# Upbhokta Sanrakshan Evam Awas Vikas Samiti v. State Of U.P. & Ors

- **Citation:** (2016) 7 ILRA 798
- **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/upbhokta-sanrakshan-evam-awas-vikas-samiti-v-state-of-u-p-ors-44213
- **Pages:** 10

## Headnote

Land Acquisition Act, 1894-Ss. 4, 5-A, 6 & 17(1), (4)-Urgency clause-Dispensation of enquiry
under S. 5-A-Validity- Right to file objections under S. 5-A is a substantial and valuable right embodying
principles of natural justice-Dispensation permissible only in cases of real and genuine urgency-Mere recital
of "public purpose" or "planned industrial development" not sufficient-State must place material to justify
application of mind and existence of urgency-Failure to disclose any such material renders invocation of S.
17(4) arbitrary and illegal-Impugned notifications dispensing with enquiry held unsustainable. (Paras 16, 21,
24, 29)
Land Acquisition-Urgency power-Scope and limits- Power under S. 17 is exceptional and not to be
exercised routinely-Delay in development schemes ordinarily negates claim of urgency-Government must
demonstrate that even minimal delay for S. 5-A enquiry would frustrate public purpose-Absence of such
circumstances vitiates acquisition-(Paras 24-26, 29)
Natural Justice-Right of hearing-Compulsory acquisition- Deprivation of property without hearing
is permissible only in exceptional cases of real urgency-S. 5-A enquiry is integral safeguard and cannot be
dispensed with mechanically-Arbitrary exclusion violates statutory and constitutional protections-(Paras 16,
19, 28)
Land Acquisition-Partial challenge-Maintainability- Challenge to acquisition fails in respect of land
already acquired under earlier notifications not impugned-Court confines scrutiny to impugned notifications
only-(Paras 9, 30)
In Result- Writ petition partly allowed-Acquisition proceedings upheld for plots already acquired earlierImpugned notifications quashed to the extent they dispense with S. 5-A enquiry in respect of remaining
plots-Authorities permitted to proceed afresh from stage of S. 5-A enquiry. (Para 30)

Cases cited:

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 others1980 (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
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
Radhe Shyam (Dead) through Lrs. and others vs. State of U.P. and others2011(5) SCC 553
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 others2014 (6) SCC 564

## Text

798 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In the case of Syed Abdul Qadir Vs. State of Bihar (2009) 3 SCC 475 (Para-58),
Hon'ble Supreme Court held that the relief against recovery is granted by courts not because of any
rights in the employees, but in equity, exercising judicial discretion to relieve the employees from
the hardships that will be caused if recovery is ordered. But, if in a given case, it is proved that the
employee had knowledge that the payment received was in excess of what was due or wrongly
paid, or in cases where the error is detected or corrected within a short time of wrong payment, the
matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any
particular case, order for recovery of the amount paid in excess. Similar views have also been
expressed by Hon'ble Suprement Court in Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC
18, Shyam Babu Verma vs. Union of India, (1994) 2 SCC 521, Union of India vs. M. Bhaskar,
(1996) 4 SCC 416, V. Ganga Ram vs. Director, (1997) 6 SCC 139, B.J. Akkara vs.
Government of India (2006) 11 SCC 709, Purshottam Lal Das & Ors., vs. State of Bihar,
(2006) 11 SCC 492; Punjab National Bank Vs. Manjeet Singh, (2006) 8 SCC 647, and Bihar
SEB Vs. Bijay Bahadur (2000) 10 SCC 99.

18. Considering the facts of the case of the petitioners, the findings recorded in Para-15
above and the law laid down by Hon'ble Supreme Court in the afore-noted judgments, I find that it
would be iniquitous, more unfair and unwarranted to permit the respondents to recover the
payments made to the petitioners for the period they worked/ remained in employment.

19. In view of the aforesaid, the impugned order cancelling appointment of the petitioners,
is upheld. However on facts, it is directed that salary and other benefits received by the petitioners
from the respondents shall not be recovered from them.

