# OM PRAKASH AND ORS v. STATE OF U.P. AND OTHERS

- **Citation:** [1998] 3 S.C.R. 643
- **Court:** Supreme Court of India
- **Decided:** 1998-07-15
- **Case number:** Civil Appeal No. 3261 of 1998
- **Bench:** S.B. Majmudar, A.P. Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/om-prakash-and-ors-v-state-of-u-p-and-others-16374
- **Pages:** 42

## Headnote

B
Land Acquisition :
Land Acquisition Act, 1894:
c
Sections 4, and 17(4)-State Amendments of Section 17 of the Act viz.
Land Acquisition (U.P. Amendment) Act 12 of 1954, Section 2-And Land
Acquisition (UP. Amendment and Validation) Act 8 of 1974, Section 3 after
26.4.1974-Ejfect of such amendments-Notification issued under Section 4
read With Section 17(4) dispensing with inquiry under Section 5-A for
D
acquisition of lands in public interest for planned development of various
"\ ..
sectors-Delay of more than a month in issuing the notification under Section
4 from the date of proposal for urgent requirement of additional lands-Even
declaration under Section 6 was issued after more than nine months after
issuance of notification under Section 4-Held, conduct of State authorities
falsified their claim of urgency of acquisition-Further held, planned E
development of city does not always justify invocation of Section 17(4)-
Court can examine whether there was relevant material before the authority
to enable it to arrive at its subjective satisfaction with regard to existence
of urgency for invoking Section 17(4)-0n facts, held, there was no relevant
material before the State authorities for invoking Section 17(4).
F
Section 4 read with 17(4) and 6-Notification issued underInvocation of Section 17(4) on the existence of urgency found to be not
justified in absence of relevant material before the State authorities-9110th
qf the lands already acquired-Disputes with regard to II/0th of the lands
owned by the appellants on the sole ground that their lands having abadi G
could not be acquired in view of a policy decision of State-Notification
issued under Section 4 and consequent notification under Secfion 6-State
_.,
invoking Section 17(4) of the Act on the ground of existence of urgency in
>-,
acquiring the land and hence dispensing with Section 5-A inquiry-Whether
notifications issued under Section 4 and consequent notification under Section
6 could be struck down by Supreme Court under its discretionary jurisdiction H
643
644
SUPREME COURT REPORTS
(1998] 3 S.C.R.
A under Article I 36-He/d, jurisdiction has to be exercised in the light of facts
and circumstances of the case-On facts, held, that notifications need not be
set aside as that will open up the Pandora's box and those accupants who
were uptil now sitting on the face might also get a hint to file further
proceedings on the ground of discriminatory treatment by the State
B Authorities-All these complications are required to be avoided-Constitution
of India, Article I 36-Jurisdiction under.
Section 4-Notification acquiring certain /ands-Appellants claimed
that lands under acquisition having abadi could not be acquired under a
policy decision of the State Government-Lands sought to be acquired out
C of agricultural holdings of the appellants were subjected to construction of
abadi prior to notification dated 17.04.1976 issued under Section 2(d) read
with Section 3 of U.P. Industrial Area Development Act, I 976 or subsequent
thereto- All disputed questions of facts-Hence no direction be issued to
State authorities to release these lands for acquisition-Question whether
appellants' land covered by the policy decision of the State Government left
D open for decision of the State authorities-Section 2(d) read with Section 3
of U.P. Industrial Area Development Act, I 976.
Section 48-Liberty of the Government to withdraw from the acquisition
of land of which possession has not been taken-Objection against
E acquisition-Notification issued acquiring the lands of the appellants
invoking Section 17(4) dispensing with the inquiry under Section 5-APossession of the lands acquired not taken-Landowners' only objection was
that their lands having abadi could not be acquired in view of a policy
decision of State Government-Held, it is for the State Government to decide
whether lands having abadi on the date of Section 4 notification and that
F it had continued without any additional constru

## Text

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A
OM PRAKASH AND ORS.
v.
STATE OF U.P. AND OTHERS
JULY 15, 1998
[S.B. MAJMUDAR AND A.P. MISRA, JJ.]
B
Land Acquisition :
Land Acquisition Act, 1894:
c
Sections 4, and 17(4)-State Amendments of Section 17 of the Act viz.
