Ranjit Singh Chauhan and Another vs State of U.P. and Others

Om Prakash, J.—This bunch of as many as 13 Writ Petitions arising out of acquisition proceedings raised common questions of law and fact and, therefore, all the writ petitions are being decided by a common judgment.

In the first set of writ petitions comprising Writ Petitions No. 39430/94, 39854/94 and 502/95. Shri Sushil Harkauli advanced arguments for Petitioners : in the second set consisting or Writ Petitions No. 39853/94 and 2302/96, Shri Swami Dayal appeared for Petitioners and in the third set of writ petitions comprising remaining cases, counsel for the Petitioners Shri P. C. Pathak holding brief of Shri V. K. Shukla adopted the arguments advanced by Shri Harkauli and Shri Swami Dayal and made no new submission.

As all the writ petitions are directed against a notification dated 5.10.1993 issued u/s 4(1), read with Section 17 (1) and (4) of the Land Acquisition Act, 1894, (shortly, called as the Act'') and a declaration dated 6.10.1994, issued u/s 6 of the Act and as pleas raised in all the writ petitions are common, to obviate repetition of the pleas, we prefer to state the factual position of Writ Petition No. 39430 of 1994.

The case of Petitioners is that Petitioner No. 1 purchased plot No. 1324 in 1991 and set up a Bakery thereon, that Petitioner No. 2 purchased plot No. 1326 in 1989 and set up a factory for manufacturing chains there; that a master plan came to be prepared in respect of the land sought, to be acquired, inter alia, under the aforesaid notifications; that in the master plan the area sought to be acquired under the aforesaid notifications, is earmarked for Industries; that vide notification dated 5.10.1993 issued u/s 4(1), read with Section 17 (1) and (4) of the Act, the plots of land as set out in the schedule forming part of the notification, are being acquired for the construction of a market yard for fruits and vegetables instead by the Krishi Utpadan Mandi Samiti (briefly, ''the Mandi Samiti'' hereafter); that in view of the master plan plots in question cannot be acquired for the construction of the market yard; that delay between the date of proposal and the date of the notification issued u/s 4(1) and further the delay having occurred between the date of the notification issued u/s 4(1) and the declaration issued u/s 6, has not been explained; that the unexplained delay shows that there was no urgency; that issuance of the notification u/s 4(1) read with Section 17(4) directing that the provisions of Section 5 shall not apply was, therefore, a colourable exercise; that the land sought to be acquired under the aforesaid notification is in an odd shape, inasmuch as several vacant plots belonging to influential persons which were more suitable for the construction of the market yard have been left out and the plots of land on which Industries/Factories are situated are included in the schedule, annexed to the notification u/s 4(1) and, therefore, the entire acquisition proceedings are arbitrary and mala fide and that had the opportunity of being heard u/s 5 been afforded to the Petitioner then they would have shown the arbitrariness on the part of the Respondents in excluding the vacant plots of land of influential persons and including the land of the Petitioners on which Industries/Factories are situated.

A detailed counter-affidavit dated 25.4.1995 has been filed on behalf of the Mandi Samiti-Respondent No. 3 pleading that a proposal accompanied by a plan was sent by the District Magistrate, Agra on 25.5.1991 to the Government of U.P. for acquiring 10.175 Hect. of land of village Bainpur for the construction of the market yard for fruits and vegetables pursuant to a resolution passed by the Mandi Samiti in 1991. It is denied that the plots of land belonging to influential persons were left out and that the plots of land belonging to the people of backward classes were included in the notification issued u/s 4(1). It is averred that some plots belong to private persons and that out of the land vested in the Government or Gaon Sabha in view of the ceiling laws, the Mandi Samiti got certain plots of land released from the Government or the Gaon Sabha. It is averred that the factories situated on the plots in question are of temporary nature and most of them were established after the commencement of the acquisition proceedings. In para 14 of the counter-affidavit, it is stated that the existing market yard is wholly inadequate to cater the needs of the growers to transact their business in the yard; that the existing market yard is bereft of basic amenities; that the existing market yard had been constructed more than 100 years back when the arrivals were meagre; that after mechanised farming the yield has grown tremendously and the existing yard is wholly illequipped and insufficient to handle the ever increasing arrivals of the growers; that Section 5 was dispensed with as that would have considerably delayed the construction of a modern market yard and ultimately defeated the purpose; that realising the pressing urgency of setting up a modern market yard it was considered necessary to dispense with the hearing u/s 5 and, therefore, Sub-sections (1) and (4) of Section 17 were invoked in the notification issued u/s 4(1) of (he Act.