20. All the Writ Petitions are disposed of and interim orders are vacated. There shall be no
order as to costs.
-----------
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.- 16115 Of 2002

Upbhokta Sanrakshan Evam Awas Vikas Samiti ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
C.B. Yadav, Dhruv Agarwal, Kshitij Shailendra, Manu Khare, Monu Agarwal, Nikhil Agarwal, Shwetashwa
Agarwal
7 All. Upbhokta Sanrakshan Evam Awas Vikas Samiti Vs State Of U.P. & Ors.
799
Counsel for the Respondents:
C.S.C., M. D. Singh Shekhar, R.D. Tiwari, Rajendra Kumar Mishra, Shivam Yadav

Land Acquisition Act, 1894-Ss. 4, 5-A, 6 & 17(1), (4)-Urgency clause-Dispensation of enquiry
under S. 5-A-Validity- Right to file objections under S. 5-A is a substantial and valuable right embodying
principles of natural justice-Dispensation permissible only in cases of real and genuine urgency-Mere recital
of "public purpose" or "planned industrial development" not sufficient-State must place material to justify
application of mind and existence of urgency-Failure to disclose any such material renders invocation of S.
17(4) arbitrary and illegal-Impugned notifications dispensing with enquiry held unsustainable. (Paras 16, 21,
24, 29)
Land Acquisition-Urgency power-Scope and limits- Power under S. 17 is exceptional and not to be
exercised routinely-Delay in development schemes ordinarily negates claim of urgency-Government must
demonstrate that even minimal delay for S. 5-A enquiry would frustrate public purpose-Absence of such
circumstances vitiates acquisition-(Paras 24-26, 29)
Natural Justice-Right of hearing-Compulsory acquisition- Deprivation of property without hearing
is permissible only in exceptional cases of real urgency-S. 5-A enquiry is integral safeguard and cannot be
dispensed with mechanically-Arbitrary exclusion violates statutory and constitutional protections-(Paras 16,
19, 28)
Land Acquisition-Partial challenge-Maintainability- Challenge to acquisition fails in respect of land
already acquired under earlier notifications not impugned-Court confines scrutiny to impugned notifications
only-(Paras 9, 30)
In Result- Writ petition partly allowed-Acquisition proceedings upheld for plots already acquired earlierImpugned notifications quashed to the extent they dispense with S. 5-A enquiry in respect of remaining
plots-Authorities permitted to proceed afresh from stage of S. 5-A enquiry. (Para 30)

Cases cited:

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 others1980 (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
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
Radhe Shyam (Dead) through Lrs. and others vs. State of U.P. and others2011(5) SCC 553
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 others2014 (6) SCC 564

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

1. Heard Sri Shwetashwa Agarwal, learned Counsel for petitioner, Sri Ravi Kant, learned
Senior Advocate, assisted by Sri Shivam Yadav, Advocate, for New Okhla Industrial Development
Authority (hereinafter referred to as "NOIDA"); and learned Standing Counsel for Staterespondents.

2. Petitioner, Upbhokta Sanrakshan Evam Awas Vikas Samiti, Hajipur, District
Gautambudh Nagar (hereinafter referred to as "Society") is a Society registered under the
800 INDIAN LAW REPORTS ALLAHABAD SERIES

provisions of Societies Registration Act, 1860 (hereinafter referred to as "Act, 1860"). It purchased
49 bigha land bearing Khatas No. 103, 275, 276, 280, 281, 446, 447, 448, 449, 450, 451, 452 and
463 vide various sale-deeds of the same date, i.e., 22.10.1981, from different farmers. Society
requested NOIDA, a body constituted under U.P. Industrial Area Development Act, 1976
(hereinafter referred to as "Act, 1976"), to grant no-objection so that land purchased by petitioner
may be allotted to its members. NOIDA did not act on the said request and on the contrary, on a
request made by NOIDA, State Government issued Notification dated 28.11.2001 under Section
4(1) of Land Acquisition Act, 1894 (hereinafter referred to as "Act, 1894") proposing to acquire
205-625 acres of land in Village Hajipur, Tehsil and Pergana Dadari, District Gautambudh Nagar,
which included petitioners' land also. State Government also exercised its power under Section 17
(1) and (4) of Act, 1894 stating that there is an urgency, therefore, enquiry under Section 5A shall
stand dispensed with. Thereafter, declaration under Section 6 was issued vide Notification dated
26.02.2002. Both these Notifications have been challenged on the ground that dispensation of
enquiry under Section 5A is illegal, there existed no urgency and there is no material to justify the
same. It is further said that land was purchased by petitioner for the purpose of allotting the same to
its members for constructing residential buildings, and, that being so, there was no justification for
respondents to acquire the said land for the same purpose.