Land Acquisition (U.P. Amendment) Act 12 of 1954, Section 2-And Land
Acquisition (UP. Amendment and Validation) Act 8 of 1974, Section 3 after
26.4.1974-Ejfect of such amendments-Notification issued under Section 4
read With Section 17(4) dispensing with inquiry under Section 5-A for
D
acquisition of lands in public interest for planned development of various
"\ ..
sectors-Delay of more than a month in issuing the notification under Section
4 from the date of proposal for urgent requirement of additional lands-Even
declaration under Section 6 was issued after more than nine months after
issuance of notification under Section 4-Held, conduct of State authorities
falsified their claim of urgency of acquisition-Further held, planned E
development of city does not always justify invocation of Section 17(4)-
Court can examine whether there was relevant material before the authority
to enable it to arrive at its subjective satisfaction with regard to existence
of urgency for invoking Section 17(4)-0n facts, held, there was no relevant
material before the State authorities for invoking Section 17(4).
F
Section 4 read with 17(4) and 6-Notification issued underInvocation of Section 17(4) on the existence of urgency found to be not
justified in absence of relevant material before the State authorities-9110th
qf the lands already acquired-Disputes with regard to II/0th of the lands
owned by the appellants on the sole ground that their lands having abadi G
could not be acquired in view of a policy decision of State-Notification
issued under Section 4 and consequent notification under Secfion 6-State
_.,
invoking Section 17(4) of the Act on the ground of existence of urgency in
>-,
acquiring the land and hence dispensing with Section 5-A inquiry-Whether
notifications issued under Section 4 and consequent notification under Section
6 could be struck down by Supreme Court under its discretionary jurisdiction H
643
644
SUPREME COURT REPORTS
(1998] 3 S.C.R.
A under Article I 36-He/d, jurisdiction has to be exercised in the light of facts
and circumstances of the case-On facts, held, that notifications need not be
set aside as that will open up the Pandora's box and those accupants who
were uptil now sitting on the face might also get a hint to file further
proceedings on the ground of discriminatory treatment by the State
B Authorities-All these complications are required to be avoided-Constitution
of India, Article I 36-Jurisdiction under.
Section 4-Notification acquiring certain /ands-Appellants claimed
that lands under acquisition having abadi could not be acquired under a
policy decision of the State Government-Lands sought to be acquired out
C of agricultural holdings of the appellants were subjected to construction of
abadi prior to notification dated 17.04.1976 issued under Section 2(d) read
with Section 3 of U.P. Industrial Area Development Act, I 976 or subsequent
thereto- All disputed questions of facts-Hence no direction be issued to
State authorities to release these lands for acquisition-Question whether
appellants' land covered by the policy decision of the State Government left
D open for decision of the State authorities-Section 2(d) read with Section 3
of U.P. Industrial Area Development Act, I 976.
Section 48-Liberty of the Government to withdraw from the acquisition
of land of which possession has not been taken-Objection against
E acquisition-Notification issued acquiring the lands of the appellants
invoking Section 17(4) dispensing with the inquiry under Section 5-APossession of the lands acquired not taken-Landowners' only objection was
that their lands having abadi could not be acquired in view of a policy
decision of State Government-Held, it is for the State Government to decide
whether lands having abadi on the date of Section 4 notification and that
F it had continued without any additional construction thereon till the date
of Section 6 notification and whether such abadi was squarely covered by
the State policy-Liberty granted to landowners to raise objection before
State authorities-State authorities directed to invoke power under Section
48(1) to consider their representations.
G
Practice and Procedure-One of the landowners intervening in the
proceeding before this Court-Had not filed any substantive writ petition
before the High· Court-A/legation of lands were acquired for being allotted
to persons closely related to the State authorities-Liberty granted to
intervenor to file writ petition before the High Court challenging the allotment
H on these allegations-Constitution of India, Articles I 36 and 226-Writ
...
OM PRAKASH v. ST A TE
645
petition-Disputed question of law .
Words and Phrases-Words "waste or arable"-Meaning of-In the
context of land Acquisition Act, 1894.
There was State amendment to Section 17 of the land Acquisition Act
A
viz. Land Acquisition (U.P. Amendment) Act 12of1954 and Land Acquisition B
(U.P. Amendment and Validation) Act 8of1974, after 26.4.1974, to the effect
that if lands of any type, apart from being waste or arable, were sought to
be acquired under the Land Acquisition Act as applicable to the State of Utter
Pradesh, in case of urgency, provisions of Section 5-A could be dispensed
with provided such lands were acquired for or in connection with sanitary C
improvements of any kind or planned development. NO IDA was entrusted
with the task of developing lands in Ghaziabad District. In the year 1976,
NO IDA had acquired large tracts of lands from a village CB for the planned
industrial development of Ghaziabad and at that stage, the state, at the
instance of NOIDA, had invoked the provisions of sub-section(!) and(4) of
Section 17 of Land Acquisition Act as acquisition was considered to be of D
an urgent nature. Further lands were acquired from the same village for the
~-.
purpose ofNOIDA by way ofa notification under Section 4 of the act issued
by the state on 30. IO. 1987. This notification was issued without invoking
Section 17(4) of the Act. After hearing the objections against the acquisition
by the objectors, State issued notification under Section 6 of the Act on
14.12.1989. Thereafter, in 1989 NOIDA sought to acquire further 494. 26 E
acres of land urgently from village CB for development of Sector 43 and
other sectors. State issued a notification under Section 4(1) on 06.01.1991.
