1

Reserved on 31.05.2019

Delivered on 13.09.2019

Court No. - 29

Case :- WRIT - C No. - 64926 of 2011

Petitioner :- Rajeev And Others

Respondent :- State Of U.P.And Others

Counsel for Petitioner :- Shiv Kant Mihsra

Counsel for Respondent :- C.S.C.,Ramendra Pratap Singh

and

Case :- WRIT - C No. - 29430 of 2017

Petitioner :- Rakesh

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- M J Akhtar,V.M. Zaidi

Counsel for Respondent :- C.S.C.,Shivam Yadav

and

Case :- WRIT - C No. - 61779 of 2011

Petitioner :- Ranjeet And Others

Respondent :- State Of U.P. And Others

Counsel for Petitioner :- Pankaj Dubey,Adarsh Bhushan,Kamlesh

Kumar Mishra,Shiv Kant Mishra

Counsel for Respondent :- C.S.C.,Ramendra Pratap Singh

and

Case :- WRIT - C No. - 1339 of 2012

Petitioner :- Ram Ratan And Others

Respondent :- State Of U.P. And Others

Counsel for Petitioner :- Shiv Kant Mishra

Counsel for Respondent :- C.S.C.,Ramendra Pratap Singh

and

Case :- WRIT - C No. - 1348 of 2012

Petitioner :- Yaspal And Others

Respondent :- State Of U.P. And Others

Counsel for Petitioner :- Shiv Kant Mishra,Randhir Jain

Counsel for Respondent :- C.S.C.,Rajesh Kr. Dubey,Ramendra

Pratap Singh,Vijay Shyam Bhasker

and

Case :- WRIT - C No. - 18482 of 2013

2

Petitioner :- Ram Prasad And 3 Others

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Pankaj Dubey

Counsel for Respondent :- C.S.C.,Shivam Yadav

and

Case :- WRIT - C No. - 37409 of 2013

Petitioner :- Bhuley

Respondent :- State Of U.P. Thru Chief Secy. And 3 Others

Counsel for Petitioner :- Shiv Kant Mishra

Counsel for Respondent :- C.S.C.,Shivam Yadav

and

Case :- WRIT - C No. - 51980 of 2013

Petitioner :- Kanhaiya Lal And 2 Others

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Shiv Kant Mishra,Kamlesh Kumar Mishra

Counsel for Respondent :- C.S.C.,Shivam Yadav

and

Case :- WRIT - C No. - 65614 of 2013

Petitioner :- Ravindra Kumar And Another

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Pankaj Dubey

Counsel for Respondent :- C.S.C.,Shivam Yadav

and

Case :- WRIT - C No. - 26928 of 2014

Petitioner :- Jasmal Singh And 5 Others

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Shiv Kant Mishra

Counsel for Respondent :- C.S.C.,Shivam Yadav

and

Case :- WRIT - C No. - 63412 of 2014

Petitioner :- Raje And Another

Respondent :- State Of U.P. And 3 Others

Counsel for Petitioner :- Shiv Kant Mishra

Counsel for Respondent :- C.S.C.,Shivam Yadav

Hon'ble Pankaj Mithal,J.

Hon'ble Prakash Padia,J.

All these 11 writ petitions relate to the acquisition of land of

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village Begumpur, Pargana Dankaur, Teshil Sadar, District Gautam

Buddh Nagar.

The State of U.P. vide notification dated 07.11.2007 issued

under Section 4 of the Land Acquisition Act, 1894 (hereinafter

referred to as “Act”) proposed to acquire 108.233 hectares of land of

the aforesaid village for the planned industrial development through

New Okhla Industrial Development Authority (NOIDA).

In issuing the aforesaid notification, the State Government

opined that as there is urgency for acquisition and the provisions of

sub-section (1) and (2) of Section 17 are applicable, the holding of an

enquiry or hearing of objections to the proposed acquisition as

provided under Section 5-A of the Act be dispensed with by virtue of

powers conferred under sub-section (4) of Section 17 of the Act.

The aforesaid notification was followed by a declaration under

Section 6 of the Act dated 17.03.2008 which stated that the land is

required for the planned development in district Gautam Buddh Nagar

through NOIDA.

The possession of the 7.559 hectares of acquired land was taken

over on 07.06.2008 and the possession of 100.64 hectares of land was

taken over on 15.06.2013. Since there were two possession memos,

two separate awards were made under Section 11 of the Act on

12.01.2011 and 31.12.2013 in respect of the above two pieces of land.

The two awards provide that most of the tenure holders whose

land had been notified for acquisition, have agreed for receiving the

compensation in accordance with Uttar Pradesh (Determination of

Compensation and Declaration of Award by Agreement) Rules, 1997

(hereinafter referred to as “Karar Niyamawali”).

