Ravlndra Singh and Ors, vs State of U.P.& Ors

Ravi S. Dhavan, J.—Land Acquisition proceedings are the subject of these proceedings. But the matter is not so simple so as to consider the issues isolated to the Land Acquisition Act, 1894. The aspects before the Court go beyond acquisition proceedings. No issue would have been before the Court but for the fact that a planned exercise has been on for a decade and now will continue in continuity to depressurize Delhi so that it does not spew like a volcano and bring an end to itself by a self indulgent unknowing exercise to put everything under the sun in Lutyens Delhi where there is no more space left. Thus saving Delhi a consequential circumstance is a matter not unconnected before this Court. Initially, when writ petitions came to this Court the petitioners did make a passing reference to the National Capital Region. So did the respondents. But, neither the petitioners nor the respondents submitted nor applied formally that one very crucial and essential party was conspicuous by its absence and be added to the proceedings. Eliminating or not arraying this particular party would have been fatal to the proceedings. This party is the National Capital Region Planning Board which owes its origin to the National Capital Region Planning Act, 1985.

The National Capital Region is a concept which has been given by an Act of Parliament and it coordinates planning in the spread of Delhi with the States which adjoins the State of Delhi (Previously known as the Union Territory of Delhi). The States which border the State of Delhi are : the Uttar Pradesh, Rajasthan and Haryana. As Delhi''s presence is being felt even beyond 100 Kms., within its strict periphery it cannot develop for lack of space. 1b decongest the National Capital the Parliament enacted the National Capital Region Planning Act, 1985. The direct result of this was that it was planning and development of satellite townships in the surrounding States. The purpose of this satellite township was primarily to place industry outside Delhi so as to make breathing within easier and given the occasion, take out of it in a planned manner. Habitat was a consequential circumstance.

This clearly implies that the Greater NOIDA a satellite township itself become a circumstance arising out of the National Capital Region and to establish this region a notification was issued by the State of U.P. on 28 January 1991 under the U.P. Industrial Areas Development Act, 1976. Thus, if the total import of these proceedings are to be understood, not referred to by the petitioners nor emphasized by the respondents, the National Capital Region Planning Act, 1985, could not be overlooked. The Land Acquisition Act, 1894 was only an exercise to coordinate the intention of the two enactments; one which attempts to decongest Delhi, and the other which makes a satellite town outside it. This being the National Capital Region Planning Act, 1985, and the other the establishment of the Greater NOIDA under the U.P. Industrial Areas Development Act, 1976.

The issues in these writ petitions, thus, will have to be seen in the perspective of the legislations referred t6 by the Court.

The specific villages where the Land Acquisition proceedings gave an occasion to the petitioners to come to this Court are the villages of Kasna and Surajpur, otherwise part of the district of Bulandshahr.

The issues raised by the petitioners broadly are of the abadi (in other words, urbanization or habitat) which the respondents attempted to create. The petitioners contended that they also have a declaration from the Competent Authority under yet another legislation being the U.P. Zamindari Abolition and Land Reforms Act, 1950 and the Rules framed there under. The submission is that the petitioners have a certificate of a declaration by the Competent Authority, in a statutory proceeding to a certified abadi and, thus, the Land Acquisition proceedings to divest them in lieu of the urbanization planned is ultra vires. They challenged the notifications under Sections 4, 6 and 17(4) of the Land Acquisition Act, 1894, on various grounds but their main line of attack is that between a declaration accorded to them under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, certifying an urban area, the acquisition under the Land Acquisition Act is a contradiction and the notifications could not hold. Consequent to this, there is also a plea that Section 5A of the Act having been eliminated in the exercise to acquire land, thus, there is no occasion for them to contend anywhere else except by these writ petitions.