In this notification it was stated that land mentioned in the Schedule of the
notification was for public purposes and that the Governor was of the opinion
that Section 17(1) of the Act was applicable for the acquisition of this land F
and in view of the urgency, the Governor in exercise of power under S.17(4)
of the Act, dispensed with the application of Section 5-A of the Act. By way
of another notification dated 07.01.1992 issued under Section 6 of the Act,
the Governor in exercise of power under Section 17(1) of the Act, directed
that though no decision had been given under Section 11, the Collector could
take possession of the aforesaid land mentioned in the Schedule for public G
interest after 15 days of publication of the notice under Section 9(1) of the
Act.
These two notifications were challenged by the appellants before the
High Court in writ petitions wherein High Court directed that status quo be
maintained by the parties to the writ petition. Hence this appeal.
H
646
SUPREME COURT REPORTS
(1998] 3 S.C.R.
A
Appellants had also filed suits for permanent injunction against NO IDA
from acquiring the appellants' lands covered by such abadi and the judgement
of the civil court was rendered on 14.12.1989 must prior to issuance of the
Section 4 notification wherein a clear finding was given by the civil court
that there was existing abadi on the land in dispute and the said decision
B was confirmed by the District Judge.
The appellants contended that there was no relevant material before
the State authorities to enable them to invoke Section 17(4) of the Act and
to dispense with the inquiry under Section 5-A of the Act; that the grounds
sought to be made out by the State authorities in this connection were legally
C unsustainable and, therefore, the direction contained in the impugned
notification under Section 4 invoking Section 17( 4) of the Act and in
dispensing with inquiry under Section 5-A was liable to be set aside and
consequent notification under Section 6 of the Act was also required to be
quashed; that the land occupied by the appellants which were sought to be
acquired in the present proceedings were having abadi-Constructions
D occupied for residential and industrial purposes by the appellants and that
a policy decision was taken by the respondents not to acquire lands covered
by such abadi.
E
F
On the other hand, respondents contended that no error was committed
by High Court in upholding the applicability of Section 17 (4) to the present
proceedings as there was sufficient material before the authorities, urgent
situation was implicit is such acquisition and if Section 5-A inquiry was not
dispensed with, years would have passed before Section 6 notification could
have been issued; and that this Court could not sit in appeal against the
subjective satisfaction of the authorities in dispensing with inquiry under
Section 5-A.
Dismissing the appeal, this Court
HELD: I.I. As a result of two State amendments to Section 17 of the
Land Acquisition Act viz. Land Acquisition (U.P. Amendment) Act 12of1954
G and Land Acquisition (U.P. Amendment and Validation) Act 8of1974, after
26.4.1974, if lands of any type, apart from being waste or arable, were .~ought
to be acquired under the Land Acquisition Act as applicable to the State, in
case of urgency, provisions of Section 5-A could be dispensed with provided
such lands were acquired for or in connection with sanitary improvements
of any kind or planned development Thus, this enabling provision was available
H to the appropriate Government functioning in the State, if it was satisfied
•.
_,
OM PRAKASH v. ST ATE
647
that the situation was so urgent that Section 5-A inquiry was to be dispensed A
..
with in connection with acquisition of any type of lands for the planned
development of any area. However, still one basic requirement remained for
being satisfied before such power could be exercised, namely, that there
should be a case of urgency. Even if the acquisition was for the planned
development of any area and there was no material before the appropriate B
Government for dispensing with inquiry under section 5-A on the touchstone
of urgency as found by the appropriate Government, the provisions of Section
17(4) as amended by the Amending Act 8 of 1974 could not have been
invoked. However, parent Act itself underwent an amendment in 1984, and
the words "waste and arable" were taken out from the sweep of Section 17
sub-section(l) read with sub-section (4) thereof. The net result is that after c
1984, for acquisition of any type of lands if the appropriate authority is
satisfied about the existence of urgency requiring acceleration of taking of
possession as per Section 17(1) before award or acceleration of issuance of
notification under Section 6 as per Section 17 (4), whether such acquisition
was for the planned development of any area or for sanitary improvements D
in the area or for any other public purpose or for a company for objection
under section 5-A to be dispensed with. [660-C-H; 661-A)
'\..
1.2. It will be necessary to find out whether there was any relevant
material with the appropriate Government, namely, the respondent, State of
U.P. to enable it to arrive at its subjective satisfaction about dispensing with
inquiry under Section 5-A in connection with the present acquisition.