The award dated 12.01.2011 offered compensation at the lump

sum rate of Rs. 870/- per square meter to the normal tenure-holders

and @ Rs. 1,000/- per square meter to the ancestral tenure holders

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who agreed to accept compensation as per the Karar Niyamawali. The

other tenure holders who declined to receive compensation as per the

Karar Niyamawali, were offered compensation @ Rs. 135.28/- per

square meter with other statutory benefits, such as 30% solatium, 12%

additional amount and interest, etc. on the basis of the exemplar sale

deed No. 11 dated 28.04.2007.

The award dated 31.12.2013 awarded compensation to the

normal tenure holders @ Rs. 1,490/- per square meter & @ Rs.

1,295/- per square meter to the ancestral tenure holders as per the

Karar Niyamawali and @ Rs. 135.28/- per square meter to those who

refused to accept compensation as per the Karar Niyamawali.

It may not be out of context to mention that the notification

issued under Section 4 of the Act was challenged by the NOIDA

Global Special Economic Zone (SEZ) Pvt. Ltd. by filing writ petition

No. 7880 of 2008 wherein High Court on 18.02.2008 directed the

parties for the maintenance of status-quo. The aforesaid writ petition

was transferred to the Apex Court and was subsequently withdrawn on

03.08.2012. It is on account of order of status-quo operating therein

that the possession of 100.64 hectares of land involved therein could

not be taken up immediately.

The petitioners in these petitions have challenged the aforesaid

acquisition proceedings i.e. the notification issued under Section 4

dated 07.11.2007 and the declaration made under Section 6 of the Act

dated 17.03.2008 on the ground that their valuable rights to the

property cannot be taken away in violation of Article 300-A of the

Constitution of India without giving an opportunity of hearing to them

to oppose the proposed acquisition as contemplated by Section 5-A of

the Act.

In other words, their grievance is that as there was no urgency

to acquire the land, therefore, the State Government is not justified in

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dispensing with the enquiry/hearing under Section 5-A of the Act.

The State Government contends that the land was needed

urgently for public purpose. There was sufficient material on the basis

of which subjective satisfaction was recorded. No prejudice has been

caused to the petitioners by the dispensation of the enquiry under

Section 5-A of the Act as grant of such opportunity is not an empty

formality. The acquisition cannot be held to be bad on mere

technicality.

On behalf of NOIDA, it has been contended that after

possession was delivered to it, the acquired land has been developed.

Most of the tenure-holders, i.e. 65% have accepted the compensation

and it is too late in the day to challenge the aforesaid acquisition.

We have heard Sri H.N. Singh, Sri V.M. Zaidi and Sri V.K.

Singh, all Senior Counsel and Sri Shiv Kant Mishra on behalf of

petitioners in different writ petitions, Sri M.C. Chaturvedi, Additional

Advocate General and Sri Ramendra Pratap Singh have been heard on

behalf of the State and NOIDA respectively.

The basic argument advanced on behalf of petitioners is that

there was no urgency to acquire the land in question and in the

absence of any material to establish any such urgency, the State

Government dispensed with the enquiry/hearing under Section 5-A

of the Act in a routine and a casual manner without application of

mind. The invocation of urgency under sub-section (1)/sub-section (2)

of Section 17 and Section 17 (4) of the Act is a colourable exercise of

power with the malafide intention to convey the acquired land to the

private developers.

In addition to the above, Sri Shiv Kant Mishra contended that

the State of U.P. was not even sure for what purpose the land was

needed to be acquired. In the notification under Section 4 of the Act,

the purpose was stated to be planned industrial development whereas

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in the declaration under Section 6 of the Act, it was simply stated to

be planned development in district Gautam Buddh Nagar.

The respondents have contended that the writ petitions suffer

from delay and laches. They are not even maintainable as most of the

tenure-holders have accepted the compensation that too on the basis of

the Karar Niyamawali. The State Government has exercised the

power under Section 17 (4) of the Act on the basis of the material on

record and the satisfaction so recorded is not open to judicial review.

The petitioners have not disclosed any possible objection which they

could have taken to the proposed acquisition and as such they have

not suffered any prejudice if the land has been acquired without

hearing them so as to warrant exercise of extraordinary jurisdiction.

In the light of the above rival contentions, the following two

points are before us for adjudication-:

(i)Whether the proceedings for acquisition would stand

vitiated and the state authorities were not justified in invoking

Section 17(4) read with sub-section (1) and (2) of Section 17 of

the Act so as to dispense with the enquiry/hearing of objections

under Section 5-A of the Act and;

(ii)Whether the High Court in exercise of its extraordinary

discretionary under Article 226 could be justified in interfering

with the acquisition in the facts and circumstances of the case.

