# Kamal Sharma v. State of U.P. & Ors

- **Citation:** (2023) 8 ILRA 548
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-26
- **Case number:** Writ - C No. 26767 of 2010
- **Bench:** Mrs. Sunita Agarwal, Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamal-sharma-v-state-of-u-p-ors-50690
- **Pages:** 95

## Headnote

C.S.C., Sri Pranjal Mehrotra, Sri Ramendra
Pratap
Singh,
Sri
Suresh
Singh,
Sri
Kamaljeet
Singh,
Sri
Aditya
Bhushan
Singhal, Sri Shashi Prakash Rai, Sri Manish
Goyal (Sr. Advocate)

(A) Civil Law - The Land Acquisition Act,
1894 - Sections 4, 6, 5-A & 17(1), The
Right
to
Fair
Compensation
and
Transparency
in
Land
Acquisition,
Rehabilitation and Resettlement Act, 2013
- Section 24(1)(a) ,Constitution of India,
1950 - Article 13(3)(a) , 14, 19 , 21 , 31,
31-A, 31-C , 39(b) & (C) , 300-A , Article
226 - power of judicial review - objective
assessment - subjective consideration -
cases where the order is based on
subjective satisfaction, consideration of
irrelevant
or
non-existent
material
becomes fatal and vitiates the order itself
.(Para -148,149)

Acquisition of lands of nine villages - initiated
by State Government - under Land Acquisition
Act - notifications published under Section 4
and 6 read with Section 17(1) and (4) of the
Act - quashing of acquisition notifications -
purpose
of
acquisition
-

'planned
development through Yamuna Expressway
Industrial Development Authority' - ground of
challenge - invocation of urgency clause to
dispense with enquiry under Section 5-A of
the Act' - denial of opportunity of hearing to
tenure holders/land holders - resulted in
deprivation of valuable rights of tenure
holders/land holders - exercise of acquisition
arbitrary and illegal.(Para -2,3,4)

HELD:-No infirmity in the acquisition process.
Invocation of urgency under Section 17(4) for
dispensation of enquiry under Section 5-A of the
Land Acquisition Act, 1894 is not fatal to the
acquisitions-in-question.
Turned
down
the
challenge to the acquisition notifications under
Sections 4 and 6 of the Land Acquisition Act,
1894 read with Section 17(1) and (4) of the
Land Acquisition Act, 1894.(Para -229)

Petitions dismissed. (E-7)

List of Cases cited:-
8 All. Kamal Sharma Vs. State of U.P. & Ors.
549

## Text

_Characters 0–39,828 of 300,417. This is a partial read: ask again with offset=39828 for what follows._

548 INDIAN LAW REPORTS ALLAHABAD SERIES
the interplay of these enactments has been
necessitated in the facts and circumstances
of the present case.

42. The impugned order passed by the
appellate court dated 28.02.2023 is based
on cogent reasons and deserves no
interference
under
the
facts
and
circumstances of the case. The defendantrespondents are entitled to maintain the
boundary wall of Ark City in accordance
with
the
plan
sanctioned
by
the
Development Authority.

43. In view of the facts and
circumstances
mentioned
above,
the
impugned order of the appellate court dated
28.02.2023 calls for no interference in this
petition.

44. This petition is, accordingly,
dismissed.
----------
(2023) 8 ILRA 548
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2023

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Writ - C No. 26767 of 2010
Alongwith other connected cases

Kamal Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri K.M. Misra, Sri P.K. Chaurasia, Sri Anil
Kumar Shukla, Sri Prem Chandra Saroj, Ms.
Sarita Jhingan Shukla, Sri Anil Kumar
Mehrotra, Sri Pankaj Dubey

Counsel for the Respondents:
C.S.C., Sri Pranjal Mehrotra, Sri Ramendra
Pratap
Singh,
Sri
Suresh
Singh,
Sri
Kamaljeet
Singh,
Sri
Aditya
Bhushan
Singhal, Sri Shashi Prakash Rai, Sri Manish
Goyal (Sr. Advocate)

(A) Civil Law - The Land Acquisition Act,
1894 - Sections 4, 6, 5-A & 17(1), The
Right
to
Fair
Compensation
and
Transparency
in
Land
Acquisition,
Rehabilitation and Resettlement Act, 2013
- Section 24(1)(a) ,Constitution of India,
1950 - Article 13(3)(a) , 14, 19 , 21 , 31,
31-A, 31-C , 39(b) & (C) , 300-A , Article
226 - power of judicial review - objective
assessment - subjective consideration -
cases where the order is based on
subjective satisfaction, consideration of
irrelevant
or
non-existent
material
becomes fatal and vitiates the order itself
.(Para -148,149)

Acquisition of lands of nine villages - initiated
by State Government - under Land Acquisition
Act - notifications published under Section 4
and 6 read with Section 17(1) and (4) of the
Act - quashing of acquisition notifications -
purpose
of
acquisition
-

