IMPORTANT POINT
Power u/s 5A should be exercised in exceptional cases.

JUDGEMENT

R.M. Lodha, J. —

Of this group of ten appeals, 7 arise from the common judgment and order dated May 6, 2005 passed by the High Court of Judicature at Allahabad. The remaining 3 appeals arise from separate judgments (dated January 18, 2007, March 22, 2007 and April 25, 2007) and in one of them, the common judgment and order dated May 6, 2005 was followed. As identical questions are involved, these appeals were heard together and are being disposed of by this common judgment.

2.The appellants in these appeals have small holdings of land in Manbela, Hamidpur and Jangal Sikri etc., Pargana Haveli, District Gorakhpur in the State of Uttar Pradesh. About 209.515 hectares of land including the land of the appellants was sought to be acquired for the public purpose, namely, for residential colony by the Gorakhpur Development Authority (GDA), Gorakhpur. Vide public notices issued under sub-section (1) of Section 4 of the Land Acquisition Act, 1894 (for short, ‘the Act’) on November 22, 2003 and February 20, 2004 notifying for general information that the land mentioned in the schedule appended thereto was needed for the said public purpose. The provisions of sub- section (1) of Section 17 of the Act were also invoked as in the opinion of the Governor, the land proposed to be acquired was urgently required. By use of power under Section 17(4) of the Act, it was stated in the notification that Section 5A of the Act shall not apply. These public notices are said to have been published in the Official Gazette as well as other modes as prescribed in Section 4.

3.On December 28, 2004, a declaration was made under Section 6 of the Act that the land mentioned in the schedule including the subject land was needed for public purpose, namely, for the construction of residential colony under a planned development scheme. By the said notification, the Collector, Gorakhpur was also directed that on expiration of 15 days from the publication of the notice under Section 9(1), the possession of the land mentioned in the schedule may be taken, although no award under Section 11 has been made.

4.The present appellants and the other tenure holders whose land was sought to be acquired pursuant to the aforesaid notifications, approached the High Court by filing writ petitions wherein, inter alia, a plea was raised that there was no justification to invoke urgency clause and there was no material before the Government for dispensing with the enquiry under Section 5A of the Act. They averred that structures and buildings were existing on their respective holdings and even otherwise they are entitled to release of their land from acquisition.

5.The State Government as well as the GDA opposed the writ petitions and justified invocation of urgency clause and the dispensation of summary enquiry under Section 5A as the land was required for providing residential and housing colony for the lower income group, middle income group and higher income group by the GDA.

6.The High Court by its common judgment and order dated May 6, 2005 held that none of the grounds raised by the petitioners in the writ petitions was sustainable and consequently upheld the notifications under challenge. While dealing with the aspect of existence of buildings on the subject land and petitioners’ prayer for direction to the State Government to consider deacquisition by exercising its power under Section 48 of the Act, the Court observed that the petitioners may approach the State Government for the redressal of their grievance in accordance with law. As noticed above, in one of the subsequent orders, the High Court has followed the common judgment and order dated May 6, 2005.

7.Be it noticed here that prior to the issuance of the notifications dated November 22, 2003/February 20, 2004 under Section 4(1) read with Sections 17(1) and 17(4) of the Act, somewhere in the month of February, 2000, a Land Selection Committee was constituted to identify the availability of land for a housing co