The right to property which at one point of time used to be the

fundamental right is now simply a constitutional right under Section

300-A of the Constitution of India (hereinafter referred to as

“Constitution”). It provides that no person shall be deprived of his

property save by authority of law. Therefore, a property of a person

cannot be taken over or acquired by any person or the State without

following the procedure that may be prescribed by the relevant

enactment.

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The aforesaid right to property though simply a constitutional

right but is akin to a fundamental right and at the same time is also a

valuable human right. Therefore, no person can be deprived of his

aforesaid right save by authority of law which implicitly includes the

right of hearing. In view of the above, Section 5-A of the Act acquires

much greater importance as it gives flavour of a statutory right to the

right of hearing before depriving a person of his property. It provides

that any person interested in any land which is notified for acquisition

has a right to object to the acquisition of it and may file objections

before the Collector in writing within the time specified. In case any

objections are so filed, the Collector is obliged to give him an

opportunity of hearing and only after hearing the objections and

making any further enquiry which he deems necessary, submit a

report to the Government containing his recommendations on the

objections whereupon the Government would take final decision with

regard to the acquisition of the land.

In simple terms, a person interested or a person whose land is

proposed to be acquired is entitle to file objections regarding proposed

acquisition before the Collector who is obliged to give personal

hearing to the objector and then to submit a report to the State

Government. The State Government thereupon takes a final decision

in the matter before issuing a declaration under Section 6 of the Act.

This is the minimum which has been provided as a safety valve before

depriving a person of his aforesaid valuable right of property.

The said right of hearing, irrespective of Section 5-A of the Act

is even otherwise available to the person concerned as the most

valuable right of the person i.e. the right to property which is akin to a

fundamental right and has been recognized as a human right as well

can not be taken away without affording opportunity of hearing. Such

a right of hearing is inherent as it visits the person with grave civil

consequences having the effect of depriving a person of his property.

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The aforesaid right can be dispensed with only in accordance

with the procedure provided under the law.

Ordinarily, no one much less the tenure-holders are liable to

eviction from the land proposed to be acquired without offering

compensation. The final declaration to acquire the land can not also be

published unless an enquiry contemplated under Section 5-A of the

Act is completed and the objectors are given opportunity of hearing.

The Act, however, vide Section 17 provides that in cases of

urgency, the State Government can direct the Collector to take

possession of any land needed for public purpose even though award

has not been made under Section 11 of the Act. It further provides that

in cases of urgency or unforeseen emergency, the State Government

may dispense with the enquiry or the hearing of objections under

Section 5-A and proceed to make a declaration under Section 6 of the

Act at any point of time after issuance of notification under Section 4

of the Act.

The relevant provision of Section 17 which are material for our

purpose are reproduced-:

17. Special powers in cases of urgency-:

(1) In cases of urgency, whenever the

[appropriate Government]

so directs, the Collector, though no such award has been made,

may, on the expiration of fifteen days from the publication of the

notice mentioned in section 9, sub-section (1),

[take possession of

any land needed for a public purpose]. Such land shall thereupon

[vest absolutely in the

[Government]], free from all encumbrances.

(2) Whenever owing to any sudden change in the channel of any

navigable river or other unforeseen emergency, it becomes

necessary for any Railway administration to acquire the immediate

possession of any land for the maintenance of their traffic or for

the purpose of making thereon a river-side or ghat station, or of

providing convenient connection with or access to any such

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station,

[or the appropriate Government considers it necessary to

acquire the immediate possession of any land for the purpose of

maintaining any structure or system pertaining to irrigation, water

supply, drainage, road communication or electricity,] the Collector

may, immediately after the publication of the notice mentioned in

sub-section (1) and with the previous sanction of the

[appropriate

Government], enter upon and take possession of such land, which

shall thereupon

[vest absolutely in the

[Government]] free from all

encumbrances: Provided that the Collector shall not take

possession of any building or part of a building under this sub-

section without giving to the occupier thereof at least forty-eight

hours' notice of his intention so to do, or such longer notice as

may be reasonably sufficient to enable such occupier to remove his

movable property from such building without unnecessary

inconvenience.

(4.) In the case of any land to which, in the opinion of the

[appropriate Government], the provisions of sub-section (1) or

sub-section (2) are applicable, the

[appropriate Government] may

direct that the provisions of section 5A shall not apply, and, if it

does so direct, a declaration may be made under section 6 in

respect of the land at any time

[after the date of the publication of

the notification] under section 4, sub-section (1).

A bare reading of the aforesaid provisions would reveal that in

cases of urgency alone as an exception to the general rule, the

Government can direct the Collector for taking possession of the land

notified to be acquired even before making of the award and proceed

for the declaration to be made under Section 6 of the Act at any time

after the issuance of the notification under Section 4 of the Act by

dispensing with the enquiry/hearing under Section 5-A of the Act.

