2011 Supreme(All) 2893

ALLAHABAD HIGH COURT
(Full Bench)
ASHOK BHUSHAN, S.U. KHAN AND V.K. SHUKLA, JJ.
GAJRAJ AND OTHERS – Petitioners
Versus
STATE OF U.P. AND OTHERS – Respondents
(Civil Misc. Writ Petition Nos. 37443, 48089, 37642 of 2011, 62649 of 2008, 75042 of 2010, 18037, 28691, 32236, 39383, 39584, 44503, 47109, 46572, 47565, 47567, 47157, 45766, 45767, 45770, 46904, 47019, 47036, 47129, 47133, 47137, 47138, 47140, 47142, 47144, 47145, 47147, 47149, 47151, 47152, 47154, 47155, 47160, 47079, 47087, 47098, 47104, 47107, 47110, 47113, 47179, 47115, 47161, 47173, 47174, 47176, 47177, 47178, 47414, 47148, 45754, 40356, 44917, 44921, 44924, 44926, 40334, 40335, 40341, 40342, 40345, 40347, 40350, 40354, 40359, 40361, 40362, 40417, 40418, 40419, 40420, 40421, 40422, 40423, 40424, 46673, 40338, 46933, 47469 of 2011, 25464 of 2008, 46501, 46042, 46044, 46045, 46046, 46049, 46053, 46395, 46397, 46488, 46491, 46492, 46494, 46495, 46497, 46503, 46563, 46566, 46732, 46733, 46735, 46736, 46737, 46740, 46747, 47451, 47477, 47481, 46050, 46500, 46564, 46489, 46487, 46130, 46364, 42324, 45672, 47502, 45450, 46160, 44181, 45345, 37119, 42455, 46071, 46358, 47119, 46631, 46663, 45328, 39385, 43623, 42196, 26162, 26159, 39037, 45537, 46638 of 2011, 20227 of 2009, 46644, 46127, 48209, 45072, 45558, 42548, 43870, 45454, 46026, 46165, 47281, 44695, 46767, 48067, 48068, 46742, 46751, 46755, 46761, 46769, 48071, 46771, 46775, 47068, 46776, 40621, 42098, 42100, 36775, 58310, 6281, 19985, 19987, 22692, 22693, 27539, 30022, 47406, 46671, 46128, 46481, 46399, 44714, 44715, 44718, 45013, 45014, 45015, 45603, 45605, 45617, 45620, 45631, 45633, 45635, 45637, 45638, 45640, 45641, 45629, 47010, 47015, 47017, 47476, 47479, 46744, 46422, 46669, 44233, 42200, 53365, 46717, 46716, 46720, 46772, 37109, 44388, 45355, 45349, 45353, 45409, 45411, 39819 of 2011, 40346, 15925, 17726, 32059, 34851, 33585, 33957, 40418 of 2009, 42058, 55243, 67775, 72437, 11189 of 2011, 23451 of 2010, 24839, 20505, 32980, 32979, 32976, 37054, 38688, 38689, 41118, 41221, 41309, 41315, 41459, 45931, 46958, 46561, 46594, 41017 of 2011, 9756 of 2010, 46680, 43688, 39133 of 2011, 18635, 46162 of 2009, 24305, 32252, 38360, 38573, 40668, 40669, 42147, 42386 of 2010, 17478 of 2009, 37075 of 2011, 13399, 14112, 15719 of 2010, 48271, 42105, 42109, 42111, 42787, 42789, 45084, 45085, 45413, 39986 of 2011, 61272 of 2008, 14619, 50756 of 2009, 42067, 52602 of 2010, 16683, 17852, 30313, 31611, 32719, 37644, 39989, 41233, 41019, 46370, 46021, 42439, 42424, 45556, 45777, 45779, 38184 of 2011, 13281, 65531 of 2010, 32812, 41452, 40970, 46412, 45733, 46654, 46414, 46416, 46418, 46655 of 2011, 36047, 32225 of 2010, 46483, 46645, 46289, 44611, 46848, 45193, 40852 of 2011, 54028 of 2005, 41962 of 2007, 33042, 46129, 46636, 45748, 48208, 45692, 45750, 45751, 45772, 47012 of 2011, 17725 of 2010, 42323, 43655, 43986, 46988, 31126 of 2011, 59131 of 2009, 22800 of 2010, 37118 of 2011, 42812, 50417, 54424, 54652, 55650, 57032, 58318 of 2009, 22798, 37784, 37787 of 2010, 31124, 31125, 32234, 32987, 35648, 38059, 41339, 47427, 47412, 48253 of 2011, 41558 of 2009, 47486, 46470, 46919 of 2011, 24295 of 2010, 42329, 42330, 42332, 44709, 37752, 38057, 47411, 44492, 46688, 43392, 46407, 47259, 47257, 47267, 45196, 45208, 45211, 45213, 45216, 45223, 45224, 45226, 45229, 45230, 45235, 45238, 45283, 44093, 40265 of 2011, 59121, 59122, 59761, 59762, 64564, 65544, 66163, 68487, 69329, 69331, 69332 of 2009, 3747, 21504 of 2010, 40267, 41456, 41457, 41458, 48232, 46469, 45933, 47545, 45694, 45697, 46579, 46580, 47255, 45379, 47258, 47260, 47261, 47262, 47263, 47264, 47522, 47523, 46682, 44493, 46037, 46247, 46248, 46405, 42834, 43825, 44984, 45462, 46764, 46766, 46785, 43264, 43265, 43267, 43268, 44988, 44989, 44990, 47424, 46295, 47256, 44985 of 2011, 5670, 6726 of 2007, 46011, 46393, 48127, 48128 and 46602 of 2011
Decided on : 21-10-2011

