Ashok Bhushan, J.@mdashThese writ petitions raise common questions of facts and law and have been heard together.
2. Counter affidavits, both by State of U.P. as well as Yamuna Expressway Industrial Development Authority, have been filed to which rejoinder affidavits have also been filed in Writ Petition No. 20585 of 2010, which is treated as leading writ petition.
3. All the writ petitions challenge the same notification dated 16th October, 2009 issued u/s 4(1) read with Sections 17(1) and 17(4) of the Land Acquisition Act, 1894 as well as the notification dated 1st December, 2009 issued u/s 6 of the Land Acquisition Act, 1894 with regard to plots situate in village Dankaur, Pargana Dankaur, Tahsil Sadar, District Gautam Budh Nagar. Reference of pleadings in Writ Petition No. 20585 of 2010 is sufficient for deciding this bunch of writ petitions.
4. We have heard Sri Shashi Nandan, Senior Advocate, assisted by Sri Uma Nath Pandey for the petitioner, Sri Ramendra Pratap Singh, Advocate appearing for respondent No. 3 and Sri M.C. Tripathi, Additional Chief Standing Counsel, for the State respondents.
5. Brief facts giving rise to the writ petition are; the petitioner claims to be Bhumidhar of Plot No. 669 area 2-11-12 hectare and Plot No. 670 area 1-15-5 hectare situate in village Dankaur, district Gautam Budh Nagar. A notification dated 16th October, 2009 was issued u/s 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) mentioning that land mentioned in the schedule is needed for a public purpose, namely, for planned development in district Gautam Budh Nagar through Yamuna Expressway Industrial Development Authority. Section 17(1) as well as Section 17(4) of the Act were invoked dispensing with the inquiry u/s 5A of the Act. The petitioner claims to have purchased the aforesaid plots from its previous owners in the year 2007. It is pleaded that respondent No. 3 had constituted a committee for preparation of the spot inspection report on the basis of which land of village Dankaur and other adjacent villages have been proposed for acquisition which proposal was sent to the State Government. A representation dated 6th November, 2009 is said to have been submitted by the petitioner praying that the land be exempted from acquisition. A notification u/s 6 of the Act, dated 1st December, 2009, was issued. The petitioner claims that he is in possession of Plot Nos. 669 and 670. In the supplementary affidavit filed by the petitioner it has been pleaded that constructions have been made over the land in dispute for running an institution, namely, Dankaur Public School, Jhajhar Road, Dankaur. A receipt of application for recognition was communicated by the Basic Shiksha Adhikari vide his letter dated 16th September, 2009 to the petitioner. Reference to the Government order dated 24th April, 2010 issued by the Principal Secretary, Industrial Development Department has been made by which, in reply to the letter dated 19th June, 2009, it was stated that the Board at its own stage may take decision of lease back of the acquired land. Reference to letter dated 8th June, 2010, addressed to one Sri Khajan Singh, with regard to village Dankaur, Tahsil Dadri, district Gautam Budh Nagar has also been made.
6. Counter affidavit has been filed by the State stating that the acquisition has been made for the purposes of planned area development on the proposal submitted by Yamuna Expressway Industrial Development Authority. It is stated that there was sufficient materials before the State Government for invoking Sections 17(1) and 17(4) of the Act and the State Government after applying its mind arrived at subjective satisfaction that the land is urgently needed and the inquiry u/s 5A of the Act needs to be dispensed with in facts of the present case. It has also been noted that the land is acquired for contiguous part of Yamuna Expressway. In the counter affidavit filed by respondent No. 3 it has been stated that the village in question has been notified under the Yamuna Expressway Industrial Development Authority (earlier known as Taj Expressway Industrial Development Authority). It is stated that according to the provisions of U.P. Industrial Area and Development Act, 1976 (hereinafter referred to as the 1976 Act) amenities are to be provided by the Authority. It is pleaded that there was urgency in the matter the land being needed for road, which is going to connect Yamuna expressway to residential sectors. The possession of the land is claimed to be taken on 5th February, 2010 and handed to the respondent No. 3.
