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2009 Supreme(All) 3710

[2009(10) ADJ 679 (DB)]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND SUDHIR AGARWAL, JJ.
POORAN AND OTHERS ......Petitioners
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 55578, 12834, 14254, 14251, 12021, 14252, 14247, 14255, 14250, 14245, 14258, 14259, 12022, 12830, 12839, 12014, 14248, 12846, 12844, 14256, 14257, 14253, 12018, 12843, 12845, 14249, 14244, 12838, 12020, 12019, 12836, 12840, 12887, 12835, 12850, 12848, 12017, 12832, 12842, 12841, 12016, 12847, 12849 of 2008 and (PIL) No. 8963 of 2008, decided on 4th December, 2009)

Advocates:
Counsel :
Shashi Nandan, V.K. Singh, Hari Pillai, Ashish Pratap Singh and Vinay Singh for the Petitioners; Rakesh Dwivedi, W.H. Khan, M.K. Gupta, Gaurav Bhatia, Manish Tandon, Shantanu Krishna and Prateek Dwivedi for the Respondent No. 2; Jafar Naiyer, Addl. Advocate General with M.C. Tripathi and P.K. Pandey for the State.

Headnote:(A) Constitution of India—Article 226—Land Acqusition Act, 1894—Sections 4, 5-A, 6, 17 (4) and 41—Land Acquisition (Companies) Rules, 1963—Rule 4—Limitation Act, 1963—Section 5—Delay of about four years in filing writ petition—Challenging acquisition of agricultural land of illiterate agriculturists—For setting up of Power Plant by Reliance Delhi Power Pvt. Ltd. (a private company)—Reasons for delay considered keeping in view the fact that from start of acquisition proceedings, agitations were being made, few writ petitions were filed and in spite of protest petitioners in instant writ petitions were forced to accept a very low amount of compensation—High Court considered facts that company applied for acquisition must before issue of notification and entire proceeding were conducted ignoring mandatory provisions of Rule 4, in colourable exercise of powers by invoking emergency provisions of Section 17(4) and dispensing with enquiry under Section 5-A—After examining entire proceedings, High Court refused to throw away writ petition on ground of delay, laches or negligence. [Paras 50 and 52 to 56]

       (B) Land Acquisition Act, 1894—Sections 4, 5-A, 6, 17(1), 17(4) and 38 to 44-B—Land Acquisition (Companies) Rules, 1963—Rule 4—Acquisition—Agricultural land by State Government—By invoking emergency provisions—For setting up power plant by a private company (Reliance Delhi Power Pvt. Ltd.)—On application by that company, accepting its proposal—This application was filed much before any plan for such acquisition, before State Government, which gave undue benefits to company—Acquisition was made ignoring mandatory Rule 6 and without following provisions of Part VII of the Act—These facts show that acquisition was for the private company, i.e., Reliance Delhi Power Pvt. Ltd. [Paras 57 to 59]

       (C) Land Acquisition Act, 1894—Sections 3(f), 4, 5-A, 6, 17(1), 17(4) and 38 to 44-B—Land Acquisition (Companies) Rules, 1963—Rules 4 and 5—Constitution of India, 1950—Article 226—Acquisition—Agricultural land—For setting up Power Plant, on proposal of private company ( Reliance Delhi Power Pvt. Ltd.) by State—On application of the private company—Entire proceedings were initiated after receipt of that application—Private Company agreed to invest all the expenses and State gave several benefits to it—In writ petition challenging acquisition proceedings, High Court examined entire record of proceedings and found that emergency provisions were wrongly applied and mandatory requirement of Rule 4 was also not complied with—These lapses invalidate acquisition—Agriculturists whose land was acquired were entitled to hearing, which was denied by dispensing with requirements of Section 5-A—In fact, it was colourable exercise of power by State—As such, partly quashed—State may initiate it only in accordance with law—Agriculturists who have received compensation are liable to return it—High Court discussed various case laws and elaborated the law regarding acquisition of land for companies. [Paras 65 to 68, 77, 80, 97, 99, 102, 103, 110, 115 to 119, 122, 123, 126, 135, 136 and 138 to 141]

       Result; Order Accordingly.