What was given to this Court as a last plea, apparently, is a plea which needs to be considered seriously as the matter does need to be looked into in an entirely different manner than it has been done either by the respondents or the petitioners. The petitioners urged that they have a vested right which cannot be dislodged. The respondents submit of a development programme. Neither have succeeded and all are embroiled in litigation. This is a third round of litigation. Section 4 notification is dated 30 April 1993. Not to be lost tract of is the aspect of the development of the Greater NOIDA. If the petitioners were in the way of planning they received a notice, not the subjectmatter of an issue in these petitions but otherwise on record, under Section 10 of the U.P. Industrial Areas Development Act, 1976. These notices were issued to them in 1992 but prior to the notification under Section 4 of the Land Acquisition Act, 1894. These very petitioners filed other writ petitions before the High Court. They were unsuited. They went to the Supreme Court. The order of the Supreme Court has been placed before this Court. It I is dated 8 July, 1996. The Court will revert to this aspect later.

Last year when the matter was I under hearing the Court indicated to the petitioners that not imp leading the National Capital Region Planning Board may be fatal to the proceedings. Thus, the I petitioners applied for imp leading the National Capital Region Planning Board as a I party respondent. The Impalement was I permitted.

The resistance to the acquisition (proceedings by the petitioners, was met in arguments on behalf of the Greater NOIDA. The latter submitted that all planning is compatible with the regional plans which have been approved by the National Capital Regional Planning Board. Reliance was placed in Court on a correspondence between the Chairman of the Greater NOIDA and the National Capital Region Planning Board that everything was right for executing the urbanization plans in the scheme Kasna and Surajpur but for the proceedings and interim orders granted by another Division Bench in these cases. Beyond the record on which reliance was placed there was nothing before this Court that the exercise as was contemplated for ratifying the plan of a particular State had been gone into. The correspondence which was referred to only talked of funds and finance sought by the Greater NOIDA from the Housing and Regional Development Corporation, a federal housing finance institution, which allocates funds for urbanization and development by the State. This was not a record showing consultation between the Greater NOIDA and the State of U.P. with the National Capital Region Planning Board. Thus, after the National Capital Region Planning Board had been impleaded the Court required the requisite exercise to be undertaken by the Greater NO IDA and the State of U.P. setting about to deliberate and seek consent of the National Capital Region Planning Board. The following order of the Court is relevant:

"27.2.1996.

Hon''ble Ravi S. Dhavan, J.

Hon''ble A.B. Srivastava, J.

Mr. V.K. Gupta, Advocate, and Mr. A.K. Yog, Advocate, for the petitioners.

Mr. V.B. Upadhaya, Senior Advocate, and Mr. Pradeep Kumar, Advocate for the Greater NOIDA.

Mr. K.B. Mathur, Advocate and Mr. Sheila Sethi, Advocate for the National Capital Region Planning Board.

Mr. Prabodh Gaur, Senior Standing Counsel, and Mr. Krishna Prasad, Standing Counsel.

National Capital Region Planning Board has entered the scene, when during hearing the petitioners felt the necessity to implead this authority as a party for a better perspective of the case but without seeking any relief against this authority. In this regard orders of the Court dated 28 August, 1995 and thereafter need to be referred to.

Representatives of the National Capital Region Planning Board (N.C.R.P) appeared yesterday, and have also entered appearance through counsel.

The Court had indicated to the parties that a hearing cannot be effective in these cases for any planning which may happen or may be affected in areas which are in issue without participation of the N.C.R.P.

The crucial question which was facing the Court is whether of every aspect regarding plans for Greater NOIDA approval has been had from the National Capital Region Planning Board. The Court refers to the different types of plans as are mentioned in the ''definition'' clause of the Act and references to which are reiterated subsequently in the Act, for review, approval or consultation with the Board within the meaning of Section 8, for discussion under Section 12, for modifications to be considered under Section 14, review and revision under Section 15 and then preparation of the National Plans, Sub Regional Plans and Project Plans under Chapter V within the meaning of Sections 16, 17, 18and 20.

One stipulation is inescapable that unless the National Capital Region Planning Board gives the green signal nothing can go ahead. The necessary implication of this is also that at every stage in reference to the plans, aforesaid, each constituent State as part of the National Capital Region Plan has to keep a close consultation with, the federal agency which is the Board.

The petitioners challenge the acquisition of certain areas for the development of Greater NOIDA, particularly of village Tugalpur and Rampur Jagir.