7. Sri Shashi Nandan, Senior Advocate, learned Counsel for the petitioner, challenging the land acquisition, has submitted that there was no urgency in the matter which may require dispensation of inquiry u/s 5A of the Act. It is submitted that the land is not being acquired for Yamuna Expressway and notification mentioned that the land is acquired for planned development whereas in the counter affidavit filed by respondent No. 3 a stand has been taken that the land is required for construction of road to connect the Yamuna Expressway with residential blocks. The land in question is separately developed by the Yamuna Expressway Industrial Development Authority and there is no mention of approach road in the notification u/s 4 or 6 of the Act or in any other details. There has been no proper application of mind of the State Government with regard to invocation of Section 17(4) of the Act since all relevant facts were not before the State and the subjective satisfaction arrived at by the State Government on the basis of materials placed before it is vitiated. It has been further submitted that the master plan has not been approved by the National Capital Region Planning Board under the National Capital Region Planning Board Act, 1985, further no plan or map having been sanctioned for construction of approach road as alleged, there was no urgency in the matter. Reliance has been placed by learned Counsel for the petitioner on the judgments of the Apex Court in Civil Appeal No. 2523 of 2008
8. Sri Ramendra Pratapn Singh, learned Counsel appearing for respondent No. 3, has submitted that there was sufficient material before the State Government for invoking Sections 17(1) and 17(4) of the Act. It is submitted that the land is being acquired for planned development by the Yamuna Expressway Industrial Development Authority, which development includes providing of amenities within the meaning of the 1976 Act. He submits that the land is needed for construction of the approach road for connecting Yamuna Expressway with residential blocks. He further submits that the writ petitions challenging the Yamuna Expressway Project have been dismissed by Division Bench of this Court in the case of Balbir Singh and Anr. v. State of U.P. and Ors. reported in 2009(10) ADJ 441 and in the case of Nand Kishore Gupta and Ors. v. State of U.P. and Ors. reported in 2009 (10) ADJ 535. It is submitted that Apex Court has also upheld the invocation of urgency clause under Sections 17(1) and 17(4) of the Act with regard to Yamuna Expressway Project by its judgment dated 8th September, 2010 in Civil Appeal No. 7468 of 2010 Nand Kishore Gupta and Ors. v. State of U.P. and Ors. connected with two other appeals. He submits that Yamuna Expressway Project has been held to be urgent project requiring invocation of Sections 17(1) and 17(4) of the Act. The acquisition of land in question is an acquisition for contiguous land for the purpose of construction of the approach road and parameters of urgency for the acquisition in question are same as was there in the Yamuna Expressway project. It is submitted that insofar as submission of approval by National Capital Region Planning Board is concerned, the relevant area development plan has been forwarded to the National Capital Region Planning Board by the State Government vide letter dated 20th May, 2009 and no objection of any kind has been raised with regard to the aforesaid. It is further submitted that there was sufficient materials before the State for arriving at satisfaction that the land is urgently needed and inquiry u/s 5A of the Act is to be dispensed with looking to the urgency for completion of the project. It has also been submitted that possession has already been taken on 5th February, 2010 by executing possession memo. It is also submitted that the land acquisition for construction of approach road is, in fact, nothing but part of integrated scheme for development undertaken under the Yamuna Expressway.
9. Learned Additional Chief Standing Counsel Sri M.C. Tripathi, appearing for the State, has submitted that there was sufficient materials before the State for arriving at subjective satisfaction that the land is urgently needed for completion of the project of planned development by the Yamuna Expressway Industrial Development Authority and the decision taken by the State for invocation of Section 17(1) and 17(4) of the Act cannot be said to be vitiated. This Court in exercise of jurisdiction of judicial review shall confine its decision only as to whether there was relevant material for subjective satisfaction, the correctness and otherwise of the decision taken by the State for invoking Section 17(1) and 17(4) of the Act shall not be entered into.
10. Sri Shashi Nandan, learned Counsel for the petitioner, replying the submissions of learned Counsel for the respondents, reiterated that there was no urgency in the matter and invocation of Sections 17(1) and 17(4) of the Act is not justified. It has further been submitted that there being no approval by the National Capital Region Planning Board, no urgency can be said in the matter. It is submitted that the Division Bench judgment of this Court in the case of Narendra Road Lines Pvt. Ltd. v. State of U.P. and Ors. was with regard to five parcels of land, which were acquired for Industrial, Residential and amusement etc., and the said judgment is not applicable in the acquisition in question.