In Om Prakash

1

, the Apex Court dealing with a similar

controversy opined that planned development of a city or town does

not invariably justify invocation of Section 17 (4) of the Act nor even

1Om Prakash and another Vs. State of U.P. and others, 1998 (6) SCC 1

10

the possibility of encroachment over the land is a question which is

germane to the urgency to acquire the land and to dispense with the

enquiry under Section 5-A of the Act. It also holds that in the absence

of any material before the state authorities to justify urgency, the

provisions of Section 17 (4) of the Act can not be invoked so as not to

apply Section 5-A of the Act.

It is tirite to mention here that according to the settled principles

where land is acquired by invoking Section 17 (1) and (4) of the Act,

the challenge to such acquisition on the ground of non-existence of

urgency is not to be thrown out in-lemini rather the Court should insist

upon filing of counter affidavit by the respondents and for the

production of the relevant records. It should carefully examine the

reply and the records before coming to any conclusion with regard to

the impugned notifications which alone would reveal whether the

State Government had formed a bonafide opinion on the issue of

invoking the urgency provision and excluding the application of

Section 5-A of the Act. This becomes all the more necessary where the

petitioners assert that there was no urgency to acquire the land and

that the State Government had not applied its mind to the relevant

factors so as to invoke the urgency provisions which have been used

in an arbitrary manner depriving them with the opportunity of hearing.

In Radhey Shyam's case

2

where again the issue was whether

the State Government was justified in invoking the urgency clause and

dispensing with the enquiry under Section 5-A of the Act in acquiring

the land, the Apex Court after elaborate discussion on each aspect of

the matter enunciated the following principles-:

(i) Eminent domain is a right inherent in every sovereign to take

and appropriate property belonging to citizens for public use. To

put it differently, the sovereign is entitled to reassert its dominion

over any portion of the soil of the State including private property

without its owner's consent provided that such assertion is on

2 Radhey Shyam and others Vs. State of U.P. 2011 (5) SCC 553

11

account of public exigency and for public good.

(ii) The legislations which provide for compulsory acquisition of

private property by the State fall in the category of expropriatory

legislation and such legislation must be construed strictly.

(iii) However, compulsory taking of one's property is a serious

matter. If the property belongs to economically disadvantaged

segment of the society or people suffering from other handicaps,

then the court is not only entitled but is duty bound to scrutinize

the action/decision of the State with greater vigilance, care and

circumspection keeping in view the fact that the landowner is likely

to become landless and deprived of the only source of his

livelihood and/or shelter.

(iv) The property of a citizen cannot be acquired by the State

and/or its agencies/instrumentalities without complying with the

mandate of Sections 4, 5-A and 6 of the Act. A public purpose,

however, laudable it may be does not entitle the State to invoke the

urgency provisions because the same have the effect of depriving

the owner of his right to property without being heard. Only in a

case of real urgency, the State can invoke the urgency provisions

and dispense with the requirement of hearing the landowner or

other interested persons.

(v) Section 17 (1) read with Section 17 (4) confers extraordinary

power upon the State to acquire private property without

complying with the mandate of Section 5-A. These provisions can

be invoked only when the purpose of acquisition cannot brook the

delay of even a few weeks or months. Therefore, before excluding

the application of Section 5-A, the authority concerned must be

fully satisfied that time of few weeks or months likely to be taken in

conducting inquiry under Section 5-A will, in all probability,

frustrate the public purpose for which land is proposed to be

acquired.

(vi) The satisfaction of the Government on the issue of urgency is

subjective but is a condition precedent to the exercise of power

under Section 17(1) and the same can be challenged on the ground

that the purpose for which the private property is sought to be

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acquired is not a public purpose at all or that the exercise of

power is vitiated due to malafides or that the authorities

concerned did not apply mind to the relevant factors and the

records.

(vii) The exercise of power by the Government under Section 17

(1) does not necessarily result in exclusion of Section 5-A of the

Act in terms of which any person interested in land can file

objection and is entitled to be heard in support of his objection.

The use of word 'may' in Section 17 (4) makes it clear that it

merely enables the Government to direct that the provisions of

Section 5-A would not apply to the cases covered under Section

17(1) or 17(2). In other words, invoking of Section 17(4) is not a

necessary concomitant of the exercise of power under Section

17(1).

(viii) The acquisition of land for residential, commercial,

industrial or institutional purposes can be treated as an

acquisition for public purposes within the meaning of Section 4 but

that, by itself, does not justify the exercise of power by the

Government under Sections 17(1) and/or 17(4). The court can take

judicial notice of the fact that planning, execution and

implementation of the schemes relating to development of

residential, commercial, industrial or institutional areas usually

take few years. Therefore, private property cannot be acquired for

such purpose by invoking the urgency provision contained in

Section 17(1). In any case, exclusion of the rule of audi alteram

partem embodied in Sections 5-A (1) and (2) is not at all

warranted in such matters.

