Dhirendra Gupta vs State of U.P. and Others

Hon''ble P.C. Verma, J.—Since all the writ petitions raise common questions, facts and law, therefore they are being heard together and disposed of by common judgment and order. Civil Misc. Writ Petition No. 11500 of 2007 is being taken up as leading case.

By means of present writ petitions, the petitioner has challenged the notification dated 11.1.2007 issued u/s 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the "Act"), read with Section 17(4) of the Act as well as the declaration dated 20.2.2007 published on 24.2.2007 u/s 6, read with Section 17(1) of the Act.

By the aforesaid notification, 13 number of plots mentioned in the notification, measuring area of 8.9600 acres, situated in village Sitapur Gramin, Pargana Karvi, district Chitrakoot have been notified invoking urgency clause for acquisition for the purposes of construction of Bus Depot and Workshop, but no construction has been made even though land in question stood acquired.

The brief facts of the present case emerging out of the pleadings made in the writ petition are that on 1.1.1972 an area of 0.30 acres in plot No. 1505 and an area of 0.04 acres in plot No. 1506 situated at village Sitapur rural was acquired for Sitapur Bus Stand and also for construction of road from Sitapur Bus Stand to Ramghat Marg. On 4.2.1972 a 60 feet wide road was constructed connecting Tourists Rest Mouse to Peeli Kothi road (Kamta Nath Vistar Marg). The above 60 feet wide road is in addition to the road acquired for Gram Samaj. The said road is in existence since the year 1971 for the purpose of Bus Stand Itself.

On 4.5.1994 notification u/s 4 of the Act was issued, Inter alia, Invoking the urgency clause in the same village and said notification consists of 8 plots admeasuring 15 Bighas. 16 Biswas. On 30.8.1994 declaration u/s 6 of the Act was issued invoking the urgency clause for the said purpose. Since writ petition No. 32568 of 1994 challenging the aforesaid notifications was dismissed by a Division Bench of this Court on 5.10.1994, therefore the notifications became final. Again writ petition No. 2365 of 1995 challenging the notifications was dismissed by a Division Bench of this Court on 6.9.2000.

On 1112007 impugned notification u/s 4, read with Section 17(4) of the Act was issued. This notification covered the land belonging to the petitioner and was for the same public purpose for which earlier notifications were issued in the year 1994 and the said notification had become final. On 24.2.2007 impugned declaration u/s 6, read with Section 17(1) of the Act has been issued.

Learned counsel for the petitioner submits that the impugned notifications are contrary to the provisions of Land Acquisition Act as well as the same are arbitrary and violative of Article 300-A of the Constitution of India. He further submits that Section 4(1) of the Act contemplates publication of notification in two daily newspapers circulating in that locality of which at least one shall be in the regional language. A perusal of the impugned declaration u/s 6 of the Act discloses that notification u/s 4 v. as published in two daily newspapers, namely, ''Nav Karmyug Prakashan'' and ''Trishul Taj'', which have circulation In district Banda and not in district Chitrakoot. In paragraph 15 of the writ petition, it has been categorically stated that two leading newspaper having circulation at Karvi, District Chitrakoot are ''Dainik Jagran'' and ''Amar Ujala'', which has been replied in paragraph 14 of the counter-affidavit and the fact that daily ''Trishul Tej'' and ''Nav Karmyug Prakashan'' have circulation in District Banda has not been denied. It has further not been denied that leading newspapers having circulation in Chitrakoot are ''Dainik Jagran'' and ''Amar Ujala''. In such view of the matter there is no publication done as contemplated u/s 4(1) of the Act. As such, the notification is liable to be quashed and set aside by this Court.

