# Smt. Hirawati Devi & Ors v. State of U.P. & Ors

- **Citation:** (2016) 7 ILRA 853
- **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/smt-hirawati-devi-ors-v-state-of-u-p-ors-44217
- **Pages:** 10

## Headnote

Land Acquisition Act, 1894-Sections 4, 5-A, 6, 17(1) & (4)-Dispensation of inquiry-ValidityRight to object under Section 5-A is a substantive and valuable right embodying principles of natural
justice and cannot be taken away casually-dispensation permissible only in cases of real and genuine
urgency-mere recitation of urgency is insufficient. (Paras 18, 20-24, 29, 31)

Requirement of application of mind-State must demonstrate existence of material justifying urgency
and necessity to dispense with Section 5-A inquiry-absence of relevant material and mechanical invocation of
urgency vitiates acquisition. (Paras 24, 27, 32)
Effect on urgency-Long delay between proposal, notification, declaration and possession negates claim of
urgency-where authorities had sufficient time, denial of inquiry under Section 5-A is unjustified. (Paras 3233)
Article 300-A-Right to property-Though no longer fundamental, right to property is a constitutional
right, and deprivation must strictly follow procedure established by law-non-compliance renders acquisition
illegal.

Result - Petition partly allowed.

Case cited

Radhy Shyam (Dead) through Lrs. and others vs. State of U.P. and others(2011) 5 SCC 553
Gajraj and others vs. State of U.P. and others2011 (11) ADJ 1 (FB)
Nandeshwar Prasad vs. U.P. GovernmentAIR 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
Hindustan Petroleum Corporation Ltd. vs. Darius Shapur Chenai & Ors.(2005) 7 SCC 627
854 INDIAN LAW REPORTS ALLAHABAD SERIES

Essco Fabs Pvt. Ltd. & Anr. vs. State of Haryana & Anr.(2009) 2 SCC 377
Anand Singh and another vs. State of U.P. and others(2010) 11 SCC 242
Darshan Lal Nagpal (Dead) by Lrs. vs. Govt. of NCT of Delhi and others(2012) 2 SCC 327
Union of India and others vs. Shiv Raj and others(2014) 6 SCC 564

## Text

7 All. Smt. Hirawati Devi & Ors. Vs State Of U.P. & Ors.
853
-------------
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.- 31884 Of 1993

Smt. Hirawati Devi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
A.C. Tripathi, H.R. Mishra, K.M. Mishra

Counsel for the Respondents:
V.B. Singh, A.K. Dwivedi, S.C.

Land Acquisition Act, 1894-Sections 4, 5-A, 6, 17(1) & (4)-Dispensation of inquiry-ValidityRight to object under Section 5-A is a substantive and valuable right embodying principles of natural
justice and cannot be taken away casually-dispensation permissible only in cases of real and genuine
urgency-mere recitation of urgency is insufficient. (Paras 18, 20-24, 29, 31)

Requirement of application of mind-State must demonstrate existence of material justifying urgency
and necessity to dispense with Section 5-A inquiry-absence of relevant material and mechanical invocation of
urgency vitiates acquisition. (Paras 24, 27, 32)
Effect on urgency-Long delay between proposal, notification, declaration and possession negates claim of
urgency-where authorities had sufficient time, denial of inquiry under Section 5-A is unjustified. (Paras 3233)
Article 300-A-Right to property-Though no longer fundamental, right to property is a constitutional
right, and deprivation must strictly follow procedure established by law-non-compliance renders acquisition
illegal.

Result - Petition partly allowed.

