Ashok Bhushan, J.@mdashHeard Sri Salil Kumar Rai, learned counsel for the petitioner, Sri Yashwant Verma, learned Counsel appearing for the respondent no. 5, Sri Ramendra Pratap, learned counsel for the respondent no. 3 as well as learned Standing Counsel representing the respondents no. 1,2 and 4.
2. By this writ petition, the petitioner has prayed for quashing the notifications dated 25.6.2009 (issued under section 4 of the Land Acquisition Act, 1894 ) and the notification dated 9.9.2009 (under section 6 of the Land Acquisition Act, 1894) in so far as they relate to plot Nos. 31M, 164M and 166M situate in village Hajipur Kheda, Tehsil & pargana Etmadpur, District Agra.
3. Brief facts of the case which emerged from the pleadings of the parties are; the State of U.P. established an authority namely Yamuna Expressway Industrial Development Authority for construction of the expressway along the river Yamuna from Greater NOIDA to Agra and development of hitech cities/township adjoining the aforesaid expressway. Yamuna Expressway Industrial Development Authority was earlier named as Taj Expressway Industrial Development Authority for which earlier the State Government acquired land in the year 2007. The State Government had conceived of Taj Expressway Project and subsequently renamed as Yamuna Expressway Project as a joint venture project. Proposals were invited by issuing advertisements. Advertisement provided that the expressway would pass through virgin area along the river Yamuna and a band of 500 meters width of land would be offered along the corridor for commercial, amusement, industrial, institutional and residential development. The contract was awarded to J.P. Industries Ltd. in pursuance of which a concession agreement dated 7.2.2003 was executed. Through different notifications, the State Government acquired land for construction of expressway and for development (in five pockets). Reference has been made to the notification dated 31.3.2009 under section 4 and notification dated 2.6.2009 under section 6 of the Land Acquisition Act, 1894. The notifications were challenged by bunch of writ petitions, leading writ petition being writ petition No. 29682 of 2009, Narendra Road Line Pvt. Ltd. Vs. State of U.P. and others. The bunch of writ petitions were dismissed by the judgment and order dated 2.7.2010 upholding the acquisition for expressway and for land development. Special Leave Petition has been filed against the said judgment which is pending consideration before the apex Court. The petitioners'' plots were also acquired for construction of expressway but the petitioners did not challenge the acquisition. A notification dated 25.6.2009 was issued under section 4 declaring that land specified in the notification are needed for construction of tollplaza in Yamuna Expressway Project. The State Government has also exercised its power under section 17(4) dispensing with the inquiry under section 5A of the Land Acquisition Act, 1894. The notification under section 6 was issued on 9.9.2009. The petitioners, whose plots were included in the aforesaid notifications have come up in this writ petition challenging the acquisition.
4. Sri Salil Kumar Rai, learned counsel for the petitioner challenging the acquisition contended that dispensation of the inquiry under section 5A by the State Government in issuing the notification under section 4 is illegal there being no such urgency in the matter so as to dispense with the inquiry. It is contended that the State Government has not applied its mind before dispensing with the inquiry hence, the entire proceedings are liable to be set aside. It is further contended that excess land has been acquired to the extent of 20.8825 Hectares for tollplaza. Learned Counsel for the petitioner submits that although in the writ petition it was pleaded that land acquired through notification are not within 500 meters width and are beyond 1.5 Kms. away from the expressway but in view of the map of the Tollplaza filed along with counter affidavit of respondent no. 5, it does not appear that the said ground is available to the petitioner in view of the fact that width of tollplaza is much within 500 meters. Learned Counsel sought to contend that concession agreement envisaged acquisition of two types of land one for construction of expressway that was in the band of 100 meters and other for land development in the band of 500 meters whereas the acquisition in question for tollplaza is not acquisition for land development and is beyond 100 meters. It is further submitted that under the Environment (Protection) Act, 1986, the State Government was required to obtain the clearance for which, it was necessary to hear the affected parties since by acquisition of land whole demography of the area shall be changed. The petitioners and other persons would become landless labourers which necessitated for holding an inquiry under section 5A of the Land Acquisition Act, 1894. Learned Counsel for the petitioner submits that according to the concession agreement tollplaza could have functioned only after the expressway is substantially completed hence, there was no urgency for acquisition of land for tollplaza and further the concession period granted to the respondent no. 5 could have also been extended which suggest that there was no urgency in the matter for dispensing with the inquiry under section 5A.