E
[661-B-C)
1.3. In the case in hand despite invocation of urgency by NO IDA by its
letter dated 14-12-1989 the notification under Section 4 read with section
17(4) was issued after lapse of more than one year. No explanation for this
delay was given. Moreover, on the one hand, the respondents had deprived F
the petitioners of filing th.eir objections under Section 5-A on the ground of
urgency of acquisition, but on the other hand, they themselves had taken
more than nine months in issuing the declaration under Section 6. This
conduct of the respondents falsified their claim of urgency of acquisition.
1.4. Possibility of encroachment over the area cannot be considered to G
be a germane ground for ·invoking urgency powers for dispensing with
Section 5-A inquiry. Even if acquisition takes place urgently by dispensing
with inquiry under Section 5-A and the possession is taken urgently after
....
Section 6 notification within 15 days of issuance of notice under Section
~
9(1), there is no guarantee that the acquired land would not be encroached
upon by unruly persons. It is a law and order problem, which has nothing H
648
SUPREME COURT REPORTS
[1998) 3 S.C.R.
A to do with the acquisition and urgency for taking possession. The stand of
the State authorities could have been appreciated for invoking the urgency
clause under Section 17(4) of the Act on the ground that when about 500
acres of land were to be acquired for further planned development of Sector
43 and other sectors of NO IDA, as mentioned in the impugned notification,
B hearing of objectors who might have filed written objections when there are
a large number of occupants of these lands and who possess about 438 plots
of land under acquisition, would have indefinitely delayed the acquisition
proceedings and years would have rolled by before Section 6 notification
could have been issued. Under these circumstances, the entire further
development of the area would have, on the peculiar facts and circumstances
C of these cases, come to the grinding halt. Such a stand would have justified
the subjective satisfaction of the authorities for invoking Section 17(4) of
the Act. Such satisfaction then could not have been gone behind by a court
of law. But such was not their case nor did they even whisper in these cases
that these aspects were kept in view while dispensing with Section 5-A
inquiry. The Court, cannot, therefore, make out a new case for them, which
D is not pleaded in these proceedings to justify their action.
(664-G-H; 665-A; 666-A-CJ
1.5. The observation made in A.P. Sareen case that urgency can be said
to exist when land proposed to be acquired is needed for planned development
of any city or town, etc. shows that in appropriate cases when acquisition is
E needed for planned development of any city or town, the urgency position can
be invoked. This aspect is legislatively recognised by enactment of Section
17(1-A) by the U.P. Legislature. But the said observation cannot be read to
mean that in every case of planned development of city or town, necessarily
and almost automatically the urgency clause has to be invoked and inquiry
F
under Section 5-A is to be dispended with. It will all depend upon the facts
and circumstances of each case. The aforesaid observations cannot be held
to be laying down any absolute proposition that whenever any acquisition is
to take place for planned development of city or town, Section 5-A should
be treated to be almost otiose or inoperative. Such is not the ratio of the
aforesaid decision and nothing to that effect can even impliedly be read in
G the aforesaid observation, which is ofa general na_ture. (672-A-D]
A.P. Sareen v. State of UP., I 1997( 9 SCC 359, referred to.
J.6. There was no relevant material before the State authorities when
it invoked powers under sub-section(4) of Section 17 for dispensing with
H Section 5-A inquiry while issuing the impugned notifications under Section
OM PRAKASH v. ST A TE
649
"'
4 followed by Section 6 notification. 1666-D-EI
A
State of Punjab v. Gurdiyal Singh, 119801 2 SCC 471, relied on.
Rajasthan Housing Boardv. Shri Kishan, 1199312 SCC 84; Nandeshwar
Prasadv. U.P. Govt., 1196413 SCR 425; Gha:::iabad Development Authority
v . .Jan Kalyan Samit!, 119961 2 SCC 365 and .Jai Narain v. Union of India, B
[ 1996) I SCC 9, distinguished.
Sate of U.P. v. Pista Devi, 11986) 4 SCC 251 and Narayan Govind
Gavate v. State of Maharashtra, 119971 I SCC 133, referred to.