'planned
development through Yamuna Expressway
Industrial Development Authority' - ground of
challenge - invocation of urgency clause to
dispense with enquiry under Section 5-A of
the Act' - denial of opportunity of hearing to
tenure holders/land holders - resulted in
deprivation of valuable rights of tenure
holders/land holders - exercise of acquisition
arbitrary and illegal.(Para -2,3,4)

HELD:-No infirmity in the acquisition process.
Invocation of urgency under Section 17(4) for
dispensation of enquiry under Section 5-A of the
Land Acquisition Act, 1894 is not fatal to the
acquisitions-in-question.
Turned
down
the
challenge to the acquisition notifications under
Sections 4 and 6 of the Land Acquisition Act,
1894 read with Section 17(1) and (4) of the
Land Acquisition Act, 1894.(Para -229)

Petitions dismissed. (E-7)

List of Cases cited:-
8 All. Kamal Sharma Vs. State of U.P. & Ors.
549
1. Radhy Shyam (D) Thr. Lrs & ors. Vs St. Of
U.P. & ors, 2011(5) SCC 553

2. Dev Sharan & ors. Vs St. of U.P. & ors., 2011
(4) SCC 769

3. H.P.C.L. Vs Darius Shahpur Chennai & ors. ,
2005 (7) SCC 627

4. Devendra Kumar Tyagi Vs St. of U.P., (2011)
9SCC 164

5. Devendra Singh & ors. Vs St. of U.P. & ors ,
2011 (9) SCC 551

6. Darshan Lal Nagpal & ors. Vs Govt.Of Nct Of
Delhi & ors , 2012 (2) SCC 327

7. Narayan Govind Gavate Vs St. of Maha., 1977
(1) SCC 133

8. Anand Singh Vs St. of U.P. , 2010 (11) SCC
242

9. Hamid Ali Khan (D) Thr. Lrs. Vs St. Of U.P &
ors. , 2021 SCC Online SC 1115

10. Ram Singh & anr. Vs St. of U.P. & ors. ,
2012 (3) ADJ 588

11. Shyoraj Singh & ors. Vs St. of U.P. & ors.
,2017 (Sup) ADJ 558

12. Greater Noida Vs Devendra Kumar & ors. ,
2011(6) ADJ 480

13. Rajeev & ors. Vs St. of U.P. , 2019 (9) ADJ
621

14. Munshi Singh Vs U.O.I. & ors. , AIR 1973
SC 1150

15. Nand Kishore Gupta & ors. Vs St. of U.P. &
ors.,Writ Petition No. 31314 of 2009

16. Balbir Singh Vs St. of U.P. & ors., Writ
Petition No. 48978 of 2008

17. Nand Kishore Gupta Vs St. of U.P. & ors. ,
2010 (10) SCC 282

18. Narendra Road lines Ltd. Vs St. of U.P. &
ors. , 2010 (7) ADJ 329
19. Kedarnath Yadav case , 2017 (11) SCC 601

20. Dharmendra & ors. Vs St. of U.P. & ors. ,
PIL No. 40484 of 2012

21. M.D.J.M.I.R.C. Vs Lieutenant Governor,
Delhi & ors. , 2017 (13) SCC 458

22. Smt. Manju Lata Agarwala Vs St. of U.P. ,
2007 (9) ADJ 447

23. Smt. Varsha Lakhmani Vs Hitesh Wadhva ,
2008 SCC online ALL 249

24. I.D.A. Vs Manoharlal & ors. , AIR 2020 SC 1496

25. St. of Karn & anr. etc. Vs Ranganatha
Reddy & anr. etc. , AIR 1978 SC 215

26. S.C.M.C. Vs M/s B.C.C.L. & anr., (1983)
1SCC 147

27. St. of T.N. & ors. Vs L. Abu Kavur Bai &
ors. , (1984) 1 SCC 515

28. St. of Maha. & anr. Vs Basantibai Mohanlal
Khetan & ors. , (1986) 2 SCC 516

29. Anand Singh & anr. Vs St. of U.P. & ors. ,
(2010) 11 SCC 242

30. Delhi Administration Vs Gurdip Singh Uban
& ors. , (2000) 7 SCC 296

31. Nandeshwar Prasad Vs St. of U.P. , AIR
1964 SC 1217

32. Munshi Singh & ors. Vs U.O.I. , (1973) 2 SCC 337

33. U.O.I. & ors. Vs Mukesh Hans, etc. , 2004
(8) SCC 14

34. H.P.C.L. Vs Darius Shapur Chenai & ors.,
AIR 2005 SC 3520

35. P.T. Munichikkanna Reddy Vs Revamma
,(2007) 6 SCC 59

36. St. of Haryana Vs Mukesh Kumar & ors.
,(2011) 10 SCC 404

37. Babu Ram & anr. Vs St. of Har. & anr.
,(2009) 10 SCC 115
550 INDIAN LAW REPORTS ALLAHABAD SERIES
38. Om Prakash & anr. Vs St. of U.P. & ors.
,(1998) 6 SCC 1