5. Sri Yashwant Verma, learned counsel for the respondent no. 5, refuting the submissions of learned counsel for the petitioners, contended that construction of tollplaza is also an integrated project with the construction of the expressway. Referring to various clauses of concession agreement, it is submitted that expressway means the access controlled 6lane expressway between Noida and Agra with service roads and associated facilities. It is submitted that design and plan of tollplaza have received the approval of Yamuna Expressway Industrial Development Authority and according to the plan which has been approved by the respondent authority, the width of the tollplaza is less than 300 meters. It is submitted that construction of tollplaza is an integral part of expressway and has to be constructed along with expressway providing for service road, green belt and parking etc. for which land has been acquired. It is submitted by Sri Yashwant Verma that writ petition challenging the acquisition of land for expressway on the ground that dispensing with the inquiry under section 5A was illegal, has already been repelled by the judgments of three Division Benches of this Court being Balbir Singh and Another Vs. State of U.P. and others, 2009 (10) ADJ 441, Nand Kishore Gupta and others Vs. State of U.P. & others 2009 (10) ADJ 535 and writ petition No. 29682 of 2009 Narendra Road Lines Pvt. Ltd. Vs. State of U.P. & others, decided on 2.7.2010. It is submitted that all the grounds which have been sought to be raised challenging the notification under sections 4 and 6 regarding invocation of urgency clause under section 17(1) and 17(4) have been repelled hence, this writ petition is also liable to be dismissed on the same ground. It is further submitted that there is no acquisition of any excess land for tollplaza, which is apparent from the plan filed along with counter affidavit. It is submitted that only necessary land has been acquired. It is submitted that there are four other tollplazas for which acquisition has been made to the similar extent. It is submitted that the land acquired is not beyond 500 meters. It is submitted that environmental clearance has already been granted which has been noticed by the Division Bench in the judgment of Narendra Road Lines and environmental clearance is required before undertaking construction of the expressway. The clearance has been granted on 11.4.2007 by the Ministry of Environment and Forest Government of India. Sri Ramendra Pratap Singh, learned Counsel for the respondent no. 3 authority contended that plots acquired are part of the expressway. It is submitted that petitioner''s part of the same land has earlier been acquired for construction of expressway which was not challenged. Possession of the land was taken on 29.9.2009. It is submitted that construction of tollplaza is integral part of the expressway project and the writ petitions are liable to be dismissed.
6. We have heard learned counsel for the parties and have perused the record.
7. Much emphasis has been laid by learned counsel for the petitioner on the submission that section 17(1) and 17(4) could not have been invoked in view of the fact that there was no such urgency. Learned counsel for the petitioner has referred to the Concession Agreement, copy of which has been filed as Annexure1 to the Supplementary affidavit in which the words "COD" and "Concession Period" have been defined as follows:
"COD" means the date on which the Expressway is substantially completed for which TEA shall issue the competition certificate or the Substantial Completion Certificate in accordance with clause 9.3 read with clause 9.4.
"Concession Period" means the period of 36(thirty six) years plus any extension thereto in accordance with the provisions of the Agreement, starting from the Commercial Operations Date (COD)."
Paragraphs 9.4.3, 9.4.4 and 9.4.5 of the Concession Agreement are as follows:
"9.4.3 At least 30 (thirty) days prior to the likely completion of the expressway, the Concessionaire shall notify TEA of the same and shall give notice of its intention to conduct final Tests. The Concessionaire shall give to TEA atleast 10 (ten) days prior notice of the actual date on which it intends to commence the Tests.
9.4.4 Upon the TEA determinining the Tests to be successful and being satisfied that the Expressway can be safely and reliably laced in commercial operation, TEA shall forthwith issue to the Concessionaire the Completion Certificate.
9.4.5 TEA may, at the request of the Concessionaire, issue a Substantial Completion Certificate if the Tests are successful and parts of the Expressway can be safely and reliably placed in commercial operation though certain works or things forming part thereof are not yet complete. In such an event, such substantial competition Certificate shall have appended thereto a list of outstanding items signed jointly by TEA and the Concessionaire. Ass such outstanding items shall be completed by the Concessionaire within 180 (one hundred and eighty) days of the date of issue of such Substantial Competition Certificate. Upon competition of the outstanding items to the satisfaction of TEA, the TEA shall issue Competition Certificate, upon competition of the outstanding items to the satisfaction of TEA, the TEA shall issue competition Certificate to the Concessionaire."
8. Relying on the aforesaid provisions of Concession Agreement, it is contended that collection of toll can begin only after completion of the expressway hence, there was no occasion for invocation of sections 17(1) and 17(4). Replying the above submissions of the petitioner, Sri Yashwant Verma contended that the expressway includes the associated facilities i.e. tollplaza also. He has referred to definition of expressway as given in concession agreement to the following effect:
" Expressway" means the access controlled 6 land expressway between Noida and Agra with service roads and associated facilities"
The definition of words "project" and "site" are as follows:
"Project" means preparation of TEFR and DPR, design, engineering, financing, procurement, construction, operation and maintenance of the Expressway and management of land for development in accordance with the provisions of this Agreement and shall include all works relating to or in respect of the Expressway and the land for development".
