9911796707
TMI Blog2006 (8) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... .) for approval and when the same was not approved, the petitioner approached the High Court by filing a writ petition wherein vide order dated 06.10.2005 passed by this Court, directions were issued to the A.D.A. to consider the lay out plan of the petitioner in accordance with law on merit provided the land is not under acquisition. 3. In the meantime, the State of U.P. on 03.10,2005 issued the impugned notification under Section 4 read with Section 17 of the Act proposing to acquire 395.5726 Hectare of land of the villages Barauli, Ahir, Bagda, Tora, Lakawali, Chamrauli, Mayapur and Kala! Kheria in Agra including the land in dispute. In the aforesaid notification, it has been clearly stated that the land is needed for the public purpose of plan development of a residential colony. The respondents further invoked the provisions of Section 17(4) of the Act and on account of urgency dispensed with the inquiry provided under Section 5A of the Act. The aforesaid acquisition in effect is for the purposes of developing a residential colony with the name of Taj Nagari phase-Ill. The petitioner further states that the development authority is already possessed of over 800 bighas of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e footing were entertained and interim orders on the same lines were passed therein by the High Court. Few of the other writ petitions of similar nature challenging the impugned notification came to be dismissed as premature and not maintainable. Against the ad interim orders passed in the writ petitions including the present writ petition, A.D.A. went before Hon'ble the Supreme Court and filed Special Leave Petitions. However, Hon'ble Supreme Court vide order dated 3,3.2006 dismissed all Special Leave Petitions on the ground that they arise from an interim order passed by High Court directing for maintaining status quo. Hon'ble Supreme Court further while dismissing the Special Leave Petitions hoped that the High Court shall dispose of the writ petitions pending before it within three months after notice to the respondents. The order of Hon'ble Supreme Court dated 3.3.2006 passed in the bunch of S.L.P. in which S.L.P. No. 3667 of 2006 Agra Development Authority v. Nisha Sahakari Avam Samiti Ltd. and Ors. was treated as the leading case is quoted below: We do not wish to entertain these petitions. These petitions are filed against ad-interim order passed by the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel has produced the record of State of U.P. and Mr. Pradeep Kumar has produced the record of A.D.A. 11. Sri Pradeep Kumar, learned Counsel for A.D.A. has reiterated the preliminary objection that the petitioner has no cause of action for filing the writ petition as in respect of the petitioner's land, only a notification under Section 4 of the Act has been issued and there is no final declaration under Section 6 of the Act. He has relied upon few orders passed by this Court wherein the writ petitions challenging the notification under Section 4 of the Land Acquisition Act were, dismissed summarily as premature with liberty to the petitioners to approach the Court as and when occasion arises i.e. after the issuance of declaration under Section 6 of the Act. 12. Sri Manish Goyal, learned Counsel for the petitioner in reply to the above preliminary objection and the submissions of Sri Pradeep Kumar, Advocate has emphasized that the notification issued under Section 4 of the Act can also be challenged independently if there are legal mala-fides in issuing the same i.e. it has been issued for non existing purposes or for any oblique motive. In support, he has relied upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull Bench of Punjab and Haryana High Court in the case of Radhey Shyam Gupta v. State of Haryana (Supra) wherein it has been held that: where the very initiation of the proceedings are tainted with mala fides, the notification under Section 4 of the Act can be challenged on the basis of a colourable exercise of power forthwith. 15. The orders of the High Court dismissing some of the writ petitions as premature and not maintainable are summary decisions which contains no discussion on law and as such cannot be treated as precedent and therefore are of no help to the respondents. 16. In view of the above discussions, we are of the view that even though the notification issued under Section 4 of the Act is merely a proposal and is not a conclusive proof of acquisition, the Court may exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India to quash the same if the notification is per se illegal and the mandatory procedure prescribed has not been followed in issuing and publishing the same and where the proposal is tainted by mala-fides. Therefore to conclude the writ petition challenging the notification under Section 4 of the Act is some times ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Maharashta and Ors. 1994-2004 S.C. Judgments on Land Acquisition has held as under: When the State Govt. have exercised the power under Section 4(1) for a public purpose and the public purpose was mentioned therein, the exercise of the power cannot be invalidated on grounds of malafides or colour able exercise of power so long as the public purpose is shown and the land is needed or is likely to be needed and the purpose subsists at the time of exercise of the power. It is primarily for the State Government to decide whether there exists public purpose or not, and it is not for this Court or the High Courts to evaluate the evidence and come to its own conclusion that it is a malaflde or colourable exercise of the power. 