# Smt.Mithilesh Kumari and others v. State of U.P. and others

- **Citation:** (2010) 3 ILRA 1205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-11-09
- **Case number:** Civil Misc. Writ Petition No. 23624 of 2010
- **Bench:** Ashok Bhushan, Virendra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mithilesh-kumari-and-others-v-state-of-u-p-and-others-41750
- **Pages:** 21

## Headnote

Land Requisition Act 1894-Section 4(1)
readwith section 17(4)-notification U/S
4 of the Act issued after 8 years-invoking
dispensing enquiry under section 5-ANotification
under
Section
4
(1)
published
on
20.05
09-deceleration
under
section
6(c)
dated
27.01.10
published
on
13.02.2010-plots
in
1206 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
question
a
grove
land-no
material
produced before the court for forming
any subjective satisfaction regarding
invocation of section 17(i) and (ii) of the
Act-except saying urgently needed-held
both notification under section 4(i)
evoking
section
17(4)
as
well
as
deceleration under section 6 set-a-side

Held: Para 30,35,37,39

It is relevant to note that although in the
writ petition there was specific pleading
that there is no such urgency in the
matter so as to invoke the power under
Section 17(4) of the Act, in the counter
affidavit neither any material has been
brought nor any pleading has been made
giving any specific reason for justifying
the invocation of power under Section
17(4) of the Act except stating that the
acquisition was urgently needed for
construction of sub-market yard for
which the District Magistrate was fully
satisfied.

From the aforesaid, it is clear that there
was no application of mind by the State
with regard to invocation of power under
Section 17(4) nor the records disclose
that
the
aforesaid
fact
has
been
considered by the State Government
before directing for dispensation of
inquiry under Section 5A of the Act.

In view of the foregoing discussions, we
are of the considered opinion that in the
present case there was neither any
material nor there was application of
mind by the State with regard to
invocation of power under Section 17(4)
of the Act and the power under Section
17(4) of the Act was invoked by the
State in a routine and mechanical
manner which cannot be sustained. Thus
the
submission
of
counsel
for
the
petitioners has substance that invocation
of power under Section 17(4) of the Act
is not in accordance with the provisions
of the Act and the law laid down by the
Apex Court as noted above.

We are cautious that construction of
sub-market yard is urgent matter but, as
observed above, mere urgency does not
automatically lead to deny the land
holders their right of filing objection
under
Section
5A.
Thus
the
land
acquisition
proceedings
initiated
by
issuing notification under Section 4(1) of
the Act dated 20th May, 2009 is to be
maintained. The invocation of power
under Section 17(4) of the Act in the
notification under Section 4 of the Act
dated 20th May, 2009 has to be set-aside
and
consequently
notification
under
Section 6 of the Act has also to be setaside.

Case law discussed:
Writ Petition no. 18918 of 2006 (Ramesh and
others vs. State of U.P. And others), Civil
Appeal No. 2523 of 2008 (Anand Singh and
another vs. State of U.P. And others, 1987
A.W.C.382, A.I.R. 1994 Allahabad 359, 1997
All.L.J. 1756, 2007(9) Additional District Judge
447, 2002(47) ALR 706, (2002) 4 S.C.C. 160,
(1977) 1 S.C.C. 133, 1986 AIR 2025, (2004) 8
S.C.C. 14, (2004) 8 S.C.C. 453,

## Text

_Characters 0–39,829 of 73,307. This is a partial read: ask again with offset=39829 for what follows._

3 All] Smt.Mithilesh Kumari and others V. State of U.P. and others
1205
private
body
and
the
writ
is
not
maintainable. Hence, we are of the view
that no writ is maintainable against a
private school as it is not a 'State' within the
meaning of Article 12 of the Constitution of
India and no direction could have been
given by the High Court to the CBSE for
interfering with the termination of the
teachers. The proper remedy for the
teachers was to file a civil suit for damages,
if there was any. Consequently, we allow
this appeal and set aside the order passed
by the Allahabad High Court to the extent of
giving a direction to the Board. There will
be no order as to cots."

7. So far as the decision in Special
Appeal No.611 of 2008, Union of India &
others Vs. Somendra Gupta & others
relied by the learned counsel for the
petitioner is concerned, therein in para 10
and 11 of the judgment, the Division Bench
clearly has held as under:

"10. Learned Single Judge will
therefore
decide
the
question
of
maintainability of the petition as to whether
the Society concerned is a State and
whether the petition is maintainable, and if
so maintainable, will decide as to whether
on facts the respondent nos. 1 to 4 are
entitled to the relief claimed for.

11. In view of the aforesaid facts and
circumstances the appeal is allowed. The
petition will go to the file of the Single
Judge. We request him to decide it at the
earliest. We make it clear that this Court
has not given any finding one way or the
other as to whether the Society is a State or
it is not."