39. St. of Punj. & anr. Vs Gurdial Singh & ors. ,
(1980) 2 SCC 471

40. U.O.I. & ors. Vs Praveen Gupta & ors., AIR
1997 SC 170

41. Rajasthan Housing Board & ors. Vs Shri
Kishan & ors. , (1993) 2 SCC 84

42. A.P. Sareen & ors. Vs St. of U.P. & ors. ,
(1997) 9 SCC 359

43. Smt. Manju Lata Agrawal Vs St. of U.P. &
ors. , 2007 (9) ADJ 447 (DB)

44. Sudhir Chandra Agarwala Vs St. of U.P. &
ors. , 2008 SCC Online All 246

45. U.O.I. & ors. Vs Krishan Lal Arneja & ors. ,
AIR 2004 SC 3582

46. First Land Acquisition Collector & ors. Vs
Nirodhi Prakash Gangoli & anr. , AIR 2002 SC
1314

47. Deepak Pahwa Vs Lt. Governor of Delhi &
ors. , AIR 1984 SC 1721

48. Radhy Shyam (Dead) Through LRs. & ors.
Vs St. of U. P. & ors. , (2011) 5 SCC 553

49. Tika Ram & ors. Vs St. of U.P. & ors. ,
(2009) 10 SCC 689

50. M.D.J.M.I.R.C. Vs Lieutenant Governor,
Delhi & ors. , (2017) 13 SCC 458

51. Shyoraj Singh & ors. Vs St. of U.P. & ors. ,
Writ-C No. 30747 of 2010

52. S.I.C.C.L. & ors. Vs St. of U.P. & ors. ,
(2017) 11 SCC 339

53. H.S.I.I.D.C.L. & ors. Vs Mr. Deepak
Aggarwal
&
ors.,
[SLP(C)
No.1663116632/2018]

54. U.O. I. & anr. Vs Mohiuddin Masood & ors. ,
(2020) 14 SCC 760
(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Sri P.K. Chaurasia,
Sri Anil Kumar Shukla, Sri Prem
Chandra Saroj, Ms. Sarita Jhingan
Shukla, Sri Anil Kumar Mehrotra,
Sri Pankaj Dubey. No other counsel
has appeared to argue on behalf of
the petitioners in this Bunch. Sri
Manish
Goyal,
learned
Senior
Advocate assisted by Sri Kamaljeet
Singh, Sri Suresh Singh, Sri Aditya
Bhushan Singhal, Sri Shashi Prakash
Rai has made his submissions on
behalf
of
Yamuna
Expressway
Industrial Development Authority.
Sri
Ajit
Kumar
Singh,
learned
Additional
Advocate
General
assisted
by
Sri
Sudhanshu
Srivastava, learned Additional Chief
Standing Counsel, Sri Amit Verma,
Sri Apurva Hajela and Sri D.K.
Mishra, learned Standing Counsels
for
the
State
respondents
has
adopted the arguments of Sri Manish
Goyal,
learned
Senior
Advocate
appearing
for
the
Yamuna
Expressway Industrial Development
Authority.

2. The present bunch of writ
petitions
are
arising
out
of
the
acquisition proceedings initiated by
the State Government under the Land
Acquisition Act' 1894 (hereinafter
referred
as
the
Act'
1894)
for
acquisition of lands of nine villages
vide
acquisition
notifications
published under Section 4 and 6 read
with Section 17(1) and (4) of the Act'
1894. A bird's eye view of the status
of acquisition of lands of nine villages
in tabulation form is as under:-
8 All. Kamal Sharma Vs. State of U.P. & Ors.
551

I. The Challenge:-

3. The writ petitions have been filed
with the main relief of quashing of the
acquisition
notifications
issued
under
Section 4 and 6 read with Section 17(1) and
(4) of the Act' 1894 and the main ground of
challenge is the invocation of urgency
clause to dispense with the enquiry under
Section 5-A of the Act' 1894.

4. Amongst various grounds raised in
the writ petitions, only issue pressed before
us by the learned counsels for the
petitioners
was
that
there
was
no
justification with the State Government for
invocation of urgency clause and denial of
opportunity of hearing to the tenure holders
had resulted in deprivation of valuable
rights of the tenure holders, which makes
the entire exercise of acquisition arbitrary
and illegal. The purpose of acquisition as
stated in the notifications under challenge
was 'planned development through Yamuna
Expressway
Industrial
Development
Authority', for which urgency clause cannot
be invoked in view of the law laid down by
the Apex Court in the case of Radhy
Shyam(D) Thr. Lrs & Ors vs State Of
U.P.& Ors1.

5. The question, thus, is as to whether
the invocation of urgency clause by the
State Government, in the facts and
circumstances of the instant writ petition,
was an illegal exercise. In an effort to
answer this question, we have conducted
the hearing village wise and heard learned
counsels for the parties on the facts of the
acquisition of each village and also perused
the original record produced by the State
village-wise
for
each
acquisition
notification, so as to examine as to whether
the exercise of power on the part of the
State Government was such which would
require interference in exercise of the
power of judicial review under Article 226
of the Constitution of India.