Case cited

Radhy Shyam (Dead) through Lrs. and others vs. State of U.P. and others(2011) 5 SCC 553
Gajraj and others vs. State of U.P. and others2011 (11) ADJ 1 (FB)
Nandeshwar Prasad vs. U.P. GovernmentAIR 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
Hindustan Petroleum Corporation Ltd. vs. Darius Shapur Chenai & Ors.(2005) 7 SCC 627
854 INDIAN LAW REPORTS ALLAHABAD SERIES

Essco Fabs Pvt. Ltd. & Anr. vs. State of Haryana & Anr.(2009) 2 SCC 377
Anand Singh and another vs. State of U.P. and others(2010) 11 SCC 242
Darshan Lal Nagpal (Dead) by Lrs. vs. Govt. of NCT of Delhi and others(2012) 2 SCC 327
Union of India and others vs. Shiv Raj and others(2014) 6 SCC 564

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

1. Heard Sri H.R. Mishra, Senior Advocate, assisted by Sri Amit Kumar Pandey, learned
counsel for petitioners, learned Standing Counsel for respondent-1 and Sri Ajeet Kumar Singh,
learned counsel appearing for Varanasi Development Authority.

2. This writ petition under Article 226 of Constitution of India has been filed challenging
notification dated 10th July 1992 issued under Section 4(1) of Land Acquisition Act, 1894
(hereinafter referred to as 'Act, 1894') proposing to acquire a total 147.734 acres of land for planned
development at the instance of Varanasi Development Authority (hereinafter referred to as
'V.D.A.') for constructing residential colony at Village Lalpur, Pargana Shivpur, Tehsil & District
Varanasi.

3. The State Government also invoked provisions under Section 17(1) and (4) of Act, 1894
and stated that land is required urgently, hence to eliminate delay likely to be caused by an inquiry
under Section 5-A, Governor directs that Section 5-A shall not apply.

4. Petitioners have further challenged subsequent declaration made vide notification dated
8th July 1993 published in the Gazette extraordinary of same date under Section 6(1) of Act, 1894,
wherein total land sought to be acquired mentioned is 145.5665 acres.

5. Initially, 24 petitioners joined in writ petition and petitioners-25 to 38 have been
impleaded subsequently but in the writ petition detailed facts of only petitioners-1 to 24 have been
mentioned in paras 3 and 4 stating that they purchased disputed land vide sale deeds executed
between 1985 to 1992. The land was owned by M/s Shiv Shankar Sahkari Awas Samiti. In small
plots land was purchased by petitioners 1 to 24 from said Samiti. Petitioners, belong to middle
income group, have invested their life time earning in purchasing plots for raising construction of
residential houses. Some petitioners raised constructions also, whereupon V.D.A. issued notices
under Section 27 alleging that constructions are unauthorised and those notices were challenged in
appeal before Commissioner, which were pending when impugned notifications were issued.

6. Learned counsel for petitioners has challenged aforesaid acquisition notifications, in so
far as inquiry under Section 5-A has been dispensed with, contending that there was no actual
urgency. No material existed to show that requirement was urgent. One year time was taken by
State in issuing declaration under Section 6 after publication of notification under Section 4. Even
otherwise there is no application of mind on the part of State on this aspect that there was no
urgency whatsoever, hence inquiry under Section 5-A could not have been dispensed with in
exercise of powers under Section 17(1) and (4). Making Section 5-A inapplicable to the acquisition
proceedings in question is patently illegal, arbitrary and bad in law. Reliance has been placed on
7 All. Smt. Hirawati Devi & Ors. Vs State Of U.P. & Ors.
855
law laid down in Radhy Shyam (Dead) through Lrs. and others vs. State of U.P. and others
(2011) 5 SCC 553 and a Full Bench judgment of this Court in Gajraj and others vs. State of
U.P. and others 2011 (11) ADJ 1.

7. On behalf of respondents-2 and 3, a counter affidavit has been filed sworn by Swami
Nath Pathak, Special Land Acquisition Officer, Varanasi. It is said that V.D.A. resolved to
construct residential colony namely, Lalpur Housing Scheme Phase-I and on a proposal made by it,
Collector recommended acquisition of land at village Lalpur. District Magistrate as well as State
Government after preliminary inquiry were satisfied with requirement of V.D.A. Notification dated
10th July 1992 was published in daily newspapers 'Janwarta' and 'Bharatdoot' on 9.11.1992. It was
also given vide publicity locally by beat of drum. Thereafter a corrigendum was published on
28.1.1993, which was also published in newspapers. Declaration under Section 6 was published on
8.7.1993 in daily newspapers 'Sanmarg' and 'Baharatdoot' on 5.9.1993 and 10.9.1993. V.D.A. had
deposited about 73 lacs. towards 80% of estimated cost of compensation.