11. We have considered the submissions of learned Counsel for the parties and have perused the record.
12. Before we proceed to examine the facts of the present case, it is necessary to note certain decisions of the Apex Court relied by the counsel for the parties in support of their submissions.
13. The Apex Court in Mahendra Pal''s case (supra) had occasion to consider Sections 17(1) and 17(4) of the Act. The Apex Court laid down that even if the public purpose is construction of a road, there has to be consideration of each case on its own facts. Following was laid down by the Apex Court in paragraphs 12 and 13 of the said judgment:
12. Right to file objection and hearing thereof to a notification issued by the appropriate government expressing its intention to acquire a property is a valuable right. Such a valuable right of hearing and particularly in a case of this nature could have been taken away only if conditions precedent for exercise of this emergency power stood satisfied. Sub-section (4) of Section 17 of the Act is an exception to Section 5A of the Act. An opinion of the government in this behalf is required to be formed if there exists an emergency. Existence of the foundational fact for invoking the aforementioned provision is, therefore, a sine qua non for formation of opinion. Such an subjective satisfaction must be based on an objective criteria. Ipse dixit on the part of the State would not serve the purpose. Appellants, in our opinion, had made out a case for examination of their cases in details. The nature of constructions and other features of the land sought to be acquired have been noticed by us hereinbefore.
13. The purported public purpose for which the land is to be acquired is for laying down a road.
We are not unmindful of the fact that the road connection is one of the purposes mentioned in Sub-section (2) of Section 17 of the Act in respect whereof Sub-section (4) thereof would apply. But the same would not mean that for the purpose of road connection irrespective of the nature of cases and/or irrespective of the nature of the road to be constructed; Sub-section (4) of Section 17 of the Act could be invoked.
14. In Anand Singh''s case (supra), following was laid down by the Apex Court in paragraphs 31, 32 and 33 of the judgment:
31. In a country as big as ours, the roof over head is a distant dream for large number of people. The urban development continues to be haphazard. There is no doubt that planned development and housing are matters of priority in developing nation. The question is as to whether in all cases of `planned development of the city'' or `for the development of residential area'', the power of urgency may be invoked by the government and even where such power is invoked, should the enquiry contemplated u/s 5A be dispensed with invariably. We do not think so. Whether `planned development of city'' or `development of residential area'' cannot brook delay of few months to complete the enquiry u/s 5A? In our opinion, ordinarily it can. The government must, therefore, do a balancing act and resort to the special power of urgency u/s 17 in the matters of acquisition of land for the public purpose viz.; `planned development of city'' or `for development of residential area'' in exceptional situation. Use of the power by the government u/s 17 for `planned development of the city'' or `the development of residential area'' or for `housing'' must not be as a rule but by way of an exception. Such exceptional situation may be for the public purpose viz., rehabilitation of natural calamity affected persons; rehabilitation of persons uprooted due to commissioning of dam or housing for lower strata of the society urgently; rehabilitation of persons affected by time bound projects, etc. The list is only illustrative and not exhaustive. In any case, sans real urgency and need for immediate possession of the land for carrying out the stated purpose, heavy onus lies on the government to justify exercise of such power. It must, therefore, be held that the use of the power of urgency and dispensation of enquiry u/s 5A by the government in a routine manner for the `planned development of city'' or `development of residential area'' and thereby depriving the owner or person interested a very valuable right u/s 5A may not meet the statutory test nor could be readily sustained.
