Shalimar Leather Industry vs State of U.P.and Others

Heard learned counsel for the petitioner, Sri Lalji Sinha, Sri A.K. Bhatnagar, learned counsel appearing for the State and Sri Navneet Agarwal, learned counsel for the U.P. State Industrial Development Corporation (hereinafter referred to as U.P.S.E.D.C.).

Initially this petition was filed for the following reliefs:

(i) issue a writ, order or direction in the nature of certiorari quashing the Notification dated 26.12.1996 issued under Sections 4 and 17 of the Land Acquisition Act (Annexure No.3) and the order dated 27.2.1999 passed by Land Acquisition Officer (Annexure No.14).

(ii) issue a writ, order or direction in the nature of Mandamus commanding the respondents not to interfere in the possession of the petitioner over the plot Nos.1019, 1020, 1021 and 1023 situated in village Banthara, Hararada, Unnao.

Later on during pendency of the writ petition, the petition was amended and the following releifs were claimed:

(i) To issue a writ, order or direction in the nature of certiorari quashing the Notification dated 26.12.1996 applying the provision of Sections 4 and 17 of the Land Acquisition Act in respect of the petitioner''s plot Nos.1019, 1020, 1021 and 1023 (Annexure14 to the writ petition);

(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in the possession of the petitioner voer plot Nos.1019, 1020, 1021 and 1023 situated in village Banthara, Harareda, Unnao.

Before proceeding on merit of the present petition we would like to put on record that the petitioner had filed a writ petition No.28(LA) of 1998 in re: M/s Shalimar Leather Industries v. State of U.P. and Others i.e. after issuance of the Notification under Sections 4 and 6 of the Land Acquisition Act, dated 15.2.1996 and 26th December 1996.

We have perused the copy of that writ petition also and we find that in the pleadings, the petitioner had mentioned the alleged illegality in issuing the Notification under Section 6 of the Act but in the relief clause the petitioner only prayed for quashing the notices which were issued to the petitioner for taking compensation of the land of the petitioner and also to exempt the land of the petitioner from acquisition proceedings. In paragraphs 9, 10 and onwards paragraphs the petitioner raised the plea that the Notification under Section 6 was illegally issued and there was no justification and occasion for the opposite parties to acquire the land for the said purpose as the land acquired under various other schemes is still lying unused. It was also pleaded that the petitioner had invested huge amount in installing the aforesaid factory and therefore the same may be exempted from the acquisition. One more ground for claiming exemption was that the respondents were not considering the fact, that the land was required for Industrial Development, whereas on the land in dispute the petitioner has already installed and running a factory, therefore, no useful purpose would be served if the same is acquired, for the Industrial Development.

This writ petition was dismissed by a Division Bench of this Court vide order dated 1st April 2004. The aforesaid order says that the petitioner before the Court made a statement that he does not want to press relief (a) in the prayer clause. This was a relief which asked, for quashing of the notices issued for payment of compensation, as a consequence of the acquisition of the land of the petitioner. This relief thus was given up in the said writ petition. It was, however, prayed that the respondents be directed to exempt the land of the petitioner from the acquisition proceedings.

The Division Bench took into consideration the plea raised by the learned (counsel) for the respondents, that the representation of the petitioner has already been decided and the acquisition proceeding are over and even the possession has been given to the respondent No.4 i.e the U.P.S.E.D.C. by the District Revenue Authorities. Acepting the aforesaid argument of the learned counsel for the respondents, the Court found that there was no reason to further direct the petitioner to make a fresh representation for being decided by the concerned authority. The writ petition was accordingly dismissed. It was however, made open to the petitioner to challenge the order passed on the representation of the petitioner and a direction was also issued to communicate the order passed on the representation, to the petitioner within a period of ten days. It was only thereafter that the present writ petition has been filed in which by way of amendment the petitioner prays for the reliefs as extracted above.

Sri Lalji Sinha, learned counsel appearing for the petitioner argued that the entire proceedings of acquisition were without jurisdiction in as much as there was no sufficient reason for dispensing with the filing of the objection under Section 5A of the Act by invoking the provision under Section 17(1) and (4), namely the urgency clause.

We will consider this plea after considering the objections raised by the counsel for the respondents that this plea is not open to be looked into by this Court in this writ petition and that in the present writ petition no foundation has also been laid down to raise the plea, that the State Government had not applied its mind while invoking provisions of Section 17(4) of the Act and that there was no material on record on the basis of which the State Government could have satisfied itself for dispensing with the filing of the objection under Section 5A.