Prima facie upon perusal of the record and upon hearing the parties, the Court at present is not satisfied that the contention of either parties can be objectively considered without the development plans attaining finality without consultation of the National Capital Region Planning Board.

On behalf of Greater NOIDA much emphasis was laid on certain correspondence which was exchanged between the Chairman of the Greater NOIDA and the Member Secretary of the Board. Yesterday after submissions were made by Member Secretary and today by counsel for the Board, Mrs. Sheila Sethi it is clear that the Board had not an occasion, as of date to approve any detailed development plan for the simple reason that these have neither been submitted nor has there any occasion for the Board to scrutinize these plans which have yet to be sent to the Board. In these circumstances and on the statement which has now come from National Capital Region Planning Board the doubts of the Court have not been unfounded.

The issues which remain in the petition are, to the effect, that a possibility cannot be ruled out that of the acquisition of land which have been made, it may be a subject of scrutiny by the National Capital Region Planning Board and possible the merits and the purpose of the acquisition may need a revision. The claim of some of the petitioners that they have a certificate of an appropriate authority under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act, 1951 may not be of much help because if the conforming use of the area is agriculture, and the Regional Plan 2001 respects agricultural areas any diversion from the conforming use of urbanization may violate the spirit of Regional Planning 2001.

The question is the scope of these proceeding on a writ of cardiogram by the High Court. One authority whose business it is to go into these matter has yet to engage it''s attention to it. This is the N.C.R.P., an authority specially vested with functions to discharge its obligations under the Act. Clearly before the Court, today, there is no document to verify that the plans on which the Greater NOIDA may yet proceed have the seal of the approval by the National Capital Region Planning Board and this aspect stands confirmed by the submission which was made on behalf of the Board by its Member Secretary, yesterday, and its learned counsel today.

The National Capital Region Planning Act, 1985 under Section 27 in no uncertain term makes it clear that the provision of Act, aforesaid, shall have effect notwithstanding any other law. This implies that the Board while examining this matter must have absolute discretion notwithstanding that a notification under Section 4 of the Land Acquisition Act has been issued. The Board may thus, examine the plans of Greater NOIDA, in contest, without inhibition and come to an independent decision while scrutinising plans for development of Greater NOIDA. Suffice it to say that the reservations which have been provided to the Board under Section 27 could not be reservations for a High Court when matters are examined under a prerogative writ.

Thus, to permit aspects, in context, to be examined by the Board, the Court adjourns these proceedings for a period of two months to enable the Board to approve, review, consult, affirm or confirm the plans which are the subjectmatters of these writ petitions in total freedom notwithstanding that a notification has been issued for acquisition of land by the State of Uttar Pradesh or for that matter that these proceedings are pending before the High Court. The only guidance which this Court gives to the Board is to give effect, to the intentions of the Act coordinating monitoring and scrutinising the implementation of the plans and for harmoniously building urban planning with excellence without disturbing the ecologi.cal balance of nature and by respecting the green cover, agriculture and not abdicating either in favour of urbansation but with a dedicated effort to respect the forests and strive to retain the balance of nature and ecology and at every given occasion not loosing the perspective in so far as the Board is concerned in these matters, of the fundamental duties as enshrined in Article 51A(g)(h) and (j) read with 48A of the Constitution of India."

As of now, the deliberations have been completed. Today, minutes have been placed on record that the meeting of the National Capital Region Planning Board has confirmed the minutes of its 20th meeting which was held on 19 August 1996. The detailed agenda insofar as these cases are concerned, are in the agenda notes of this meeting. The minutes as were confirmed, referred to planing in the region of Kasna and Surajpur at pages 21 and 22. The agenda notes which were placed for consideration and subsequent confirmation specifically mention to the present subjectmatter in Item No. 3 at pages 2, 3 and 4.