8. In view of the Full Bench decision
of this Court the petitioner working in a
private institution, which is not a "State"
with the meaning of Article 12 of the
Constitution of India, I find no option but to
hold that this writ petition is not
maintainable. Admittedly the institution, in
which the petitioner was employee, is a
private institution and is not financed in any
manner or otherwise is controlled by the
Central Board of Secondary Education nor
is receiving grant-in-aid from the State
Government or Central government or the
Government or its authority play any role
except to the extent that recognition is being
granted
for
holding
examination
of
Secondary classes.

9. The writ petition is accordingly
dismissed as not maintainable.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2010

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE VIRENDRA SINGH, J.

Civil Misc. Writ Petition No. 23624 of 2010

Smt.Mithilesh Kumari and others...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri C.P.Gupta
Sri Keshri Nath Tripathi

Counsel for the Respondent:
C.S.C.
Sri Satish Mandhyan

Land Requisition Act 1894-Section 4(1)
readwith section 17(4)-notification U/S
4 of the Act issued after 8 years-invoking
dispensing enquiry under section 5-ANotification
under
Section
4
(1)
published
on
20.05
09-deceleration
under
section
6(c)
dated
27.01.10
published
on
13.02.2010-plots
in
1206 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
question
a
grove
land-no
material
produced before the court for forming
any subjective satisfaction regarding
invocation of section 17(i) and (ii) of the
Act-except saying urgently needed-held
both notification under section 4(i)
evoking
section
17(4)
as
well
as
deceleration under section 6 set-a-side

Held: Para 30,35,37,39

It is relevant to note that although in the
writ petition there was specific pleading
that there is no such urgency in the
matter so as to invoke the power under
Section 17(4) of the Act, in the counter
affidavit neither any material has been
brought nor any pleading has been made
giving any specific reason for justifying
the invocation of power under Section
17(4) of the Act except stating that the
acquisition was urgently needed for
construction of sub-market yard for
which the District Magistrate was fully
satisfied.

From the aforesaid, it is clear that there
was no application of mind by the State
with regard to invocation of power under
Section 17(4) nor the records disclose
that
the
aforesaid
fact
has
been
considered by the State Government
before directing for dispensation of
inquiry under Section 5A of the Act.

In view of the foregoing discussions, we
are of the considered opinion that in the
present case there was neither any
material nor there was application of
mind by the State with regard to
invocation of power under Section 17(4)
of the Act and the power under Section
17(4) of the Act was invoked by the
State in a routine and mechanical
manner which cannot be sustained. Thus
the
submission
of
counsel
for
the
petitioners has substance that invocation
of power under Section 17(4) of the Act
is not in accordance with the provisions
of the Act and the law laid down by the
Apex Court as noted above.

We are cautious that construction of
sub-market yard is urgent matter but, as
observed above, mere urgency does not
automatically lead to deny the land
holders their right of filing objection
under
Section
5A.
Thus
the
land
acquisition
proceedings
initiated
by
issuing notification under Section 4(1) of
the Act dated 20th May, 2009 is to be
maintained. The invocation of power
under Section 17(4) of the Act in the
notification under Section 4 of the Act
dated 20th May, 2009 has to be set-aside
and
consequently
notification
under
Section 6 of the Act has also to be setaside.

Case law discussed:
Writ Petition no. 18918 of 2006 (Ramesh and
others vs. State of U.P. And others), Civil
Appeal No. 2523 of 2008 (Anand Singh and
another vs. State of U.P. And others, 1987
A.W.C.382, A.I.R. 1994 Allahabad 359, 1997
All.L.J. 1756, 2007(9) Additional District Judge
447, 2002(47) ALR 706, (2002) 4 S.C.C. 160,
(1977) 1 S.C.C. 133, 1986 AIR 2025, (2004) 8
S.C.C. 14, (2004) 8 S.C.C. 453,

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard Sri Keshri Nath Tripathi,
Senior Advocate, assisted by Sri C.P. Gupta,
Advocate for the petitioners in Writ Petition
No.23624 of 2010, Sri Anil Kumar Tiwari,
Advocate for the petitioner in Writ Petition
No.41012 of 2010 and Sri B.D. Mandhyan,
Senior Advocate, assisted by Sri Satish
Mandhyan, Advocate for the respondents in
both the writ petitions. Learned Standing
Counsel has appeared for State-respondents.

2.

These
two
writ
petitions
challenging same notifications have been
heard together and are being disposed of by
this common judgment. Pleadings in Writ
Petition No.23624 of 2010 have been
exchanged and it is sufficient to refer to
pleadings of the said writ petition for
deciding both the writ petitions.