6. At the outset, it may be noted that
the dispossession of the petitioners from
the acquired land had been stayed by this
Court at the time of admission while
calling for the counter affidavit. Under
various interim orders passed by this
Court in the writ petitions in this bunch,
parties were directed to maintain statusquo. One such order dated 12.05.2010 in
Writ-C No. 26767 of 2010 is noted
hereinunder:-

"Notices on behalf of respondent
no.1,2 and 3 have been accepted by the
learned standing counsel and behalf of
respondent no. 4 by Sri R.P.Singh learned
counsel for the respondents.
552 INDIAN LAW REPORTS ALLAHABAD SERIES

Let counter affidavit be filed
within a period of two weeks.

List thereafter.

In the meantime parties shall
maintain status quo."

7. The interim order dated 28.09.2011
in Writ C no. 56629 of 2011 is also
reproduced hereinunder:-

"Issue notice pending admission.

Notice on behalf of respondent
nos. 1 and 2 has been accepted by learned
Standing Counsel. Notice on behalf of
respondent no. 3 has been accepted by Sri
Suresh Singh, learned counsel for the said
respondent. Therefore, no notice need to be
sent to the respondents.

Counter affidavit on behalf of
respondents may be filed within four weeks.
Rejoinder affidavit may be filed within
three weeks thereafter.

List before appropriate Bench
after expiry of the aforesaid period.

Heard on the question of grant of
interim relief.

Having regard to the facts and
circumstances of the case and having
considered the submissions made by
learned counsel for the parties, we direct
that till the next date of listing, the parties
shall maintain status quo as of the date in
respect of nature and possession of the
property in question."

II. The arguments of the counsels
for the petitioners:-

8. Sri P.K. Chaurasiya and Sri Pankaj
Dubey learned Counsels appearing for the
petitioners in the bunch of writ petition
relating to acquisition notification of
Village Pachokra have extended arguments
on behalf of the writ petitioners.

9. It was argued by the learned
counsels appearing for the petitioners that
there was no occasion for the State
Government to invoke the urgency clause
under Section 17 (1) of the Act to dispense
with the enquiry under Section 5-A of the
Act' 1894, in as much as, the acquisition
notifications for Village Pachokra were
dated 26.02.2009 and 19.02.2010 under
Section 4 and 6 of the Act' 1894. The
above dates themselves demonstrate that
about one year time was taken for issuance
of the declaration notification after the
proposal under Section 4 of the Act was
published. There was both pre and post
notification delay which is to be taken into
account to examine as to whether there was
any justification to deprive the tenure
holders of their right to file objection
against the acquisition of their lands. Only
30 days time from the date of the
publication of Section 4 notification is
provided under the Act' 1894 to file
objection to the acquisition and when the
State Government itself had taken one year
time to notify the declaration notification
under Section 6, there cannot be any
justification for dispensation of only 30
days time to file objection on the plea of
urgency. This fact is sufficient to disbelieve
existence of any urgency.

10. Further, no material was before
the State Government to show existence of
any unforeseen urgency to invoke the
urgency clause under Section 17(4) of the
Act to deny the rights of the land holders to
file objections. Only 198 tenure holders
were affected by acquisition of Village
Pachokra
for
which
acquisition
notifications were published on 26.02.2009
and 09.02.2010 under Section 4 and 6;
respectively. Moreover, the purpose of
acquisition as stated in the notification
under Section 4 and 6 was that the land was
8 All. Kamal Sharma Vs. State of U.P. & Ors.
553
needed for planned development under
Yamuna
Expressway
Industrial
Development Authority (in short 'YEIDA')
in District Gautam Budh Nagar. The
urgency clause under Section 17(1) can be
invoked only in the eventualities which are
mentioned in Sub-section (2) of Section 17,
i.e. if the immediate possession of the land
is needed for the purpose of maintaining
any structure or system pertaining to
irrigation, water supply, drainage, road
communication
or
electricity,
or
for
reference,
or
any
other
unforeseen
emergency such as sudden change in the
channel of any navigable river. For
publication of notice under sub-section (1)
of Section 17, invoking urgency clause,
previous opinion of the State Government
is required. With the invocation of the
urgency clause, though no award has been
made, possession of the land needed for the
public purpose can be taken after 15 days
from the publication of notice under
Section 9, and on such possession being
taken, the land vests absolutely in the State
Government free from all encumbrances.
The
consequence
of
acquisition
by
invocation of urgency clause being too
harsh, much care and circumspection was
required to exercise such power.

11. In the case at hands, the lands of
Village Pachokra were to be utilized for
commercial and residential purposes and
the project has no relevance to the project
of construction of Yamuna Expressway.
For
such
development
work,
which
obviously would take sufficient time in the
planning and execution, there can be no
justification for invocation of urgency
though the purpose for which acquisition
was made can still be treated as public
purpose within the meaning of Section 4.