8. V.D.A. has also filed a separate counter affidavit, wherein also similar facts have been
stated.

9. With regard to actual existence of urgency both affidavits were quite silent, hence
respondents-2 and 3 filed a supplementary counter affidavit sworn by Sri Rajendra Prasad, Special
Land Acquisition Officer, Varanasi. It was stated therein that V.D.A. filed an application dated
6.6.1990 before District Magistrate, Varanasi requesting for acquisition of land of 147.984 acres at
Village Lalpur for construction of a residential colony. It is also mentioned that there was an
urgency in the matter since housing accommodation at Varanasi was highly deficient and for
removing the same immediate possession and construction of colony is necessary. Collector got the
matter examined and thereafter in the light of report received, forwarded proposal to Director, Land
Acquisition vide letter dated 16th June 1992. State Government then issued notification dated 10th
July 1992 under Section 4(1) read with Section 17(1) and (4) and said notification was published in
U.P. Gazette extraordinary of same date i.e. 10th July 1992. State Government on the basis of
material available before it was satisfied that land was urgently and immediately needed and,
therefore, dispensed with inquiry under Section 5-A. Subsequently declaration under Section 6 was
published on 8th July 1993. The possession of land was taken vide possession memo dated
18.8.1994 and 28.7.1995. Special Land Acquisition Officer, Varanasi also made award on
8.10.1997. Only 139.072 acres of land was taken in possession as is evident from award dated
8.10.1997, copy whereof has been filed as Annexure S.C.A.-6.

10. Another supplementary counter affidavit has been filed by V.D.A. wherein also similar
facts have been stated. However, date of possession of land has been mentioned as 19.8.1994 and
31.7.1995. It is said that petitioners have purchased plots from Arazi no. 373/1, 373/2, 377, 387/1,
394/2 and 394/2 and all these plots have been acquired and possession taken. V.D.A. carved out
1112 plots of different sizes and same have been allotted to prospective candidates. Further 25
acres of land has been allotted to Central Public Works Department; 10 acres has been allotted to
Telecommunication Department and 5 acres for Coaching Centres. The aforesaid bodies have
856 INDIAN LAW REPORTS ALLAHABAD SERIES

commenced construction over allotted land. Plots have also been allotted to Community Health
Centre, Library Hall, Shopping Complex and Nursing Home. 108 flats for Economical Weaker
Sections (in short 'E.W.S.') and 140 flats for Lower Income Group (in short 'L.I.G.') have been
constructed and allotted. In Multi Storied Building, 76 flats of 2 bedrooms and 64 flats of 3
bedrooms have been constructed, which is called Landmark Tower Phase-I. Further 14 flats of 2
bedrooms and 28 flats of three bedrooms have been constructed in Landmark Tower Phase-II. In
3rd Phase i.e. Land Mark Tower Phase-III 36 flats of three bedrooms have been constructed. Huge
land has been developed by link-down road and procuring other amenities in the said residential
area.

11. In view of the aforesaid developments, it is contended that a small piece of land belong
to petitioners cannot be excepted and therefore this Court may decline to interfere in the acquisition
proceedings and dismiss the writ petition.

12. Acquisition of land has to be consistent with the procedure prescribed in law inasmuch
as though right to property is no more a fundamental right but it is a constitutional right enshrined
under Article 300-A of the Constitution. It provides that no person shall be deprived of his property
except in accordance with the procedure prescribed in law, therefore, without following procedure
prescribed in law no person can be deprived of his property and any attempt otherwise would be
illegal and unconstitutional.