19. In view of the above discussions, we are of the view that the petitioner has failed to bring his case within the exceptional categories on which the notification under Section 4 of the Act can be challenged independently and therefore, we are not inclined to accept the challenge to the impugned notification issued under Section 4 of the Act. 20. Sri Manish Goyal has then asserted that even if the notification issued under Section 4 of the Act is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivest the land to the original owners/tenure holders. Moreover, the Apex Court has repeatedly held that the delay in challenging the notification for acquisition is fatal and if the land acquisition proceedings stood finalized, interference by the Court is not called far. Therefore, the notification issued under Section 17(4) of the Act is open to challenge independently even before the issuance of the declaration under Section 6 of the Act where prima facie, there is no material before the authorities to record subjective satisfaction about urgency. Thus, where the power is arbitrarily exercised without there being any material on record, the action can be subjected to the judicial review on the grounds permitted under Article 226 of the Constitution of India and where the notifications under Section 4 and 17(4) of the Act are simultaneously issued, the objectionable portion which suffers from the vice of arbitrariness alone can be quashed. 23. Now the next question is whether the respondents are justified in invoking the urgency provisions of Act dispensing with the enquiry contemplated by Section 5A of the Act. The scheme of Act contemplates the use of emergency powers only i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 5A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an enquiry under Section 5A which has to be considered. 26. Similar view has been expressed by the Supreme Court in Om Prakash and Anr. v. State of U.P. and Ors. 1998 (6) SCC and the above proposition of law in Narayan Govind Gavate (Supra) has been quoted with affirmation. 27. The scheme of the Act makes it absolutely clear that the Act is a self contained code in itself. It provides for issuing the notification under Section 4 of the Act containing the proposal to acquire the land. Section 5A gives a statutory right to the person interested or to the person whose land is proposed to be acquired to file objection disputing the proposal to acquire the land. If objections are made, the Collector shall consider those objections and hear the objections before making his recommendations to the Government. It is only upon the aforesaid hearing of the objections and the decision of the Government that a declaration under Section 6(2) of the Act is required to be published acquiring the land finally. This is the usual procedure prescribed for acquiring the land. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous, A citizen's property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State administration. 30. Hon'ble Supreme Court in State of Punjab v. Gurdial Singh as to the use of emergency powers under Section 17 of the Act has observed as under: It is fundamental that compulsory taking of a man's property is a serious matter and the smaller ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or record and must satisfy about the existence of the I urgency or there being application of mind by the State Government on the basis of the material on record. 34. We have perused the record of the A.D.A. and the State Government. The A.D.A. vide letter No. 715 (i) (ii)/D/L.A.C./04 dated 4.11.2004 under the signatures of the Vice Chairman has submitted the proposal to acquire the land in dispute to the Collector, Agra for being forwarded to the State Government. The said proposal states that the proposal to acquire the land in dispute has been passed by the Board of A.D.A. vide resolution No. 10 in its 96th Meeting held on 29.1.2004. The said proposal further states that Agra is an important tourist place, therefore, the development of residential colony and commercial complex are necessary. There is requirement to have a solid land bank for future development. The proposal in the end states that in view of the circumstances stated above in the proposal, it is necessary to acquire the land by resorting to the provision of Section 4 and 6 of the Act. There is no whisper about the urgency to acquire the same. However, in the application form for acquisition