Headnote:(A) U.P. Industrial Area Development Act, 1976—Preamble, Sections 3 and 6—Object and scope of—Industrial and urban township—Whether development of industries is the dominant purpose and object of 1976 Act ?—(Yes)—Words “industrial and urban township” are conjunctive and not disjunctive—Development of urban township is corollary and conjunctive to industrial development—Any activity de hors the industrial development cannot be said to be within the bona fide and legitimate purpose of Act—More so, dominant purpose of Act is industrial development. [Paras 156 to 169]

       (B) U.P. Industrial Area Development Act, 1976—Sections 6(2), 7, 9, 11 and 12-A—Industrial Area—Carrying out development of—Whether it is compulsory and necessary to acquire the land by the Authority ?—Function as enumerated under Section 6(2) are not exhaustive—Under the Scheme of the Act, Authority is not to compulsorily acquire the entire land falling in development area—Plea of authority that unless the land is acquired, it cannot carry any developmental works, negatived. [Paras 175 to 181]

       (C) Constitution of India, 1950—Article 226—Constitutional remedy—Invocation of—Effect of delay and laches—Whether petition filed with delay in facts of present case cannot be entertained or the Court may consider to examine their grievance on merits inspite of delay ?—Some of the petitions have been filed without delay, however, in some cases inordinate delay caused in invoking jurisdiction under Article 226—In some cases land acquisition was finalised decades ago—In some cases there are no satisfactory explanation for inordinate delay and laches—Petitions not thrown on ground of delay and laches. [Paras 198 and 229]

       (D) National Capital Regional Planning Board Act, 1985—Sections 7, 10, 16, 19, 27 and 40—Development Authority—Utilisation of land acquired as per its Master Plan, 2021—Approval by NCRB—Necessary and effect of—NCRPB Act, 1985 enacted for industrial development and urban township in NCRPB area—Submission of petitioners that there has been no approval of plan by NCRPB as required under Act—Whether the plan prepared by authority requires approval of the Board or not ?—No clearance has yet been obtained by authority to its draft master plan for Greater Noida, 2021—Steps taken by authority towards the acquisition of land as well as carrying on development activities including the creation of third party rights were not in conformity with NCRPB Act—Authority acted in deliberate violation of Act—Held—That authority cannot proceed to implement Master Plan, 2021. [Paras 256 to 276]

       (E) Land Acquisition Act, 1894—Sections 17(1), 17(4) and 5-A—Land acquisition—Invocation of urgency clause—Dispensation of inquiry under Section 5-A—Scope—Notifications issued under Section 4 read with Sections 17(1) and 17(4) were identical with all acquisitions—Since the land is not immediately provided, subjective satisfaction to dispense enquiry under Section 5-A vitiated—Dispensation of enquiry under Section 5-A found illegal—Invocation of Section 17(4) held to be vitiated. [Paras 275 to 325]

