# Aakash Education Society Chithera v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 807
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-21
- **Bench:** Sudhir Agarwal, Shamsher Bahadur Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aakash-education-society-chithera-v-state-of-u-p-ors-44214
- **Pages:** 21

## Headnote

under Section 4(1) have no right to challenge acquisition proceedings and can only claim compensation-Such
transactions do not bind the State-Hence, writ petitions to that extent not maintainable-Urgency clauseDispensation of inquiry under Section 5-A is an exception and cannot be invoked mechanically-Right to
object under Section 5-A is a valuable and substantive right embodying principles of natural justice-Existence
of real urgency must be demonstrated on objective material-Mechanical invocation of Section 17(4) without
genuine urgency vitiates acquisition-Court reiterated settled principles governing urgency and protection of
landowners' rights.

Result - petition dismissed.

Case cited

U.P. Jal Nigam Vs. Kalra Properties Pvt. Ltd. (1996) 3 SCC 124
Sneh Prabha Vs. State of U.P. (1996) 7 SCC 426
Ajay Krishan Shinghal etc. Vs. Union of India and others (1996) 10 SCC 721
State of U.P. Vs. Smt. Pista Devi and others AIR 1986 SC 2025
Gian Chand Vs. Gopala and others (1995) 2 SCC 528
Mahavir and another Vs. Rural Institute, Amravati and another (1995) 5 SCC 335
Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583
Star Wire (India) Ltd. Vs. State of Haryana and others (1996) 11 SCC 698
Meera Sahni Vs. Lieutenant Governor of Delhi and others (2008) 9 SCC 177
Bangalore Development Authority Vs. Vijaya Leasing Ltd. (2013) 14 SCC 737
Pandit Leela Ram Vs. Union of India AIR 1975 SC 2112
V. Chandrasekaran and another Vs. Administrative Officer and others (2012) 12 SCC 133
Nandeshwar Prasad Vs. U.P. Government AIR 1964 SC 1217
Munshi Singh and others Vs. Union of India (1973) 2 SCC 337
State of Punjab Vs. Gurnail Singh and others (1980) 1 SCC 471
Shyam Nandan Prasad and others Vs. State of Bihar and others (1993) 4 SCC 255
Union of India and others Vs. Mukesh Hans (2004) 8 SCC 14

## Text

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7 All. Aakash Education Society Chithera Vs State Of U.P. & Ors.
807
28. In Union of India and others vs. Shiv Raj and others 2014 (6) SCC 564, Court in
para 15 said that Section 5-A confers a valuable right on the owner of land and it is not an empty
formality. It is a substantive right, which can be taken away only for good and valid reasons and
within the limitations prescribed under Section 17(4) of Act, 1894.

29. Now examining the factum of existence of urgency in the case in hand, we find that
respondents have not cared to place anything before us to justify that there existed real urgency for
acquisition and possession of acquired land, justifying dispensation of enquiry under Section 5A. In
fact, except repeating that acquisition has been made in public interest and for 'Planned Industrial
Development', no factual foundation has been placed on record either by means of affidavits or by
placing original relevant record for our perusal. Respondents, in fact, have not made any attempt to
justify dispensation of enquiry by showing that there actually existed such circumstances and real
urgency which necessitated exercise of power under Section 17 to dispense with enquiry under
Section 5A. In view thereof, we have no manner of doubt that dispensation of enquiry under
Section 5A in the present case is nothing but arbitrary, illegal and a colourable exercise of power.
Impugned Notifications dated 28.11.2001 and 26.02.2002 so far as they dispense with enquiry
under Section 5A of Act, 1894, cannot be sustained.

30. The writ petition is partly allowed. In respect of the claim of petitioners Plots no. 103,
275, 276, 280 and 281, writ petition fails and is dismissed. However, impugned Notifications, to
the extent the same relate to Plots no. 446, 452 and 463, in so far as Section 17 has been invoked
and enquiry under Section 5-A has been dispensed with, are hereby quashed. If respondents still
require land in dispute, they may proceed from stage of making enquiry under Section 5-A of Act,
1894 after giving public notice to landowners, inviting objections and thereafter take appropriate
action as permissible in law.
------------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHAMSHER BAHADUR SINGH, J.

Writ C No.- 17029 Of 2008
&
Connected With Other Cases

Aakash Education Society Chithera ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Uma Nath Pandey, Pradeep Kumar
808 INDIAN LAW REPORTS ALLAHABAD SERIES

Counsel for the Respondents:
C.S.C., Anurag Khanna, Ashish Mohan Srivastava, Pankaj Dubey, Ramendra Pratap Singh, S.K. Mishra, Satish
Chaturvedi, Siddhartha Verma.