This only shows that a contemplated exercise had been left out even by the Greater NOIDAand a formality was yet to be completed in the regional and sub regional plans being considered, discussed and affirmed by the National Capital Region Planning Board. On the last occasion, when the Member Secretary, Mr. Omesh Sehgal, IAS, attended the proceedings, the Court asked him two pointed questions. The first question was whether in the absence of the proceedings by which the Greater NOIDA was required to submit its plan, in reference to the context, to the National Capital Region Planning Board, would there have been a lacunae but for carrying out the exercise? The Second question was whether of the plans submitted under the direction of the High Court the exercise is now complete under the National Capital Region PI a inning Act, 1985? His answer was in the affirmative. He explained to the Court that but for the orders of the Court by which these plans were deliberated, undoubtedly, there would have been a vacuum in the totality of the exercise. The exercise of the State of U.P. or the Greater NOIDA consulting the Board has now taken a full circle.

The balance of the record which now remains, only reflects on a situation that there are no short cuts to acquisition proceedings and the shorter the cut the more elongated the proceedings become. The Court is specifically referring to the aspect of eliminating Section 5A from the acquisition proceedings as a generality. Three years have passed since the notification of 30 April 1993 was published. In between, the same petitioners have opened up four fronts of litigation. There were two sets of proceedings by writ petitions. The first set were the proceedings challenging the notice under the U.P. Industrial Areas Development Act, 1976. The second set is the present set of cases. The third set of cases of the petitions pending are after remand by the S upreme Court and the fourth, of suits before the Courts below when the petitioners impugning action under Section 10, aforesaid, made the first attempt to protect their lands and dispossession from it.

Counsel for the petitioners have shown the order dated 8 July 1996 of the Supreme Court in Civil Appeals No. 9087 and 9088 of 1996 about the cases which were to join these cases. Those cases have not been placed before this Division of the Court.

A very pertinent question arises whether taking recourse to Section 5A would have been a composite exercise where the matter would have been examined on whatever the petitioners contend as objections not in acquisition proceedings, but in these writ petitions. There are still many aspect which need to be sorted out and this cannot be done as a factfinding spree in the jurisdiction of prerogative writs. Not going into this question will also leave a void and encourage further litigations and bog planned development. Seeing the totality of the circumstances, in generality, the Court is of the view that where planned development has been undertaken as part of an exercise as a statutory obligation, the dominant purpose of this planned development is the National Capital Region. The petitioners would like to resist this and prevent their property from being wrested out of their hands. The Greater NOIDA does not desire to see anything beyond the land acquisition proceedings which has been initiated in its favour. The State of U.P. has taken no interest in these proceedings. Planning urban development itself, regard being had to the National Capital Region has come to stay. The petitioners cannot dislodge this exercise. There are certain cardinal principles in executing plans within the National Capital Region which are sacrosanct. Confirming uses, whatever they may be, have to be respected. The petitioners forgot that their abadi is only consequential to agriculture and it cannot stay independently so as to take up rivalry with planned urban development. Section 143 of the U.P. Zamindari Abolition and Land Reforms Act, 1951, recognises that within an agricultural holding, there may be a habitat. Declaring an area as abadi is not in juxtaposition to agriculture. It is compatible with it. Thus, the petitioners cannot challenge the acquisition proceedings to submit that for the abadi which the Greater NOIDA will develop, they also are entitled a proprietary right in the abadi which has been declared by the Sub Divisional Magistrate in their favour under Section 143. The Greater NOIDA is developing the region as a consequential aspect of preventing the constriction and asphyxiation of Delhi. Except that this exercise has a method in its madness. Delhi cannot be contained and yet it cannot eat up, as a routine the sprawl of what lies in its hinterland.

But, if agriculture and forestry is a recognised conforming use and it is to be protected and there are several references to this aspect in the report referred to in the order of 27 February 1996, entitled Urban Plan 2001, itself an offshoot directly of the Greater NOIDA under the U.P. Industrial Areas Development Act, 1976, and indirectly of the National Capital Region Planning Act, 1985, then, the spirit of the sanctity given to these areas, as greens, forests and agriculture, is to be respected. These areas were not meant to disappear, but protected with bias towards increasing them. The constitution says so.