It has also been urged by the learned counsel for the respondents that besides the fact that the said plea was neither available to the petitioner nor the same has been specifically pleaded nor could be substantiated from the record placed by the petitioner, the same is also barred by the principles of Order 2 Rule 2 of the Code of Civil Procedure as it was well within the competence of the petitioner to challenge the Notification issued under Sections 4 and 6 of the aforesaid Act when he had filed the earlier writ petition but having failed to do so, the same cannot be allowed to be challenged by filing the second or another writ petition.

On a specific query being put to the learned counsel for the petitioner that under what circumstances this petition has been filed, it has been answered that the earlier order passed in the previous writ petition gives liberty to the petitioner to challenge the order passed on the representation therefore, this petition has been filed for quashing the order passed on the representation of the petitioner. Further clarifying the aforesaid position it has been brought to our notice that some objections were filed, by the petitioner (Annexure6) before the Special Land Acquisition Officer who has considered and decided the same, a mention of which finds place in the Award itself. The order which is said to have been passed on 27th February 1999 is nothing else but is an Award passed under Section 11 by the Land Acquisition Officer.

There is nothing on record of the writ petition to show that at any point of time the petitioner had made any representation or application to the State Government for exempting the land from acquisition or for denotifying the same, because if, the land been acquired, the exemption can be claimed only under Section 48 of the Act, that too before the possession is taken. The application admittedly which have been made to the Special Land Acquisition Officer is termed as objection/reply of the petitioner both in the present petition as well as in the earlier writ petition. The copies of these objections have been brought on record as (Annexure6). A perusal of the objection establishes, that in substance, they made a prayer for grant of adequate compensation, including the solacium etc. on grounds given therein.

It is also not in dispute that the petitioner was running a factory in the name and style of ''Shalimar Leather Industries� at another place viz. over plot No.74A, 150 Feet Road, Jajmau Kanpur and an additional factory was said to have been installed over plot Nos.1019, 1020, 1021 and 1023 situated at village Banthara, District Unnao i.e. the land under acquisition.

On the land in dispute, admittedly according to the own case of the petitioner only a boundary wall, two big rooms, Gate etc.have been constructed. The petitioner has not pleaded any where in the writ petition that any equipment, plant, or machinery was in existence on the date of issuance of the aforesaid Notifications. In this objection right from paragraphs 7, 8, 9, 10, 11, 12, 13 and 14 the only prayer which has been made is, with regard to the grant of compensation at the given rate alongwith solacium at the rate of 30%. In the last, a prayer has been made that either the Award be passed in the light of the aforesaid claim or the land may be exempted from acquisition.

In paragraphs 1 to 6 of the said objection it has only been said that this land may not be acquired since the petitioner is doing the work of Vegetable Tanning of leather over the premises in question.

Under the scheme of the Land Acquisition Act if a notification is issued under Section 4 invoking the provisions of Section 17(1) and 17(4) of the Act, the right to file objection under Section 5A stands dispensed with. Such a notification is issued, if the State Government on the material available on record is satisfied about the urgency of acquisition. For challenging the satisfaction so arrived by the State Government, which though is its subjective satisfaction, the plea that there was no such urgency, nor there was any such material before the State Government to reach the required satisfaction, has to be specifically pleaded and proved. Mere vague allegation made in the writ petition would not constitute a ground for challenging the Notification on the aforesaid ground.

In the instant case though the said plea is not open to be raised by the petitioner in the present writ petition, we would also like to observe that despite the two writ petitions being filed by the petitioner i.e. the earlier writ petition No.38 (LA) 1998 and the present writ petition, in either of the two writ petitions, no such plea challenging the Notification under Section 4 on the said ground has been taken.

The petitioner acquiesced and conceded to the acquisition proceeding when despite allegations made in the earlier writ petition regarding the alleged irregularities and illegalities being mentioned with respect to the notification issued under Section 6 of the Act, he did not claim any relief for quashing the said notification and consequently the acquisition proceedings.

Notification under Section 4 of the Act which had already been issued by the time when the earlier writ petition was filed, a fact which was well within the knowledge of the petitioner, he chose not to challenge the same, and confined his prayer of claiming exemption from acquisition.

It is only under Section 48 of the Act, the land for which Notifications under Sections 4 and 6 have been issued but possession has not been taken, the State Government has the power to exempt the land from acquisition viz. withdrawing the same from acquisition.