Subsequent purchaser-Locus standi-Held, purchasers acquiring land after publication of notification
under Section 4(1) have no right to challenge acquisition proceedings and can only claim compensation-Such
transactions do not bind the State-Hence, writ petitions to that extent not maintainable-Urgency clauseDispensation of inquiry under Section 5-A is an exception and cannot be invoked mechanically-Right to
object under Section 5-A is a valuable and substantive right embodying principles of natural justice-Existence
of real urgency must be demonstrated on objective material-Mechanical invocation of Section 17(4) without
genuine urgency vitiates acquisition-Court reiterated settled principles governing urgency and protection of
landowners' rights.

Result - petition dismissed.

Case cited

U.P. Jal Nigam Vs. Kalra Properties Pvt. Ltd. (1996) 3 SCC 124
Sneh Prabha Vs. State of U.P. (1996) 7 SCC 426
Ajay Krishan Shinghal etc. Vs. Union of India and others (1996) 10 SCC 721
State of U.P. Vs. Smt. Pista Devi and others AIR 1986 SC 2025
Gian Chand Vs. Gopala and others (1995) 2 SCC 528
Mahavir and another Vs. Rural Institute, Amravati and another (1995) 5 SCC 335
Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583
Star Wire (India) Ltd. Vs. State of Haryana and others (1996) 11 SCC 698
Meera Sahni Vs. Lieutenant Governor of Delhi and others (2008) 9 SCC 177
Bangalore Development Authority Vs. Vijaya Leasing Ltd. (2013) 14 SCC 737
Pandit Leela Ram Vs. Union of India AIR 1975 SC 2112
V. Chandrasekaran and another Vs. Administrative Officer and others (2012) 12 SCC 133
Nandeshwar Prasad Vs. U.P. Government AIR 1964 SC 1217
Munshi Singh and others Vs. Union of India (1973) 2 SCC 337
State of Punjab Vs. Gurnail Singh and others (1980) 1 SCC 471
Shyam Nandan Prasad and others Vs. State of Bihar and others (1993) 4 SCC 255
Union of India and others Vs. Mukesh Hans (2004) 8 SCC 14

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. These writ petitions have been filed by Aakash Education Society, Chithera and other
petitioners assailing notifications dated 19.01.2007 published under Section 4(1) of Land
Acquisition Act, 1894 (hereinafter referred to as 'Act, 1894'); and dated 11.07.2007 published
under Section 6 of Act, 1894, proposing to acquire 87.249 hectare (215.592 acres) of land in village
Chithera, Pargana Dadari, District Gautambudh Nagar comprising a large number of plots owned
by petitioners. Land is proposed to be acquired at the instance of and for the benefit of U.P. State
Industrial Development Corporation, Kanpur (hereinafter referred to as 'UPSIDC'). State
Government has also invoked power under Section 17(1) and (4) and eliminated inquiry under
Section 5A of Act, 1894.
7 All. Aakash Education Society Chithera Vs State Of U.P. & Ors.
809
2. Counsel for parties stated that issues raised in all these writ petitions are common,
therefore, for the purpose of referring pleadings, parties have agreed to refer leading Writ Petitions
no. 17029 of 2008 (Aakash Education Society Chithera vs. State of U.P. and others). Hence, we are
proceeding to discuss the matter after referring pleadings in Writ Petition no.17029 of 2008.
However, in order to show details of land acquired in other connected writ petitions we may give
brief details in the form of chart as under and thereafter, shall proceed to discuss entire matter with
reference to leading Writ Petition no. 17029 of 2008.

Sl.
No.
Writ
petition
No.
Petitioner/ Claimant Plot no.
Area (in
hectare
Sale deed /
gift deed
Date of
mutation
1
2
3
4
5
6
7
1
21078/08 Rohtash Kumar
1005
0.2910

12.10.2006
2
23948/08 Mahendra
Pal
Singh
1051 M
1051 M
0.107
0.228
1990
03.11.2007
03.11.2007
3
24150/08 1. Mahendra Singh
2.
Ravindra Singh
3.
Smt. Ram Rati
4.
Krishna Singh
5.
Bharat Singh
1052M
1.084
Ancestral
26.12.2006 on
the basis of
succession of
late Balvir
4
24152/08 1.
Ram Pal Singh
2.
Charan Singh
1049
0.4430
Ancestral

5
27115/08 1. Rampal Singh
2.Charan Singh
1051M
1.0250
05.07.1986
04.09.2006
6
49767/08 All

India
Rehabilitation
Education Society
1007/2
1.628
(5-14-8) b

28.12.2002
09.08.2002
26.12.2002
31.12.2002
03.06.2003
7
54286/08 1.
Ram Veer Singh
2.
Sri Ram Sharma
3.
Ram Das
1050
0.1390