Learned counsel for the petitioner further contended that it Is evident from the declaration issued u/s 6 of the Act that the substance of the notifications has not been given by a public notice by the Collector, which is required to be given at convenient places in the locality. Declaration u/s 6 of the Act merely mentions the date of publication of the notification u/s 4 of the Act in two daily newspapers. Specific averment regarding the substance of the notification having not been pasted at convenient places in the locality by means of a'' public notice has been made in paragraph 14 of the writ petition The said. paragraph has been replied in paragraph 13 of the counter-affidavit and there is no date mentioned in the counter-affidavit on which the substance of the notification was published in the locality,

Learned counsel for the petitioner further submits that the State has filed counter-affidavit in writ petition No. 12328 of 2009 in which In paragraph 4 of the aforesaid counter-affidavit certain details have been given about the dates and there consequent publication. However, neither the name of the newspaper, nor the date of publication matches with the actual publication mentioned In the declaration u/s 6 of the Act filed as Annexure-10 to the writ petition, The said dates, therefore, are not supportable from the material available on record and have been created for the purpose of the present writ petition in order to show compliance of Section 4 of the Act. It is a settled law that reasons cannot be furnished or supplemented by means of an affidavit. Hence, the respondents cannot be permitted to add reasons by filing counter-affidavit and showing the dates for issuance of public notice by Munadi as 31.1.2007. The petitioner for this purpose relies upon the Judgment of the Hon''ble Apex Court in the matter of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, .

It is further submitted by petitioner''s counsel that it is a settled law that right u/s 5-A of the Act is a valuable right and the Supreme Court has elevated the said right as akin to a fundamental right The said right cannot be taken away casually or in usual course of proceedings. Unless and until there are compelling circumstances; an urgency of a nature prescribed by Section 17(2) is in existence, the provisions of Section 17(4) of the Act cannot be invoked and the petitioner will be entitled for the opportunity as contemplated u/s 5-A of the Act. For ready reference Section 17(2) of the Act is quoted herein below:

Special powers in case of urgency.

Whenever owing to any sudden change in the channal 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 connections with or access to any such 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.

Learned Standing Counsel appearing on behalf of the State-filed counter-affidavit in writ petition No. 12328 of 2009 stating therein that on 18.2.2008 a letter was written by the District Magistrate, Chitrakpot to the Director, Land Acquisition, highlighting that Sections 4 and 17 may be invoked, as the project of constructing Roadways Bust Depot and Workshop is one of the declarations made by the Chief Minister of the State. Thereafter, Director, Land Acquisition Act on 4.8.2006 wrote to the Secretary, Transport Department, State Government, infer alia, forwarding the proposal received for acquisition and seeking permission to issue notification u/s 4/17 of the Land Acquisition Act. On 14.2.2007 the District Magistrate, Chitrakoot wrote to the Director Land Acquisition that the matter is of extreme importance, as it relates to the declarations made by the Chief Minister of the State. Therefore, immediate action may be taken and declaration u/s 6 and Section 17 of the Act may be issued. The Director, Land Acquisition forwarded the same on 15.2.2007 to the Secretary of the Transport Department to issue approval for declaration u/s 6/17 of the Land Acquisition Act.

It is further submitted by learned Standing Counsel that since the land was urgently required for the construction of Roadways Bus Depot, Bus Stand and Workshop, the State Government considering the facts brought before it, was subjectively satisfied to invoke the provisions of Section 17(4) of the Act dispensing with enquiry u/s 5-A of the Act in view of pressing urgency as well as the delay likely to be caused by the enquiry. It is contended that notifications issued earlier in the year 1994 have lapsed, as the possession of the land in question had not been taken for two years after notification and no award was made, therefore the entire proceedings for acquisition stood lapsed in view of the provision of Section 11-A of the Act. It is also important that since Chitrakoot is a religious and historical place where every year many festival are organized in which number of people from all over country used to visit the place, therefore in order to make visit of those many people convenient the local administration has to provide parking place to the vehicles attached to the UPSRTC. Thus, the State Government considering all these facts being subjectively satisfied invoked Section 17(4) along with Section 4(1) of the Act. The argument of the petitioner is that there was no urgency to dispense with the enquiry u/s 5-A of the Act and, therefore, the notification issued u/s 4(1) read with Section 17(4) and declaration u/s 6 read with Section 17(1) of the Act are wholly illegal. Learned counsel appearing on behalf of the UPSRTC has also filed counter-affidavit in which almost similar view has been taken as has been taken by the State.