A.
Judgements
relied
by
the
counsels for the petitioners:-

(i) Radhy Shyam (supra)

12. Heavy reliance has been placed on
the decision of the Apex Court in Radhy
Shyam (supra) to argue that it was held
therein that Section 17(1) read with Section
17(4) confer extraordinary power upon the
State to acquire private property without
complying with the mandate of Section 5A. These provisions can be invoked only
when the purpose of acquisition cannot
brook the delay of even few weeks or
months. Therefore, before excluding the
application of Section 5-A, the concerned
authority must be fully satisfied that time of
few weeks or months likely to be taken in
conducting inquiry under Section 5-A will
in all probability, frustrate the public
purpose for which land is proposed to be
acquired. It was held therein that the
acquisition
of
land
for
residential,
commercial,
industrial
or
institutional
purposes can be treated as an acquisition
for public purposes within the meaning of
Section 4 but that, by itself, does not justify
the exercise of power by the Government
under Section
17(1) and/or
17(4).
The
Apex Court therein had taken judicial
notice of the fact that planning, execution
and implementation of the schemes relating
to development of residential, commercial,
industrial or institutional areas usually take
few years. It was held that the private
property, therefore, cannot be acquired for
such purposes by invoking the urgency
provision contained in Section 17(1). In
any case, exclusion of the rule of audi
alteram partem embodied in Section 5A (1) and (2) is not at all warranted in such
matters.
554 INDIAN LAW REPORTS ALLAHABAD SERIES

13. The Apex Court having taken note
of the pre-notification delay of more than
one year
time
taken
by
the
State
Government to issue proposal under
Section 4 read with Section 17(1) and 17(4)
has observed that it was not possible to
accept the argument that four to five weeks
within which the objections could be filed
under Sub-section (1) of Section 5-A and
the time spent by the Collector in making
inquiry under Sub-section (2) of Section 5A would have defeated the object of
acquisition. The apprehension raised by the
respondent therein that delay in the
acquisition of land will lead to enormous
encroachment was held totally unfounded,
noticing that it was beyond comprehension
of any person of ordinary prudence to think
that the land owners would encroach their
own land with a view to frustrate the
project of planned industrial development
of the district.

14. Post notification delay of about one
year, the time consumed between the issuance
of the notification Section 4 and 6 was noted to
observe that the said delay would demonstrate
that the State Government could complete the
exercise under Section 5-A and Section 6 both
in a shorter period.

15. With the above facts noted from the
material on record, it was held therein that the
only possible conclusion which could be drawn
was that that there was no real and substantive
urgency which could justify invoking of the
urgency provision under Section 17(1) and, in
any case, there was no warrant to exclude the
application of Section 5-A.

(ii) Dev Sharan and others versus
State of UP and others2

16. Reference had been made to the
decision of the Apex Court in Dev Sharan
and others (supra) to submit that while
answering the question therein whether, in
the facts of that case, invoking the urgency
clause under Section 17(4) was justified,
the Apex Court having noted the postnotification
delay,
the
time
elapsed
between publication of Section 4(1) and 17
notifications and Section 6 declaration of
almost one year, has held that at the slow
pace at which the Government machinery
had
functioned
in
processing
the
acquisition, clearly evinced that there was
no urgency for acquiring the land so as to
warrant invoking of Section 17 (4) of the
Act. It was held therein that valuable rights
of the tenure holder under Section 5-A of
the Act cannot flattened and steamrolled on
the `ipsi dixit' of the executive authority
while quashing the acquisition notification.
The decision of the Apex Court in
Hindustan Petroleum Corporation Limited
vs. Darius Shahpur Chennai and ors 3was
noted therein [in Dev Sharan (supra)] to
note that the right which is conferred
under Section
5A has
to
be
read
considering the provisions of Article 300A of the Constitution and, such right so
construed, should be interpreted as being
akin to a Fundamental Right. It was held
that the same being the legal position, the
procedures which have been laid down for
depriving a person of the said right must be
strictly complied with.

(iii) Devendra Kumar Tyagi v. State
of U.P.4,

17. In Devendra Kumar Tyagi
(supra) post notification delay, the time of
nearly two years taken in declaration under
Section 6, after issuance of proposal under
Section 4 of the Act, 1894 was viewed
seriously to hold that the State Government
was not justified to invoke urgency
provision of Section 17(4) of the Act' 1894.
8 All. Kamal Sharma Vs. State of U.P. & Ors.
555
It was observed that the lackadaisical
attitude of the State Government or the
lethargy on the part of the official does not
exhibit or depict any kind of urgency. The
dereliction of responsibility being on the
part of the State Government, cannot be
equated with urgency contemplated in the
Act' 1894. It was argued that expropriatory
legislation like the Land Acquisition Act'
1894 must be given strict consideration.
Section 5-A is a substantial right and akin
to fundamental right which embodies a
principle of giving a proper and reasonable
opportunity to the land loser to persuade
the authorities against the acquisition of
their lands which can be dispensed with
only in exceptional cases of real urgency
and not by side-wind. The decisions of the
Apex Court in Radhy Shyam (supra) and
Dev Sharan (supra) were relied to arrive
at the above noted conclusion.

(iv) Devendra Singh & Ors. Vs.
State of U.P. & Ors5.