27.07.2007
8
54287/08 Kishnu
1051M
0.6070
03.07.1973

9
20991/09 1.Gajendra Singh
2.Virendra Singh
3. Ram Prasad
1051M
0.1112
19/06/75
07.08.1976
810 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Brief facts giving rise to leading petition are that petitioner M/s Akash Education Society
is a Society registered under Societies Registration Act, 1860 (hereinafter referred to as 'Act,
1860'). Its title has now changed as "R.V. Higher Education and Technical Institution", Chithera,
Dadari, Gautambudh Nagar. Petitioner Society owns land comprising of Plots no.1040, 1041, 1042,
1044, 1045, 1046, 1047, 1048, 1049 and 1051. It is running an educational institution having raised
construction over land bearings plots no. 1046, 1047 and 1048. Land has been mutated in the name
of petitioner. It has started one year course of B.Ed after approval granted by National Council for
Teacher Education vide letter dated 28th August, 2004 to which State Government also issued "no
objection certificate" on 10th February, 2005. Aforesaid course is affiliated to Chaudhari Charan
Singh University, Meerut, affiliation to which has been granted vide Vice Chancellor's order dated
19.06.2006. Petitioner has also been granted approval by All India Council for Technical Education
for running B. Pharmacy Course since academic year 2006-2007.

4. Government issued notification, aforesaid, proposing to acquire land for public purpose
namely "Planned Industrial Development" through UPSIDC at Gautambudh Nagar, though
Society's land has already been utilised for industrial development by running professional,
technical and educational institutions.

5. Acquisition proceedings have been challenged on the ground that dispensation of inquiry
under Section 5A is wholly arbitrary inasmuch as there is no urgency whatsoever, hence Section
5A has been illegally dispensed with. Denial of opportunity to file objections by land owners is
illegal and there is no material to demonstrate that there existed such an urgency so as to justify
dispensation of inquiry under Section 5A of Act, 1894.

6. UPSIDC is a company owned by State of U.P., hence provisions of Part VII of Act,
1894 are attracted but no inquiry under Land Acquisition (Companies) Rules, 1963 (hereinafter
referred to as 'Rules, 1963') has been carried out before issuing impugned notifications. Villages in
which proposed acquired land is situated, are part of New Okhala Industrial Development
Authority (hereinafter referred to as 'NOIDA'), a body constituted under U.P. Industrial
Development Act, 1976 (hereinafter referred to as ' Act, 1976') and no development of land etc. is
permissible without permission of such authority but no approval or permission of NOIDA has
been obtained.

7. Petitioner-Society has filed a supplementary affidavit sworn on 11th February, 2014
stating that earlier some documents were not available, hence the same could not be appended
along with writ petition. Now it has got, therefore, filing supplementary affidavit. Land in question
was acquired for the benefit of a private company i.e. "M/s Shiv Nadar Foundation". Proposal for
acquisition for benefit of respondent-4 was initiated by UPSIDC vide letter dated 10.06.2006.
Additional District Magistrate (Land Acquisition) [hereinafter referred to as 'ADM(LA)'] vide letter
dated 15.06.2006 required UPSIDC to deposit 10% tentative compensation and 10% acquisition
expenses. UPSIDC sent a letter dated 19.06.2006 asking details of demand. ADM(LA) vide letter
dated 26.08.2006 raised objection that proposal was not made in prescribed format. No report of
Land Selection Committee was appended. Purpose of acquisition was not mentioned and there are
7 All. Aakash Education Society Chithera Vs State Of U.P. & Ors.
811
other defects. UPSIDC vide letter dated 30.08.2006 replied that acquisition is proposed for benefit
of S.S.N. Educational and Charitable Trust who has selected the land. Again a letter dated
31.08.2006 was sent by ADM(LA) raising objections. Thereafter, Collector sent proposal vide
letter dated 10.11.2006 to State Government for issuance of notification under Sections 4(1) read
with 17(4) of Act, 1894. State Government deputed UPSIDC to take step for publication of
notification in two daily newspapers pursuant whereto, UPSIDC deputed Administrative Officer
and HCL company for taking steps for such publication vide letter dated 08.02.2007.

8. UPSIDC vide letter dated 16.04.2007 requested its Head Office to forward rehabilitation
amount against proposal of acquisition of land to Revenue Authorities. Rehabilitation amount was
remitted by UPSIDC to ADM(LA) vide letter dated 05.04.2007.

9. With respect to purchase of land in dispute, details have been given by petitioner society
in paragraph 18 to 26 of supplementary affidavit which are as under:

"18. That, the land of Khasra No.1040 area 0.1265 hectare has been purchased by
the petitioner vide sale deed dated 05.06.2006. for ready reference, a true copy of the sale deed
dated 05.06.2006 regarding Khasra No.1040 is being annexed herewith and marked as Annexure
No.SA-11 to this affidavit.

19. That, the land of Khasra No.1044 area 0.550 hectare has been gifted by the
original tenure holder vide registered gift deed dated 22.12.2003 and the name of petitioner has
been recorded in the revenue record vide order of Niab Tehsildar dated 27.10.2005. For ready
reference, a photostate copy of the Khatauni of Khasra No.1044 is being annexed herewith and
marked as Annexure No.SA-12 to this Affidavit.