       (F) Land Acquisition Act, 1894—Sections 4, 17(1) and 17(4)—Pre and post notification—Delay of—Whether delay caused before issuance of notification under Section 4 and delay caused subsequent to notification under Section 4 can be relied for determining as to whether urgency was such that invocation of Sections 17(1) and 17(4) was necessary—If there is sufficient material to explain the delay prior to issuing notification under Section 4 or subsequent to notification under Section 6, delay itself does not vitiate the acquisition—Reason for invocation of urgency has been mechanically given—No proper explanation given regarding inordinate delay caused in issuing notification under Section 6 when, Section 4 notification was already issued—Thus, invocation of Sections 17(1) and 17(4) not proper. [Paras 325 to 333]

       (G) Land Acquisition—Plea of colourable exercise of power—Sustainability of—Submission of petitioners that acquisition of agricultural land was in colourable exercise of power—Acquisition has been made by authority in furtherance of Master Plan, 2021, however that plan have not been cleared up by NCRP Board—Recommendations of authority for huge acquisition of land becomes questionable—On pretext of industrial development authority pursued different object and purpose. [Paras 334 to 350]

       (H) Land Acquisition Act, 1894—Section 17(1)—Possession—Requirement of Section 17(1)—No actual physical possession—Taking of possession by respondent not found in accordance with law—Possession memo filed by state authorities cannot be treated to be valid possession memo evidencing taking of possession. [Paras 351 to 362]

       (I) Land Acquisition Act, 1894—Sections 4, 6, 17(1) and 17(4)—Possession—Extent of challenge against—Whether after taking possession under Section 17(1), challenge to notifications under Section 4, read with Sections 17(1) and 17(4) and Section 6 cannot be entertained due to reason that land which has already been vested in state cannot be divested ?—Restoration of possession—Even if possession of land has been taken it may be possible to grant other reliefs—Plea that petitioners cannot be permitted to challenge the land acquisition proceedings after vesting of land negatived—Restitution permissible. [Paras 363 to 370]

       (J) Land Acquisition Act, 1894—Section 11-A—Land acquisition—Lapse of—Due to non-declaration of award—Scope—Whether acquisition under challenge has lapsed under Section 11-A due to non-declaration of award within two years from date of publication of declaration made under Section 6 ?—Submission of petitioners that after publication of declaration under Section 6, in none of cases award has been made under Section 11 within two years from date of publication, thus, entire acquisition proceedings be dismissed—Possession has been taken in all cases by exercising urgency power under Section 17(1)—Plea of petitioners that after publication of declaration under Section 6 and since award under Section 11 has not been made, acquisition proceedings be, negatived. [Paras 363 to 370]

       (K) Land Acquisition Act, 1894—Section 17(3-A)—Land acquisition—Non-payment of compensation—Legality of—Contention of petitioners that they were not made payment of 80% of compensation as required by Section 17(3-A)—Plea of petitioner that Section 17(3-A) is mandatory, non-compliance of which vitiate the acquisition proceedings not accepted. [Paras 376 and 381]

       (L) Waiver and Acquiescence—Land acquisition—Compensation if accepted—Challenge to acquisition proceedings—Bar against—Mere fact that petitioners have sold their Abadi plots/flats allotted to them does not mean that they have waived their right to challenge acquisition proceedings—And merely because land owners have accepted compensation, they cannot be said to have waived their right—Moreover, mere acceptance of compensation does not amount to acquiescence by land owners. [Paras 382 to 414]

       (M) Land Acquisition Act, 1894—Sections 17(1), 17(4), 4 and 6—Land acquisition—Notification—Quashing of—Creation of third party rights and carrying on development works on allotted sites has bearing while considering the issue as to what relief the land owners who have challenged the acquisition proceedings are entitled—View taken by Division Bench in Har Karan Singh case that invocation of Section 17(4) was not justified, approved—Harischand case disapproved—Petitions which are filed with inordinate delay and laches dismissed—And rest of petitions allowed and impugned notifications quashed— Consequential reliefs directed—Order accordingly. [Paras 415 to 485]

       (N) Land Acquisition—Secondary purpose—For establishing industries and residential units stand on different footings—Need to make necessary changes in the law of land acquisition in respect of secondary public purposes emphasized. [As per Hon’ble S.U. Khan, J.—Agreeing]. [Paras 497 to 505]

       Result : Order Accordingly.