3. A Bench constituting of Hon'ble P.C. Verma and Hon'ble Rajesh Chandra, J.J. disposed
of this Writ Petition of vide judgment dated 10.12.2009 referring to decision in Ghaziabad
Sheromani Sahkari Avas Samiti Ltd. and another etc. Vs. State of U.P. and others 1990 (1) SCC
583 and directing respondents to allot 90 square meters of land to each member of petitionerSociety in any Housing Scheme, convenient to them, after verifying correct number of genuine
members in accordance with bye-laws and regulations. This order was passed on a statement made
by learned counsel for petitioner that he is waiving all the reliefs sought in the writ petition except
that members of Society (210 in all) be allotted land in any other scheme of NOIDA. This
judgment was taken in appeal by NOIDA, i.e. Civil Appeals No. 10119-10120 of 2011. Supreme
Court vide judgment dated 25.11.2011 has set aside the aforesaid judgment observing as under:

"We have heard learned counsel for the parties and examined the record. In our
view, the direction given by the High Court for allotment of 90 sq. mets. plots to all the members
of respondent No. 1 is legally unsustainable. Admittedly, the State Government had acquired the
land for Planned Industrial Development. The development plan prepared by NOIDA does not
envisage allotment of plots for residential purposes. Therefore, the High Court was not at all
justified in ordaining allotment of plots to the members of respondent No. 1.

Learned counsel for respondent No. 1 submits that if this Court is inclined to set
aside the impugned orders, liberty may be given to his client to press its challenge to the
acquisition proceedings on merits. Learned counsel for the appellant says that he does not have
any objection if leave is granted to respondent No. 1 to resurrect its challenge to the acquisition
proceedings.
7 All. Upbhokta Sanrakshan Evam Awas Vikas Samiti Vs State Of U.P. & Ors.
801
In the result, the appeals are allowed. The impugned orders are set aside and the
matter is remitted to the High Court for fresh disposal of the writ petition on merits.

Since majority of the members of respondent No. 1 are quite old, we request the
High Court to make an endeavour to dispose of the writ petition as early as possible but latest
within six months from the date of receipt of copy of this order. As soon as the copy of this order is
received, the Registrar (Judicial), the High Court of Allahabad shall place the matter before
Hon'ble the Chief Justice for appropriate direction."
(emphasis added)

4. After change of roster on 28.03.2016, in view of Hon'ble Chief Justice's administrative
order dated 16.12.2013, this matter has come up before us on 04.04.2016. We have heard learned
counsels for parties and we proceed to decide this matter finally.

5. The principal argument assailing acquisition Notifications is in regard to dispensation of
enquiry under Section 5A by taking recourse to Section 17(1) and (4) of Act, 1894 and the
submission is that neither there existed any actual urgency nor there is any material to justify
exercise of power under Section 17(4). State Government has exercised its power of dispensation
of enquiry in a mechanical manner without applying its mind. Enquiry under Section 5A provides a
substantial right of hearing to land owners which is consistent with the principles of natural justice
and such a right can be deprived only when there is actual urgency and not in a slipshod manner.
The land in question was purchased by petitioner for residential accommodations to be constructed
by members of Society and for the same purpose, NOIDA has proposed to acquire the land. Hence,
there is no justification to deprive petitioner from development of land for the benefit of its
members. NOIDA itself is not undertaking any development activity, and, in fact, allotting land to
Builders and Colonizers. In effect the acquisition in question is for the benefit of private
individuals, hence, even otherwise, it is bad being a colourable exercise of power by respondents.