In writ petition No. 11500 of 2007, State has filed counter-affidavit, wherein it has been stated that notification has been duly published in accordance with the provision of Section 4(1) of the Act in the newspapers, namely, ''Dainik Karamyug Prakashan''; ''Dainik Trishool Prakashan ''and ''Dainik Amar Ujala''. Further almost same plea has been taken as was taken in writ petition No. 12328 of 2009.

Learned counsel for the petitioner in reply to the submission advanced by respondents'' counsel submits that the right u/s 5-A to file objections, is a very important right of the tenure holder and cannot be taken away lightly. It is further stated that no enquiry was made on the spot nor any survey of the plots, was done by the respondents and there was no material before the State Government to form an opinion with regard to the urgency and for dispensing with enquiry u/s 5-A of the Act. The purpose involved in the present case is construction of a Bus Depot and not a road communication as is being argued by the respondents. Moreover, the purpose is not to remove traffic congestion, as is being sought to be canvassed by the respondents. The purpose is to create a new Bus Depot in the District in order to ease out and facilitate the holding of the religious fair at Chitrakoot. The purpose in question may be a public purpose but it is not an urgent public purpose as contemplated u/s 17 of the Land Acquisition Act. Therefore, Section 17(4) of the Act could not have been invoked in the facts of the present case and invocation of such power is arbitrary and illegal.

It is further contended by petitioner''s counsel that a perusal of the acquisition framework discloses that there are merely 13 plots having total area of 8.9600 Acres. The respondents cannot be said to be seized of urgency where they could not have even waited for 21 days for the affected tenure holders to submit their objections. As per Section 5-A of the Act, a period of 21 days has been prescribed for submitting the objections. The area involved being not large the respondents could have permitted objections to be submitted and to decide the same and as such complied with the statutory rights conferred upon the tenure holders by the Act. The respondents, it is evident, have waited for 36 years and have started the present proceedings in undue haste by invoking Section 17. If a Project could have waited for 36 years, it could not be treated to be defeated in case protection of Section 5-A was granted to the tenure holders and there objections were also decided before issuance of the declaration u/s 6 of the Act. In the absence of any compelling circumstances deprivation of the rights u/s 5-A of the Act is arbitrary and illegal. In support of his contention, learned counsel for the petitioner relied upon the decisions reported in (1) Om Prakash and Another Vs. State of U.P. and Others, ; (2) Union of India (UOI) and Others Vs. Mukesh Hans etc., ; (3) Union of India (UOI) and Others Vs. Krishan Lal Arneja and Others, ; (4) Kanwar Sahakari Awas Samiti Ltd., Kanpur Nagar Vs. State of U.P. and others, and (6) Shri Farid Ahmed Abdul Samad and Another Vs. The Municipal Corporation of the City of Ahmedabad and Another, .

The contention of learned counsel for the petitioner is that Section 17 of the Act has grave consequences. It gives a preemptory power in the hands of Collector to take away the possession without even making the award and it also curtails the rights of the persons to be granted an opportunity of hearing as contemplated u/s 5-A of the Land Acquisition Act. The purpose of Section 17 is to ensure no delay in public Projects that are of grave urgency and for which the normal procedure can be by-passed to safe serve the larger public interest. Further it is also equally settled that greater the power greater care and caution is required in its exercise and such power is to be sparingly used and not as a matter of cause. However, the respondents have invoked the urgency clause in the present matter without there being any supporting material in this regard. The aforesaid analysis discloses that only urgency that can be spelled out is to give effect to the declaration made by the Chief Minister of the State. Since the Chief Minister made the declaration, hence the procedure was adopted to urgently acquire the land. There is no material available on record to show as to the existence of urgent public purpose for invoking Section 17 of the Act. Even in the certificate issued by the Collector for invoking the urgency it has not been mentioned the purpose for which the urgency clause is being invoked. The respondents have explained urgency in their respective counter-affidavits about the holding of the religious fair and non-suitability of land earlier acquired. However, the aforesaid reasons are being supplemented only by a counter-affidavit and there is no material in existence on the record to spell out the aforesaid causes as a reason for invoking urgency.