20. That, the land of Khasra No.1049 has been purchased by two separate sale
deed dated 04.09.2006 and 03.02.2007 and the name of petitioner has been recorded in the
revenue record vide order of Niab Tehsildar dated 07.03.2008 and 22.03.2010. For ready
reference, a photostat copy of the Khatauni of Khasra No.1049 is being annexed herewith and
marked as Annexure No.SA-13 to this affidavit.

The aforesaid land of Khasra No.1040, 1044 and 1049 has been purchased prior
to publication of notification under Section 4(1) read with 17(4) of the Land Acquisition Act.

21. That, the part of the land of Khasra No.1040 area 0.1265 hectare was
purchased vide sale deed dated 18.07.2007 and name of petitioner has been mutated in revenue
record vide order of Naib Tehsildar dated 24.08.2007. For ready reference, a photostat copy of the
Khatauni of Khasra No.1040 is being annexed herewith and marked as Annexure No.SA-14 to this
affidavit.

22. That, the land of Khasra No.1041 area 0.2887 hectare has been purchased by
the petitioner vide sale deed dated 14.09.2007 and the name of petitioner has been recorded in the
812 INDIAN LAW REPORTS ALLAHABAD SERIES

revenue record vide order of Niab Tehsildar dated 01.10.2007. for ready reference, a photostat
copy of the Khatauni of Khasra No.1041 is being annexed herewith and marked as Annexure
No.SA-15 to this affidavit.

23. That, the land of Khasra No.1042 area 0.0380 hectare has been purchased by
the petitioner vide sale deed dated 14.09.2007 and the name of petitioner has been recorded in the
revenue record vide order of Niab Tehsildar dated 01.10.2007. For ready reference, a photostat
copy of the Khatauni of Khasra No.1042 is being annexed herewith and marked as Annexure
No.SA-16 to this affidavit.

24. That, the remaining part of the Khasra No.1044 has been purchased by
petitioner vide sale deed dated 01.09.2007 and the name of petitioner has been recorded in the
revenue record vide order of Niab Tehsildar dated 18.10.2007. For ready reference, a photostat
copy of the Khatauni of Khasra No.1044 is being annexed herewith and marked as Annexure
No.SA-17 to this affidavit.

25. That, the land of Khasra No. 1045 has been purchased by two separate sale
deed dated 14.11.2007 and 15.12.2007 and the name of petitioner has been recorded in the
revenue record vide order of Niab Tehsildar dated 26.12.2007 and 19.03.2008. For ready
reference, a photostat copy of the Khatauni of Khasra No.1045 are being annexed herewith and
marked as Annexure No.SA-18 collectively to this affidavit.

26. That, the land of Khasra No.1051 has been purchased by two separate sale
deed dated 22.09.2007 and 10.09.2007 and the name of petitioner has already been recorded in the
revenue record vide order of Naiab Tehsildar dated 01.11.2007 and 04.11.2007. For ready
reference, a photostat copy of the Khatauni of Khasra No.1051 are being annexed herewith and
marked as Annexure No.SA-19 collectively to this affidavit.

10. The main building of Pharmacy and Management Institution is situated at Plots
no.1046, 1047 and 1048. Building of B.Ed. and Physical Education is situated over Plot No.1049.
Play ground is situated over Plots no. 1040, 1041, 1042, 1044, 1045 and 1051. It is also pleaded
that in view of Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'Act, 2013'), acquisition
proceedings have lapsed.

11. Counter affidavit on behalf of UPSIDC (respondent 2) has been filed stating that
Collector satisfied himself with urgency of acquisition of land and issued certificate in this regard
and forwarded to Board of Revenue along with letter dated 29th September, 2006. Notices under
Section 9 of Act, 1894 were issued to land owners and thereafter possession of acquired land was
taken on 13.12.2007. Most land owners have received compensation under U.P. Land Acquisition
(Determination of Compensation and Declaration of Award by Agreement) Rules, 1997
(hereinafter referred to as 'Rules, 1997') on the basis of compromise. At the time of publication of
acquisition notifications, name of petitioner was not found recorded in revenue record. Only on
7 All. Aakash Education Society Chithera Vs State Of U.P. & Ors.
813
Khasra No. 1040, Dhanpal and others had two borings and one Rahta Tree. On Khasra No.1045,
Sri Ram Prasad and others have borings. On Khasra No. 1051, Sri Kishnu, Khacheru, Mukut, Vijai
Pal and others have boundary wall measuring 5 x 2 x 1 metre high, 30 x 200 x 9 feet high, 60 x100
x 9 feet, 60 x 14 x 9 feet high for construction of shop, boundary wall measuring 4.60 x 100 x 9
feet high was existing and there was 5 feet soil digging in 1.719 hectare as per possession
certificate dated 13.12.2007. No institution existed on disputed land till date of possession. Hence
question of running such institution at that time does not arise. At the time of possession, plots in
dispute were vacant and still are lying vacant. Notifications were published in two daily
newspapers "Vartman Satta" and "Dainik Yatharth" on 11.05.2007 and 10.05.2007 respectively.
Greater New Okhla Industrial Development Authority (hereinafter referred to as 'GNOIDA') has
also issued certificate on 30.05.2006 stating that acquired land is outside notified area of GNOIDA.