Another counter-affidavit has been filed by Shri S. P. Mishra, Addl. District Magistrate, Agra for Respondent Nos. 1 and 2 reiterating that there was an urgent need to construct a modern market yard for vegetables and fruits as the existing market yard is wholly unsuitable for the growers to transact their business. He deposed in para 10 that apart from the land belonging to the individuals, the plots of land comprising ceiling a res, were got released from the Government or the Gaon Sabha as the case may be and a separate resolution was sent by the District Magistrate therefore. It is stated that no delay occurred before the notification was issued u/s 4(1) and that normal time was taken in processing the resolution of the Mandi Samiti for acquiring the land before issuing the notification u/s 4(1) of the Act. It is averred that plots No. 1184, 1186, 1187, 1194 and 1320 were declared surplus in the ceiling proceedings and they came to be vested in the State Government. The Mandi Samiti made a separate proposal for releasing that land and the land was released for the use of the Mandi Samiti besides some other land, which belong to the Gaon Sabha.

The submission made by Shri Harkauli and Shri Swami Dayal are common and, therefore, we propose to deal with them as a single set of submissions.

The first submission of learned Counsel for the Petitioners is that Section 5A of the Act was illegally dispensed with invoking Sub-section (4) of Section 17 in the notification, issued u/s 4(1) of the Act. It is not denied by them that there was urgency for the construction of the market yard for fruits and vegetables. What they submit is that mere urgency is not enough to dispense with the hearing u/s 5A; but what is necessary is for the acquisition authority to apply its mind whether there is urgency of such a nature that even the summary proceedings u/s 5A of the Act as should be eliminated. In short, the argument is that it is not just the existence of an urgency but the need to dispense with an enquiry u/s 5A, which has to be considered by the acquisition authority.

In Narayan Govind Gavate and Others Vs. State of Maharashtra and Others, , the court elucidated the legal position as follows : (para 10 p. 185).

It is true that, in such cases, the formation of an opinion Is a subjective matter, as held by this Court repeatedly with regard to situations in which administrative authorities have to form certain opinions before taking actions they are empowered to take. They are expected to know better the difference between a right or wrong opinion than courts could ordinarily on such matters. Nevertheless, that opinion has to be based upon some relevant materials in order to pass the test which courts do impose. That test basically is : was the authority concerned acting within the scope of its powers or in the sphere where its opinion and discretion must be permitted to have full play? Once the court comes to the conclusion that the authority concerned was acting within the scope of its powers and had some materials, however meagre, on which it could reasonably base its opinion, the courts should not and will not interfere...

Para 2 of the notification dated 5.10.1993, Annexure 7 to the writ petition issued u/s 41(1). read with Section 17 (1) and (4) reads as under:

Being of the opinion that the provisions of Sub-section (1) of Section 17 of the said Act are applicable to the said land inasmuch as the said land is urgently required for the construction of fruits and vegetables market yard in district Agra and that in view of the pressing urgency it is as well necessary to eliminate the delay likely to be caused by an inquiry u/s 5A of the said Act, the Governor is further pleased to direct under Sub-section (4) of Section 17 of the said Act that the provisions of Section 5A of the said Act shall not apply.

The question for consideration is whether the opinion of the Governor that it is necessary to dispense with the hearing u/s 5A to eliminate the delay likely to be caused in the inquiry envisaged by that section, is based on some material. Once material, howsoever meagre that may be, is found, the courts will not interfere.

In para 14 of the counter-affidavit it is stated that there was a pressing urgency to invoke Section 17(4) to dispense with the hearing, envisaged by Section 5A, as the existing market yard is situated in a very congested area having no scope for expansion to cater the ever growing needs of the constituents; that there is no adequate space for the free movement and parking of trucks/bullock carts etc. and to provide necessary shelter to the constituents; that the existing market yard is devoid of amenities necessary for human being, bullocks etc. converging everyday in a big number in the market yard; that during the rainy season it becomes well-nigh impossible for the producers to find out suitable shelter for themselves and for their produce in the market yard; that to provide modern amenities, adequate space, systematic approach roads and sufficient accommodation to all concerned, the construction of a new market yard in a planned manner posed an extreme urgency and the Mandi Samiti could not brook any delay in the construction of a modern well planned market yard. It is submitted by Shri Madhyan, counsel for the Mandi Samiti that the court can take Judicial cognizance of the fact that in a developing nation construction of a market yard well-equipped with modern amenities is indispensable.