18. In another decision in Devendra
Singh (supra) it was held that it is well
settled that acquisition of land for public
purpose, by itself, shall not justify the
exercise of power of eliminating enquiry
under Section 5-A in terms of Section 17
(1) and Section 17 (4) of the Act. The
decisions in Radhy Shyam (supra) and
Dev Sharan (supra) and Devendra
Kumar Tyagi (supra) were relied to hold
therein that the pre-notification delay by
itself cannot justify invocation of urgency
clause
for
acquisition,
but
it
only
accelerates or increases the urgency of need
of acquisition, only in case it already exists
in the nature of public purpose. It was held
that that the State Government was not
justified, in the facts of the said case, to
invoke the emergency provision of Section
17(4) of the Act. The land holders could
not have been denied of their valuable right
under Section 5-A of the Act.

(v) Darshan Lal Nagpal & Ors vs
Govt.Of Nct Of Delhi & Ors6

19. Reliance has been placed upon the
decision of the Apex Court in Darshan Lal
Nagpal (supra) to submit that the Apex
Court therein taking note of a catena of
decisions ranging from Narayan Govind
Gavate Vs. State of Maharashtra7 to
Devendra Kumar Tyagi (supra), has
noted that the acquisition of land by
invoking the urgency provisions for the
public purposes like, planned residential,
commercial,
industrial
or
institutional
development has been disapproved in
various decisions, noted therein ranging
from 1977 to 2011. The judgement of the
Apex Court in Anand Singh Vs. State of
UP8, has been considered therein to note
that pre and post notification delay will
have a material bearing on the question of
invocation of urgency power, particularly
in a situation where no material has been
placed by the appropriate Government
before the Court justifying that urgency
was of such nature that necessitated
elimination of enquiry under Section 5-A.
It was argued therein that the decision of
the government on the issue of urgency is a
condition precedent to the exercise of
power under Section 17(1) and the State
must exercise this power with greater care
and
circumspection
as
compulsory
acquisition of land is likely to make the
owners landless. Compulsory acquisition of
the property belonging to a private
individual is a serious matter and has grave
repercussions on their Constitutional right
of not being deprived of his property
without the sanction of law Article 300A
and the legal rights. The degree of care
required to be taken by the State is greater
556 INDIAN LAW REPORTS ALLAHABAD SERIES
when the power of compulsory acquisition
of private land is exercised by invoking the
provisions of urgency under Section 17 of
the Act as it results in depriving the owner
of his property without being afforded an
opportunity of hearing. Pre-notification
delay was held fatal to the invoking of the
urgency provision. Reliance was placed
upon the decision of the Apex Court in
Radhy Shyam (supra) therein to hold that
there was no justification to dispense with
the application of Section 5-A, which
represents two facets of the rule of hearing,
i.e. the right of the land owner to file
objection against the proposed acquisition
of land and of being heard in the inquiry
required to be conducted by the Collector.
The scope of the rule of hearing i.e. audi
alteram partem was noted to hold that it
could not be established that the urgency
was such that even few months time, which
may have been consumed in the filing of
objections by the land owners under
Section 5A(1) and holding of inquiry by the
Collector under Section 5A(2), would have
frustrated the project.

(vi) Hamid Ali Khan (D) Thr. Lrs.
vs State Of U.P & others9.

20. A recent decision of the Apex
Court in Hamid Ali Khan (D) (supra) has
been placed before us to assert that taking
note of the above referred decisions, the
Apex Court has held therein that the facts
considered by the State for invocation of
urgency, being specifically within the
exclusive knowledge of the State must be
laid before the Court on the basis of the
principle in Section 106 of the Evidence
Act. The challenge to the notification under
Section 17(4) must be approached in the
matter of discharging the burden of proof.
Existence of the exceptional circumstances
justifying invoking of Section 17(4) must
be established in the wake of a challenge
on an appreciation of the evidence made
available by all the parties, it is open to the
Court to conclude that no occasion arose
for resorting to the power under Section 17
(4) which indeed must be read as an
exception
to
the
general
rule.
The
observation in paragraph No. '22' of the
said decision has been placed before us,
which
is
relevant
to
be
extracted
hereinunder:-

"We may cull out the principles
at play. What is required of the authority is
to form a subjective opinion. This does not
mean that the opinion can be whimsical or
capricious. There must be materials before
the authority. The materials must be
relevant. The authority must apply his mind
to the material. This is apart from the
requirement that action must not be
malafide. Undoubtedly the purpose must be
a public purpose. But merely because the
purpose of the acquisition is found to be a
public purpose, the duty of the authority
does not end. He must be satisfied that
there is real agency such that the
invaluable right vouchsafed to a person to
ventilate
his
grievances
against
the
acquisition
is
not
unjustifiably
extinguished. Section
5A of
the
Act
guarantees a right to the person interested
in the property which was the only
statutory safeguard to stave off of a
compulsory acquisition of his property. The
power
under Section
17 (4)
is
discretionary. Being a discretion it must be
exercised with due care. It is true that if
there is relevant material however meagre
it may be and the authority has without
being guided by extraneous considerations
applied his mind and taken a decision, then
the
court
would adopt a
hands-off
approach. In the ultimate analysis as with
any
other
decision
a
balancing
of
8 All. Kamal Sharma Vs. State of U.P. & Ors.
557
conflicting interests is inevitable. The
authorities must remain alive and alert to
the precious right created in favour of the
citizens which is not meant to be a mere
empty ritual".