2. It was not the appellants' contention that the proposed acquisition c
was not for public purpose nor any ma/a fide were alleged to be behind such
acquisition. In the circumstances of the case it is neither advisable nor
feasible to interfere with the acquisition of such large tracts of land when
the occupants of 9/IOth of the acquired lands have not thought it fit to
challenge these acquisition proceedings and the occupants of only I/10th of
D
the lands are agitating their grievance since more than six years firstly
before the High Court and then before this Court. The grievance of the
.,_
appellant relating to the lands being abadi could have been made under
section 5-A inquiry if it was held. But that could have been urged years back
before section 6 Notification saw the light of the day in 1992. Now after a
passage of more than six years, it would not be feasible to put the clock back E
and permit the appellants to agitate this contention which appears to be the
sole contention for opposing the acquisition proceedings in the facts of the
present cases by permitting them to urge this grievance in Section 5-A
inquiry which according to them should be held at this stage. This solitary
grievance of the appellants could be vendicated before the State authorities
themselves by relegating the appellants to proper remedy by way of F
representation under Section 48 of the Act and when that remedy is available
to the appellants and when that is the sole grievance of the appellants, at this
stage no useful purpose would be served by striking down the notification
under Section 4(1) qua the appellants so far as invocation of Section 17(4)
is concerned and the consequent notification under Section 6. If on this G
point, the notifications are quashed for non-compliance of Section 5-A, that
would open the Pandora's box and those occupants who are uptil now sitting
-+
on the fence may also get a hint to file further proceedings on the ground
;.._
of discriminatory treatment by the State authorities. All these complications
are required to be avoided and hence while considering the question of
exercise of the discretionary jurisdiction under Article 136, it is not a fit H
650
SUPREME COURT REPORTS
[1998] 3 S.C.R.
A case for interference in the present proceedings with the impugned
notifications. [678-A-H; 679-A-C)
3. Under Section 48(1), the Government is at liberty to withdraw from
the acquisition of any land of which possession has not been taken. On the
facts of the present case it must be held that possession of the lands under
B acquisition belonging to the present appellants has remained with the
appellants till date. Once that conclusion is reached, section-48(1) can be
legitimately invoked by the appellants for consideration of the State
authorities. It is, of course, true that the said provision gives liberty to the
State to withdraw from acquisition of any land but if the appellants are in
a position to convince the State authorities that their lands were having auadi
C on the date on which Section 4 notification was issued and it was that abadi
which had continued without any additional construction thereon till the date
.of Section 6 notification and thereafter such abadi was squarely covered by
the State policy of not acquiring the lands having abadi, then it will be open
to the State authorities to pass appropriate orders for withdrawing such
D lands from acquisition and give appropriate relief to the applicants concerned.
Liberty is therefore granted to the appellants, if so advised to file, written
representations before appropriate authorities of the State by invoking the
State Government's powers under Section 48(1) of the Act. It is made clear
that no opinion is expressed on the question whether the appellants' lands
had such abadi on the date of Section 4 notification which would attract the
E State policy of not acquiring such lands and whether such policy had continued
thereafter at the stage of Section 6 notification of 07.01.1992 and whether
such policy is still current and operative at the time when the appellants'
representations come for consideration of appropriate authorities of the
State Government. It will be for the Sate authorities to take their informed
F decision in this connection. In short, the entire matter is left at large for
the consideration of the State authorities in the appellants' representations.
If the appellants file their written representations on or before 31.08.1998,
then the appropriate authorities of the State Government shall consider their
representations regarding the feasibility of releasing such lands form
acquisition under Section 48(1) of the Act on the ground that there were
G "abadis" on these lands at the relevant time and are governed by any existing
State policy for releasing such lands from acquisition on that score as
indicated herein-above and for that purpose they may give a hearing to the
appellants, either personally or through their counsel, and permit them to
lead whatever evidence they want to lead in this connection. The State
H authorities shall consider these representations within a period of two months
OM PRAKASH v. STATE [S.B. MAJMUDAR, J.]
651
from the date such representations are received, i.e. latest by 31.10.1998 and A
"'
will take appropriate decisions on these representations and will inform the
'
representationists concerned in writing about the decision of the State
Government in this connection.
(680-B; 681-G-H; 682-A-C-G-H; 683-A-B)
4. As far as contention of Respondent No. 5 whose intervention B
application was allowed by this court, that serious objections were required
to be considered against the acquisition of land which were being acquired
for being allotted to close, relatives of the Chairman and other powers and
that he had not filed any writ petition before the High Court, may be given
the liberty to file fresh writ petition, is reasonable. It would be appropriate c
to relegate Respondent No. 5-intervener to the remedy of filing a substantive
writ petition before the High Court. (683-E-H)
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3261 of
1998 Etc.
From the Judgment and Order dated 24.8.95 of the Allahabad High Court D
--=r
in C.M.W.P. No. 9734of1992.
"l;_
Shanti Bhusan, K.K. Venugopal, V.A. Mohta, Dr. N.M. Ghatate, Ms.
0
Reena George, Ms. Priya Kumar, Jayant Bhusan, Krishan Datta, Uma Datta,
K.V. Viswanathan, K.V. Venkatraman Gopal Banwant Sathe, Arvind Sharma,
Kamlendra Mishra and R.B Misra for the appearing Parties.
E
The Judgment of the Court was delivered by
S.B. MAJMUDAR, J. Leave granted in all these special leave petitions.
