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2014 Supreme(All) 173
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND MAHESH CHANDRA TRIPATHI, JJ.
GOVIND PRASAD SHUKLA AND OTHERS ....Petitioners
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 41948 of 2012, decided on 20th January, 2014)
Counsel :
Pankaj Dubey and Madhup Narain Shukla for the Petitioners; C.S.C. for the Respondents.
Headnote:Land Acquisition Act, 1894—Sections 5-A and 17(4)—Acquisition of land—Construction of canel—land in question urgently required for the construction of side road—Inquiry under Section 5-A of the Act could be dispensed with in exercise of power under Section 17 (4) of the Act only in grave urgency—Whole canal had been constructed and the authorities were actively involved in negotiating the tenure-holders for the piece of land which were urgently required for the construction of road—Sufficient material for invocation of urgency clause for acquiring the land and dispensing with the inquiry under Section 5-A of the Act—Petitioners would not suffer any hardship, if land acquired for construction of service road on the west bank of canal. [Paras 15, 17, 18 and 22]
Result; Petition Dismissed.
Key Points: - The court held that urgency under Section 17(1)/(4) can dispense with the Section 5-A inquiry if there is grave urgency and sufficient material, especially when land is urgently required for public purpose (construction of service road; canal’swest bank) (!) (!) (!) (!) (!) . - Pre- and post-notification delays/factors do not automatically invalidate the urgency-based acquisition; the appropriate government’s subjective satisfaction on urgency is entitled to deference and may be challenged only for lack of mind or mala fide (!) (!) (!) (!) . - When possession is taken under Section 17(1) due to urgency, Section 11-A does not apply to lapse of proceedings; the land vests in the Government and acquisition need not await award under Section 11 (!) (!) (!) . - In this case, substantial land (0.2530 hectare) was found to be urgently needed for a service road, and canal works were largely complete; petitioners’ challenge to urgency and non-compliance with 5-A was rejected; petition dismissed (!) (!) (!) (!) (!) . - The decision quotes and applies Supreme Court principles that urgency is a subjective determination but must be based on material; delay does not automatically negate urgency, and larger public interest in irrigation/canal works supports urgency findings (!) (!) (!) (!) .
How to assess whether urgency under Section 17(1)/(4) can dispense with Section 5-A inquiry in Land Acquisition?
How to determine the legality of invoking urgency clauses where pre- and post-notification delays occurred but were not ultimately fatal to the acquisition?
What is the effect of Section 11-A on urgency-based acquisitions where possession has been taken under Section 17(1) prior to award?
Hon’ble Mahesh Chandra Tripathi, J.—We have heard Sri Pankaj Dubey, learned counsel for the petitioners and Sri Suresh Singh, learned Additional Chief Standing Counsel for the respondents.
2. Parties have exchanged their affidavits. With the consent of the learned counsel for the parties, the writ petition is being finally disposed of at the admission stage itself.
3. In the present writ petition, petitioners have prayed for following reliefs :
“(i) To issue a writ, order or direction in the nature of certiorari quashing the impugned notification No. 4240/08-27-Si.-3-36 Adhisuchana/2008 dated 26.11.2008 under Section 4 of Land Acquisition Act and impugned notification No. 3225/10-27-Si.-3-36 Adhisuchana/2008 dated 19.8.2010 under Section 6 of Land Acquisition Act, 1894 in respect of the petitioner land comprising of Plot No. 164 area 1-0-0 i.e. 0.2530 hectare of the revenue village Saharay, Pargana Amora, Tappa Ramgarh, District-Basti (Annexures 3 and 4 of the writ petition).
(ii) To issue writ, order or direction in the nature of mandamus commanding the respondents not to give effect to the impugned notification dated 26.11.2008 under Section 4 and the impugned notification dated 19.8.2010 under Section 6 of the Act and not to dispossess and not to interfere into the peaceful possession of the petitioners over the Plot No. 164 area 1-0-0 i.e. 0.2530 hectare of the revenue village Saharay, Pargana Amora, Tappa Ramgarh, District Basti.
(iii) To issue any other order or direction which the Hon’ble Court may deem fit and proper in the circumstances of the case.
(iv) To award the cost of the petition to this petitioners.”
4. The facts enumerated in the present writ petition are that the petitioners are co-owner of the plot No. 164 area 1-0-0 i.e. 0.2530 hectare of the revenue village Saha Rai, Pargana Amora, Tappa Ramgarh, District Basti. In the present matter, gazette notification No. 4240/08-27-Si.-3-36 Adhisuchana/2008 under Section 4 (1) read with Section 17(1) and 17(4) of the Land Acquisition Act, 1894 (hereinbelow referred as ‘Act’ in short) has been issued on 26.11.2008 corrigendum on 20.2.2009 of area 0.2530 hectare and last local publication was made on 25.2.2010. The Section 6/17(1) of the Act was gazetted on 19.8.2010 and published in two newspapers, namely, in Swatantra Chetana on 11.3.2011 and Amar Ujala on 12.3.2011. The said acquisition proceeding had been commenced for the construction of Khamaria Rajwaha Canal for irrigation purposes. The petitioners by means of the present writ petition has opposed the acquisition proceeding challenging the act of the respondent-authority specially on the ground of mechanically issuing the notifications under Section 4 & 6, the whole acquisition proceedings are void, unconstitutional, tainted with mala fide, abuse of authority and power and non application of mind and further challenging the acquisition proceeding that the requirements of Section 5-A of the Act are mandatory and non compliance of the same would vitiate the entire acquisition proceeding and further contended that due to non making of award under Section 11-A of the Act, the entire proceeding of the Act would lapse. A detailed counter-affidavit has been filed on behalf of the respondents wherein it has been asserted that the notification under Section 4 (1)/17(1) and (4) of the Act and declaration of notification issued in official gazette under Section 6/17(1) of the Act by which the plots of the petitioners have been acquired for construction of canal and emphatically denied the allegations levelled by the petitioners. The relevant paragraphs of the counter-affidavit are as follows :
“4. That in paragraph Nos. 3, 4 and 5 of the writ petition, it is admitted that the plot No. 164 is recorded in the name of the petitioners which is situated in village Saharay Pargana Amorha, Tappa Ramgarh, District Basti and the total area of Plot No. 164 is 1.419 hectares and out of the above area, the area of 0.367 hecta