The question whether the construction of a market yard by the Mandi Samiti poses an extreme urgency is not coming up before this Court for the first time. In Satyendra Prasad Jain (S.P. Jain) and Ors. v. State of U.P. and Ors. 1987 AWC 382, similar question came up for consideration before a Division Bench of this Court and then the Division Bench observed : (para 8 p. 383)

The question herein is whether the State was Justified in dispensing the requirements of enquiry contemplated u/s 5A. It could be taken Judicial notice of, that in regard to agricultural produce there were no proper market facilities. There were innumerable charges, levies and exactions which the agriculturists were required to pay without having any say in the proper utilisation of the amount paid by them. The Government of India and the various committees and commissions appointed to study the condition of agricultural markets In the country had stressed the need to provide proper market yards for the sale and purchase of agricultural produce. The Planning Commission also stressed long ago in this regard. The Uttar Pradesh Krishi Utpadan Mandi Adhniyam, 1964 has been enacted to provide for the regulation of sale and purchase of agricultural produce and for the establishment, superintendence and control of markets therefore in Uttar Pradesh. The proposed construction of market and market yard by the Mandi Samiti is, therefore, a step forward to ameliorate the conditions of producers with due representation to them in the Mandi Samities for the fair settlement of disputes relating to their transactions. It is a long-felt need which is said to have been included in the planned Development Scheme.

Adverting to the appalling conditions of the Mandi Samiti the Division Bench had to say in para 11 of p. 384 that "it cannot be said that there is no urgency in the matter of acquiring the land in question."

In State of U.P. Vs. Smt. Pista Devi and Others, , the State Government sought to acquire the land for housing scheme for Meerut city and for that a notification u/s 4(1), read with Section 17 (1) and (4) eliminating the enquiry contemplated by Section 5A was issued. Then an objection on behalf of the Respondents similar to the one being raised by the Petitioner herein, was raised before the Supreme Court which held : (para 5 p. 2028).

...The provision of housing accommodation in these days has become a matter of national urgency. We may take judicial notice of this fact. Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites, it is unnecessary to invoke Section 17(1) of the Act and to dispense with the compliance with Section 5A of the Act.

When construction of the housing accommodation is matter of national urgency, we fail to understand as to why the construction of a modern market yard to cater the needs of the growers of fruits and vegetables and other agricultural produce cannot be a national urgency. It cannot be gains aid that every human being is in need of a balanced diet, which includes fruits and vegetables in sufficient quantity. They can be available to the public only when the farmers have marketing facilities. If the farmers do not find adequate and convenient place to transact their business, then they will not be able to sell their entire produce, much less profitably, which means that considerable produce of the agricultural sector will go waste depriving the farmers the benefit of their toiling hard in the fields and the public of the availability of the fruits and vegetables-essential ingredients of food. If the entire yield of fruits and vegetables is not marketed for want of marketing facilities, that would cause national loss. Any steps taken to avert such national loss will be a part of national urgency. The matter viewed from this angle, the only Irresistible conclusion that can be arrived at is that the courts can take judicial notice of the fact that the construction of the market yard-facilitating transaction by the farmers in fruits and vegetables is nothing but a national urgency. Therefore, elimination of the enquiry envisaged by Section 5A of the Act, cannot be said to be an illegality.

Another submission of learned Counsel for the Petitioners is that a master plan for development of Agra was prepared and the plots in question came to be included therein which were earmarked for industries and that being so, the land in question could not be permitted to be used for any purpose contrary to the one as stated in the master plan. The question for consideration is whether Respondent No. 3 is free to acquire the land of the master plan. Similar contention was raised in Kendriya Karamchari Evam Mira Sahkari Avas Samiti Ltd. Village Bhovapw Hasanpur, District Ghaziabad and Anr. v. State of U.P. and Anr. 1988 UPLBEC 645 in which a Division Bench of this Court relying on the case of Aflatoon and Others Vs. Lt. Governor of Delhi and Others, , held that the Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority. In para 13 at p. 651, the Division Bench further held.