I.A. filed in Civil Appeal arising out of S.L.P. (C) No. 164 of 1996 for F
bringing on record legal representatives of respondent no. 3 7 Mahi pal is
granted. The title of the Civil Appeal concerned shall be corrected accordingly.
By consent of learned senior advocates appearing for the contesting
parties, the appeals were finally heard and are being disposed of by this
judgment. These appeals arise out of a common judgment rendered by a G
Division Bench of the High Court of Judicature at Allahabad on 24th August
1995. The High Court dismissed the writ petitions filed by the appellants who
were petitioners before the High Court who challenged the notification issued
i
by the State of Uttar Pradesh on 5th January 1991 under Section 4 ( 1) of the
Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') and also the
notification under Section 6 of the Act whereby the writ petitioners' lands H
652
SUPREME COURT REPORTS
(1998] 3 S.C.R.
A situated at village Chhalera Banger then situated in District Ghaziabad in the
State of Utter Pradesh were sought to be acquired. The impugned acquisition
was for the planned· industrial development of District Ghaziabad through
New Okhla Industrial Development Authority ('NOIDA' in short), Ghaziabad.
As the writ petitions raised a common challenge on diverse grounds, they
were all heard together and were disposed of by the impugned common
B judgment of the High Court. The High Court after considering the submissions
raised by the learned counsel for the writ petitioners for challenging the
acquisition proceedings, came to the conclusion that the land acquisition
proceedings were not vitiated in law and consequently the writ petitions were
dismissed. That is how the original writ petitioners are before us in these
C proceedings. They are now confined to the appellants in these 8 Civil Appeals
arising from Special Leave Petitions filed by the original writ petitioners
concerned.
Before we deal with the main contentions canvassed by learned senior
counsel, Shri Shanti Bhushan, appearing for appellants in some of the appeals,
D and Shri Uma Dutta, learned counsel for appellants in other appeals, it will
be necessary to note a few background facts leading to these proceedings.
Introductory Facts
NOIDA is an authority entrusted with the task of developing lands in
E the district of Ghaziabad in the State of Uttar Pradesh. In the year 1976,
NOIDA had acquired large tracts of lands in the Ghaziabad district including
lands of village Chhalera Banger for the planned industrial development of
Ghaziabad. At that stage, the State of Uttar Pradesh, at the instance of
NO IDA had invoked the provisions of sub-sections (I) and ( 4) of Section 17
F
of the Act as acquisition for the purposes of NO IDA was considered to be
of an urgent nature. Thereafter, again in the year 1987, further lands were
acquired from the same village for the purpose ofNOIDA by the State ofUttar
Pradesh issuing notification under Section 4 of the Act on 30th October, 1987.
The said notification was issued without invoking Section 17(4) of the Act.
After hearing the objections put forward against the acquisition by the
G objectors concerned, ultimately the State of Uttar Pradesh issued notification
under Section 6 of the Act on 14th December, 1989. On that occasion, 353
acres of lands consisting of diverse survey numbers were acquired from the
occupants of the lands in village Chhalera Banger. It was thereafter that
NOIDA submitted a proposal to acquire the lands under the present acquisition
on 14th June, 1988. It also made a written request in this connection on 14th
H December, 1989 to the State authorities. By a communication dated 14th
+
OM PRAKASH v. STA TE (S.B. MAJMUDAR, J.]
653
,.,
December 1989 addressed by the Personnel Officer, NOIDA to the Special A
Land Acquisition officer, NOIDA, Ghaziabad, it was submitted that 494.26
acres of land of village Chhalera Banger were urgently required for the
development of Sector No. 43 and other sectors ofNOIDA. Therefore, it was
requested that necessary notification under Section 4 read with Section 17 of
the Act may be got issued immediately. It was thereafter that on 5th January, B
1991, the impugned notification was issued by the Government of Uttar
Pradesh in exercise of powers under sub-section ( 1) of Section 4 of the Act.
It was stated therein that the lands mentioned in the Schedule to the
notification were required for public interest, that is, for the planned industrial
development of District Ghaziabad through NOIDA. It was recited in the said
notification that the Governor was of the opinion that sub-clauses of sub- c
section (1) of Section 17 of the Act shall apply to the aforementioned land
because the said land was essentially urgently required for the planned
industrial development in District Ghaziabad through NOIDA and in view of
this urgency and essential requirement, it was also necessary that possible
delay for inspection under Section 5-A may be condoned . Therefore, in D
exercise of powers under sub-section (4) of Section 17 of the Act, Governor
,._
also directed that provisions of Section 5-A of the said Act shall not be
applicable and were dispensed with. This notification was followed by another
•
notification dated 7th January, 1992 under Section 6 of the Act. It was
declared therein that the land mentioned in the notification was required in
public interest, i.e., for the planned development of District Ghaziabad through E
NOIDA. It was also stated that the Governor was satisfied that this matter
was to be disposed of urgently, therefore, in exercise of powers under subsection (I) of Section 17 of the Act he was also pleased to direct that though
no decision had been given under Section 11, the Collector of Ghaziabad
>'
could take possession of the aforesaid land mentioned in Schedule for public F
interest after 15 days of the publication of the notice under sub-section ( 1)
of Section 9.