Fortunately, in the present cases, on certain relevant facts there is no issue. There is no issue between the petitioners and the respondents that while the Greater NOIDA was constituted by a notification which gave birth to it, on 28 January 1991, any declaration of abadi under Section 143 of the U.P. Zamindari Abolition and Land Reforms Act, 1951, as may have been received by the petitioners from the concerned authority, it was in December, 1990. The regional development, in context of the confines of villages of Kasna and Surajpur were declared as a regulated area under the U.P. (Regulation of Building Operations) Act, 1958, by notification dated 19 September 1989. During the the course of arguments it was submitted on behalf of the Greater NOIDA that assuming that the petitioners received an order declaring an abadi in their favour under Section 143, then, knowingly that they had a declaration of an abadi but before putting it into effect, they did not take recourse to applying for and receiving permission before making any construction under the U.P. (Regulation of Building Operations) Act, 1958. The petitioners contend that the declaration which they received under Section 143 is prior to the creation of the Greater NOIDA. On behalf of the Greater NOIDA it is contended that it is of no consequence as once a declaration is made under Section 143, thereafter, if any construction is to be made within the abadi, the requisite obligations by stoking permission, is an exercise which has to be gone into under the U.P. (Regulation of Building Operations) Act, 1958. The Court is not answering these questions as this enquiry cannot be enquired into these proceedings. The reasons are that Section 143 in itself contemplates that if there be an abadi, a declaration may be sought. In the circumstances, whether an abadi existed and a declaration was sought and whether a declaration was sought and an abadi existed, is not for this Court to answer.

This only leads to a conclusion that in today''s context regional planning is complex and taking recourse to short cuts and leaving grey areas and without permitting those who are eclipsed by acquisition proceeding to have their say in the ultimate speeds up nothing. All these aspects would have been enquired if the procedure under Section 5A had not been eliminated. Any order passed by the State of U.P., in any case, would have been final. Subclause (2) to Section 5A says so in no uncertain terms that the decision of the appropriate government on the objection shall be final.

There is a very relevant aspect which cannot be ignored today when there are acquisition proceedings, particularly, referring to rural areas and agricultural holdings. After the Constitution was amended in 1953 by insertion of the Chapter Panchayats as Part IX under Article 243 of the Constitution of India, the village is a concept of basic democracy. It is entitled to be consulted for whatever is to be done if it is to affect the rural economy or agriculture. Of the abadi which may be established in villages and rural reas, whatever form it may take, hereinafter will have to be planned also. But the village Panchayat is the body which will need to consulted. This is a constitutional obligation. But, this, where the writ petitions are, is not a forum. Otherwise the Court would keep on adding party respondents to offer consultation between the authorities concerned. The Court refers to this aspect only to point out that planning will have to be a coordinated effort by taking into account the functional institutions which have been given sanction by the Constitution of India, to be consulted in spheres of planning which affect them.

In the present context, the Court cannot ignore the possibility that if the National Capital Region is to be planned in the spirit it was meant to be planned, then not adhering to the plan in the spirit it was formulated, will crash Delhi into the villages. This was not meant to happen.

If the issue plainly is: What has to happen to the petitioners'' abadil The answer is provided by a recent decision of the Supreme Court. The Court has already considered the particular aspects of the acquisition proceedings and certifies that these are the parts of the National Capital Region Planning within it. It is planned urban development. The petitioners cannot jeopardise the larger plan in public interest if their intention is to sell their abadi and make capital out of it. To the extent they may desire to retain it as a consequence of agriculture, then, the only question is of compensation and how much of it. The Court cannot separate and identify pockets of abadi so that in the clutter of its distinct from a planned regional development. Such of those agricultural areas which may be on the fringe of the development area may be retained within the development plan, as reflected in the document entitled Regional Plan 2001. Then, these could be identified as a case for exemption. Of the abadi which was declared in favour of the petitioners, at best they may be entitled to what has been prescribed under Section 23 read with the definition of ''land'' as is referred to under Section 3 of the Land Acquisition Act, 1894. In this regard, the observations of the Supreme Court in the matter of State of Haryana and another v. Jaipal Singh and others, JT1996 (7) SC 574 need to be recalled. In this case the Supreme Court observed that it has repeatedly held in several cases that there is no general policy as such that all lands on which constructions have come to be made, are required to be deleted from the acquisition. But, the Supreme Court did reflect on a situation that such constructions would need to be enquired into by an appropriate authority. The Supreme Court declined to enquire into the aspect itself as it observed that it would be hazardous to conclude whether or not the land in question is in the state in which it may have existed was with or without constructions in chronology with reference to acquisition proceeding. No to be over looked is an another decision of the Supreme Court following the judgment in State of Haryana v. Jaipal Singh (Supra). A declaration in the nature of ''abadi'' within or next to an agricultural holding, may see a necessary correction in the records, the revenue records, in the change of status of the user of land and in whose name. But such entries in revenue records neither create or extinguish title nor has any presumptive value on title. It only varies or modulates land revenue. In this regard the observations of the Supreme Court in Smt. Sawarni v. Smt. InderKaur and others JT1996 (7) 580 are relevant. The inquiry on title, user and nature of land, for the purpose of land acquisition proceedings for consequential compensation or otherwise would yet have to be made. Likewise, this Court also cannot make an enquiry in its writ jurisdiction. In the netresult, the enquiry which otherwise could have been made, if recourse to Section 5A had been taken, would yet have to be made. This Court is not quashing the notifications under Section 4 or 6. But, these issues also cannot remain lingering in litigations, in the context and in the circumstances of the present case of acquisition proceedings as a consequence of planned development.