32. Adverting now to the facts of the present case, it would be seen that somewhere in February, 2000, a Land Selection Committee was constituted to identify the availability of land for a housing colony by the GDA. In April, 2001, the Committee so constituted inspected the site and proposed acquisition of land in Village Manbela and few other villages but nothing further was done as the tenure holders opposed the acquisition of their land and the Commissioner, Gorakhpur in public interest stayed proposal for acquisition. Abruptly the notifications for the proposed acquisition were issued on November 22, 2003/February 20, 2004 u/s 4 of the Act. In these notifications urgency clause was invoked and the enquiry u/s 5A was dispensed with. Then, for more than one year nothing was done. It was only on December 28, 2004 that a declaration u/s 6 was made. If the matter could hang on from April, 2001 to November 22, 2003/February 20, 2004 before the notifications u/s 4 were issued and for about a year thereafter in issuance of declaration u/s 6, acquisition proceedings could have been arranged in a manner so as to enable the land owners and/or the interested persons to file their objections u/s 5A within the prescribed time and complete the enquiry expeditiously. It is true that insofar as Uttar Pradesh is concerned, there is amendment in Section 17. Sub-section (1A) enables the Government to take possession under Sub-section (1) of Section 17 if the land is required for public purpose viz.; `planned development''. Yet for forming an opinion that provisions of Section 5A shall not apply, the state government must apply its mind that urgency is of such nature warranting elimination of enquiry u/s 5A. Although some correspondence between the authorities and the government was placed before the High Court by the GDA, but no material has been placed on record by the State Government either before the High Court or before this Court indicating the application of mind that the urgency was of such nature which warranted elimination of the enquiry u/s 5A of the Act. It is interesting to note that GDA wanted the subject land to be acquired because their land bank had no land and they wanted land to keep the Authority running. If profit-making and the sustenance of the Development Authority was the motive, surely urgency was not of such nature that it could brook no delay whatsoever. In the facts and circumstances of the present case, therefore, the Government has completely failed to justify the dispensation of an enquiry u/s 5A by invoking Section 17(4). For this reason, the impugned notifications to the extent they state that Section 5A shall not apply suffer from legal infirmity. The question, then, arises whether at this distance of time, the acquisition proceedings must be declared invalid and illegal. In the written submissions of the GDA, it is stated that subsequent to the declaration made u/s 6 of the Act in the month of December, 2004, award has been made and out of the 400 land owners more than 370 have already received compensation. It is also stated that out of the total cost of Rs. 8,85,14,000/- for development of the acquired land, an amount of Rs. 5,28,00,000/- has already been spent by the GDA and more than 60; of work has been completed. It, thus, seems that barring the appellants and few others all other tenure holders/land owners have accepted the `takings'' of their land. It is too late in the day to undo what has already been done. We are of the opinion, therefore, that in the peculiar facts and circumstances of the case, the appellants are not entitled to any relief although dispensation of enquiry u/s 5A was not justified.
33. On behalf of the appellants, it was vehemently argued that the government may be directed to release their land from proposed acquisition. It was submitted by the appellants that houses/structures and buildings (including educational building) are existing on the subject land and as per the policy framed by the State Government, the land deserves to be exempted from acquisition. The submission of the appellants has been countered by the respondents and in the written submissions filed by the GDA, it is stated that the houses/structures and buildings which are claimed to exist, have been raised by the appellants subsequent to the notification u/s 4(1) of the Act and, therefore, they are not entitled to release of their land from acquisition. In our view, since the existence of houses/structures and buildings as on November 22, 2003/February 20, 2004 over the appellants'' land has been seriously disputed, it may not be appropriate to issue any direction to the State Government, as prayed for by the appellants, for release of their land from acquisition. However, as the possession has not been taken, the interest of justice would be subserved if the appellants are given liberty to make representation to the State authorities u/s 48(1) of the Act for release of their land. We, accordingly, grant liberty to the appellants to make appropriate representation to the State Government and observe that if such representation is made by the appellants within two months from today, the State Government shall consider such representation in accordance with law and in conformity with the State policy for release of land u/s 48(1) without any discrimination within three months from receipt of such representation.
15. In Union of India and Ors. v. Krishan Lal Arneja and Ors. case (supra), the Apex Court laid down following in paragraph 16:
16. Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down u/s 5A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however, laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a land owner of his right in relation to Immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry u/s 5A of the Act. The Authority must have subjective satisfaction of the need for invoking urgency clause u/s 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the land owners and the inquiry u/s 5A of the Act could be completed. In other words, if power u/s 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen''s property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State Administration.
16. The proposition laid down by the Apex Court, as noticed above, is to the effect that urgency in each case depends on its own special facts. Even if public purpose for acquisition is an urgent public purpose that shall not automatically mean that inquiry u/s 5-A of the Act be dispensed with. Each case has to be considered on its own facts and it is only in exceptional case where inquiry u/s 5-A should be dispensed with.