The aforesaid two notifications were brought in challenge by the
appellants herein, amongst others before the High Court of Allahabad, as
noted earlier. In these writ petitions, the High Court by its order dated 31st G
march, !992 directed that status quo may be maintained by the parties to the
writ petitions. The State of Uttar Pradesh as well as NO IDA were the contesting
1
respondents in the writ petitions and in the present appeals also they are the
main contesting respondents.
Rival Contentions
H
654
SUPREME COURT REPORTS
[1998] 3 S.G.R.
A
Shri Shanti Bhushan, learned senior counsel for the appellants in some
of the appeals and Shri Uma Dutta, learned counsel for the other appellants
contended that the impugned notifications are null and void mainly on two
grounds - (i) that there was no relevant material before the State authorities
to enable them to invoke Section 17( 4) of the Act and to dispense with the
inquiry under Section 5-A of the Act; and that the grounds sought to be
B made out by the State authorities in this connection were legally unsustainable
and, therefore, the dir~ction contained in the impugned notification under
Section 4 invoking Section 17 sub-section (4) of the Act and in dispensing
with inquiry under Section 5-A was liable to be set aside and consequently
notification under Section 6 also was required to be quashed. (ii) It was also
C contended that in any case the lands occupied by the appellants which were
sought to be acquired in the present proceedings were having Abadi -
constructions occupied for residential and industrial purposes by the appellants
concerned and that a policy decision was taken by the contesting respondents
not to acquire land covered by such Abadi. The acquisition proceedings
were, therefore, required to be set aside even on that ground. Shri Shanti
D Bhushan, learned senior counsel appearing for appellants in appeal arising
from Special leave Petition (c) No. 20905of1995 submitted that these appellants
had already filed a suit against NOIDA for permanently restraining NOIDA
from acquiring the appellants' land which is covered by the present acquisition
proceedings on the ground that it was having Abadi thereon. That the
E judgment of the Civil Court was rendered on 14th December, 1989 much prior
to the issuance of the Section 4 notification in the present case wherein a
clear finding was reached by the Civil Court on evidence that there was
existing Abadi on the land in dispute and the said decision was confirmed
by the District Court in Civil Appeal No. 46 of 1990 on 17th November, 1990.
F
We are informed by learned senior counsel, Shri Mohta, for respondent
NOIDA that the decision of the District Court has not become final and is
pending scrutiny in Second Appeal before the High Court of Allahabad. Shri
Shanti Bhushan, learned senior counsel for the appellants, in support of his
submission that there was an existing Abadi on the land sought to be
acquired, invited out attention to the relevant evidence on the record and
G contended that in any view of the matter appellants' land having Abadi in
the light of the policy consistently followed by the contesting respondents
could not have been acquired. Learned counsel appearing in the other appeals,
Shri Uma Dutta also adopted these very contentions in support of his appeals
and submitted in addition that the High Court had erred in taking the view
that the subjective satisfaction for invoking the provisions of Section 17(4)
H of the Act was not independent of satisfaction for invoking Section 17 sub_f
+-.
OM PRAKASH v. STATE [S.B. MAJMUDAR, J.]
655
....
1
section (I) and that both these satisfactions were really independent of each A
other and had to be arrived at as such.
In support of the aforesaid contentions learned senior counsel for the
appellants placed before us certain decisions of this Court to which we will
refer at an appropriate stage in the latter part of this judgment. It was
contended by learned counsel for the appellants that the High Court had B
erred in taking the view that the State was justified in involving the provisions
of Section 17( 4) of the Act on the facts and circumstances of the cases. He,
however, fairly stated that if it is hdd that the State authorities could not have
dispensed with Section 5-A inquiry and if the appellants are to be given an
opportunity to put forward their written objections before the acquiring C
authority under Section 5-A of the Act then the second question regarding
Abadi lands immunity from being acquired may not be decided at this stage.
Hence this question may also be permitted to be raised by the objectors in
Section 5-A proceedings.