12. UPSIDC is government owned Corporation and not a private company. Part VII of Act,
1894 is not attracted in the present case. Writ petition has been filed with lot of delay and laches
without explaining the same and for this reason also petition deserves to fail.

13. Rejoinder Affidavit, sworn by Sri Vijendra Singh Bhati on 06.09.2009, has been filed
by petitioner society stating that though relevant facts have not been disclosed by respondents but it
has come to know that prior to acquisition notifications in question, UPSIDC issued a letter dated
19.06.2006 to a private company namely "M/s Shiv Nadar Foundation Charitable Trust" requiring
it to deposit Rs. 6,14,98,829/- towards 10% of compensation amount of total proposed acquired
land for establishing "S.S.N. Educational and Charitable Trust" for which UPSIDC proposed to
acquire 87.193 hectare of land in village Chithera. The said amount was paid by aforesaid company
namely "M/s Shiv Nadar Foundation Charitable Trust" (respondent 4) vide cheque dated 6th July,
2006 in the name of UPSIDC. UPSIDC also entered into an agreement on 8th September, 2008
with respondent-4 allocating entire land acquired by acquisition notifications in question. The
agreement shows that an application was submitted by respondent-4 on 12.06.2006 requesting to
acquire/allot land which was accepted by UPSIDC and pursuant thereto 293.292 acres of land
(215.592 acres private land and 77.70 acres of Gram Sabha land) was allotted to respondent-4, who
had deposited a total sum of Rs. 1,04,28,52,440.00 towards provisional premium of land with
overhead charges. Balance, if any, would be intimated by UPSIDC later on. Petitioner has not
received compensation of land in question and if compensation has been received by some other
tenure holders that would not debar petitioner from challenging validity of impugned notifications.
Land was actually proposed to acquire for a private individual in the garb of public purpose by
dispensing with urgency clause which shows that total illegal mode has been adopted by
respondents in acquisition of disputed land.

14. Respondents 1 and 3 have filed a supplementary counter affidavit sworn by Sri Shishir,
ADM(LA), Gautam Budh Nagar on 19th May, 2014. It is stated therein that UPSIDC vide letter
dated 10th May, 2006 sent a proposal for acquisition of 216.1952 acres land in village Chithera for
establishment of "S.S.N Educational and Charitable Trust" through UPSIDC.
814 INDIAN LAW REPORTS ALLAHABAD SERIES

15. With regard to acquired land of petitioner society, respondents 1 and 3 have given
details of dates on which land has been purchased by petitioner society are as under:

Sl.
No.
Khasra
no.
Area (in
hectare)
Date of sale deed
Date of Mutation
1
1049
0.1873
04.09.2006
 03.02.2007
07.03.2008
22.03.2010
2
1040
0.1265
18.07.2007
24.08.2007
3
1041
0.2887
14.09.2007
01.10.2007
4
1042
0.0380
14.09.2007
01.10.2007
5
1044
1.3517
01.09.2007
18.10.2007
6
1045
0.1897
0.0843
14.12.2007
15.12.2007
26.12.2007
19.03.2008
7
1051
0.2108
0.1265
22.07.2007
 10.09.2007
01.11.2007
04.11.2007

16. It is said that most sale deeds having been executed after provisional notification,
petitioner society being a subsequent purchaser, has no right to challenge acquisition proceedings
in respect to said land. Out of total 87.249 hectare of land most tenure holders have received
compensation under Rules, 1997 and in respect of remaining land, ADM(LA) has made award on
23.11.2011. It is reiterated that acquisition has been made for the purpose of establishment of
"S.S.N Educational and Charitable Trust" through UPSIDC. Respondent- 4 (M/s Shiv Nadar
Foundation) is not a private company but a charitable trust which imparts education. Education is a
public purpose and in consonance with Industrial and Service Sector Investment Policy, 2004
framed by State of U.P. in 2004. Acquisition proposal was not initiated by Collector but it was
done by UPSIDC through its letter dated 10.05.2006. Allegations of colourable exercise of power
are denied.

17. A supplementary rejoinder affidavit sworn on 6th July, 2014 has also been filed,
wherein besides others it is also said that tenure holders who are alleged to have received
compensation under agreement have mostly challenged acquisition in various writ petitions.