(vii) Narayan Govind Gavate Vs.
State of Maharashtra

21. The decision in Narayan Govind
Gavate (supra) has been read over to
vehemently argue that the burden of
proving the existence of circumstances
which could justify invocation of urgency
clause was upon the State. It was held
therein that the particular onus of proving
facts and circumstances lying especially
within the knowledge of the official who
formed the opinion which resulted in the
notification under Section 17(4) of the Act
rests upon that official. The recital in the
order or notification, if not defective, may
obviate the need to record further. There
may be circumstances in the case which
impel the Court to look beyond it. And, at
that stage, Section 106 Evidence Act can be
invoked by the party assailing an order or
notification. It is most unsafe in such cases
for the official or authority concerned to
rests content with non-disclosure of facts
especially within his or its knowledge by
relying on the substantiality of a recital.
Such an attitude may itself justify further
scrutiny. It was held that if, in addition to
the
bare
assertions
made
by
the
petitioners, that the urgency contemplated
by Section 17(4) did not exist, there were
other facts and circumstances including
the failure of the State to indicate facts
and' circumstances which it could have
easily disclosed if they existed, the
petitioners
could
be
held
to
have
discharged their general onus. Indeed,
even if a recital in a notification is
defective
or
does
not
contain
the
necessary statement that the required
conditions have been fulfilled, evidence
can be led to show that conditions
precedent to the exercise of a power' have
been actually fulfilled. It must be proved
that the mind of the Officer or the
Authority concerned had been applied to
the question whether there was an
urgency of such a nature that even the
summary proceedings under Section 5A
of the Act should be eliminated. It is not
just the existence of an urgency but the
need
to
dispense
with
an
inquiry
under Section 5A which has to be
considered. It was observed that it offers
no difficulty in applying Section 17(4) in
public interest and the particulars of what
is obviously to be done in public interest
need not be concealed when its validity is
questioned in a Court of justice. There
may
arise
questions
involving
consideration
of
facts
which
are
especially within the knowledge of the
authorities concerned, and, if they do not
discharge their special burden, imposed
by Section 106 Evidence Act, without
even disclosing a sufficient reason for
their abstention from disclosure, they
have to take the consequences which flow
from the non-production of the best
evidence which could be produced on
behalf of the State if its stand was
correct.

22. It was, thus, held therein that the
provision of Section 106 of the Evidence
Act have to be applied to place the burden
upon the State to prove those special
circumstances, to discharge the burden of
disclosure of the attendant facts and
circumstances
to
show
that
some
exceptional
circumstances
which
necessitated the elimination of an enquiry
under Section 5-A of the Act were existing
and
the
mind
of
the
Competent
558 INDIAN LAW REPORTS ALLAHABAD SERIES
authority/State was applied to this essential
question.

(viii) Ram Singh & another Vs.
State of U.P. & others10

23. Reliance has further been placed
upon the decision of this Court in Ram
Singh (supra) to assert that the acquisition
notifications under Section 4 and 6 of the
Land Acquisition Act were quashed therein
taking note that the pre-notification delay
will have a material bearing on the question
of
invocation
of
urgency
powers
particularly when no material was produced
by the appropriate Government to justify
elimination of enquiry envisages under
Section 5-A of the Act.

B. Reliance on similar Dispute
decided:-

(ix) Shyoraj Singh & others Vs.
State of U.P. & others11

24. After making the above noted
submissions
on
the
legal
principles
applicable to examine the question whether
invocation of urgency clause, in the facts
and circumstances of the case, is justified,
it was urged by the learned counsels for the
petitioners that in the similar facts and
circumstances as that of the instant case,
the acquisition notifications of Village
Chandpur
issued
on
26.02.2009
and
19.02.2010 under Section 4 and 6;
respectively, by invocation of the urgency
clause with the aid of Section 17(1) &
17(4) of the Land Acquisition Act, have
been held to be bad.

(a) In the said case, the purpose
of
acquisition
in
the
acquisition
notifications of Village Chandpur, for
'Planned development of the area by
YEIDA', was noted by the Division Bench
of this Court in the judgement and order
dated 24.04.2017, to hold that the purpose
shown in the notification would itself,
cannot justify invocation of urgency clause
in view of the law laid down by the Apex
Court in the case of Radhy Shyam
(supra). Further, the Court having gone
through the original records pertaining to
the notification in question had held therein
that the grounds mentioned in the reports of
the authorities placed on record, for
recording satisfaction for invoking the
power under Section 17 of the Land
Acquisition Act, for dispensing with the
enquiry contemplated under Section 5-A of
the said Act that:- (a). there were chances
of unauthorised occupations/encroachment
of the land; (b). large number of farmers
would be affected by the acquisition and
hearing of such large number of farmers
would delay the project, were untenable.

It was further noted that the
period of nearly one year taken in the
publication of Section 6 notification after
the proposal under Section 4 was published
itself was sufficient to return a finding that
there was absolutely no urgency which
could have justified the invoking of power
under Section 17 of the Act' 1894, so as to
deprive the farmers of an opportunity of
hearing under Section 5A.