Learned
Standing
Counsel
has
3 All] Smt.Mithilesh Kumari and others V. State of U.P. and others
1207
produced the original records of the State
Government pertaining to land acquisition
in question, which has been perused by us.

Brief facts of the case, as emerge from
pleadings of the parties, are; The petitioners
claim to be bhumidhar of Plots No.391A
and 391B measuring about 0.421 and 1.101
hectare respectively situated in village
Islamganj, Pargana and Tehsil Jalalabad,
district Saharanpur. Krishi Utpadan Mandi
Samiti, Jalalabad, Saharanpur is a market
area notified under Krishi Utpadan Mandi
Samiti Adhiniyam, 1964. Allahganj is submarket area of Krishi Utpadan Mandi
Samiti, Jalalabad. Steps for construction of
sub
market
yard
were
initiated
by
respondent No.3. The land selection
committee of Krishi Utpadan Mandi Samiti,
Jalalabad on 26th August, 1994 selected an
area of 18.64 acres for sub-market area,
Allahganj. The Board of Director, Mandi
Parishad, Lucknow on 10th July, 1997
approved the proposal for acquisition of 10
acres of land. A letter dated 27th June, 2003
was written by the Regional Deputy
Director (Administration), Mandi Parishad,
Bareilly directing for making available
proposal for land acquisition to Land
Acquisition Directorate, Board of Revenue,
Lucknow
through
the
Collector
for
acquisition of 10 acres of land under
Section 4/17 of the Land Acquisition Act,
1894 (hereinafter referred to as the Act). On
8th August, 2008 resolution was passed by
the Krishi Utpadan Mandi Samiti, Jalalabad
directing for acquisition. A meeting of the
Zila Bhoomi Upyog Samiti headed by
Collector was held which approved the
proposal submitted by respondent No.3 for
acquisition of 3.995 hectare of land. The
Collector vide letter dated 25th October,
2008 forwarded the proposal of acquisition,
as submitted by respondent No.3, to the
Commissioner
and
Director,
Land
Acquisition Directorate, Board of Revenue,
Lucknow. The Commissioner and Director
vide letter dated 1st December, 2008
forwarded the proposal to the Secretary,
Department of Agricultural Marketing and
Agricultural Foreign Trade for issuing
notification under Section 4(1)/17 of the
Act. A note dated 2nd January, 2009 was
submitted, which was approved by the
Special Secretary on 5th January, 2009. The
note was also recommended for obtaining
proposal from Director, Mandi Parishad.
The Director, Mandi Parishad wrote a letter
on 27th February, 2009. The note was
submitted on 3rd March, 2009 for approval
of the proposal for acquisition of 3.995
hectare of land under Section 4(1)/17 of the
Act, which was forwarded by the Special
Secretary on 5th March, 2009 and approved
by the Minister concerned on 6th March,
2009. The provisions of sub-section (1) of
Section 17 and sub-section (4) of Section 17
of the Act were also invoked dispensing the
inquiry under Section 5A of the Act. The
notification under Section 4(1) of the Act
was published in the Gazette on 20th May,
2009 and the substance of the notification
was
published
in
the
Hindi
Daily
newspapers "Amar Ujala" and "Dainik
Jagaran" on 14th October, 2009 and 15th
October, 2009 respectively. A declaration
under Section 6(1) of the Act dated 27th
January, 2010 was issued, which was
published in the Gazette on 27th January,
2010 itself and thereafter published in the
Hindi Daily newspapers "Amar Ujala" and
"Dainik Jagaran" on 13th February, 2010.
Challenging the notifications issued under
Section 4 read with Sections 17(1) and
17(4) of the Act and the declaration under
Section 6(1) read with Section 17(4) these
writ petitions have been filed. A writ of
mandamus has also been prayed for
restraining
the
respondents
from
dispossessing the petitioners from their
1208 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
land.

3. The writ petition was entertained by
Division Bench of this Court on 28th April,
2010. After filing of the counter affidavit
and supplementary counter affidavit by
respondents No.2 and 3 an interim order
was passed on 3rd May, 2010 directing the
parties to maintain status quo with regard to
possession over the land in question. The
State also filed its counter affidavit. The
State Government was directed to produce
the relevant records by order dated 30th
September, 2010. The original records of
the
State
Government
being
File
No.600(293)/208 of the Department has
been produced by learned Standing Counsel
on the date of hearing.