(ix) If land is acquired for the benefit of private persons, the court

should view the invoking of Sections 17 (1) and/or 17 (4) with

suspicion and carefully scrutinize the relevant record before

adjudicating upon the legality of such acquisition.

In Darshan Lal Nagpal

3

, it has been held that compulsory

acquisition of the property of an individual is a serious matter and has

grave repercussions on his constitutional right and he cannot be

3Darshan Lal Nagpal (dead) by Lrs. Vs. Government of NCT of Delhi and others, 2012 (2)

SCC 327

13

deprived of his property without the sanction of law. Therefore, State

must exercise the power to acquire the land with great care and

circumspection more particularly where urgency provisions are

invoked and Section 5-A is not made applicable. This is so as

sometimes compulsory acquisition of land is likely to make the

tenure-holders or the land owners landless. The Court also observed

that the rule of audi-alteram partem i.e. the rule of hearing itself

provides that the person affected by the acquisition of the land must

have a reasonable opportunity of being heard and the hearing must be

a genuine one and not an empty public relation exercise. Thus, it was

held that the invocation of the urgency provisions can be justified only

if there exists real emergency which cannot brook delay of even few

weeks or months and in this regard evidence has to be adduced by the

State authorities who are in possession of the relevant record

pertaining to the proposed acquisition.

In the aforesaid case, the Court found that the documents

produced by the parties do not contain anything from which it can be

inferred that any conscious decision was taken to dispense with the

applicability of Section 5-A of the Act i.e. the right of the land owners

to file objections against the proposed acquisition and of being heard

before making any recommendations for the purposes of final

acquisition.

In the petitions before us, we refer to the pleadings of Writ

Petition No. 64926 of 2011. It clearly pleads that the provisions of

Section 17 (1) and (4) of the Act have been invoked without there

being any urgency and without application of mind so as to dispense

with the enquiry under Section 5-A of the Act.

Apart from the pleadings to the above effect contained in

paragraph 6 of the writ petition, paragraph 8 of the writ petition

categorically asserts that as the land was not surveyed before

acquisition, there was certainly no material before the State

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Government to enable it to form an opinion that there was urgency in

the matter so as not to apply Section 5-A of the Act. It has further been

stated in paragraph 9 of the writ petition that there was no urgency in

the matter of such a nature which would have caused any loss or

prejudice if the proceedings for acquisition would have been delayed

for some time for the purposes of enquiry.

The State authorities i.e. the respondents No. 1, 2 and 3 in their

counter affidavit apart from explaining the factual aspects relating to

the acquisition proceedings have not stated anything to establish the

urgency or have referred to any material on the basis of which the

State may have formed the opinion for not applying Section 5-A of the

Act. The only averments in that regard are contained in paragraph 11

of the counter affidavit wherein it has been stated that before sending

the proposal for acquisition of land, entire proposed area was

surveyed and since the land was urgently required for public purpose

i.e. the planned industrial development, the provisions of urgency

under Section 17 were invoked and the enquiry under Section 5-A of

the Act was dispensed with. The averment made in the said paragraph

also emphasizes that there was sufficient material before the State

Government justifying the invocation of urgency clause and it was

only after examining the record and on subjective satisfaction that the

urgency provisions were invoked and Section 5-A was held to be

inapplicable.

The aforesaid reply of the State fails to mention the date or the

relevant time on which the land was surveyed and what was the

material on record to justify the dispensation of enquiry under Section

5-A of the Act. There is nothing in the reply to establish any urgency

to acquire the land.

Respondent No.4 NOIDA in its reply to the aforesaid writ

petition has not referred to any urgency on its part to acquire the land.

It has not even mentioned when any proposal to acquire the said land

15

was submitted before the State Government and as to what was the

material on record placed by it or any other authority before the State

so as to permit invocation of Section 17 of the Act.

The NOIDA even in the supplementary affidavit has not

adverted to any factual or legal aspect with regard to urgency for

acquiring the land or to any material in that regard except for orally

submitting that there was danger of the land being encroached upon

frustrating the purpose of acquisition, therefore, there was an urgent

need to acquire and to take possession of the said land.

The State of U.P. produced the original record relating to the

acquisition of the aforesaid land. The record reveals that one Sri

Tanveer Zafar Ali who was the then Deputy Chief Executive Officer,

NOIDA vide his letter dated 23.08.2005 addressed to the Additional

District Magistrate (Land Acquisition), Gautam Buddh Nagar stated

that the proposal to acquire the aforesaid land in 4 copies is being

sent. It may be processed at war-footing and the notification be issued

under Section 4 and 17 of the Act on priority basis.