Repelling these contentions, Shri Mohta, learned senior counsel for D
NOJDA and Dr. N.M. Ghatate, learned senior counsel appearing for the state
of Uttar Pradesh contended that no error was committed by the High Court
in upholding the applicability of Section 17 sub-section (4) to the present
proceedings as there was sufficient material before the authorities to come to
that decision. That the High Court rightly held that for acquisition of the E
present type wherein large acreage of lands had to be acquired for the
purpose of the planned industrial development of the area undertaken by
NOIDA, urgency clause could be legitimately invoked. Urgent situation was
implicit in such acquisition proceedings and if Section 5-A inquiry was not
dispensed with, years would have passed before Section 6 notification could
have been issued. It was also submitted by them that the material relied upon F
by the State authorities for dispensing with inquiry under Section 5-A of the
Act was quite relevant and this Court would not sit in appeal over the
subjective satisfaction of the authorities in this connection as it is well settled
that if such subjective satisfaction for invoking Section 17( 4) of the Act is
found to be based on relevant material it cannot be challenged in a court of
law by requesting the court to re-appreciate such evidence especially when G
there was no challenge to the acquisition proceedings on the ground of mala
rf
tides. The High Court's decision in this connection, therefore, requires to be
upheld. It was also submitted that possession of the lands in question was
already taken by NOIDA on 30th March, 1992 prior to the date on which the
High Court granted status quo order. It was next contended that the appellants' H
656
SUPREME COURT REPORTS
[1998] 3 S.C.R.
A lands cannot be said to be having Abadi as mere stray construction on
agricultural lands cannot be termed Abadi. That 'Abadi' is a term of art which
connotes construction for residential purposes on village-site lands and it has
nothing to do with agricultural lands situate beyond village sites. It was also
submitted by Shri Mohta, learned senior counsel for NOIDA, that the Civil
B Court's judgment which is not final till date had loosely treated lands having
construction as Abadi lands and consequently, it could not be urged by the
appellants that their lands having some stray construction thereon could not
have been acquired under the Act in the light of the policy decision of the
State authorities of the contesting respondents not to acquire lands having
Abadi. In this connection, Shri Mohta also submitted that the documentary
C material which is furnished in the present proceedings by some of the appellants
to show that their lands were having Abadi appears to be interpolated and
such forged documents cannot be permitted to be relied upon by the appellants.
Dr. Ghatate, learned senior counsel for State of U .P. submitted that the state
was not a party to the Civil Court litigation and hence was in no way bound
D by the finding arrived at by the Civil Court regarding the abadi nature of the
lands under acquisition.
It was lastly contended placing reliance on some of the judgments of
this Court, to which we will make a reference hereinafter, that acquisition for
the planned development of a township on a large scale would entitle the
E authorities to invoke urgency provisions of Section 17(4) of the Act and that
the High Court has not erred in relying upon this legal position. It was
ultimately submitted that as almost 494 acres of lands were sought to be
acquired by the impugned notifications and only some of the persons whose
lands were being acquired had challenged the notifications in the High Court
and that challenge in the present proceedings gets confined to about 40 acres
F in all, and as the planned development of the sector is already underway and
pipelines and other infrastructure facilities are being made available on spot,
this court in exercise of its discretionary powers under Article 136 of the
Constitution of India may not interfere in the peculiar facts of the case at such
a late stage. Learned senior counsel Shri Shanti Bhushan, repelling these
G contentions, submitted that the material on which contesting respondents
relied upon for supporting the invocation of powers under Section 17(4) of
the Act is not at all genuine or relevant for supporting such an exercise and
that there is no universal formula that acquisition for planned development
of a township nece,ssarily has to be treated to be of an urgent nature without
anything more. The applicability of Section 17(4) of the Act in the peculiar
H facts of the present case should be treated to be uncalled for. It was submitted
OM PRAKASH v. STATE (S.B. MAJMUDAR, J.]
657
that the appellants, given an opportunity to have their written objections A
under Section 5-A of the Act, will fully co-operate in the proceedings and will
abide by the appropriate directions regarding maintenance of time schedule
for such an inquiry as may be fixed by this Court. Shri Shanti Bhushan further
submitted that once it is shown that the impugned notifications were liable
to be set aside, on non-compliance with Section 5-A of the Act, which was
wrongly excluded by the authorities, then this Court being a final Constitution B
Court may not refuse appropriate relief to the appellants by not interfering
under Article 136 of the Constitution of India. Shri Shanti Bhushan also
sought to distinguish judgments of this Court on which strong reliance was
placed by learned senior counsel for contesting respondents.
In the light of the above rival contentions, the following points arise
for our determination :
I.
Whether the State authorities were justified in invoking Section
17(4) of the Act for dispensing with inquiry under Section 5-A
c
of the Act.
D
2.
In any case, whether the appellants' lands have to be treated as
immune from acquisition proceedings on the ground that they
were having Abadi thereon and were, therefore, governed by the
policy decision of the State of U.P.