The provision of Section 48 reads as follows:

�Section 48: Completion of acquisition not compulsory, bu compensation to be awarded when not completed (1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken.

(2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land.

(3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this section.�

The petitioner once having chosen not to challenge the Notifications issued under Secitons 4 and 6, at the time when he filed the writ petition No.38 (LA) of 1998, it is not open for the petitioner to challenge the same by filing the second writ petition.

We find force in the argument raised by the learned counsel for the respondents that the aforesaid plea could have been raised in the earlier writ petition and the same having not been taken, cannot be allowed to be raised in the present writ petition on the principles of Order 2 Rule 2 of the Code of Civil Procedure.

The learned counsel for the petitioner Sri Lalji Sinha has placed reliance upon the following cases, Narayan Govind Gavate and others v. State of Maharashtra and others, reported in AIR 1997 Supreme Court 183, Union of India and others v. Krishna Lal Arneja and others, 2004 (8) Supreme Court Cases, 453, Union of India and others v. Mukesh Hans, Reported in 2004 (8) SCC 14 in support of his submission that there was no material before the State Government to invoke the provision of Section 17(4) of the Act and deprive the petitioner of their right of filing objection under Section 5A, to convince that the land in question cannot be acquired but in view of our finding that this plea was not open to the petitioner to be raised in the instant writ petition, we do not feel that the aforesaid judgments in any way are of any assistance to the petitioner.

We would, like to further observe that neither in the earlier writ petition nor in the present writ petition there was or is any specific pleading nor any proof about the said plea of illegal or arbitrary application of Section 17(4) in the acquisition proceedings. Mere vague allegation that there was no urgency for acquiring the land and the urgency clause was wrongly invoked, would not constitute a plea for looking into the material on the basis of which the urgency clause has been invoked. The plea has to be specific, which should stand corroborated by the evidence. There being no such specific plea or proof, the same cannot be allowed to be pressed.

In regard to the case of the petitioner that the objections were not decided and therefore, he had approached this Court by filing the present writ petition it would be suffice to mention that according to the own case of the petitioner, the only objections which were filed by him are contained in the Annexure No.6 dated 30.4.1987 and addressed to the Special Land Acquisition Officer. It is also his own case that these objections were decided by the Special Land Acquisition Officer in the Award itself. Once it is admitted that the objections have been decided by the authority concerned to whom they were addressed and that order of such authority finds mention in the Award itself in which the petitioner also participated, it is not open for the petitioner to say that the objections have not yet been decided.

At this juncture we would like to put on record that the learned counsel for the petitioner has brought to the notice of this Court that on 30th September 2004 the petitioner has for the first time made a representation to the State Government for exempting the land from acquisition. This plea cannot be entertained for the simple reason that there is no such pleading in the writ petition nor even in the Rejoinder Affidavit. It is only for the first time that this averment has been made in a miscellaneous application which cannot form the part of the pleadings, even if, the petitioner has made a representation to the State Government at later stage it would not be open for us to consider the same or to entertain the prayer.

The prayer of the petitioner that a direction be issued to the State Government to consider the representation of the petitioner for exemption of the land in question in favour of the petitioner, thus does not call for any consideration by us in view of the fact that such a plea has not been raised in the writ petition. It is, however, always open for the petitioner to pursue any representation if it is legally maintainable and as may be permissible and admissible under the Rules.

The petitioner had filed objections which have already been considered and decided by the concerned authority and the claim of the petitioner regarding compensation is always open to be settled by taking recourse to the provisions of the Land Acquisition Act itself. If the compensation awarded is found to be inadequate by the petitioner he has liberty of filing a reference under Section 18 of the Act for getting the compensation enhanced, on the ground that the Special Land Acquisition Officer has not awarded appropriate compensation but this can not be a ground for holding the acquisition proceedings bad.

In the counter affidavit it has been said that the possession of the land in question was taken over on 14.10.1998 by the respondents though the said fact is being disputed by the petitioner, but this would also again not be a ground for us to take the aforesaid plea into consideration nor we find it necessary to record any finding on the above issue, as it would not effect the notifications issued under the Land Acquisition Act.

For the reasons stated above we do not find any reason to invoke our extraordinary jurisdiction under Article 226 of the Constitution. The petition is devoid of force and is hereby dismissed.

(Petition dismissed)