Further contention of petitioner''s counsel is that the stand of the UPSRTC In the Counter-affidavit stands demolished completely from the record. The aforesaid stand and its explanation which demolishes the stand Is being demonstrated in the following chart form:

Date Stand of the Transport Corporation. Explanation of the petitioner 18.8.1994

Alleged letter by the Road Transport Corporation to the Secretary of the Transport Department that upon inspection it has been found that the Chitrakoot Development Authority has done certain constructions and therefore the land in question is no longer suitable for the Transport Corporation.

Declaration u/s 6 of the Land Acquisition Act for the said land was issued on 30.8.1994 and therefore the aforesaid objections of the Road Transport Corporation were not accepted by the State. Moreover, the Rain Basera, Sulabh Sauehalaya and Rooms that were constructed stands already transferred to the Road Transport Corporation. Rain Basera is being used by the Road Transport Corporation as Yatri Niwas, Sulabh Sauehalaya is being used by the passengers and the rooms that have been constructed are being used as shops for the convenience of the passengers. This has been specifically stated by the petitioner in paragraph 10 of the supplementary rejoinder-affidavit.

1.1.1997

10.4.1997

Reliance has been placed upon the letter of the District Magistrate addressee to the Court Secretary of the State wherein a mention was made of selecting an alternative site as Rain Basera and Sulabh Sauehalaya have been constructor (sic) the land that has been acquired for Bus Depot. Further a plea was taken an the proceedings stood lapsed, as two years have expired.

If alternative site was selected in the year 1996 and the land in question was unsuitable then there is no explanation as to what stopped the authorities for 10 years before issuing the impugned notifications. Further, reasons given in the (sic) letter does not form the basis of invoking the urgency and since in (sic) notification of 1994 Section 17 was invoked, there is no lapsing of the (sic) dings.

(sic)

(sic) Government writes to the District Magistrate, Banda to realize 10 % (sic) the acquisition cost from the Road Transport Corporation on account of loss caused due to acquisition undertaken for Its purpose and Road Transport Corporation having refused to take possession of the land even though the process of acquisition was complete.

Road Transport Corporation Itself has refused to take over the possession even though proceedings for acquisition were completed and Bus Depot could have been constructed by the Road Transport Corporation without any hindrances.

6.9.2008

Reliance is placed upon a map prepared by the Tehsildar, Karvi, District Chitrakoot to show that the area in question, for which the earlier notification was issued, falls in a congested area.

The petitioner has annexed blueprint of the master plan as Annexure-RA-1 to the rejoinder-affidavit which discloses that the area where the notification was issued in the year 1994 for construction of Bus Depot is well connected by road on all sides and it is convenient to park the buses coming to the city from different directions. On one side of the land that was acquired in the year 1994 there exists a regional park and on the other two sides wide roads bound the said land. On the fourth side it is bounded by low-lying area. It is the specific case of the petitioner that there is no population or construction surrounding the land that was notified in the year 1994 for the purpose of construction of a Bus Depot and a Work Shop.

In view of the aforesaid, It is stated that there is absolutely no material available with the respondents for invoking the urgency clause in the facts of the present case. In support of it, he relied upon certain decisions reported in (1) Hindustan Petroleum Corporation Ltd. Vs. Darius Shapur Chenai and Others, ; (2) Kshama Sahakari Avas Samiti Ltd. Vs. State of U.P., Collector, Land Acquisition Officer and Agra Development Authority, .