Amendment of a Master Plan is permissible with the approval of the State Government u/s 13 of the U.P. Urban Planning and Development Act, 1973 and in the present case, the Master Plan showing the area in question as green belt was modified with the approval of the State Government which approved no doubt was accorded subsequent to the issue of notifications under Sections 4 and 6. However, a. observed by their Lordships of the Supeme Court, the mere fact that till the date of the issue of the notification u/s 4. the necessary approval of the Government has not been obtained cannot preclude the Government from acquiring the land for planned development under the Land Acquisition Act. Acquisition generally precedes development and consequently the land in question could be acquired in anticipation of the approval of the State Government for the change of the land use of the Master Plan prepared by the Development Authority.

Respectfully following the above reproduced authority with which we fully agree, we hold that the contention of the Petitioners that the land earmarked for Industries in the Master Plan could not have been acquired for setting up the market yard, has to be rejected.

It is also submitted by learned Counsel for the Petitioners that from the initiation of acquisition proceedings in respect of the land which is earmarked for industries in the master plan, an inference can be legitimately drawn that the acquisition authority grossly failed to apply its mind to the question whether or not on the given facts elimination of enquiry u/s 5A was necessary. This argument also does not hold to be good since the acquisition authority was free to acquire the land for the construction of the market yard notwithstanding the Master Plan which is lable to be amended a subject, of course, with the approval of the State Government.

Lastly, it is submitted by Shri Swami Dayal, learned Counsel for the second set of writ petitions that declaration u/s 6 in this case was issued after a year from the date of the notification dated 5.3.1993 Issued u/s (1) and that perse goes to show that there was no urgency of such a nature as to justify elimination of the summary enquiry u/s 5A. There is enough law on the point that greater the delay, greater the urgency is there (See Kasireddy Papaiah v. Government of Andhra Pradesh and Ors. AIR 1975 AP 259). In the said case, the Andhra Pradesh High Court also held as under.

...Therefore, one can never venture to say that the invocation of the emergency provisions of the Land Acquisition Act for providing house sites for Harijans is bad merely because the officials entrusted with the task of taking further action in the matter are negligent or tardy in the discharge of their duties, unless, of course, it can be established that the acquisition itself is made with an oblique motive. The urgent pressures of history are not to be undone by the inaction of the bureaucracy.

In the counter affidavit filed for the Mandi Samiti, it is clearly stated that delay of one year between the date of notification issued u/s 4(1) and the declaration issued u/s 6 of the Act is merely bureaucratic. In the counter-affidavit filed for the State, it is clearly averred that delay of one year between the notification and the declaration does not deserve any serious notice to be taken by the court because that is a usual delay in official processing.

In Deepak Pahwa and Others Vs. Lt. Governor of Delhi and Others, , the court had upheld the notification issued u/s 17(4) even though lapse of time of 7 years had occurred due to inter-departmental discussion before publishing the notification. That itself was considered to be a ground to invoke urgency clause. It was further held that delay on the pari of the lethargic officials to take further action in the matter of acquisition was not sufficient to nullify the urgency which existed at the time of issuance of the notification and to hold that there was never any urgency. In Jage Ram and Others Vs. State of Haryana and Others, , the court upheld the exercise of the power of urgency u/s 17(4) and held that the lethargy on the part of the officials at an early stage was not relevant to define whether on the date of the notification, there was urgency or not. Therefore, the pre-notification and post-notification delay caused by the lethargic officials does not create a cause to hold that there is no urgency.

In Rajasthan Housing Board and Others Vs. Shri Kishan and Others, the court clearly held that it must be remembered that the satisfaction u/s 17(4) is subjective one and that so long as there is material upon which Government could have formed the said satisfaction fairly, court would not interfere nor would it examine the material as an appellate authority. Following this authority, we hold that this Court is not an appellate authority to sit over the satisfaction subjectively gathered by the Government asking the acqisition authority that looking to the urgency of the purpose, viz., the construction of the market yard, Section 5A will not apply. Taking judicial notice of the fact that of construction of the market yard for the benefit of the community of the agriculturists was a national urgency, we hold that Section 17(4) was rightly invoked eliminating the summary enquiry u/s 5A of the Act.

For the above reasons, we see no illegality in the notification issued u/s 4(1) read with Section 17(4) and the declaration issued u/s 6 of the Act.

No other submission was made by learned Counsel for the parties. Counsel representing the third set of writ petitions having adopted the arguments advanced by Shri Harkauli and Shri Swami Dayal and he having made no other new submission of his own, no separate discussion is required in his cases.

For the foregoing reasons, all the petitions fail and are dismissed. Interim order passed in all these cases are discharged.