13. In the present case, it was open to State to acquire land by dispensing with inquiry
under Section 5-A of Act, 1894 but when, how and in what manner State would be justified in
dispensing with inquiry under Section 5-A of Act, 1894 is no more res integra having been settled
in a catena of decision in last two decades.

14. 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.

15. Normal procedure of acquisition is that a proposal of acquisition is published in
notification under Section 4(1) 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 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.

16. 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. Smt. Hirawati Devi & Ors. Vs State Of U.P. & Ors.
857
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 make award.
After payment of compensation, Collector takes possession of land.

17. 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.

18. However, right to file objection under Section 5-A against proposal of acquisition of
land published under Section 4 is a substantial right, consistent with principle of natural justice,
since forcible acquisition of land, without consent of land owners, is a serious matter. This is the
view taken consistently, by Courts.

19. 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.

20. 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".

21. 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 principal 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".
(emphasis added)

22. 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
858 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.

23. 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".

24. 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 as under :

"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. This understanding of ours as to the requirement of an
application of mind by the appropriate Government while dispensing with Section 5-A inquiry does
not mean that in every case when there is an urgency contemplated under Section 17(1) and
unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the
need for dispensing with Section 5-A enquiry. ....... There is need for application of mind by
appropriate Government that such an urgency for dispensing of Section 5-A enquiry is inherent
........... ."

25. In Hindustan Petroleum Corporation Ltd. vs Darius Shapur Chenai & Ors (2005)
7 SCC 627 it was held that the provisions of Section 5-A of Act, 1894 must be read consistent with
Article 300-A of the Constitution and it is akin to fundamental right of procedure before depriving
a persons of his land, and must be strictly complied with.
7 All. Smt. Hirawati Devi & Ors. Vs State Of U.P. & Ors.
859
26. In Essco Fabs Pvt. Ltd. & Anr vs State Of Haryana & Anr (2009) 2 SCC 377 it was
held that enquiry should not be dispensed with lightly.

27. In Anand Singh and another vs. State of U.P. and others (2010) 11 SCC 242 Court
considered as to when State would be justified in invoking power under Section 17(4) for
acquisition of land and dispensing with enquiry under Section 5-A so as to take possession
immediately. It is said that power under Section 17 is not to be exercised in a routine manner. It
would be justified only when circumstances warrant immediate possession. It should not be lightly
invoked. It is an exceptional power enabling land acquiring body to dispense with enquiry under
Section 5-A. Government must apply its mind before dispensing with enquiry under Section 5-A
whether urgency is of such a nature that justifies elimination of summary enquiry under Section 5A. The mere mention of words in acquisition notification that Government is satisfied about
urgency and dispensing with enquiry under Section 5-A may raise a presumption in favour of
Government that pre-requisite conditions for exercise of such power are satisfied but when
challenged, Government has to produce relevant material before Court to show existence of such
circumstances, which justify dispensation of inquiry and avail an exceptional power under Section
17. Court said :

"upon challenge being made to the use of power under Section 17 the
Government must produce appropriate material before the Court that the opinion for dispensing
with enquiry under Section 5-A has been formed by the Government after due application of
mind on the material placed before it".

(emphasis added)

28. With regard to judicial review of exercise of power, Court in Anand Singh and
another (Supra) further said in paras 45, 46, 47 and 48 as under :

"45. It is true that power conferred upon the Government under Section 17 is
administrative and its opinion is entitled to due weight, but in a case where the opinion is formed
regarding the urgency based on considerations not germane to the purpose, the judicial review
of such administrative decision may become necessary."