17. In the present case notification u/s 4 of the Act mentions public purpose as planned development in district Gautam Budh Nagar through Yamuna Expressway Industrial Development Authority. Although the planned development in each and every case does not lead to dispensation of inquiry u/s 5A of the Act but in appropriate cases invocation of Section 17(4) of the Act may be necessary. In the present case the acquisition is being made for planned development by Yamuna Expressway Industrial Development Authority for construction of approach road connecting the Yamuna Expressway with residential parcels. It is relevant to note that the acquisition with regard to land for construction of Yamuna Expressway as well as acquisition for developing five land parcels was challenged in this Court as well as in the Apex Court. One of the grounds for challenge was that project was not such which required dispensation of inquiry u/s 5A of the Act.
18. In Balbir Singh''s case (supra) the Yamuna Expressway project of building six lane motorable road from Greater Noida to Agra and acquisition of land for such project was under challenge. One of the grounds, which was taken for challenging the acquisition, was that there was no urgency in the project. Challenge to land acquisition was rejected by the Division Bench of this Court. The acquisition for five land parcels along with Yamuna Expressway came to be challenged before the Division Bench of this Court in Nand Kishore Gupta''s case (supra). Along with the said writ petition similar other writ petitions were considered in which there was also challenge to the acquisition of land for construction of express way and for interchange of expressway. Challenge was made on the ground that there was no urgency in the matter and invocation of Sections 17(1) and 17(4) was unjustified. The Division Bench of this Court after considering the earlier judgments of the Apex Court and this Court repelled the challenge. Following was laid down in paragraph 37 of the judgment:
37. All the relevant and concerned authorities agreed with the office note, giving details of the material on the file with the recommendation of the District Magistrate to invoke Section 17(4) and to dispense with the enquiry u/s 5A of the Act. The record clearly demonstrates that after considering the project and making enquiries and spot inspections including the survey of the revenue records, District Magistrate had recommended that looking into the purpose of the acquisition and the large area involved, and further the fact that the land is needed for construction of road and interchange and planned development, as well as the fact that in future there is strong possibility of encroachments over the subject land, Section 17(4) was required to be invoked for dispensing with the enquiry.
19. Both the Division Bench judgments of this Court in Balbir Singh''s case (supra) and Nand Kishore Gupta''s case (supra) were challenged before the Apex Court in Nand Kishore Gupta and Ors. case (supra) by filing civil appeals which appeals have been dismissed by the Apex Court on 8th September, 2010. The Apex Court laid down following in paragraph 30 of the judgment:
3. ...In fact, in our opinion, as has rightly been commented upon by the High Court, the creation of the five zones for industry, residence, amusement etc., would be complimentary to the creation of the Expressway. It cannot be forgotten that the creation of land parcels would give impetus to the industrial development of the State creating more jobs and helping the economy and thereby helping the general public. There can be no doubt that the implementation of the Project would result in coming into existence of five developed parcels/centers in the State for the use of the citizens. There shall, thus, be the planned development of this otherwise industrially backward area. The creation of these five parcels will certainly help the maximum utilization of the Expressway and the existence of an Expressway for the fast moving traffic would help the industrial culture created in the five parcels. Thus, both will be complimentary to each other and can be viewed as parts of an integral scheme. Therefore, it cannot be said that it is not a public purpose.
20. Dealing with the submissions based on Section 17(1) and 17(4) of the Act, following was observed by the Apex Court in paragraphs 39 and 40 of the said judgment:
39. Before considering the issue, we must take stock of the finding returned by the High Court. In the judgment in Nand Kishore Gupta and Ors. v. State of U.P. and Ors. Civil Misc. Writ Petition No. 31314 of 2009, the High Court took stock of the allegations regarding malafides and dispensing with the enquiry u/s 5A of the Act by referring to Paragraph Nos. 20, 21, 28, 29, 30, 31 and 32 of the Reply filed on behalf of the State Government through an affidavit of one Shri Vinod Kumar Singh, ADM, Land Acquisition, Agra, wherein it was pointed out that the Project was on the mammoth scale and there was a great deal of possibility of encroachments if the Project was allowed to linger. The High Court took note of the contention that YEIDA deposited 70% of the estimated compensation on 29.5.2009 itself, since 10% of the estimated compensation was already deposited by the acquiring body (YEIDA). The High Court then referred to the various clauses of the Concession Agreement like Clause Nos. 2.1, 2.2, 3.1, 3.2, 3.6 and 4.1 (a), (b), (c) & (d) to know about the exact nature of the job which was required to be done for building the Expressway. It was after this that the High Court had recorded a finding that the integrated Project was to cover a large area of land and the requirement was of 25 million square meters of land to be acquired. The High Court, therefore, noted the plea raised to the effect that the State Government took correct decision to invoke the urgency clause, as on an enquiry into disposal of individual objections as contemplated u/s 5A of the Act, the Project itself would have lost all value and efficacy. The High Court also noted the plea raised by YEIDA and the State Government about the likelihood of encroachment...