The impugned notification is absolutely arbitrary, Inasmuch as, this is the third attempt on the part of the respondents for construction of the Bus Depot and Workshop. Twice land has been acquired by the State Government for construction of the Bus Depot but on both occasion respondents have not constructed the Bus Depot and the Workshop. This is evident from the date chart that the first step was taken in the year 1971 and 1972. Again it was taken in the year 1994 and land was acquired for construction of the Bus Depot. This time urgency clause was also invoked but the Bus Depot was not constructed. The acquisition proceedings not only were completed but also became final as writ petition challenging the said acquisition proceedings were dismissed by this Hon''ble Court Arbitrarily after 13 years again the respondents have come out from slumbers and again without any reasons have invoked Section 17 of the Land Acquisition Act. The aforesaid invocation of Section 17 time and again for achieving the same public purpose and then not acting upon the same clearly shows arbitrariness and unreasonableness in the decision making process. For 13 years there existed no urgency and suddenly when the Chief Minister of the State announces the creation of a Bus Depot, the urgency arises and steps are being taken up to fulfill the announcement made by the Chief Minister. Thus, the entire action is arbitrary and violative of Article 300-A of the Constitution of India and as such is liable to be set aside by this Hon''ble Court. In this regard, he relied upon the decision, in this regard, reported in Essco Fabs Pvt. Ltd. and Another Vs. State of Haryana and Another, .

He further submits that in view of what has been submitted here-in-above, the following equitable consideration arises in the present writ petition:

Existence of Jagad Guru Ram Bhadracharya Viklang Vishwavidyalaya Chitrakoot only at a distance of 100 meter where the land in question is situated. The students taking education in the University are handicapped and some of them are completely blind, deaf and dumb.

Letters dated 22.2.2006 and 19.9,2006 specifically written by the Vice Chancellor of the University not to get the Bus Depot constructed at the land in question as it will make the place accident prone especially for the handicapped children taking education in the University, filed as Annexure-RA-2 and RA-3 to the rejoinder-affidavit by the petitioner to the counter-affidavit of UPSRTC.

Land in plots No. 1003/1, 1003/2, 1006, 1009/1 and 1009/2 is grove land and is consisting of fruit bearing trees. Hence, the said land is liable to be exempted from the process of acquisition. Land in question is fertile land and is contributing towards gross domestic product. The land for which acquisition proceedings have already been concluded in the year 1994 was not a fertile agricultural land and hence could not have reduced the fertile agricultural land existing in the State. The fertility of the land is a material consideration as per Rule 4 of the Land Acquisition Rules. Hence the fertile agricultural land cannot be utilized for the purpose of present acquisition when already an alternative land is available for construction of the Bus Depot as per acquisition of 1994. In this regard, he relied upon the decision reported in JT 2010(6) 57.

Learned Standing Counsel on the other hand contended that the entire proposal was before the State Government, on which the mind was applied and keeping in view of the material on record, the State Government approved the entire proposal where after the notification was issued u/s 4(1) read with Section 17(4) of the Act dispensing with the enquiry u/s 5-A of the Act. He further contends that the said approval amounts to recording of satisfaction on the existing material for issuance of the notification invoking the dispensing with the enquiry u/s 5-A of the Act, as is clear from the notification issued. In order to substantiate his submission, the learned Standing Counsel relied upon the judgments in Mahavir Singh and others v. State of U.P. and others, 2010 (2) ADJ 414 (DB); Munshi Singh v. State of U.P. and others, 2009 (8) ADJ 360; M/s Swatantra Bharat Paper Mills Pvt. Ltd. and another v. State of U.P. and others, 2008 (9) ADJ 135; Manjulata Agarwal v. State of U.P. and others, 2007 (9) ADJ 447 (DB); Jasraj Singh v. State of U.P. and others, 2008(8) ADJ 329 (DB); Sheikhar Hotels Gulmohar Enclave and Another Vs. State of Uttar Pradesh and Others, ; Anand Buttons Ltd. Vs. State of Haryana and Others, ; First Land Acquisition Collector and Others Vs. Nirodhi Prakash Gangoli and Another, .

Considering the facts and circumstances of the present cases as also having gone through the rival contentions of learned counsel for the parties and the decision cited by them, as well as on the basis of the aforesaid material placed on record, the present writ petitions are liable to be allowed and are hereby allowed. The impugned notifications issued under Sections, 4, 6 and 17 of the Act are quashed.