The aforesaid letter encloses with it as many as 22 formats

starting from Form No. I to Form No. XXII which includes the draft

of the notification as well as the declaration. However, neither the said

letter of proposal nor any other document enclosed with it mentions

any reason for the immediate acquisition and possession of the land

proposed to be acquired. It does not even refer to any material which

may indicate the urgency for acquisition so as to dispense with the

provisions of Section 5-A of the Act.

Form No. X enclosed with the aforesaid proposal is slightly

relevant for our purpose as it mentions that the land is required for the

scheme of the NOIDA which is to be completed without any delay

and therefore it is necessary to acquire and to take possession of the

same by utilizing the provisions of Section 17 of the Act and

16

dispensing with the provisions of Section 5 of the Act, but again it is

completely silent as to the reason of urgency or as to why the said

scheme is to be completed without any delay or if there is any delay

due to holding an enquiry under Section 5-A of the Act, how it will

prejudice and damage the purpose of acquisition.

The aforesaid form is signed by Supervisor Kanoongo and

Tehsildar, NOIDA and also states that the committee has surveyed the

land but fails to mention the date of survey. The report of the Survey

Committee is also not available with it.

The aforesaid proposal does not give any indication as to why

the acquisition of the land is urgent and the urgency is of such an

extreme nature that holding of an enquiry under Section 5-A of the

Act would, in some way, frustrate the purpose of acquisition and as

such it is necessary not to apply Section 5-A of the Act. The statement

that the scheme for which the land is being acquired is to be

completed without any delay is also without any basis. There is no

explanation or reason as to why the scheme has to be completed

without any delay or that there is urgency to complete it.

We have perused the entire record which contains documents up

to the month of August, 2018 but apart from the above proposal and

the documents as mentioned above, we do not find any document or

material which was placed before the State Government to justify the

urgency for the acquisition of the land. However, the District

Magistrate, Gautam Buddh Nagar while forwarding the said proposal

for the acquisition of the land to the Director, Land Acquisition

Directorate, Board of Revenue, U.P., Lucknow vide its letter dated

20.09.2006 has again submitted the Forms enclosed with the original

proposal and after Form No. IX and before Form No. X has inserted

an undated letter signed by Lekhpal, Land Inspector, Naib Tehsildar,

Tehsildar, Administrative Officer and Additional District Magistrate,

Land Acquisition, NOIDA requesting for applying the provisions of

17

Section 17 of the Act in issuing notification under Section 4 of the

Act. The said letter after narrating certain facts which are not germane

to the urgency to acquire it states that looking to the facts mentioned

therein, a notification under Section 4 read with Section 17 of the Act

is required to be published.

The contents of the said letter are reproduced hereinbelow-:

xzke dk uke csxeiqjijxuk nudkSjrglhy lnj

ftyk xkSrecq)uxj

/kkjk 4@17 ds vkSfpR; dh fVIi.kh

uohu vks[kyk vkS|ksfxd fodkl izkf/kdj.k dh ;kstukuqlkj vkS|ksfxd {ks= ds

fodkl ,oa lM+dksa o lhojst] fo|qr miyC/k djk;s tkus dk dk;Z visf{kr gSA blh izdkj

tks {ks= izkf/kdj.k dh vkS|ksfxd ;kstuk eas izLrkfor gS] mlds fy;s vkoaVu u gksus ds

dkj.k dk;Z #dk gSA vkosnd ml Hkwfe dk vkoaVu pkgrs gSA tks bl le; Hkwfe vf/kxzg.k

gksus ds dkj.k ugh gks ik jgk gSA vkosndksa esa fo'ks"k #i ls fons'kksa dh izfrf"Br vkS|ksfxd

laLFkk;sa gSA tks viuh iwath fuos'k m0iz0 ds {ks= esa dkQh ek=k esa djuk pkgrh gSA vr%

mudks Hkwfe mudh ;kstukuqlkj vfoyEc miyC/k djk;s tkuk vR;ar vko';d gSA vxj bu

bdkbZ;ksa dks ;g Hkwfe mudh vko';drkuqlkj miyC/k ugh djk;h tkrh gS rks ;g

bdkbZ;k¡ vU; jkT;ksa esa viuh vkS|ksfxd bdkbZ;k¡ LFkkfir dj ysaxhA vr,o] ;g iz;kl

fd;k tk jgk gS fd Hkwfe miyC/k djk;s tkus ds vk/kkj ij dksbZ bdkbZ m0iz0 jkT; ds bl