18. On behalf of respondent- 4, a counter affidavit has been filed separately, stating that
petitioner has concealed the fact that compensation for land comprising Khasra No. 1051, 1106,
1209, has been accepted by petitioner. It has also given a chart in paragraph 4 stating that land
comprising Khasra Nos. 1040, 1041, 1051, 1042, 1044, 1045, 1049 has been purchased after
7 All. Aakash Education Society Chithera Vs State Of U.P. & Ors.
815
publication of provisional notification under Section 4 (1) of Act, 1894. Further acquired land has
been transferred by Collector to UPSIDC on 13.07.2008. The land on which petitioner's institution
is running, is excluded from acquisition. Challenge, in fact, pertains to adjacent land which was
acquired by petitioner mostly, after acquisition proceedings were initiated and provisional
notification under Section 4(1) was published. The allotment of land by UPSIDC to respondent- 4
on 8th September, 2008 is not disputed. Respondent-4 is a registered public charitable trust
established with the object of imparting high standard education to public at large. The State
Legislature enacted Shiv Nadar University Uttar Pradesh Act, 2011(hereinafter referred to as 'U.P.
Act, 2011') (U.P. Act No.12 of 2011) notified in gazette on 6th April, 2011. Shiv Nadar University
is an independent institution for providing multi-faceted higher education, learning and research in
State of Uttar Pradesh. University has also been allowed to commence function for academic
session 2011 vide State Government's letter dated 18th April, 2011. University has been established
on lease land. University Grant Commission has also notified Shiv Nadar Foundation as an
accredited University and All India Council of Technical Education has granted approval to
University. Entire geography and topography and use of land has irreversibly changed and third
party interest has been created. Acquisition proceedings were initiated by State of U.P. for benefit
of UPSIDC for "Planned Development" which includes establishment of University also. Rate of
compensation payable to farmers was fixed by consensus and determined at Rs.850/- per sq. meter
instead of prevailing rate of Rs.250/- per sq. meter. Respondent-4 has already undertaken several
developmental activities like construction of road, drainage, street lights etc. There already existed
now a functional University with huge construction and infrastructure etc.

19. In rejoinder affidavit filed in reply to counter affidavit of respondent-4, petitioner has
stated that present writ petition has nothing to do with land under Khasra nos. 1096, 1106 and
1209. On other aspect, it has reiterated what it has said in writ petition.

20. There is another Supplementary Counter Affidavit sworn by Sri V.K. Singh, Manager
Law, UPSIDC in reply to supplementary affidavit, wherein facts stated are similar to
supplementary counter affidavit filed on behalf of respondent-3 and same is the position to
supplementary rejoinder affidavit, therefore we are not repeating the same.

21. Sri K.R. Sirohi, learned Senior Advocate appearing on behalf of petitioner society
contended that land in question has been acquired for the benefit of a private body but neither any
inquiry as contemplated under Rule 4 of Rules, 1963 has been conducted nor procedure under Part
VII has been followed. He further submitted that dispensation of inquiry under Section 5A is
founded on no material and in fact it is just in a mechanical manner without any justification, and
therefore exercise of power under Section 17(4) to dispense with inquiry under Section 5A is
patently illegal.

22. Learned Standing Counsel appearing on behalf of State and Sri Navin Sinha, learned
Senior Counsel appearing for respondent- 4 contended that land has been acquired for public
purpose of establishing an educational institution which was to be developed through UPSIDC.
Collector having satisfied with urgency of matter made its recommendation, therefore, dispensation
816 INDIAN LAW REPORTS ALLAHABAD SERIES

of inquiry under Section 5A is just, valid and in accordance with law. He further submitted that
petitioner basically is a subsequent purchaser in respect of major part of disputed land and hence
has no right to challenge acquisition proceedings. Further in most of the matters compensation
without any objection, in fact, under the agreement, has been accepted by tenure holders. There are
subsequent developments on land in question hence no interference would be justified by this Court
in writ jurisdiction under Article 226 of Constitution of India.

23. Authorities relied by parties are common and we shall discuss the same while
discussing the relevant issues.

24. The first question is about land comprising plots which have been acquired by
petitioner society after notification under Section 4(1) was published. The notification dated
19.01.2007 was also published in newspapers on 10th May, 2007 and 11th May, 2007. Following
land said to have been acquired by petitioner vide sale deeds executed after notification dated
19.01.2007.

Sl.
No.
Plot No.
Area (in acre)
Date of sale deed/ gift deed
1
1040
0.3125
18.07.2007
2
1041
0.7135
14.09.2007
3
1042
0.0939
14.09.2007
4
1044
1.3517
01.09.2007
5
1045
0.4688
14.12.2007
6
1045
0.2083
15.12.2007
7
1049
0.1873
03.02.2007
8
1051
0.3126
22.07.2007
9
1051
0.5209
10.09.2007

25. The question in relation to above mentioned land, need be considered by this Court is,
"whether petitioner, who is subsequent purchaser can challenge acquisition proceedings after a
declaration is made under Section 4(1) of Act, 1894".