"46. As to in what circumstances the power of emergency can be invoked are
specified in Section 17 (2) but circumstances necessitating invocation of urgency under Section
17(1) are not stated in the provision itself. Generally speaking, the development of an area (for
residential purposes) or a planned development of city, takes many years if not decades and,
therefore, there is no reason why summary enquiry as contemplated under Section 5-A may not
be held and objections of land owners/persons interested may not be considered. In many cases
on general assumption, likely delay in completion of enquiry under Section 5-A is set up as a
reason for invocation of extraordinary power in dispensing with the enquiry little realizing that an
important and valuable right of the person interested in the land is being taken away and with
some effort enquiry could always be completed expeditiously."
860 INDIAN LAW REPORTS ALLAHABAD SERIES

47. The special provision has been made in Section 17 to eliminate enquiry under
Section 5-A in deserving and cases of real urgency. The government has to apply its mind on the
aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5-A.
We have already noticed few decisions of this Court. There is conflict of view in the two decisions
of this Court viz.; Narayan Govind Gavate and Pista Devi. In Om Prakash this Court held that
decision in Pista Devi must be confined to the fact situation in those days when it was rendered and
the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan
Govind Gavate. We agree."

"48. As regards the issue whether pre- notification and post-notification delay
would render the invocation of urgency power void, again the case law is not consistent. The view
of this Court has differed on this aspect due to different fact-situation prevailing in those cases. In
our opinion such delay will have 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."
(emphasis added)

29. In Radhe Shyam (Dead) through Lrs. and others vs. State of U.P. and others
2011(5) SCC 553 it was reiterated that property of a citizen cannot be acquired by State without
complying with the mandate of Sections 4, 5-A and 6 of Act, 1894. A public purpose however,
loudable would not entitle Government to invoke urgency provisions, since the same have the
effect of depriving owner of his right to property and that too without being heard. Only in a case
of real urgency, Government would be justified in invoking urgency provisions. Section 17 must
have been invoked only when purpose of acquisition cannot brook the delay of even few weeks or
months. The authority must be fully satisfied that time of few weeks or months likely to be taken in
conducting enquiry under Section 5-A shall, in all probability, frustrate the public purpose for
which land is proposed to be acquired. Satisfaction of Government on issue of urgency is
subjective but is a condition precedent to the exercise of power under Section 17(1) and can be
challenged on the ground that authority did not apply its mind to relevant factors, and on record,
there is no material justifying existence of alleged urgency. It also held that exercise of power
under Section 17(1) necessarily does not result in exclusion of Section 5-A, inasmuch as, the
person concerned can file objection and is entitled to be heard in support of his objection. The use
of word "may" in sub-Section (4) of Section 17 shows that it merely enables Government to direct
that Section 5-A would not apply to the cases covered under Sections (1) or (2) of Section 17.
Therefore, mere fact that certain purposes may be treated as public purpose for purpose of
acquisition but that by itself would not mean that there exists urgency to dispense with inquiry
unless the circumstances actually and really are in existence to show that delay in taking possession
would be adverse to public interest. It also held that Court can take judicial notice of the fact that
for planning, execution and implementation of scheme relating to development of residential,
commercial and industrial or institutional areas, Government takes few years, therefore, in such
cases private property should not be acquired by invoking urgency clause as denial of Rule of audi
alteram partem embodied in Section 5-A is not at all warranted in such cases.
7 All. Smt. Hirawati Devi & Ors. Vs State Of U.P. & Ors.
861
30. In Darshan Lal Nagpal (Dead) By Lrs. vs. Govt. of NCT of Delhi and others (2012)
2 SCC 327 after having retrospection of some of authorities on the subject, Court in para 28 of the
judgment, stated as under :

"What needs to be emphasized is that although in exercise of the power of eminent
domain, the State can acquire the private property for public purpose, it must be remembered that
compulsory acquisition of the property belonging to a private individual is a serious matter and
has grave repercussions on his Constitutional right of not being deprived of his property without
the sanction of law - Article 300-A and the legal rights. Therefore, the State must exercise this
power with great care and circumspection. At times, compulsory acquisition of land is likely to
make the owner landless. The degree of care required to be taken by the State is greater when
the power of compulsory acquisition of private land is exercised by invoking the provisions like
the one contained in Section 17 of the Act because that results in depriving the owner of his
property without being afforded an opportunity of hearing."