6. Respondents have contested the matter on various grounds. In the counter affidavit filed
on behalf of NOIDA, it is said that petitioner has clubbed, illegally, several plots, inasmuch some
plots were already acquired by NOIDA as long back as in 1992 and 1994 and numbers of such
plots have also been mentioned in the writ petition. The impugned acquisition Notifications have
no concern to the said plot numbers, namely, Plots No. 103, 275, 276, 280 and 281. The acquisition
Notifications impugned in the writ petition, i.e., 28.11.2001 and 26.02.2002 involve petitioners'
Plots No. 446, 452 and 463. Possession of all these plots has already been taken by respondents
vide transfer memo dated 23.03.2002.

7. In the counter affidavits and supplementary counter affidavits filed by respondents, on
the question of urgency they have not said anything, whatsoever, except that NOIDA is an
authority constituted under Act, 1976 and entitled to take 'Planned Industrial Development' and to
acquire required area of land for that purpose under the provisions of Act, 1894. Issuance of
acquisition Notifications under Section 4 and 6 on 28.11.2001 and 26.02.2002 are admitted but
why dispensation of enquiry under Section 5A was found necessary and what was the urgency, in
802 INDIAN LAW REPORTS ALLAHABAD SERIES

this regard nothing has been said, except that since acquisition was necessary in public interest for
planned industrial development, therefore enquiry has been dispensed with.

8. The reply is extremely vague, and, in fact, does not constitute any reply, whatsoever. It
is in this backdrop, we have to examine challenge to impugned Notifications.

9. Before proceeding in this regard we may make it clear that impugned Notifications
nowhere mention or refer to Plots no. 103, 275, 276, 280 and 281. On the contrary, from Annexures
CA-1, CA-2 and CA-3 to the counter affidavit filed by NOIDA, we find that these plots were
acquired by a Notification issued under Section 4(1), dated 06.01.1992, published in U.P. Gazette
dated 15.02.1992 and declaration under Section 6 was published vide Notification dated
22.09.1992 (published in U.P. Gazette dated 28.11.1992). Possession of said land was taken by
State and transferred to NOIDA on 18.03.1994. The Notifications dated 06.01.1992 and 22.09.1992
are not under challenge. Therefore, this writ petition is bound to fail so far as it challenges
acquisition proceedings in respect to Plots No. 103, 275, 276, 280 and 281.

10. Now we are confining our scrutiny to the correctness of impugned Notifications dated
28.11.2001 and 26.02.2002 to the extent of Plots No. 446, 452 and 463. The question is, "whether
dispensation of enquiry under Section 5A by exercising power under Section 17(1) and (4) is
justified or not".

11. 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.

12. Normal procedure of acquisition is that a proposal of acquisition is published in
notification under Section 4 of Act, 1894. Land owners whose land is proposed to be acquired, are
given an opportunity to make their objections. Collector is under an obligation to consider
objections and also offer an opportunity of hearing to objectors and thereafter submit a report to
Government containing his recommendations on the objections, for decision of Government. After
considering the report and other material, Government make 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.

13. 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
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.
7 All. Upbhokta Sanrakshan Evam Awas Vikas Samiti Vs State Of U.P. & Ors.
803
14. 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.

15. 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, has been considered in a catena of decisions in last several decades and it would be
useful to refer some relevant authorities in this regard.

16. Right to file objection 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.

17. 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".

18. 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 principle 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".

19. 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 man
the 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 (and 19),
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.
804 INDIAN LAW REPORTS ALLAHABAD SERIES

20. 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".

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

22. 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.

23. 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.

24. 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 5-
7 All. Upbhokta Sanrakshan Evam Awas Vikas Samiti Vs State Of U.P. & Ors.
805
A. 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 further 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".

25. 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."

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
806 INDIAN LAW REPORTS ALLAHABAD SERIES

before the court justifying that urgency was of such nature that necessitated elimination of enquiry
under Section 5-A."

26. 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.

27. 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."
7 All. Aakash Education Society Chithera Vs State Of U.P. & Ors.
807
28. In Union of India and others vs. Shiv Raj and others 2014 (6) SCC 564, Court in
para 15 said that Section 5-A confers a valuable right on the owner of land and it is not an empty
formality. It is a substantive right, which can be taken away only for good and valid reasons and
within the limitations prescribed under Section 17(4) of Act, 1894.

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

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

BEFORE

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

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

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

Counsel for the Petitioner:
Uma Nath Pandey, Pradeep Kumar