petitions which were filed within the reasonable time and there is no delay in such writ petitions at all. We, however, cannot loose sight of the fact that the above grounds taken are not applicable to those writ petitioners, where the acquisition was finalised decades ago and allotment of private builders and colonisers which were complained of were not applicable in the aforesaid cases. Thus, apart from writ petitions which have been specifically mentioned in record, in which there are no satisfactory explanation for inordinate delay and laches, we proceed to examine the other writ petitions on merits taking over all facts and circumstances and the grounds pleaded in the aforesaid writ petitions. We are not inclined to throw the writ petitions on the ground of delay and laches. National Region Planning Board Act, 1985 - As noted, the Greater Noida Authority as well as the Noida Authority were constituted under the Uttar Pradesh Industrial Development Act, 1976, hereinafter referred to as Act,1976 . The area of Noida or Greater Noida is included in the National Capital Region. For co-ordinating and monitoring the implemention of plan for development of National Capital Region and for evolving harmonised policies for the control of land uses and development of infrastructure in the National Capital Region, Parliament enacted an Act namely, National Capital Region Planning Board Act, 1985 hereinafter referred to as NCRPB Act, 1985 . The NCRPB Act, 1985 was enacted by the Parliament on the resolutions passed by the legislature of State of Haryana, Rajasthan and Uttar Pradesh under Article 252 of the Constitution of India. We are of the view that no clearance has yet been obtained by the Authority to its draft Master Plan for Greater Noida-2021 and steps taken by the Authority towards the acquisition of land as well as carrying on development activities including the creation of third party rights were not in conformity with the NCRPB Act, 1985. We are also of the considered view that the Authority has acted in a manner which is nothing but a deliberate violation of the NCRPB Act, 1985 and in spite of the directions given by this Court in the case of Ravindra Singh (supra) on 01/10/1996 that an Officer at the level of Secretary of the Government should enquire conforming uses of land according to the NCRPB Act, 1985 no serious efforts have been taken by the State. We are of the view that a thorough inquiry is necessary in the whole exercise undertaken by the Greater Noida by the Officers of the highest level at the State Government. We direct the Chief Secretary of the State to appoint officers not below the level of Principal Secretary (except the officers of Industrial Development Department who has dealt with the relevant files) to conduct a thorough inquiry regarding the acts of Greater Noida in proceeding to implement Plan 2021 without approval of N.C.R.P. Board and decisions taken to change the land use and builders' allotments made as well as indiscriminate proposals for acquisition of land and take an appropriate action in the matter. We are further of the view that Greater Noida Authority cannot proceed to implement Master Plan 2021 till it is permitted by N.C.R.P. Board. Greater Noida Authority shall ensure that no development by it or by its allottees be undertaken as per draft Master Plan 2021 till the same receives clearance by N.C.R.P. Board. We make it clear that it shall be open to carry on developments by Authority and its allottees as per earlier plan approved by N.C.R.P. Board. Invocation of Urgency Clause under Section 17(1) and 17(4) notifications issued u/s 4 read with Sections 17(1) and 17(4) - We are of the view that exercise of power by the State Government invoking Section 17(4)of the Act dispensing with inquiry u/s 5A of the Act is vitiated due to following reasons as discussed above - (i) The original records of the State Government indicate that officers of the State Government did not advert to the issue of dispensation of inquiry u/s 5A of the Act nor gave any recommendation to that effect which further indicate that direction issued by the State Government u/s 17(4) of the Act was made without application of mind; (ii) In the certificate given by the Collector (In Prapatra-10) only observation made was that it is necessary to take possession immediately to complete the project without delay. However, in his certificate the Collector has not given any reason as to why inquiry u/s 5A of the Act be dispensed with, rather observation in the certificate was that by invoking Section 17 of the Act the right of objection under Section 5A are automatically dispensed with and he is in agreement with dispensation of inquiry. The Collector himself having not applied his mind, who was required to consider all aspects and no reasons/recommendations having been there in the notings of the officers of the State Government as noticed above, there was no material on record to dispense with 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 issuing notification u/s 4/17 were considered and relied by the State Government for arriving on its subjective satisfaction to dispense with the inquiry under Section 5A, the subjective satisfaction is vitiated since the