4. Sri Keshri Nath Tripathi, Senior
Advocate, appearing for the petitioners,
challenging the impugned notifications,
submits that steps for acquisition have been
initiated in the year 1994 by Land Selection
Committee which received approval of the
Board of Director on 10th July, 1997 and
thereafter after more than 10 years,
respondent No.3 took a decision on 8th
August, 2008 for proceeding with the land
acquisition, which proposal was forwarded
by the District Magistrate on 25th October,
2008 on the basis of which notification
under Section 4 of the Act was issued on
20th May, 2009 and published in the
newspapers on 14th and 15th October,
2009. The above facts indicate that there
was no such urgency in the matter which
may warrant dispensation of inquiry under
Section 5A. It is submitted that even if it is
assumed that construction of some market
yard is urgent matter requiring invocation of
Section 17(1) of the Act, there has to be
exceptional reasons for dispensing with the
inquiry under Section 5A of the Act. It is
submitted that steps for construction of
market yard having been initiated in the
year 1994, which remained pending at the
stage of respondent No.3 itself till 2008,
there cannot be any sudden urgency for
dispensing with the inquiry under Section
5A. He submits that in the plots in question
there is a big grove of fruits bearing trees
comprising of 110 tress of Mango, 52 trees
of Sheesham, 2 trees of Popular, one big
tree of Peepal and 2 trees of Neem which
are about 40 years old. He submits that in
accordance with the Government orders
dated 20th August, 1969 and 5th February,
1993 as far as possible the cultivatory land
should not be acquired for non cultivatory
purpose. He submits that petitioners were
entitled for an opportunity to file their
objection, which has been denied without
there being any valid ground. He submits
that even after publication of notification
under Section 4 of the Act on 20th May,
2009 the same was got published in the
newspapers on 14th and 15th October,
2009, which fact itself indicates that there
was no such urgency in the matter which
warranted dispensation of inquiry. It is
submitted that had the case being of such
urgency, there was no occasion for
publishing substance of notification under
Section 4 of the Act after five months. Sri
Tripathi further submitted that neither there
was
any
material
before
the
State
Government
forming
any
subjective
satisfaction regarding invocation of Sections
17(1) and 17(4) of the Act nor the State
Government applied its mind with regard to
Sections 17(1) and 17(4) of the Act. It is
submitted that sub-market yard at Allahganj
has not been declared as required by Section
6(1) of the Krishi Utpadan Mandi Samiti
Adhiniyam,
1964
and
the
gazette
notification dated 29th October, 1996,
which has been made available to the
petitioners under the Right to Information
Act, 2005, is a notification dividing existing
3 All] Smt.Mithilesh Kumari and others V. State of U.P. and others
1209
market area of Jalalabad into two distinct
market yards i.e. Jalalabad and Allahganj
and not with regard to creation of new
market yard at Allahganj. He submits that
there was no need or justification for
acquisition
of
land
in
question
for
construction of sub-market yard. Sri
Tripathi has placed reliance on a Division
Bench judgment of this Court in Writ
Petition No.18918 of 2006 (Ramesh and
others vs. State of U.P. and others) decided
on 18th December, 2007 and the judgment
of the Supreme Court in Civil Appeal
No.2523 of 2008 (Anand Singh and
another vs. State of U.P. and others)
decided on 28th July, 2010.

5. Sri B.D. Mandhyan, learned Senior
Advocate, appearing for respondents No.2
and 3, refuting the submissions of counsel
for the petitioners, submits that construction
of market yard and sub-market yard are
matter of national urgency. He submits that
in several judgments of this Court as well as
the Apex Court, it has been held that
invocation of provisions of Sections 17(1)
and 17(4) is fully justified in regard to cases
for construction of sub-market yard. He
submits that construction of sub-market
yard brings relief to the agriculturists, which
is of extreme urgency. Reliance has been
placed by Sri Mandhyan on Division Bench
judgments of this Court in the cases of
Satyendra Prasad Jain and others vs. State
of U.P. and others reported in 1987
A.W.C.382, Smt. Manorama Devi and
others vs. State of U.P. and others reported
in A.I.R. 1994 Allahabad 359, Ranjit Singh
Chauhan and another vs. State of U.P. and
another reported in 1997 All.L.J. 1756,
Smt. Manju Lata Agrawal vs. State of U.P.
and others reported in 2007(9) Additional
District Judge 447, Mahendra Singh vs.
State of U.P. and others, reported in
2002(47) ALR 706 and the judgments of the
Apex Court in the cases of Bhagat Singh
vs. State of U.P. and others reported in
A.I.R. 1999 S.C. 436 and First Land
Acquisition Collector and othes vs. Nirodhi
Prakash Gangoli and another reported in
(2002)4 S.C.C. 160. Sri Mandhyan further
submits that the delay on the part of
respondents No.2 and 3 or by the State prior
to issue of the notification under Section
4(1) of the Act is not relevant nor the same
vitiate the notifications. He further submits
that even the delay which have been
occurred after issue of notification under
Section 4 of the Act does not vitiate the
acquisition
proceedings.
Refuting
the
submission of learned counsel for the
petitioners with regard to non declaration of
sub market area in question, it is submitted
that notification was issued declaring
Allahganj sub market area on 11th
February, 1976 under Section 7 of the
Krishi Utpadan Mandi Samiti Adhiniyam,
1964 declaring sub market area as Gaon
Sabha Allahganj. He submits that there is no
requirement of issuing any notification
under Section 8 of the Krishi Utpadan
Mandi Samiti Adhiniyam, 1964. It is
submitted that notification dated 29th
October, 1996, which has been filed by the
petitioners themselves is notification under
Section 8(1) of the Krishi Utpadan Mandi
Samiti Adhiniyam, 1964 dividing Jalalabad
market area into Allahganj market area and
Jalalabad market area and there was no lack
of jurisdiction in the authorities to acquire
the land for construction of sub market yard
at Allahganj.