It is, thus, argued by the learned
counsels for the petitioners herein that the
findings returned by this Court in the
aforesaid decision for discarding the
justification
given by
the State
for
dispensation of enquiry under Section 5-A,
are binding on this Court being a Coordinate Bench of the same Court. As in the
similar facts and circumstances, a decision
has already rendered by another Division
Bench holding the notifications under
Section 4 and 6 of the Land Acquisition
Act as bad, this Court may not reach at any
8 All. Kamal Sharma Vs. State of U.P. & Ors.
559
contrary
opinion.
Following
binding
precedent of the Co-ordinate bench of this
Court, the acquisition notifications, in the
instant bunch, pertaining to nine villages
published between November 2009 to
March 2011, cannot but be held to be bad
for invoking the power under Section 17(1)
and 17(4) of the Act, 1894, without any
material to justify the denial of hearing to
the land holders.

Further, on the operative portion
of the order in Shyoraj Singh (supra)
wherein the Court did desist from quashing
the acquisition notifications, it was argued
that the ultimate relief granted therein of
providing higher compensation under the
provision of Right to Fair Compensation
and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act' 2013,
treating the date of the decision of the Writ
Court as the date of acquisition, may not be
followed, in as much as, with respect to the
acquisitions before us, much development
has not been carried out by the YEIDA
subsequent to the acquisition notifications.
It is vehemently argued that the petitioners
are
not
interested
in
taking
higher
compensation, rather they want their
land/property back, as most of them are
having their dwelling units wherein they
are residing with their families.

(b) Similar judgments of this
Court dated 29.05.2017, deciding Writ-C
No. 46776 of 2010 with respect to the
acquisition notifications dated 26.02.2009
and 01.02.2010 under Section 4 and 6 of
the Act' 1894, pertaining to Village
Rabupura; the judgment and order dated
22.12.2016 in Writ C No. 56451 of 2011
(Kunwar Shlivahan Singh and others Vs.
State of U.P. & others) connected with
other 68 petitions challenging acquisition
notifications
dated
13.5.2010
and
28.07.2010 under Section 4 and 6 of the
Act' 1894 pertaining to Village Mirzapur;
the judgement and order dated 22.11.2016
in Writ-C No. 44741 of 2010 (Harpal
Singh And Anr. Vs. State Of U.P. And
Others)
challenging
acquisition
notifications
dated
26.2.2009
and
01.02.2010 under Section 4 and 6 of the
Act' 1894 pertaining to Village Niloni
Shahpur, have been placed before us to
argue that once this Court decided that
invocation of urgency clause with the help
of Section 17(1) and 17(4) of the Act' 1894,
in the similar facts and circumstances as
that of the instant cases, was bad in law, no
further deliberation in the instant matter is
required. All the writ petitions deserve to
be allowed in light of the above noted
decisions of this Court and the acquisition
notifications under challenge are liable to
be quashed.

C. Aid to the above arguments by
other counsels in the bunch:-

26.

(i)
Some
of
the
counsels
appearing for the writ petitioners, however,
expressed the wish of the petitioners to
whom they represent that the notifications
under challenge in their cases be held bad
in light of the above noted decisions of this
Court in similar acquisitions made by
YEIDA, with the help of urgency clause,
but if higher compensation be directed to
be paid as in the case of Shyoraj Singh
(supra) to the petitioners, they would be
more than satisfied.

On legal principles, the other
counsels appearing in the bunch for
different villages have adopted the above
noted arguments.

(ii) One of the learned counsels
for the petitioners Sri Pankaj Dubey has
placed the decision of the Apex Court in
Greater Noida Vs. Devendra Kumar &
others12to assert that there was lack of
560 INDIAN LAW REPORTS ALLAHABAD SERIES
bona-fides on the part of the State
Government and the acquiring authority,
which is evinced from the fact that Section
17(1) and (4) was invoked without any
tangible emergency, which could justify the
exercise of power under Section 17(1) and
warrant exclusion of the inquiry envisaged
under Section 5-A. The decision of this
Court in Ram Singh (supra), has been
placed to assert that invocation of urgency
clause was found bad therein.

(iii) The Division Bench of this
Court in Rajeev & others Vs. State of
U.P.13 has been placed to assert that even
when this Court found that the challenge to
acquisition was for a small piece of land,
the Court had examined the validity of the
decision of the State for invocation of
urgency. It was held therein that mere
acceptance of the compensation or transfer
of their lands by the tenure holders, would
not amount to waiver of rights by such
person
to
challenge
the
acquisition
proceedings. No inference of implied
consent or acquiescence can be drawn
unless the facts of the individual case are
examined. In order to constitute waiver,
there must be intentional relinquishment of
right to challenge the acquisition. However,
in order to balance the equities noticing that
the major chunks of lands had been
developed and allotted to third-party after
possession of the land was delivered to the
acquiring authority, balancing the statutory
rights of the tenure holders and the rights of
allottees, the Court had concluded therein
that it would not be in public interest to
topple the entire acquisition at the behest of
those few petitioners.