ground that unless the land is not immediately provided, the land shall be encroached has been held by the Apex Court to be a irrelevant ground in Om Prakash's Radhy Shyam's cases (supra). The subjective satisfaction based on an irrelevant ground is vitiated in law. As observed above, the notifications issued under Section 4 read with Section 17(1)and 17(4) were identical with all acquisitions and the materials on record before the State Government including the certificates issued by the Collector 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. Thus, we hold that invocation of Section 17(4) by the State Government dispensing with the inquiry under Section 5A of the Act while issuing notification under Section 4 is vitiated. The dispensation of inquiry being invalid, all the petitioners were entitled for an opportunity to file objection under Section 5A of the Act. Pre-notification and Post-notification delay - The crux of the matter is, whether urgency was such that summary enquiry u/s 5A was necessary to be dispensed with since acquisition could not have waited for few days few weeks. In this bunch of cases, the reason for invocation of urgency has been mechanically given in same words which has already been considered and found not valid. Further there is no proper explanation with regard to inordinate delay caused in issuing notification u/s 6 when section 4 notification was already issued by the State Government invoking urgency. Thus, the submission of the petitioners have substance that in large number of cases pre-notification and post-notification delay caused clearly indicates that the cases were not such so as to invoke sections 17(1) and Section 17(4). Colourable Exercise of Power - Petitioners' case in the writ petition is that the acquisition of agricultural land of the petitioners was in colourable exercise of power and was nothing but fraud on power. We are of the view that no exception can be taken to the power of the Authority to transfer or lease out the property as empowered by Section 7. We are, however, of the view that power under Section 7 has to be utilised for the purpose and object of the Act and leaving the industrial development as its dominant object, the Authority cannot act in a manner that it has become a facilitator of carrying building activities in the area to private builders without it having any connection with the object of industrial development. The power given to the Authority under the Act has to be exercised keeping in view the object of the Act. The phras e colourable exercise of power came for consideration before the Apex Court in the case of State of Punjab and another v. Gurdial Singh and others 1979 (10) TMI 219 - SUPREME COURT . In the said case Justice Krishna Iyer explained as to what is mala fide in the jurisprudence of power, sometimes called colourable. We are of the view that the Authority has acted in colourable exercise of power in exercising its statutory function of acquiring the land as per Section 6(2)(a) of the 1976 Act. The Authority on the pretext of carrying planned industrial development as it was statutorily obliged to carry, pursued different object and purpose, i.e. transferring the land to private persons dehors to the industrial development. Taking of possession It is submitted that the District Revenue Authorities as well as NOIDA authority/greater NOIDA authorities have never taken physical possession of land in dispute and the possession memo has been prepared without coming on the spot and there are neither signatures of land holders nor there are signatures of any independent witnesses in the possession memo. Copy of the possession memo as claimed by the State dated 2nd February, 2007 was also filed as Annexure 5 to the writ petition. The possession memo Annexure 5 to the writ petition also contains the statement details of the land possession of which is being transferred to acquiring body/greater NOIDA Industrial Development authority . The said memo has again been signed by four officers of the greater NOIDA authority and Additional District Magistrate Land Acquisition, Gautam Budh Nagar. The aforesaid possession memo are not the possession memo or the document showing taking of possession by the State. There is no occasion to transfer the possession to the greater NOIDA authority by the State unless the possession is obtained by the State. Further more, as held in the judgment of the apex court in Prahlad Singh's case 2011 (4) TMI 1553 - SUPREME COURT , even if the land is vacant the State authority has to go to the spot and prepare a Panchanama which ordinarily be treated as sufficient to constitute taking of possession. The possession memo filed by the State in the counter affidavit can not be termed to be a Panchanama since signatures of any Panch (independent witness) are absent. Thus the taking of possession by the respondent can not be said to be in accordance with the law. Thus we find substance in the submission of the learned counsel for the petitioners that possession was not taken by the State authorities of land in accordance with law and possession memo which has been filed by the State authorities can not be treated to be valid possession memo evidencing taking of