6. Sri Ram Krishna, learned Standing
Counsel,
appearing
for
the
State
Government, has submitted that the State
Government has rightly issued notification
under Section 4 read with Section 17(1) and
17(4) of the Act. He submits that suitability
of land was judged after spot inspection and
1210 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the land in question was urgently required
for construction of sub-market yard,
therefore, provisions of Section 17(4) of the
Act was rightly invoked. It is submitted that
notice under Section 9(1) of the Act has
been issued on 3rd March, 2010 in which
petitioners have also filed their objection. It
is
further
submitted
that
the
State
Government was fully satisfied with regard
to acquiring of land and urgency for
dispensing with the inquiry under Section
5A of the Act. Learned Standing Counsel
referring to the original records, has
submitted that all requisite certificates
including certificate in PRAPATRA-10 for
invoking section 17 was given by the
Collector and there being materials on
record, the State Government has rightly
invoked Section 17(4) of the Act.

7.

We
have
considered
the
submissions of learned counsel for the
parties and perused the records including
the record of the State Government
produced by the learned Standing Counsel
at the time of hearing.

8. The main issue, which has arisen
for consideration in this writ petition, is with
regard to invocation of Sections 17(1) and
17(4) of the Act. Section 17(1) and 17(4) of
the Act are quoted below:-

" 17.Special powers in cases of
urgency:- (1) In cases of urgency, whenever
the appropriate Government so directs, the
Collector, though no such award has been
made, may, on the expiration of fifteen days
from the publication of the notice mentioned
in section 9, sub-section (1), take possession
of any waste or arable land needed for
public purposes or for a Company. Such
land shall thereupon vest absolutely in the
Government, free from all encumbrances.

(2) ...........

(3) ...........

[(4) In the case of any land to which,
in
the
opinion
of
the
appropriate
Government, the provisions of sub-section
(1) or sub-section (2) are applicable, the
appropriate Government may direct that the
provisions of section 5A shall not apply,
and, if it does not so direct, a declaration
may be made under section 6 in respect of
the land at any time after the publication of
the notification under section 4, sub-section
(1).]"

9. Section 17(1) of the Act provides
that in cases of urgency, whenever the
appropriate Government so directs, the
Collector, though no such award has been
made, may, on the expiration of fifteen days
from
the
publication
of
the
notice
mentioned in section 9, sub-section (1), take
possession of any waste or arable land
needed for public purposes. Sub-Section (4)
of Section 17 provides that in case of any
land to which, in the opinion of the
appropriate Government, the provisions of
sub-section (1) or sub-section (2) are
applicable, the appropriate Government
may direct that the provisions of section 5A
shall not apply.

10. The acquisition in question has
been made for public purpose, namely
"Construction
of
Sub
Market
Yard,
Allahganj of Krishi Utpadan Mandi Samiti,
Jalalabad". It is not disputed that the
purpose for which the land is being acquired
is public purpose. It is also not disputed that
construction of market yard and sub market
yard are matters of urgency. The Division
Bench judgment of this Court in Satyendra
Prasad Jain's case (supra), which has been
relied by Sri B.D. Mandhyan, has laid down
3 All] Smt.Mithilesh Kumari and others V. State of U.P. and others
1211
that farmers need protection against the
exploiters, they need remunerative price for
their produce, they should be provided all
facilities for sale of their produce and,
therefore,
proper
market
yard
is
indispensable for them. It has further been
held that their need is no less urgent than
housing accommodation. Following was
laid down in paragraphs 11 and 12 of the
judgment:-

"11. Looking at these conditions it
cannot be said that there is no urgency in
the matter of acquiring the land in question.
It is an acknowledged fact that the farmers
need protection against the exploiters. They
need remunerative price for their produce.
The proper market yard, is, therefore,
indispensable for them. We should not look
leisurely at everything. The need of the
farmers requires everybody's concern and
attention. Their need is no less urgent than
housing accommodation. The Supreme
Court in a recent decision pertaining to the
case of Meerut Development Authority -
State of U.P. v. Meerut Development
Authority, Meerut, AIR 1986 SC 2025 has
observed that acquisition proceedings for
the housing scheme could be taken by
dispensing with the compliance of Section
5-A of the Act. It was observed at page
2028:-

"The
provision
of
housing
accommodation in these days has become a
matter of national urgency. We may take
judicial notice of this fact. Now it is difficult
to hold that in the case of proceedings
relating to acquisition of land for providing
house sites it is unnecessary to invoke
Section 17(1) of the Act and to dispense
with the compliance of section 5-A of the
Act."