"Site" means the area for the Expressway and enabling facilities thereto"
9. From the materials on record, it is clear that expressway project is an integrated project pertaining to construction of expressway from Noida to Agra and development of lands in five pockets. Under the Agreement, the Concessionaire has been permitted to collect tolls from the expressway. The word "Associated Facilities" are included in the definition of expressway and construction of tollplaza is fully covered by the definition of the associated facilities. For collection of tolls a tollplaza is to be constructed providing facilities so that the traffic passes through the tollplaza smoothly. In the plan which has been annexed along with short counter affidavit of the respondent no. 5, copy of which has been filed as Annexure7, it is apparent that 17 lanes on each side total 34 lanes have been contemplated for passing of the traffic. Each lane is 3.2 meters width and with canopy of 1.8 metres. Each lane including the canopy is five meters width. The submissions of the petitioner that collection of toll can start only after competition of expressway hence, there was no urgency for acquiring the land for construction of tollplaza, also cannot be accepted. The construction of tollplaza on expressway is a part of the expressway and it does not appeal to reason that construction of the tollplaza should be undertaken after the construction of the expressway. For construction of Tollplaza, the alignment of the road requires change and planning of tollplaza has to be made so that traffic could smoothly pass through the tollplaza. The arguments challenging the notifications acquiring the land for expressway were rejected by the three Division Benches as noticed above. The distinction which has been sought to be made by Sri Rai on the above ground is fallacious. When the urgency clause under section 17(1) and 17(4) invoked for construction of expressway has been upheld by this Court, we see no reason to take a different view with regard to construction of tollplaza. It is useful to refer to paragraphs 106,107 and 108 of judgment of Narendra Road Lines (supra) in this context :
"106. The case law cited above would show that in the matter of invoking emergency powers under the Act for acquisition of the land, each case has to be seen on its own facts, both for finding out the purpose of acquisition and whether the State Government had sufficient material available with it, to arrive at a conclusion to invoke such powers.
107. The State Government has produced before us the records in which at each stage beginning from the proposals, the State authorities have applied their mind on the material, before them and have recorded satisfaction that the land is urgently required for public purpose for fulfilling the ''Yamuna Expressway Project''. The possibility of encroachment in such large areas was found to be real and apparent threat putting the entire project into difficulty. The judicial review in such cases is limited to the availability of the material for applying sub section (4) of Section 17, for dispensing with the enquiry.
108. In these cases the materials produced before us would show that the project was considered by the State Government to be of great public importance. The construction of expressway was to be completed within a specified time, and is linked to the Common Wealth Games, 2010, beginning in October 2010. The large areas sought to be developed along the expressway are being encroached upon by various kinds of constructions. It was, therefore, felt necessary in public interest to complete the project within specified time under the concession agreement dated 7.2.2003, and to avoid encroachments over the land causing complications of taking over possession, the provisions of sub section (4) of Section 17 after declaring opinion of the applicability of Section (1) of Section 17, were applied to dispense with the hearing of objections under Section 5A of the Act. On the principles of law settled by the Supreme Court, in the cases cited as above, we are of the opinion that the State Government did not commit any illegality in arriving at a decision under sub section (4) of Section 17, to dispense with the requirements of hearing the objections under Section 5A of the Act. "
10. Thus, the submission of the petitioner''s counsel that invocation of clause 17(1) and 17(4) of the Act for construction of tollplaza was unjustified, cannot be accepted. The next submission pressed by learned counsel for the petitioners is that acquisition of land for construction of tollplaza is excess it being 20.8825 hectares. The respondent no. 5 has filed a short counter affidavit bringing on record, the plan of tollplaza (Annexure7) and letter dated 25.2.2009 of the Rites Ltd. Yamuna Expressway project to the authority giving details of the land requirement and situation of tollplaza. A perusal of the letter indicates that five toll plazas were proposed and the land requirement of tollplaza varied between 20 hectares to 28.75 hectares. It has been specifically stated in paragraph 11 of the counter affidavit filed on behalf of respondent no. 5, that the detailed project report for construction of tollplaza falling at 149.50 to 151.15 Kms. was submitted and approved by the respondent no. 3. Although the petitioner in paragraph 21 of the writ petition had pleaded that land acquired are not within 500 meters width specified in the agreement and the advertisement dated 3.11.2002 and are beyond 1.5 Kms. from the expressway, but the same has not been pressed during submissions in view of the plan of the tollplaza having been brought on record, which indicated that total width of tollplaza is not more than 300 meters and the acquisition of land is within 500 meters. The length of the tollplaza and its width have been clearly delineated in the plan which does not indicate that any excess land has been acquired for tollplaza and the submission of the petitioner that excess land has been acquired also cannot be accepted.