possession. Vesting T he issue is already concluded by the judgment of the apex Court in Narmada Bachao Andolan 2011 (5) TMI 914 - SUPREME COURT . In writ petition pertaining to village Yakubpur was filed challenging the notification dated 26.9.2006 under section 4 read with Section 17(1) and Section 17(4) and notification under section 6 dated 19.1.2007. After the notification, the State had taken possession on 27.1.2007. The above judgment of the apex court clinches the issue and the issue has to be answered against the respondents and submission made by learned counsel for the respondents that the petitioners cannot be permitted to challenge the land acquisition proceedings after vesting of the land has to be rejected. Section 11 A Lapse of Acquisition - The recent judgment of Banda Development Authority 2011 (4) TMI 1326 - SUPREME COURT has also occasion to consider the said issue, relying on the decision of Satendra Prasad Jain 1993 (9) TMI 373 - SUPREME COURT . The argument on the basis of Section 11-A was repelled. In the present bunch of cases the State Government has invoked urgency clause under Section 17(1) and possession has been taken in all the cases exercising urgency power. The ratio laid down by Satendra Prasad Jain's case is fully attracted and the submission made by the learned counsel for the petitioners on the basis of Section 11-A can not be accepted. Section 17 (3A) of the Act - It is clear from the record, that the issue is yet to be considered by larger Bench of the Apex Court on Section 17(3A). However, we are bound to follow the law as it exists today which is a binding precedent under Article 141 of the Constitution of India. The judgment in Sateyendra Prasad Jain 1993 (9) TMI 373 - SUPREME COURT will hold the field hence the submission of the petitioner at present that Section 17(3) A is mandatory, non compliance of which vitiate the acquisition can not be accepted. Waiver - The award under Section 11 was declared on 29/1/2010 which has been filed as Annexure-4 to the writ petition which award was declared after more than 6 and a half years from issuance of declaration under Section 6. The rate of compensation under the 1997 Rules, as has been also noted in the award was ₹ 378.92 per square yard for Pushtaini and ₹ 329.50 per square yard for Gair Pushtaini , whereas in the award u/s 11(1), the rate fixed for per square yard was ₹ 156 which has been mentioned in the award. The pleadings of the petitioners as noted and the apprehension which has been expressed in the pleadings come true by the events as noted. Acquiescence The submission of the respondents relating to acceptance of compensation under the 1997 Rules are concerned, we have already dealt the said submission while discussing the plea of waiver. We have already arrived at a conclusion that merely because the land owners have accepted the compensation under the 1997 Rules, they cannot be said to have waived their right for the same reasons as given above. We are of the view that mere acceptance of compensation under the 1997 Rules, does not amount to acquiescence by the land owners. Third Party Rights and Construction We, thus conclude that the effect and consequence of third party rights, developments and the constructions made after taking of the possession by the authorities is a relevant factor which shall hereinafter be considered while considering the issue as to what relief the petitioners are entitled. We are of the view that Division Bench Judgment in Harischand case is not to be approved whereas the view taken in the Division Bench Judgement in Har Karan Singh that the invocation of Section 17(4) was not justified is approved. Implementation of Master Plan 2021 - The court directed Greater NOIDA and its allottees not to carry on development or implement the Master Plan 2021 until the observations and directions of the National Capital Regional Planning Board are incorporated to its satisfaction. Allotment of Developed Plots to Landowners - The court directed that landowners should be allotted developed plots up to 10% of the acquired land, subject to a maximum limit of 2500 square meters. This allotment should be made in the same village if possible or in any other suitable place. Inquiry into Actions of Greater Noida Authority - T he court directed the Chief Secretary of the State to appoint officers to conduct a thorough inquiry into the actions of Greater Noida Authority regarding the implementation of Master Plan 2021, decisions to change land use, allotments made to builders, and indiscriminate proposals for land acquisition. Conclusion 1. The writ petitions filed with inordinate delay and laches are dismissed.- Specific writ petitions are allowed, and the notifications and consequential actions are quashed, with directions for restoration of land subject to the return of compensation. 2. Petitioners are entitled to additional compensation and allotment of developed plots. 3.Greater NOIDA and its allottees are directed to halt development under Master Plan 2021 until compliance with the National Capital Regional Planning Board's directions. 4. An inquiry is ordered into the actions of Greater Noida Authority, and appropriate actions are to be taken by the State Government.