12. These observations are equally
applicable to acquisition for construction of
market yards which are primarily for the
benefit of agriculturists. They are the back
bone of this country. It is not the case of the
petitioners that the lands have been
acquired with malafide intention. Their only
case is that they have planted eucalyptus,
but
the
law
provides
for
adequate
compensation even for that."

11. The judgment of the Apex Court
in Bhagat Singh's case (supra) was a case
of construction of market yard at district
Agra. The Apex Court in the said case has
laid down that establishment of market yard
is a matter of urgency.

12. Sri K.N. Tripathi has not seriously
disputed the above said proposition. Thus
the submission of Sri B.D. Mandhyan that
the acquisition for construction of sub
market yard was a matter of urgency, hence
invocation of Section 17(1) of the Act
cannot be faulted, is correct.

13. The submission, which has been
emphatically pressed by the counsel for the
petitioners is that there was no valid ground
for invocation of Section 17(4) in facts of
the present case. It is further submitted that
neither there was any material to form any
subjective satisfaction by the State that
inquiry was liable to be dispensed with nor
in fact the State applied its mind to the
aforesaid.

14. Before we proceed to consider the
facts of the present case and above
submission of learned counsel for the
petitioners, it is relevant to refer to certain
decisions of this Court as well as the Apex
Court, which had occasion to consider
Section 17(4) of the Act.

15. A three Judges Bench of the Apex
1212 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Court in the case of Narayan Govind
Gavate & others. vs. State of Maharashtra
& others reported in (1977) 1 S.C.C. 133
had considered sub-section (4) of Section
17 of the Act. The Apex Court was
considering the land acquisition proceeding
for the purpose of development of an area
for industrial and residential purposes. The
Apex Court laid down that barring
exceptional circumstances, as to make
immediate possession, without holding even
a summary enquiry under section 5A of the
Act, is imperative. It was also held that if a
challenge is made to the invocation of
provisions of Section 17(4) of the Act, it is
for the State to show that some exceptional
circumstances existed which necessitated
the elimination of inquiry under section 5A
of the Act and the authority applied its mind
to this essential question. Following was
laid down in paragraphs 40, 41 and 42 of
the said judgment:-

"40. In the case before us, the public
purpose indicated is the development of an
area for industrial and residential purposes.
.This in itself, on the face of it, does not call
for any such action, barring exceptional
circumstances, as to make immediate
possession,
without
holding
even
a
summary enquiry under section 5A of the
Act, imperative. On the other hand, such
schemes generally take sufficient period of
time to enable at least summary inquiries
under section 5A of the Act to be completed
without any impediment whatsoever to the
execution of the scheme. Therefore, the very
statement of the public purpose for which
.the land was to be 'acquired indicated the
absence of such urgency, on the apparent
facts of the case, as to require the
elimination of an enquiry under 'section 5A
of the Act.

41. Again, the uniform and set recital
of a formula, like a ritual or mantara,
apparently applied mechanically to every
case, itself indicated that the mind of the
Commissioner concerned was only applied
to the question whether the land was waste
or arable and whether its acquisition is
urgently needed. Nothing beyond that seems
to have been considered. The recital itself
shows that the mind of the Commissioner
was not applied at all to the question
whether the urgency is of such a nature as
to require elimination of the enquiry under
section 5A.of the Act. If it was, at least the
notifications gave no inkling of it at all. On
the other hand, its literal meaning was that
nothing beyond matters stated there were
considered.