During the course of hearing the Court was intimated by one of the counsel for the petitioners, an aspect which was not disputed by the Greater NOIDA One of the petitioners in writ Petition 26747 of 1993: Chandroo Singh and three others v. State of U.P. and two others, filed an application before the Court that they be permitted to withdraw their petition as they have been assured by the Secretary of the Greater NOIDA that they would agree to release the petitioners'' land on which the residential house stands alongwkh the appurtenant vacant land on the condition that the petitioners withdrew the writ petition. In the circumstances, the situation is not entirely without an example that some body was seeking consideration for exemption and the administration, whether the Greater NOIDA or the State of U.P., was not prepared to accept (a) an enquiry'' into the matter and (b) an exemption after the enquiry. The contention on this behalf of the Greater NOIDA is that the acquisition has been made and put into effect. The land of this particular petitioners had been possessed by the Greater NOIDA but to mitigate the hardship and for the convenience of both, it has been reconvened to these petitioners, but now by a lease.

Thus, to remove doubts and further to ensure that planning of the National Capital Region is not jeopardized nor any conforming uses which have been given sanctity within it and further to eliminate racketeering in real estate, let the State Government appoint an officer in the rank of Secretary to the Government, State of U.P., to enquire and ensure certain aspects of:

(a) Conforming uses as are part of the National Capital Region, the plans having been approved by the National Capital Region Planning Board are given their due sanctity and respect without compromising on them notwithstanding that industry is being developed;

(b) Of the abadi which the petitioners claim individually on a declaration received under Section 143 under the U.P. Zamindari Abolition and Land Reforms Act, 1951, by some of them, to marshal out the case which required for special compensation under Section 23 read with Section 3 of the Land Acquisition Act, 1894; if the award has already been given, then, it will be followed by a supplementary award;

(c) While enquiring into whether the abadi. On which the petitioners claim protection was constructed or came into existence prior to the notification of 19 September, 1989, the date of issue of notification under the U.P (Regulation of Building Operations) Act, 1958, or prior to 30 April 1993, the date of issue of the notification under Section 4 of the Land Acquisition Act, 1894, hearing will be provided to the petitioners;

(d) Of any exemption which needs to be granted without disturbing the scheme of the National Capital Region or of any plans within it, this may be considered by hearing the petitioners with a rider that exemption will be considered provided there is no alienation from the hands of petitioners to a third party failing which the land will be eclipsed by the acquisition already made. Lease of this land may be considered, like done in a case already;

(e) To dispose of these matters indicated by the Court within a period of three months of a certified copy of this order being placed before the Secretary, aforesaid, by either party to the case. We refer to the Secretary, Industry, as the Court is indicated that the Greater NOIDA comes within the administration of the Department of Industries.

The writ petitions succeed partially in the light of the observations made by this Court. They, however, stand dismissed in respect to challenge of vires of Sections 4, 6 and 17 of the Land Acquisition Act, 1894.

Parties will bear their own costs.

Petitions allowed partially.