40. We are not impressed by the argument that the encroachment issue was not a relevant factor. This argument was based on the reported decision in Om Prakash and Anr. v. State of U.P. and Ors. (cited supra). It must be said that the actual scenario in that case was different. In that case, the Court was considering the acquisition of area of about 500 acres comprising of 437 plots, whereas, in the present case, the area to be acquired for the Expressway alone was more than 1,600 hectares. This is apart from the 25 million square meters of land which was liable to be acquired for the purposes of development of 5 land parcels. There was interlinking between the acquisition of land for the highway and the acquisition of land for establishing the 5 townships.
21. From the aforesaid, it is clear that Yamuna Expressway Project, which comprised of Yamuna Expressway as well as five parcels of land for development of industries, residence, amusement etc., was held to be complimentary to the creation of the expressway. Both the aforesaid projects were found to be urgent and the invocation of Section 17(1) and 17(4) of the Act was upheld.
22. It is true that the land in acquisition, which is challenged in the writ petition, was not for the purposes of Yamuna Expressway or five land parcels but the acquisition is for the planned development which includes construction of approach road for linking Yamuna Expressway with the land parcels. The land is being acquired on the request of Yamuna Expressway Industrial Authority for planned development.
23. Learned Counsel for the respondents has referred to Section 2(a) of the 1976 Act, which defines amenities. Section 2(a) of the 1976 Act is quoted below:
2(a). ''Amenities'' include roads, water supply, street lighting and power supply, sewerage, drainage, collection treatment and disposal of industrial waste and town refuse and such other community facilities, services or conveniences as the State Government may, by notification, specify to be an amenity for the purposes of this Act:
24. Section 6 of the 1976 Act provides for object of the Authority, which is planned development of the industrial development area. Section 6(2)(e) includes providing of the amenities as one of the object of the Authority.
25. Learned Counsel for the petitioner has submitted that in the notification u/s 4 of the Act it was not mentioned that the land is being acquired for construction of the approach road, which fact is now sought to be introduced by means of the counter affidavit. In notification u/s 4 of the Act the public purpose was mentioned as "Planned Development in District Gautam Budh Nagar through Yamuna Expressway Industrial Development Authority". The planned development of the area is the object for which Yamuna Expressway Industrial Development Authority has been constituted. In planned development providing for amenities is one of the functions of the Authority and it was not necessary to mention the details of the planned development in the notification u/s 4 of the Act. Mention of planned development in notification u/s 4 of the Act was sufficient to cover all categories of planned development including providing for construction of approach-road/road. Thus non mentioning of the construction of the approach road in the notification u/s 4 of the Act was not imperative.
26. The submission next pressed by the learned Counsel for the petitioner is that there was no material before the State Government for arriving at subjective satisfaction that invocation of Section 17(4) of the Act was necessary in facts of the present case. In the counter affidavit filed by the State relevant materials including the correspondence between Yamuna Expressway Industrial Development Authority and the State authorities and the relevant noting and letters have been brought on the record. Annexure CA-2 to the counter affidavit of the State is a letter written by the Additional District Magistrate (Land Acquisition) to the Director, Land Acquisition Directorate recommending invocation of Section 17(1) and 17(4) of the Act. It was specifically mentioned that acquisition of land is being proposed as "contiguous" part of the residential project. The Additional District Magistrate (Land Acquisition) has also given certificate in PRAPATRA-10, which has been filed as Annexure-3 to the counter affidavit of the State. In view of the aforesaid materials, it cannot be said that there was no material before the State Government to arrive at subjective satisfaction that the land is urgently needed and dispensation of inquiry u/s 5-A of the Act is necessary.