42.
All
schemes
relating
to
development of industrial and residential
areas must be urgent in the context of the
country's need for increased production and
more residential accommodation. Yet, the
very nature of such schemes of development
does not appear to demand such emergent
action as to eliminate summary enquires
under section 5A of the Act. There is no
indication whatsoever in the affidavit filed
on behalf of the State that the mind of the
Commissioner was applied. at all to the
question whether it was a case necessitating
the elimination of the enquiry under section
5A of the Act. The recitals in the
notifications, on the other hand, indicate
that elimination of the enquiry under section
5A of the Act was treated as an automatic
consequence of the opinion formed on other
matters. The recital does not say at all that
any opinion was formed on the need to
dispense with the enquiry under section 5A
of the Act. It is certainly a case in which' the
recital was at least defective. The burden,
therefore, rested upon the State to remove
the defect, if possible, by evidence to show
that some exceptional circumstances which
3 All] Smt.Mithilesh Kumari and others V. State of U.P. and others
1213
necessitated the elimination of an enquiry
under section 5A of the Act and that the
mind of the Commissioner was applied to
this essential question. It seems to us that
the High Court correctly applied the
provisions of section '106 of the Evidence
Act to place the burden upon the State to
prove those special circumstances. although
it also; appears to us. that the High Court
was not quite correct in stating its view in
such a manner as to make it appear that
some part of the initial burden of the
petitioners under sections 101 and 102 of
the Evidence Act had been displaced by the
failure of the State, to discharge its duty
under' section 106 of the Act. The correct
way of putting it would have been to say
that the failure of the State to produce the
evidence of facts especially' within the
knowledge of its officials, which rested upon
it under section 106 of the Evidence Act,
taken together with the attendant facts gnu
circumstances, including the contents of
recitals, had enabled the petitioners to
discharge their burdens under sections 101
and 102 of the Evidence Act."

16. The Apex Court in the case of
State of U.P. and others vs. Smt. Pista Devi
reported in 1986 AIR 2025 1986 laid down
that acquisition for the purpose of residence
is a matter of national urgency.

17. The Apex Court in Bhagat
Singh's case (supra), which has been relied
by the learned counsel for the respondents,
has laid down following in paragraphs 9, 10
and 11:-

"9. On the question of urgency, the
following facts and contentions emerge from
the Counter affidavits. The establishment of
a Market Yard is not merely one of mere
urgency but one which makes it necessary
to dispense with inquiry under section 5-A.
The existing market yard is situated in a
very congested locality having no scope for
expansion and the place where the Market
is now located is not sufficient to cater to
the growing needs of its constituents. There
is no adequate space for free movement and
parking of trucks/bullock carts etc. nor for
providing necessary shelter for those who
come to the market. The existing market is
also devoid of any amenities necessary for
hundreds of people who visit the market
every day or for the bullocks which are
being used to draw the carts. During rainy
season it becomes well-nigh impossible to
find out suitable shelters for the farmers
and producers of vegetables. It has become
necessary to provide amenities and also
construct roads in a planned manner.

10. In our view, the subjective
satisfaction for dispensing with inquiry
under Section 5-A is based on sufficient
material and cannot be faulted. The
photographs as to the filthy state of the
present Mandi with garbage and stray cattle
and pigs show that the place is so
loathsome that it will be precarious and
perhaps hazardous to store vegetables or
foodgrains in the existing market. We are,
therefore, of the view that the urgency
clause
was
rightly
invoked
by
the
government.
There
are
also
enough
precedents in connection with acquisition of
land for markets where Section 5-A has
been dispensed with and such action was
upheld.

11. In connection with a similar
acquisition for a market yard, when Section
5- A inquiry was dispensed with on the
ground of urgency, the Allahabad High
Court in Satyendra Prasad Jain (S.P. Jain)
and others, v. State of U.P., [1987] A.W.C.
382 observed :

"The question herein is whether the
1214 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
State was justified in dispensing the
requirements of enquiry contemplated under
Section 5-A. It could be taken judicial notice
of, that in regard to agricultural produce
there were no proper market facilities.
There were innumerable charges, levies and
exactions which the agriculturists were
required to pay without having any say in
the proper utilisation of the amount paid by
them. The Government of India and the
various
committees
and
commissions
appointed to study the condition of
agricultural markets in the country had
stress to need to provide proper market
yards for the sale and purchase of
agricultural
produce.
The
Planning
Commission also stressed long ago in this
regard. The Uttar Pradesh Krishi Utpadan
Mandi Adhiniyam, 1964 has been enacted
to provide for the regulation of sale and
purchase of agricultural produce and for
the establishment, superintendence and
control of markets therefore, in Uttar
Pradesh. The proposed construction of
market and market yard by the Mandi
Samiti is, therefore, a step forward to
ameliorate the conditions of producers with
due representation to them in the Mandi
Samities for the fair settlement of disputes
relating to their transactions. It is a long felt
need which is said to have been included in
the planned Development Scheme."

It was further stated (P.3 & 4) as
follows :

"It cannot be said that there is no
urgency in matter of acquiring the land in
question."

18. The above observations of the
Apex Court that establishment of market
yard is not merely one of mere urgency but
one which makes it necessary to dispense
with inquiry under Section 5A were made
on the basis that there was sufficient
materials on the record for forming
subjective satisfaction for dispensation of
inquiry. Specific reasons, which led the
authority to dispense with the inquiry, has
been made in paragraphs 9 and 10 of the
said judgment, as quoted above.