(emphasis added)

31. 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.

32. When we examined the material available with State Government to justify
dispensation of inquiry under Section 5-A, we found that in counter affidavit and supplementary
counter affidavit virtually nothing has been placed to demonstrate that any such urgency was
existing, justifying dispensation of inquiry. Respondents have also placed before us original record
of acquisition and we have perused the same. Unfortunately, the alleged original record also
contains only copies of application dated 6.6.1990, Collector's letter dated 16.6.1992, award dated
8.10.1997, copies of notifications dated 8th July 1993, 28th January 1993 and 10th July 1992 and
the documents showing taking of possession of acquired land. From the order-sheet of V.D.A.
record, we find that a proposal for constructing residential colony at Village Lalpur was conceived
sometime in 1988. Since land at Village Lalpur was agricultural land hence, matter was examined
to seek exemption of acquisition of such land for residential purposes. The proposal was ultimately
approved by Chief Minister on 30.3.1990 but in the entire order-sheet there is nothing to justify as
to why inquiry under Section 5-A ought not to have been held or that the acquisition of land was
urgent and immediate. Moreover proposal was made by V.D.A. on 6th June 1990 whereupon
Collector took almost two years in making recommendation to Government vide letter dated
16.6.1992. Thereafter, notification under Section 4 was published on 10th July 1992. It was
published in newspapers after about four months i.e. on 9.11.1992. It appears that on a mere
mention in the application dated 6.6.1990 that possession is urgently needed, without any further
inquiry and application of mind on the relevant facts, in a mechanical manner, respondent State
Government acted upon to invoke powers under Section 17(1) and (4) and dispensed inquiry under
Section 5-A.
862 INDIAN LAW REPORTS ALLAHABAD SERIES

33. Further declaration under Section 6 was made after another one year i.e. on 8th July
1993. As already said, possession has been taken admittedly on 18.8.1994 and 28.7.1995. This all
shows that as a matter of fact there was no such urgency where respondents could not have waited
for a few weeks or months so as to hold an inquiry and give opportunity of hearing to all tenure
holders or land owners whose land was proposed to be acquired. Exercise of power under Section
17 (1) and (4) by dispensing with inquiry under Section 5-A of Act, 1894 therefore, is clearly
illegal, founded on no material whatsoever, arbitrary and vitiates the proceedings of acquisition.

34. In view of above discussions, writ petition is partly allowed to the extent that impugned
notifications, to the extent of land belong to petitioners, in so far as it has dispensed with inquiry
under Section 5-A of Act, 1894, are hereby set aside. However, respondents shall be at liberty to
take further action from the stage of giving opportunity to land owners by submitting their
objections under Section 5-A and after considering the same respondents may proceed in
accordance with law.

35. Petitioners shall be entitled to costs against respondents-1 to 3, which we quantify to
Rs.25,000/-.
-----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2016

BEFORE

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

Writ A No.- 47801 Of 2007

Dr. Nilesh Kumar Upadhyay ...Petitioner
Versus
State Of U.P. & Ors.
 ...Respondents

Counsel for the Petitioner:
G.K. Singh, V.K. Singh

Counsel for the Respondents:
C.S.C., A.K. Singh, C.V.S. Raguvanshi, Dharmendra Kumar, Smt. Archana Singh.

Service Law - Appointment - Adjustment of selected candidate - Scope of Section 13(4) &
13(5), U.P. Higher Education Services Commission Act, 1980 - Validity of appointment against
non-advertised vacancy - Petitioner appointed on honorarium basis against short-term vacancy and
continued under interim protection - Respondent selected pursuant to a different advertisement and later
sought to be adjusted against vacancy held by petitioner - Whether such adjustment permissible - Held,
Section 13(5) applies only to cases where a substantively appointed teacher is rendered surplus due to
abolition of post - Respondent not being such appointee, provision inapplicable (Paras 22, 23) - Section
13(4) applies only where vacancy arises during validity of select list and is not notified to Commission - In