       

JUDGMENT

Hon’ble Ashok Bhushan, J.—These writ petitions (except Civil Misc. Writ Petition (PIL) No. 8968 of 2008) have been filed by the farmers of district Ghaziabad, State of Uttar Pradesh challenging the acquisition of their good agricultural land by the State of Uttar Pradesh for a Company (respondent No. 2). By two successive acquisition proceedings, first by issuing notification dated 11th February, 2004 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) and second by issuing notification dated 29th August, 2006 under Section 4 of the Act, huge area of agricultural land measuring about 2500 acres was sought to be acquired for a power project to be established by the Company (respondent No. 2).

2. The above writ petitions can be categorises in four groups. The first group of writ petitions are Writ Petition No. 55578 of 2008 (Pooran and others v. State of U.P. and others) and other connected writ petitions which challenge both the acquisition proceedings, i.e., acquisition proceeding initiated by issuing notification dated 11th February, 2004 under Section 4 of the Act and the acquisition proceeding initiated by issuing notification dated 29th August, 2006 under Section 4 of the Act. The second group of writ petitions are Civil Misc. Writ Petition No. 14254 of 2008 (Kanti v. State of U.P. and others) and other connected writ petitions, which challenge the land acquisition proceeding initiated by issuing notification dated 11th February, 2004 under Section 4 of the Act. The third group of writ petitions are Civil Misc. Writ Petition No. 12014 of 2008 (Babu Singh and others v. State of U.P. and others) and other connected writ petitions which challenge the acquisition proceeding initiated by issuing notification dated 29th August, 2006 under Section 4 of the Act and the declaration dated 20th February, 2007 issued under Section 6 of the Act. The fourth group of writ petition is Civil Misc. Writ Petition (PIL) No. 55548 of 2008 (Vishwanath Pratap Singh and others v. State of U.P. and others), which is a public interest litigation challenging both the land acquisition proceedings initiated by issuing notifications under Section 4 of the Act dated 11th February, 2004 and 29th August, 2006.

3. The background facts giving rise to these writ petitions, briefly noted, are; Reliance Delhi Power Private Limited, a private registered company within the meaning of Companies Act, 1956 made an application on on 19th January, 2004 to the Chief Secretary of the State of U.P. expressing its interest in setting up of 3000-3500 MW Gas Based Thermal Power Station in Tahsil Hapur, District Ghaziabad. On the same day another letter dated 19th January, 2004 was submitted before the Collector by the Reliance Delhi Power Private Limited praying acquisition of 2500 acres of land in villages Baharmandpur, Jadonpur, Nand Lal Pur, Bajhera Khurd, Kakarana, Dhaulana and Dehra, Pargana Dasna, Tahsil Hapur, District Ghaziabad. The application was appended with relevant certificates and declarations for acquisition. The Additional District Magistrate submitted a report before the Collector, Ghaziabad for forwarding proposal of acquisition to the Director, Land Acquisition. The report noted that the Company has also deposited 10% acquisition charges and 10% estimated compensation. The Collector on 24th January, 2004 forwarded the acquisition proposal received from the Company to the Director, Land Acquisition, Board of Revenue, Lucknow. The Director after examining the proposal received from the Collector wrote a letter to the Principal Secretary (Energy) on 28th January, 2004 for taking steps for issuance of notification under Section 4(1) read with Section 17 of the Act according to the procedure prescribed in Part-VII and VIII (Sections 38 to 55) of the Act. The letter of the Director, Land Acquisition was examined by the Energy Department of the State and a note was submitted that approval of Bhumi Upyog Parishad be ob







































































































































































































































































































































































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