of land which form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt was submitted by the officers of acquisition department and after subjective satisfaction of the appropriate government notification under Section 4(1) read with Section 17(1) of the Act has been issued strictly in accordance with law. 37. We have considered the above submission of Sri Pradeep Kumar but we fail to agree with the same. First, the land is sought to be acquired for the plan development of residential colony and there is no recital that it is needed for the purpose of providing infra structure to the International level sports activities much less for the construction of stadium. Secondly, there is no joint survey report on the record as alleged in which any urgency had been shown for acquiring the land at the time of issuing the impugned notification dated 3.10.2005. Any subsequently material, if any, though not on record is not material as the decision about urgency as required to be taken only on the basis of the material on record at the relevant time. Lastly, the A.D.A. cannot supplement reasons for urgency through counter affidavit when documents showing such urgency as described in paragraph No. 15 of the counter affidavit are not part of the record. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 76436 of 2005 Maya Nagar Ari Avas Samiti Ltd. v. State of U.P. and Ors. 133 of 2006 Ram Vatika Colony and Ors. v. State of U.P. and Ors. 1542 of 2006 Tej Singh and Ors. v. State of U.P. and Ors. 1544 of 2006 Narayan Singh and Ors. v. State of U.P. and Ors. 1545 of 2006 Sahab Singh and Ors. v. State of U.P. and Ors. 1549 of 2006 Asharam and Ors. v. State of U.P. and Ors. 1567 of 2006 Roshan Lal and Anr. v. State of U.P. and Ors. 1573 of 2006 Ram Niwas and Ors. v. State of U.P. and Ors. 5672 of 2006 Niranjan Singh and Ors. v. State of U.P. and Ors. 5673 of 2006 Daya Kishan and Ors. v. State of U.P. and Ors. 5703 of 2006 Bani Singh v. State of U.P. and Ors. 5893 of 2006 Prabhu Lal and Ors. v. State of U.P. and Ors. 5900 of 2006 Thakur Singh and Anr. v. State of U.P. and Ors. 5973 of 2006 Gaya Prasad and Ors. v. State of U.P. and Ors. 7400 of 2006 Londu Ram v. State of U.P. and Ors. 7541 of 2006 Ram Bharosi and Ors. v. State of U.P. and Ors. 7543 of 2006 Ram Bharosi v. State of U.P. and Ors. 7544 of 2006 Munna Lal and Ors. v. State of U.P. and Ors. 7546 of 2006 Hari Mohan and Anr. v. State of U.P. and Ors. 7556 of 2006 Nawal Singh and Ors. v. State of U.P. and Ors. 7557 of 2006 Keshav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h v. State of U.P. and Ors. 2194 of 2006 Chittar Singh and Anr. v. State of U.P. and Ors. 2195 of 2006 Ram Kishan and Ors. v. State of U.P. and Ors. 2197 of 2006 Bhagwan Singh v. State of U.P. and Ors. 2199 of 2006 Om Prakash v. State of U.P. and Ors. 2200 of 2006 Ghandharv Singh and Ors. v. State of U.P. and Ors. 2201 of 2006 Giriraj Singh v. State of U.P. and Ors. 2449 of 2006 Ramji Lal v. State of U.P. and Ors. 2452 of 2006 Mohan Singh v. State of U.P. and Ors. 2455 of 2006 Gyasi Ram v. State of U.P. and Ors. 2686 of 2006 Prem Datta and Ors. v. State of U.P. and Ors. 6354 of 2006 Upasna Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 11541 of 2006 Govardhan Singh v. State of U.P. and Ors. 11710 of 2006 Bachchoo Singh and Ors. v. State of U.P. and Ors. 10280 of 2006 Vijay Oberoi and Ors. v. State of U.P. and Ors. 74968 of 2006 Shanti Nagar Grah Nirman Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 10902 of 2006 Mahendra Singh v. State of U.P. and Ors. 77060 of 2005 Smt. Amita Kapoor and Ors. v. State of U.P. and Ors. 77194 of 2005 Smt. Ramkali and Ors. v. State of U.P. and Ors. 2271 of 2006 Manish Surana and Anr. v. State of U.P. and Ors. 2320 of 2006 Keshav Dham and Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sahkari Avas Samiti Ltd., Agra v. State of U.P. and Ors. 3373 of 2006 Bhagwan Singh and Anr. v. State of U.P. and Ors. 3375 of 2006 Doji Ram and Ors. v. State of U.P. and Ors. 3377 of 2006 Bhagwan Das v. State of U.P. and Ors. 3378 of 2006 Nirrotam Singh v. State of U.P. and Ors. 3694 of 2006 Hari Babu and Ors. v. State of U.P. and Ors. 4024 of 2006 Smt. Hemlata and Anr. v. State of U.P. and Ors. 75305 of 2005 Smt. Devki and Ors. v. State of U.P. and Ors. 77816 of 2005 Mahesh Chand Jain and Ors. v. State of U.P. and Ors. 2189 of 2006 Beni Ram v. State of U.P. and Ors. 12253 of 2006 Shiv Shakti Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 12257 of 2006 Chinmay Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 12261 of 2006 Ramji Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 12263 of 2006 Jai Sri Ram Gramin Sahkari Avas Samiti Ltd. and Anr. v. State of U.P. and Ors. 12823 of 2006 Smt. Kiran Singh and Ors. v. State of U.P. and Ors. 13286 of 2006 Smt. Pushpa Jain and Ors. v. State of U.P. and Ors. 13805 of 2006 Mata Din v. State of U.P. and Ors. 14857 of 2006 Nihal Singh v. State of U.P. and Ors. 14859 of 2006 Puran Singh v. State of U.P. and Ors. 14861 of 2006 Mishri Lal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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