26. This question came to be considered before Supreme Court in U.P. Jal Nigam Vs.
Kalra Properties Pvt. Ltd. 1996 (3) SCC 124 where it observed in para 3 of judgment, as under:
7 All. Aakash Education Society Chithera Vs State Of U.P. & Ors.
817
"3. ... It is well-settled law that after the notification under Section 4(1) is
published in the gazette any encumbrance created by the owner does not bind the Government
and the purchaser does not acquire any title to the property."

27. In Sneh Prabha Vs. State of U.P. 1996 (7) SCC 426, Court said:

"5. .... It is settled law that any person who purchases land after publication of the
notification under Section 4(1), does so at his/her own peril. The object of publication of the
notification under Section 4(1) is notice to everyone that the land is needed or is likely to be needed
for public purpose and the acquisition proceedings point out an impediment to anyone to encumber
the land acquired thereunder. It authorises the designated officer to enter upon the land to do
preliminaries etc. Therefore, any alienation of land after the publication of the notification under
Section 4(1) does not bind the Government or the beneficiary under the acquisition. On taking
possession of the land, all rights, titles and interests in land stand vested in the State, under Section
16 of the Act, free from all encumbrances and thereby absolute title in the land is acquired
thereunder."

28. In Ajay Krishan Shinghal etc. Vs. Union of India and others 1996 (10) SCC 721,
Court in para 13 of judgment referring to its earlier decisions in State of U.P. Vs. Smt. Pista Devi
and others AIR 1986 SC 2025; Gian Chand Vs. Gopala and others 1995 (2) SCC 528;
Mahavir and Anr. Vs. Rural Institute, Amravati and another 1995 (5) SCC 335 and Laxmi
Engineering Works Vs. P.S.G. Industrial Institute 1995 (3) SCC 583, and held that it is a settled
proposition that after Notification under Section 6 is published, property under acquisition cannot
be transferred and any such transaction is void. The subsequent purchaser at the best can only claim
compensation of acquired land claiming interest in land which his predecessor-in-title had.

29. In Star Wire (India) Ltd. Vs. State of Haryana and others 1996 (11) SCC 698,
Court reiterated the aforesaid exposition of law.

30. The aforesaid authorities were followed in Meera Sahni Vs. Lieutenant Governor of
Delhi and others 2008 (9) SCC 177 and in para 21 of judgment, Court said as under:

"21. In view of the aforesaid decisions it is by now well settled law that under the
Land Acquisition Act the subsequent purchaser cannot challenge the acquisition proceedings and
that he would be only entitled to get the compensation."

31. The above decision in Meera Sahni vs. Lieutenant Governor of Delhi (supra) was
followed in Bangalore Development Authority vs. Vijaya Leasing Ltd. 2013 (14) SCC 737.

32. In Pandit Leela Ram vs. Union of India AIR 1975 SC 2112, Court said that "any one
who deals with the land subsequent to a Section 4 notification being issued, does so, at his own
peril".
818 INDIAN LAW REPORTS ALLAHABAD SERIES

33. In V. Chandrasekaran and another vs. Administrative Officer and others, (2012)
12 SCC 133, Court after referring to the aforesaid authorities summarised its conclusion, as under;

"In view of the above, the law on the issue can be summarised to the effect that a
person who purchases land subsequent to the issuance of a section 4 notification with respect to
it, is not competent to challenge the validity of the acquisition proceedings on any ground
whatsoever, for the reason that the sale deed executed in his favour does not confer upon him, any
title and at the most he can claim compensation on the basis of his vendor's title."
(emphasis added)

34. When confronted with aforesaid exposition of law, learned counsel for petitioner could
neither dispute the same, nor could place any authoritative precedent binding on this Court so as to
pursue us to take an otherwise view in the matter. Hence, in respect of above mentioned land, it is
not necessary to examine whether Notification under Section 6(1) of Act, 1894 is valid or not since
petitioner lacks locus standi to challenge acquisition proceedings. In view of exposition of law
discussed above and considering the fact that petitioner is subsequent purchaser of land mentioned
in paragraph no.24 has no locus standi to challenge acquisition proceedings in respect thereof and
to this extent, in our view, this writ petition deserves to fail.

35. Now we come to the question of dispensation of inquiry under Section 5A by invoking
power under Section 17(4). This issue will be relevant only in respect to Plots no. 1040 area 0.1265
acre, 1044 area .0550 acre and 1049 area 0.4430 acre which came to be possessed by petitioner
vide sale/ gift deeds dated 05.06.2006, 22.12.2003 and 04.09.2006, respectively. Submission is that
there is no material on record to show existence of circumstances justifying urgency so as to
dispense with inquiry under Section 5A.

36. Section 5-A was inserted in Act, 1894 as long back as in 1923, by Act No. 38 of 1923.
There are minor amendments made subsequently but substance of provision has remained the
same.