19. In First Land Acquisition
Collector's case (supra), the Apex Court
laid down following in paragraph 5:-

"5. The question of urgency of an
acquisition under Section 17(1) and (4) of
the Act is a matter of subjective satisfaction
of the Government and ordinarily it is not
open to the Court to make a scrutiny of the
propriety of that satisfaction on an objective
appraisal of facts. In this view of the matter
when the Government takes a decision,
taking all relevant considerations into
account and is satisfied that there exists
emergency for invoking powers under
Section 17 (1) and (4) of the Act, and issues
Notification accordingly, the same should
not be interfered with by the Court unless
the Court comes to the conclusion that the
appropriate authority had not applied its
mind to the relevant factors or that the
decision has been taken by the appropriate
authority mala fide. Whether in a given
situation there existed urgency or not is left
to the discretion and decision of the
concerned authorities. If an order invoking
power under Section 17(4) is assailed, the
Courts
may
enquire
whether
the
appropriate authority had all the relevant
materials before it or whether the order has
been passed by non-application of mind.
Any post Notification delay subsequent to
the decision of the State Government
dispensing with an enquiry under Section
5(A) by invoking powers under Section
17(1) of the Act would not invalidate the
decision itself specially when no mala fides
3 All] Smt.Mithilesh Kumari and others V. State of U.P. and others
1215
on the part of the government or its officers
are
alleged.
Opinion
of
the
State
Government can be challenged in a Court
of law if it could be shown that the State
Government never applied its mind to the
matter or that action of the State
Government is mala fide. Though the
satisfaction under Section 17(4) is a
subjective one and is not open to challenge
before a Court of law, except for the
grounds already indicated, but the said
satisfaction must be of the Appropriate
Government and that the satisfaction must
be, as to the existence of an urgency....."

20. The Apex Court in the above case
has laid down that if an order invoking
power under Section 17(4) is assailed, the
courts may enquire whether the appropriate
authority had all the relevant materials
before it or whether the order has been
passed by non application of mind. It was
also laid down that any post notification
delay subsequent to the decision of the State
Government dispensing with the inquiry
under Section 5A would not invalidate the
decision itself.

21. A three Judges Bench of the Apex
Court in the case of Union of India and
others vs. Mukesh Hans reported in
(2004)8 S.C.C. 14 had occasion to consider
Section 17(5) and 5A of the Act and after
considering
several
earlier
judgments,
following propositions were laid down in
paragraphs 31, 32 and 33 of the said
judgment:-

"31. Section 17 (4) as noticed above
provides that in cases where the appropriate
Government has come to the conclusion
that there exists an urgency or unforeseen
emergency as required under sub-sections
(1) or (2) of Section 17 it may direct that the
provisions of Section 5A shall not apply and
if such direction is given then 5A inquiry
can be dispensed with and a declaration
may be made under Section 6 on
publication of 4(1) notification possession
can be made.

32. A careful perusal of this provision
which is an exception to the normal mode of
acquisition contemplated under the Act
shows mere existence of urgency or
unforeseen emergency though is a condition
precedent for invoking Section 17(4) that by
itself is not sufficient to direct the
dispensation of 5A inquiry. It requires an
opinion to be formed by the concerned
government that along with the existence of
such urgency or unforeseen emergency
there is also a need for dispensing with 5A
inquiry which indicates that the Legislature
intended that the appropriate government to
apply its mind before dispensing with 5A
inquiry. It also indicates the mere existence
of an urgency under Section 17 (1) or
unforeseen emergency under Section 17 (2)
would not by themselves be sufficient for
dispensing with 5A inquiry. 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 5A
inquiry 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 5A inquiry 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 5A
inquiry does not mean that in and every
case when there is an urgency contemplated
under Section 17 (1) and unforeseen
1216 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
emergency contemplated under Section 17
(2) exists that by itself would not contain the
need for dispensing with 5A inquiry. It is
possible in a given case the urgency noticed
by the appropriate Government under
Section 17(1) or the unforeseen emergency
under Section 17(2) itself may be of such
degree that it could require the appropriate
Government on that very basis to dispense
with the inquiry under Section 5A but then
there is a need for application of mind by
the appropriate Government that such an
urgency for dispensation of the 5A inquiry is
inherent in the two types of urgencies
contemplated under Section 17 (1) and (2)
of the Act.

33. An argument was sought to be
advanced on behalf of the appellants that
once the appropriate Government comes to
the conclusion that there is an urgency or
unforeseen emergency under Section 17(1)
and (2), the dispensation of enquiry under
Section 5A becomes automatic and the same
can be done by a composite order meaning
thereby that there no need for the
appropriate Government to separately
apply its mind for any further emergency for
dispensation with an inquiry under Section
5A.