P.C.Verma, J. - (1.) BY means of the present writ petition, petitioners have challenged the impugned Notification issued under Section 4 read with Section 17(4) of the Land Acquisition Act (hereinafter referred to as the Act) dated 11 -9-2008 published on 16.7.2009 in Hindi News Paper Dainik Jagran from New Delhi and the notification issued under Section 6 read with Section 17(1) of the Act dated 30.9.3009 which was published on 26-11-2009, so for as it relates to the land of the petitioner's Company.
(2.) THE case of the writ petitioner in short is that the petitioner is a private limited company which inter alia engaged in the business of the real estate, colonization and development and for this purpose the petitioner had purchased and is in possession of 182 acres of agricultural land in Village Salarpur Khadar, Pargna-Dadri, Distt. G.B.Nagar. Notwithstanding the approval given by the Noida the petitioner was shocked to learn the issuance of the Section 4 Notification dated 11 -09-2008 by which an area of 227.077 Hect. of land, including the land alleged to be owned and possessed by the Petitioner, was proposed to be acquired. Hence this writ petition. We have heard at length Sri R.B. Singhal, Learned Senior Advocate assisted by Sri Sanjay Kaushik, Advocates on behalf of the Petitioners, Sri M.C. Chaturvedi, Chief Standing Counsel for Respondent Nos. 1 and 2 and Sri R.P Singh on behalf of the Respondent Nos. 3 and 4. In this Writ Petition, the Respondents State and Noida have filed separate counters affidavits. Rejoinder affidavit has been filed by the Petitioner to the Counter filed by the State.
(3.) SRI R.B. Singhal, learned Senior Advocate assisted by SRI Sanjay Kaushi, Advocates appearing for the petitioner confined his challenge only on the ground that the notifications dispensing with an enquiry under Section 5-A, have been issued without application of mind. There was no urgency for acquisition of the land for Planned Industrial Development. The right under Section 5-A to file objections, is a very important right of the tenure holder and cannot be taken away lightly. The further contention of the learned counsel for the petitioner has been that there was no material before the State Government so as to come to a subjective satisfaction to invoke the urgency clause and to dispense with the provisions of Section 5-A. Learned counsel for the petitioner has relied upon the decision in the case of Union of India and others v. Mukesh Hans, (2004) 8 SCC 14, contended that in fact there is no unforeseen emergency before the authorities to take possession over the land in dispute. The authorities have exercised the power which is unsustainable under law. Particularly paras 30 and 32 of the aforesaid judgment relied upon by learned counsel for the petitioners, are quoted below : "30. Sub-section (2) of Section 17 contemplates a different type of urgency inasmuch as it should be an unforeseen emergency. Under this section if the appropriate Government is satisfied that there is such unforeseen emergency the authorities can take possession of the land even without waiting for the fifteen day period contemplated under Section 9(1). Therefore, in cases, where the Government is satisfied that there is an unforeseen emergency, it will have to in the normal course, issue a Section 4(1) notification, hold Section 5-A inquiry, make Section 6 declaration, and issue Section 9(1) notice and possession can be taken immediately thereafter without waiting for the period of 15 days prescribed under Section 9(1) of the Act." "32. Acareful 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 5-A inquiry. It requires an opinion to be formed by the Government concerned that alongwith the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not be itself be sufficient for dispensing with Section 5-A inquiry. If that was not the intention of the legislature then the latter part of sub-section (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 5-A 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 5-A inquiry inspite 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 5-A 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 5-A 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 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensing of the Section 5-A inquiry is inherent in the two types of urgencies contemplated under Sections 17(1) and (2) of the Act." ;