11. Learned counsel for the petitioners submits that for environmental clearances notification dated 14.9.2006 issued under the Environment (Protection) Act, 1986 also required permission for the project, it was necessary that the petitioners were given a hearing in inquiry under section 5A since the acquisition would be changing the demography of the area inasmuch as the farmers whose land had been acquired would become landless labourers and would be forced to migrate to other places. In so far as environmental clearance under the Environment (Protection) Act 1986 is concerned, it is pleaded on behalf of the respondents that environmental clearance has already been granted on 11.4.2007 i.e. much before the notifications in question were issued. The notifications issued thereunder is entirely separate matter governed by statutory Regulations and when the inquiry under section 5A has been dispensed with by the State Government, the petitioner cannot be heard in saying that for the above purpose, the petitioners were required to be given hearing. It is relevant to note that the challenge to the dispensation of inquiry under section 5A with regard to acquisition of land for Yamuna Expressway was also considered by the Division Bench in the cases of Balbir Singh and Nand Kishore Gupta (supra). After considering the various judgments of the apex Court, following was laid down in paragraph 40 by the Division Bench in Nand Kishore Gupta''s case.
"The record produced before us by the State Government enclosing the material of invoking urgency clause and the satisfaction of the State Government on the said material, has satisfied us that the State Government had sufficient material and had applied its mind to record its opinion that there was urgency to acquire the land and to dispense with the enquiry under Section 5A of the Act. The writ petition filed in public interest was dismissed and that the Court has also rejecting the challenge on the ground that acquisition was made for the company. The requisite 80% of the cost of acquisition of the land under the agreement was deposited in the year 2007. Out of 12282 land owners of the area of 1604 hects., 11397 have accepted the compensation. In these 9 writ petitions, there are 35 petitioners representing only 21.03 hects. The cost of project according to Shri Navin Sinha, Sr. Advocate has increased from initially 1700 crore in the year 2001, to 9700 crore and is going on increasing per day. The road has been laid from Noida to Greater Noida and the work is going on, on the entire road except on a small portions on which the Court had passed orders to maintain status quo. According to Shri Navin Sinha in addition to thousands of tourists, who visit Agra from all over the world every day, there is likely to be great influx of sports tourists visiting India at the time Commonwealth games. They all need a fast moving road connection to reach Agra to cut down the travelling time. The National Highway No.2 on the western bank of Yamuna passes through busy areas in the State of Haryana and Rajasthan, through the cities of Faridabad, Ballabhgarh and Palwal. The fast moving road on the eastern side of Yamuna crossing through the areas falling only in the State of U.P., with modern facilities is a felt necessity in public purpose. The construction is on the verge of completion. It will be ironical for the tourism sector and residents of the area looking for development and opportunity for employment, to be deprived of the project at such an advance stage."
12. Learned counsel for the respondents has placed reliance on the recent judgment of the apex Court in Anand Singh & Another Vs. State of U.P. and others, decided on 28.7.2010. The apex Court was considering section 17 and the dispensation of inquiry under section 5A of the Land Acquisition Act, 1894 in context of acquisition of land by Gorakhpur Development Authority for planned development. The apex court after considering the earlier cases has laid down following in paragraphs 30 and 31.
"31. Section 17(4) as noticed above, provides that in cases where the appropriate Government has come to the conclusion that there exists an urgency or unforeseen emergency as required under subsection (1) or (2) of Section 17, it may direct that the provisions of Section 5A shall not apply and if such direction is given then Section 5A inquiry can be dispensed with and a declaration may be made under Section 6 on publication of Section 4(1) notification and possession can be made.
32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of the Section 5A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 5A inquiry. If that was not the intention of the legislature then the latter part of subsection (4) of Section 17 would not have been necessary and the legislature in Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5A inquiry will be dispensed with. But then that is not the language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5A inquiry does not mean that in each and every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5A inquiry is inherent in the two types of urgencies contemplated under Sections 17(1) and (2) of the Act."
13. In view of the foregoing discussions, we see no good ground for quashing the impugned notifications issued under section 4 and 6 of the Land Acquisition Act, 1894. The petitioner is not entitled for any relief. The writ petition is dismissed.