27. We cannot loose sight of the fact that the land, which is subject to acquisition in question, is contiguous to the residential parcels, which was acquired for the purpose of residential, industrial, amusement etc. along with Yamuna Expressway. It has been specifically pleaded in paragraph 18 of the counter affidavit of respondent No. 3 that the land in question is being acquired to connect Yamuna Expressway to residential sectors. We have no reason to disbelieve the pleadings of respondent No. 3 in this regard. When the challenge to land parcels as well as Yamuna Expressway has been upheld by the Apex Court as noticed above, we cannot accept the submissions of learned Counsel for the petitioner that contiguous land to the land parcels, which are being developed for residential and industrial purposes connecting it with Yamuna Expressway, is not an urgent matter so as to require invocation of Section 17(1) and 17(4) of the Act. When land acquisition for five land parcels across the Yamuna Expressway has been held to be such urgent acquisition requiring invocation of Section 17(4) of the Act, the same principle has to be applied in facts of the present case also.
28. It has been submitted by the learned Counsel for the petitioner that respondents have not brought on the record any map or plan to prove that road shall be constructed in the land in question. In paragraph 23 of the writ petition, it has been pleaded that there is no approved master plan of respondent No. 3-Development Authority, prepared according to the U.P. Urban Planning and Development Act, 1973 and the U.P. Industrial Area Development Act, 1976. The said averment has been denied in paragraph 30 of the counter affidavit of respondent No. 3. It has been stated in paragraph 30 of the counter affidavit that Drafted Master Plan 2031 has been approved by the State Government and the State Government has sent the map to Chief Coordinator, Ghaziabad and the Chief Coordinator Ghaziabad has sent the map for incorporating the objection to NCR Board, New Delhi and no objection has been sent for incorporating in the map by the NCR Board.
29. One of the submissions, which has been raised by counsel for the petitioner, is that there is no approval by the NCR Board with regard to plans of respondent No. 3, hence there was no urgency in the matter. It has been stated in paragraph 20 of the writ petition that without prior approval, consultation and permission of the National Capital Region Board, such acquisition or development cannot be permitted in view of the provisions of National Capital Region Planning Board Act, 1985. The averments made in paragraph 20 of the writ petition has been denied in paragraph 30 of the counter affidavit of respondent No. 3 and it has been stated that after approval of the State Government the draft Master Plan 2031 has been sent to the NCR Board. It has further been stated that the National Capital Region Board Act, 1985 does not prohibits acquisition of land. In the counter affidavit filed on behalf of the State copy of the letter dated 28th May, 2009 of the State of U.P. addressed to the Chief Coordinator, National Capital Region Board, has been brought on the record. By the said letter the area development plan of the Yamuna Expressway Industrial Development Authority has been prayed to be included in the Regional Plan of the National Capital Region Planning Board. It has been stated that no objection has been raised by the National Capital Region Planning Board. No material has been brought on behalf of the petitioner that any objection has been raised by the National Capital Region Planning Board.
30. The National Capital Region Planning Board Act, 1985 has been enacted to provide for the constitution of a planning board for the preparation of a plan for the development of the National Capital Region and for coordinating and monitoring the implementation of such plan. Sections 8 and 9 provide for power of the Board and functions of the committee respectively. Section 17 of the 1985 Act provides for preparation of sub-regional plans by the participating State. Section 19 of the 1985 Act provides for submission of sub-regional plans to the Board. Section 19 of the 1985 Act is quoted below:
19. Submission of Sub-Regional Plans to the Board
(1) Before publishing any Sub-Regional Plan, each participating State or, as the case may be, the Union territory, shall, refer such Plan to the Board to enable the Board to ensure that such Plan is in conformity with the Regional Plan.
(2) The Board shall, after examining a SubRegional Plan, communicate, within sixty days from the date of receipt of such Plan, its observations with regard to the Sub-Regional Plan to the participating State or the Union territory by which such Plan was referred to it.
(3) The participating State, or, as the case may be, the Union territory, shall, after due consideration of the observations made by the Board, finalize the Sub-Regional Plan after ensuring that it is in conformity with the Regional Plan.