Summary

Issues Involved:
1. Requirement of approval from the National Capital Regional Planning Board (NCRPB).
2. Invocation of urgency clause under Section 17(1) and 17(4) of the Land Acquisition Act.
3. Colourable exercise of power.
4. Taking of possession.
5. Impact of Section 11A on the acquisition process.
6. Compliance with Section 17(3A) of the Land Acquisition Act.
7. Waiver and acquiescence by the petitioners.
8. Effect of third-party rights and construction.
9. Conflicts in views of Division Benches.
10. Reliefs to be granted.

Summary:

1. Requirement of Approval from NCRPB:
The court noted that the Sub-Regional Plan must be in conformity with the Regional Plan and Functional Plans, as per Section 19 and 20 of the NCRPB Act, 1985. The Greater Noida Authority's Master Plan 2021 had not been cleared by the NCRPB, making the steps taken towards land acquisition and development activities non-compliant with the NCRPB Act, 1985.

2. Invocation of Urgency Clause under Section 17(1) and 17(4):
The court examined whether the urgency clause was validly invoked. It was found that the State Government did not apply its mind to the necessity of dispensing with the inquiry under Section 5A. The court held that mere urgency under Section 17(1) does not automatically justify dispensing with Section 5A. The subjective satisfaction for invoking Section 17(4) was found to be vitiated due to lack of proper application of mind and irrelevant grounds.

3. Colourable Exercise of Power:
The court determined that the Greater Noida Authority acted in a colourable exercise of power by acquiring land ostensibly for industrial development but actually for transferring it to private builders for residential purposes. This was against the object of the 1976 Act, which aims at industrial development.

4. Taking of Possession:
The court found that the possession memos filed by the State did not constitute valid possession as they lacked signatures of landholders or independent witnesses. Thus, the possession was not taken in accordance with law.

5. Impact of Section 11A:
The court held that Section 11A, which mandates the making of an award within two years from the date of the declaration, does not apply to cases where Section 17 has been invoked and possession has been taken.

6. Compliance with Section 17(3A):
The court noted that the issue of whether Section 17(3A) is mandatory is pending before a larger bench of the Supreme Court. However, following existing precedents, the court held that non-compliance with Section 17(3A) does not vitiate the acquisition.

7. Waiver and Acquiescence by the Petitioners:
The court rejected the argument of waiver and acquiescence, stating that the acceptance of compensation under duress does not amount to a voluntary relinquishment of rights. The petitioners had not waived their right to challenge the acquisition.

8. Effect of Third-Party Rights and Construction:
The court acknowledged that third-party rights and substantial developments had taken place in some villages, making it inequitable to quash the acquisition. However, in villages where no third-party rights were created and no substantial developments took place, the notifications were quashed.

9. Conflicts in Views of Division Benches:
The court approved the view taken in Har Karan Singh's case, which held that the invocation of Section 17(4) was not justified, over the view in Harishchand's case, which upheld the notifications.

10. Reliefs to be Granted:
The court ordered additional compensation to be paid to the petitioners, similar to the settlement in village Patwari. It also directed the allotment of developed plots to the landowners to the extent of 10% of their acquired land. The Greater Noida Authority was directed not to carry on development under the Master Plan 2021 until it is approved by the NCRPB. An inquiry was ordered into the actions of the Greater Noida Authority regarding the implementation of the Master Plan 2021, land use changes, and indiscriminate land acquisition proposals.