{ks= ls nwljs jkT; esa u tkus ik;sa rHkh bl {ks= dk vkS|ksfxd fodkl leqfpr #i ls

lEHko gks ik;sxkA

vr% tuin xkSrecq)uxj esa uohu vks[kyk vkS|ksfxd fodkl izkf/kdj.k ds

ek/;e ls lqfu;ksftr fodkl gsrq Hkwfe dk vtZu fd;k tkuk vR;ar vko';d gSA vr%

jktLo xzke csxeiqj ijxuk nudkSj rglhy lnj tuin xkSrecq)uxj dh 108-223 gs0

Hkwfe dk vf/kxzg.k fd;k tkuk gSA vf/kxzg.k gsrq vuqekfur izfrdj dh 10 izfr'kr /kujkf'k

vtZu fudk; ls izkIr djds vij ftykf/kdkjh] Hkw0v0 }kjk fu/kkZfjr ys[kk 'kh"kZd esa tek

dh tk pqdh gSA izLrkfor Hkwfe esa dksbZ /kkfeZd LFky@Lekjd vkfn ugh crk;k x;k gSA

xzke csxeiqj esa vtZu ls dqy 231 ifjokj izHkkfor gksaxsA vtZu ds QyLo#i 85 d`"kd

Hkwfeghu crk;s x;s gSA izLrkfor Hkwfe esa vuqlwfpr tkfr@tutkfr ds [kkrsnkjksa dh la[;k

05 gSA NksVs [kkrsnkjksa dh la[;k 105 gSA izkf/kdj.k ij dksbZ izfrdj@fMdzhVy dh /kujkf'k

cdk;k u gksus dk izek.ki= vij ftykf/kdkjh] Hkw0v0 }kjk fn;k x;k gSA mDr dks n`f"Vxr

j[krs gq, p;fur Hkwfe ds vf/kxzg.k gsrq Hkwfe vtZu vf/kfu;e] 1894 ds varxZr /kkjk 4 ¼1½

ds lkFk ifBr /kkjk 17 dh vf/klwpuk fuxZr djk;k tkuk izLrkfor gSA

ys[kikyHkw0fujh{kduk;crglhynkjrglhynkjiz'kklfud vf/kdkjh

uks,Mkuks,Mk uks,Mk uks,Mk uks,Mk

vij ftyk eftLVªsV ¼Hkw0v0½] uks,Mk] xkSrecq)uxj

In addition to the above, there is one another letter dated

27.09.2005 of Sri Tanveer Zafar Ali, Deputy Chief Executive Officer,

18

NOIDA stating that it is necessary to acquire the above land

immediately as there is likelihood of the said land being

unauthorizedly encroached upon and chances of illegal constructions

which would adversely affect the scheme. Thus, implying that it is

necessary that the provisions of Section 17 of the Act be applied and

the possession be taken over and handed over to NOIDA forthwith.

The record as produced including the above letter does not

reveal any other material which may establish any urgency to acquire

the land by ignoring the provisions of Section 5-A of the Act. Thus, by

applying the ratio or the principles which have been culled out by the

Apex Court in Radhey Shyam's case, we have to test whether the

aforesaid material is sufficient to establish real urgency to dispense

with the requirement of hearing the land holders or the interested

persons.

The aforesaid decision categorically lays down that the land of

a citizen cannot be acquired without following the mandate of

Sections 4, 5-A and 6 of the Act even though the purpose of

acquisition may be very laudable in public interest. The urgency

provisions can be invoked by the State to deprive the persons

interested of their right to be heard only in case of real urgency. The

said power is an extraordinary power which can only be exercised

when the acquisition cannot brook the delay of even a few weeks or

months.

The material on record in no way establishes that there was any

urgency of such an extreme nature to exclude the application of

Section 5-A of the Act or that if the enquiry would have been allowed

to be conducted, it would have frustrated the very purpose of the

acquisition. The Government could not have framed any opinion

regarding subjective satisfaction about the urgency in the absence of

any such material. The mere public purpose of acquisition does not

justify the exercise of power under Section 17 of the Act and

19

exclusion of the rule of audi alteram partem which is inherent where a

person is likely to be visited with severe civil consequences such as

deprivation of his right to property.

The pleadings of the parties, the documents produced by them

and the record does not contain anything from which it can be inferred

that a conscious decision was taken to dispense with the provisions of

Section 5-A of the Act and that there was such a grave urgency to

acquire and take possession of the land which could not wait for the

enquiry or the hearing of the objections contemplated vide Section 5-

A of the Act.

It may be reiterated that the likelihood or possibility of any

encroachment or unauthorized construction on the land proposed to be

acquired is not at all relevant and germane to establish the urgency to

acquire the land as has been held in Om Prakash (supra) by the Apex

Court.

Thus, in the absence of any material before the State authorities

to justify urgency to acquire the land, we are of the opinion that the

State Government applied Section 17 of the Act mechanically without

application of mind and had illegally taken away the right of hearing

of the persons interested under Section 5-A of the Act without any

justification.