31. From the scheme of the 1985 Act, it is clear that for subregional plans, the Board has to communicate within sixty days from the date of receipt of such plan its observation with regard to sub-regional plan so that participating State after due consideration of the objection, finalise the sub-regional plan after ensuring that it is in conformity with the Regional Plan. The provisions of the 1985 Act does not require any prior approval by the Board.
32. The Division Bench judgment relied by counsel for the respondents, in Civil Misc. Writ Petition No. 45736 of 2004 Raj Kumar v. State of U.P. and Ors. rejected the similar contention that acquisition violated the provisions of the 1985 Act. Following was laid down in paragraph 7 of the said judgment:
7. The next contention of the petitioner to the affect that the acquisition will violate the provisions of the National Capital Region Planning Board is also misconceived. There is no material to indicate that any of the provisions of the said Act has been violated. The notification cannot be set-aside on the said ground. Shri B.D. Mandhyan has relied on the decision of Ravindra Singh and Ors. v. State of U.P. and Ors. reported in 1997 AWC (1) 54. The said contention of Shri B.D. Mandhyan was also advanced in the case of M/s Bansal Estate v. State of U.P. and Ors. decided by us today and the aforesaid contention is also liable to be rejected in view of the following opinion expressed by us in para 11 of the said judgment which is quoted herein below:
11. The last submission of Shri Mandhyan which was to the effect that there is no approval from the National Capital Region Board and, therefore, in view of the decision of this Court in Ravindra Singh''s case (supra) this Court should quash the notification on the said ground. From a perusal of the last paragraph of the decision in Ravindra Singh''s case, it would be evident that the notifications under challenge in the said case were upheld. In view of this, there is no occasion for this Court to quash the petition on the said ground. Further at this stage, the question as to whether there is proper approval or not from the National Capital Region Board, will arise only after the development work proceeds and the plots are sanctioned by the authority concerned while proceeding to carry out industrial development. In the opinion of this Court, the aforesaid stage had not been arrived and moreover the petitioner cannot have any grievance on that score for the purpose of challenging the notification u/s 4 & 6. The scope of challenge to the notifications under Sections 4 and 6 are very limited. In our opinion, no ground has been made out by the petitioners for assailing the notifications in view of the findings arrived at hereinabove.
33. Learned Counsel for the petitioner has placed reliance on paragraphs 134 and 136 of the judgment in Sri Ram Chaudhary''s case (supra). Paragraphs 134 and 136 of the judgment are quoted below:
134. The next dispute as raised by Mr. Upadhyaya is that no development work has been done by the petitioner company on the land in question and the layout plan has been legally disposed of, as the disputed land in question is earmarked as institutional and green area in the Master Plan-2021 of the Greater Noida Authority. Mr. Shashi Nandan, learned Senior Counsel appearing for the petitioner company, contended before this Court that the layout plan can not be legally disposed of. The Master Plan-2021 of the Greater Noida Authority has not yet got its approval under the National Capital Region Planning Board Act, 1985 (hereinafter in short called as the "NCR Act"). We have called upon Mr. Shashi Nandan to place such Act to understand the scope and ambit of it, which was done accordingly. We find the following objects and reasons made available for the purpose of implementing such Act, as under:
An Act to provide for the constitution of a Planning Board for the preparation of a plan for the development of the National Capital Region and for coordinating and monitoring the implementation of such plan and for evolving harmonized policies for the control of land-uses and development of infrastructure in the National Capital Region so as to avoid any haphazard development of that region and for matters connected therewith or incidental thereto.
136. By citing all these sections Mr. Shashi Nandan has contended before this Court that let the records be produced by the authority to show that the Master Plan-2021 has been approved by the National Capital Region Planning Board but the respondent authority in spite of bringing the record failed to establish before the Court that the Master Plan-2021 is approved by the National Capital Region Planning Board.
34. The Division Bench of this Court in abovenoted paragraphs has noted only the submissions made by counsel for the petitioner in that case. No such ratio has been laid down in the aforesaid case that prior approval of National Capital Region Planning Board is required of master plan. The above case does not help the petitioner in the present case.
35. In view of the foregoing discussions, we are of the view that stand of the State Government for invoking Section 17(4) of the Act cannot be said to be vitiated. No ground is made out in the writ petition on the basis of which the acquisition of land can be struck down. None of the submissions raised by the petitioner has any substance.
36. All the writ petitions are dismissed.
37. No order as to cost.