37. Normal procedure of acquisition is that a proposal of acquisition is published in
notification under Section 4 of Act, 1894. Land owners whose land is proposed to be acquired, are
given an opportunity to make their objections. Collector is under an obligation to consider
objections and also offer an opportunity of hearing to objectors and thereafter submit a report to
Government containing his recommendations on the objections, for decision of Government. After
considering the report and other material, Government makes declaration that land is proposed to
be acquired for public purpose and this is done by publication of notification under Section 6.
Therefore, there is possibility of some difference in details of land stated in the notification issued
under Section 4 and finally declared land, as acquired for public purpose, detailed in notification
under Section 6.

38. Collector is then authorised to take order for acquisition and under Section 8 is
supposed to mark, measure and plan the acquired land. A notice thereafter is issued under Section 9
7 All. Aakash Education Society Chithera Vs State Of U.P. & Ors.
819
to Land Owners by Collector notifying his intention of taking possession of land and that the claim
for compensation be submitted to him. Under Section 11, Collector makes enquiry for determining
amount of compensation payable to land owners, whose land has been acquired, and makes award.
After payment of compensation, Collector takes possession of land.

39. There is an exception to normal procedure of taking possession which is contained in
Section 17 of Act 1894. It says that in case of urgency, even though no award has been made,
Government can direct Collector to take possession of any land, needed for public purpose, and on
such possession being taken by Collector, land shall vest absolutely with the Government free from
all encumbrances. Section 17(4) provides, where such urgency for the purpose of possession is to
be acted upon, Government, shall declare that provision of Section 5-A shall not apply.

40. Dispensation of inquiry under Section 5A has not been held valid as a matter of routine
but it has been held time and again that power should be exercised whenever it is necessary and
urgency actually exist.

41. The circumstances, when Government would be justified to dispense with enquiry
under Section 5-A while invoking urgency clause under Section 17, for the purpose of taking
possession, have been considered in a catena of decisions in last several decades and it would be
useful to refer some relevant authorities in this regard.

42. Right to file objection against proposal of acquisition of land published under Section 4
is a substantial right, consistent with principles of natural justice, since forcible acquisition of land,
without consent of land owners, is a serious matter.

43. In Nandeshwar Prasad vs. U.P. Government AIR 1964 SC 1217, Court said "the
right to file objection under Section 5-A is a substantial right when a person's property is being
threatened with acquisition and we cannot accept that that right can be taken away as if by a side
wind".

44. In Munshi Singh and others vs. Union of India (1973) 2 SCC 337, which is a
decision of three judges bench, Court stressed upon and emphasized upon an inbuilt legislative
recognition of principles of natural justice in Section 5-A and said "Sub-section (2) of Section 5-A
makes it obligatory on the Collector to give an objector an opportunity of being heard. After
hearing all objections and making further inquiry he is to make a report to the appropriate
Government containing his recommendation on the objections. ........ The legislature has, therefore,
made complete provisions for the persons interested to file objections against the proposed
acquisition and for the disposal of their objections. It is only in cases of urgency that special
powers have been conferred on the appropriate Government to dispense with the provisions of
Section 5-A".

45. In State of Punjab vs. Gurnail Singh and others 1980 (1) SCC 471, it was held that
it is fundamental that compulsory taking of a man's property is a serious matter and smaller the
820 INDIAN LAW REPORTS ALLAHABAD SERIES

man, more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness. Denial of this administrative fairness is constitutional anathema except for
good reasons. Save in real urgency where public interest does not brook even the minimum time
needed to give a hearing, land acquisition authorities should not, having regard to Articles 14,
burke an enquiry under Section 17 of Act, 1894. A slumbering process, pending for years and
suddenly exciting itself into immediate forcible taking, makes travesty of emergency power.

46. In Shyam Nandan Prasad and others vs. State of Bihar and others (1993) 4 SCC
255 reiterating that section 5-A is mandatory, Court said "the proceeding before the Collector is a
blend of public and individual enquiry".

47. In Union of India and others vs. Mukesh Hans (2004) 8 SCC 14, Court held that
Section 17(4) is an exception to normal mode of acquisition. Mere existence of urgency or
unforeseen emergency by itself is not sufficient to direct for dispensation of Section 5-A. Court
reiterated that there must be real existing emergency for which an opinion must be formed by the
Government, objectively. Court said "It requires an opinion to be formed by concerned government
that along with existence of such urgency or unforeseen emergency there is also a need for
dispensing with Section 5-A enquiry, which indicates that the legislature intended that the
appropriate government to apply its mind before dispensing with Section 5-A enquiry. It also
indicates the mere existence of an urgency under Section 17 (1) or unforeseen emergency under
Section 17 (2) would not by itself be sufficient for dispensing with Section 5-A enquiry. If that was
not the intention of the legislature then the latter part of sub-section (4) of Section 17 would not
have been necessary and the legislature in Section 17 (1) and (2) itself could have incorporated
that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A
enquiry will be dispensed with, but then that is not language of the Section which, in our opinion,
requires the appropriate Government to further consider the need for dispensing with Section 5-A
enquiry in spite of the existence of unforeseen emergency.