In view of the aforesaid facts and circumstances, since the

tenure-holders or the person interested have been deprived of the right

of hearing on the objections to the proposed acquisition of the land,

we are of the opinion that the declaration made under Section 6 of the

Act on 17.03.2008 is unsustainable in law.

In connection with the submission that the petitioners are

unable to point out any plausible objection to the acquisition and as

such denial of opportunity of hearing does not cause any prejudice to

them, it is worth noting that the possible objections which the

20

petitioners could have raised, were to be considered by the authority

concerned i.e. the Collector and as such those objections were not

necessary to be placed before this Court. The petitioners, therefore,

are under no obligation to raise those objections before this Court

either by means of the writ petition or otherwise. Any such objections

could have been dealt with by the Collector only and it is pointless to

raise them before this Court. Thus, the submission is of no avail.

This takes us to the second point as to the scope of the Court in

interfering with the acquisition under the facts and circumstances

where most of the tenure-holders have accepted the compensation and

the land has been developed to a great extent.

The submission that many of the tenure-holders have waived

their right to challenge the acquisition proceedings as they have

accepted the compensation and have sold their land is devoid of merit.

This precise aspect of the matter has been dealt with by the Full

Bench of this Court in the case of Gajraj

4

. The Court in dealing with a

similar proposition relating to the acquisition of land and the

jurisdiction of the Court to interfere with such acquisition when the

tenure-holders or the person interested have accepted the

compensation and have even sold out their land, held that mere

acceptance of the compensation and transfer of their land does not

mean that such persons have waived their rights to challenge the

acquisition proceedings.

In P. John

5

, it has been observed that inaction in every case

does not lead to an inference of implied consent or acquiescence

unless the facts of the individual case are examined. In order to

constitute waiver there must be intentional relinquishment of right.

It is important to note that out of the huge track of land which

was notified to be acquired, only a very few tenure-holders or person

4Gajraj and others Vs. State of U.P. and others, 2011 (11) ADJ 1

5P. John Chandy Company & Co. (P) Ltd. V. John P. Thomas, AIR 2002 SC 2057

21

interested have come before the Court to challenge the acquisition on

the ground of non-adherence to the principles of natural justice. The

rest of the tenure-holders or the persons interested may or may not

have accepted the compensation, appears to be satisfied.

In Om Prakash (supra) itself, it has been observed that the

discretionary jurisdiction has to be exercised in the light of the given

facts and circumstances of the case and where the acquisition of the

most of the land has attained finality, not having been challenged, the

notification need not be set aside. That was also a case where the

Court came to the conclusion that the provisions of Section 5-A of the

Act could not have been dispensed with by invoking Section 17 of the

Act.

In the case at hand, it has come on record that the possession of

the land was delivered to NOIDA, and that it has been developed and

allotted to third parties. Additionally, most of the tenure-holders have

accepted compensation according to the Karar Niyamawali. Thus, the

dispute regarding acquisition that survives is vis.-a-vis. the tenure-

holders/person interested who have not accepted the compensation as

per the Karar Niyamawali and are before the Court qua the

respondents. These tenure-holders or person interested are very few in

number as is reflected from the number of petitions before us. It

would not be in public interest to topple the entire acquisition at the

behest of these few persons. Therefore, it does not appeal to our

conscious to nullify the entire acquisition proceedings except for

holding the declaration under Section 6 of the Act to be invalid qua

the petitioners herein these petitions only provided they have not

accepted compensation as per the Karar Niyamawali.

The Court in exercise of its extraordinary discretionary

jurisdiction has to dispense with justice in such a manner that it results

in justice to all the parties to the lis and is in the best interest of the

public. Thus, the Court has to maintain an equilibrium between the

22

statutory rights of an individual and the rights of the people at large

keeping in mind the public interest while enforcing the law. In such a

situation like this with which we are faced with in this petition,

balancing the equities, we feel that interest of justice require not to

disturb the acquisition and at the same time to compensate the

litigants for the loss they may have suffered due to acquisition of land.

Accordingly, without quashing or disturbing the declaration

dated 17.03.2008 issued under Section 6 of the Act, any of the person

interested who had not accepted the compensation as per the Karar

Niyamawali and is before us in this batch of petitions, notwithstanding

the fact that the declaration made under Section 6 of the Act is held to

be bad, would be entitled to the compensation according to the

provisions of the Act as per the rate prevailing on the date of this

judgment as the awards in respect of the acquisition were made under

the said Act before the enforcement of the Right to Fair Compensation

and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013.

All the petitions are disposed off with directions as above.

The original record submitted on behalf of the State is directed

to be returned to the Standing Counsel.

Order Date :- 13.09.2019

Nirmal Sinha