Ashok Bhushan, J. - (1.) HEARD Sri Keshri Nath Tripathi, Senior Advocate, assisted by Sri CP. Gupta, Advocate for the petitioners in Writ Petition No. 23624 of 2010, Sri Anil Kumar Tiwari, Advocate for the petitioner in Writ Petition No. 41012 of 2010 and Sri B.D. Mandhyan, Senior Advocate, assisted by Sri Satish Mandhyan, Advocate for the respondents in both the writ petitions. Learned Standing Counsel has appeared for State-respondents.
(2.) THESE two writ petitions challenging same notifications have been heard together and are being disposed of by this common judgment. Pleadings in Writ Petition No. 23624 of 2010 have been exchanged and it is sufficient to refer to pleadings of the said writ petition for deciding both the writ petitions. Learned Standing Counsel has produced the original records of the State Government pertaining to land acquisition in question, which has been perused by us. Brief facts of the case, as emerge from pleadings of the parties, are; The petitioners claim to be bhumidhar of Plots No. 391A and 391B measuring about 0.421 and 1.101 hectare respectively situated in village Islamganj, Pargana and Tehsil Jalalabad, district Saharanpur. Krishi Utpadan Mandi Samiti, Jalalabad, Saharanpur is a market area notified under Krishi Utpadan Mandi Samiti Adhiniyam, 1964. Allahganj is sub-market area of Krishi Utpadan Mandi Samiti, Jalalabad. Steps for construction of sub market yard were initiated by respondent No. 3. The land selection committee of Krishi Utpadan Mandi Samiti, Jalalabad on 26th August, 1994 selected an area of 18.64 acres for sub-market area, Allahganj. The Board of Director, Mandi Parishad, Lucknow on 10th July, 1997 approved the proposal for acquisition of 10 acres of land. A letter dated 27th June, 2003 was written by the Regional Deputy Director (Administration), Mandi Parishad, Bareilly directing for making available proposal for land acquisition to Land Acquisition Directorate, Board of Revenue, Lucknow through the Collector for acquisition of 10 acres of land under Section 4/17 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act). On 8th August, 2008 resolution was passed by the Krishi Utpadan Mandi Samiti, Jalalabad directing for acquisition. A meeting of the Zila Bhoomi Upyog Samiti headed by Collector was held which approved the proposal submitted by respondent No. 3 for acquisition of 3.995 hectare of land. The Collector vide letter dated 25th October, 2008 forwarded the proposal of acquisition, as submitted by respondent No. 3, to the Commissioner and Director, Land Acquisition Directorate, Board of Revenue, Lucknow. The Commissioner and Director vide letter dated 1st December, 2008 forwarded the proposal to the Secretary, Department of Agricultural Marketing and Agricultural Foreign Trade for issuing notificati on under Section 4(1)/17 of the Act. A note dated 2nd January, 2009 was submitted, which was approved by the Special Secretary on 5th January, 2009. The note was also recommended for obtaining proposal from Director, Mandi Parishad. The Director, Mandi Parishad wrote a letter on 27th February, 2009. The note was submitted on 3rd M arch, 2009 for approval of the proposal for acquisition 3.995 hectare of land under Secti on 4(1 )/17 of the Act, which was forwarded by the Special Secretary on 5th March, 2009 and approved by the Minister concerned on 6th March, 2009. The provisions of sub-section (1) of Section 17 and sub-section (4) of Section 17 of the Act were also invoked dispensing the inquiry under Section 5A of the Act. The notification under Section 4(1) of the Act was published in the Gazette on 20th May, 2009 and the substance of the notification was publ in the Hindi Daily newspapers "Amar Ujala" and "Dainik Jagaran" on14th October, 2009 and 15th October, 2009 respectively. A declaration under Section 6(1) of the Act dted 27th January, 2010 was issued, which was published in the Gazette on 27th January, 2010 itself and thereafter published in the Hindi Daily newspapersAmar Ua" and "Dainik Jagaran" on 13th February, 2010. Challenging the notifications issued under Section 4 read with Sections 17(1)and 17(4) of the Act and the declaration under Section 6(1) read with Section 17(4) these writ petitions have been filed. A writ of mandamus has also been prayed for restraining the respondents from dispossessing the petitioners from their land.
(3.) THE writ petition was entertained by Division Bench of this Court on 28th April, 2010. After filing of the counter-affidavit and supplementary counter-affidavit by respondent Nos. 2 and 3 an interim order was passed on 3rd May, 2010 directing the parties to maintain status quo with regard to possession over the land in question. THE State also filed its counter-affidavit. THE State Government was directed to produce the relevant records by order dated 30th September, 2010. THE original records of the State Government being File No. 600(293)/208 of the Department has been produced by learned Standing Counsel on the date of hearing. Sri Keshri Nath Tripathi, Senior Advocate, appearing for the petitioners, challenging the impugned notifications, submits that steps for acquisition have been initiated in the year 1994 by Land Selection Committee which received approval of the Board of Director on 10th July, 1997 and thereafter after more than 10 years, respondent No. 3 took a decision on 8th August, 2008 for proceeding with the land acquisition, which proposal was forwarded by the District Magistrate on 25th October, 2008 on the basis of which notification under Section 4 of the Act was issued on 20th May, 2009 and published in the newspapers on 14th and 15th October, 2009. The above facts indicate that there was no such urgency in the matter which may warrant dispensation of inquiry under Section 5A. It is submitted that even if it is assumed that construction of some market yard is urgent matter requiring invocation of Section 17(1) of the Act, there has to be exceptional reasons for dispensing with the inquiry under Section 5Aof the Act. It is submitted that steps for construction of market yard having been initiated in the year 1994, which remained pending at the stage of respondent No. 3 itself till 2008, there cannot be any sudden urgency for dispensing with the inquiry under Section 5A. He submits that in the plots in question there is a big grove of fruits bearing trees comprising of 110 tress of Mango, 52 trees of Sheesham, 2 trees of Popular, one big tree of Peepal and 2 trees of Neem which are about 40 years old. He submits that in accordance with the Government orders dated 20th August, 1969 and 5th February, 1993 as far as possible the cultivatory land should not be acquired for non cultivatory purpose. He submits that petitioners were entitled for an opportunity to file their objection, which has been denied without there being any valid ground. He submits that even after publication of notification under Section 4 of the Act on 20th May, 2009 the same was got published in the newspapers on 14th and 15th October, 2009, which fact itself indicates that there was no such urgency in the matter which warranted dispensation of inquiry. It is submitted that had the case being of such urgency, there was no occasion for publishing substance offi tin under Section 4 of the Act after five months. Sri Tripathi further submitted that neither there was any material before the State Government forming any subjective satisfaction regarding invocation of Sections 17(1) and 17(4) of the Act nor the State Government applied its mind with regard to Sections 17(1) and 17(4) of the Act. It is submitted that sub-at Aganj have been declared as required by Section 6(1) of the Krishi Utpadan Mandi Samiti Adhiniyam, 1964 and the gazette notification dated 29th October, 1996, which has been made available to the petitioners under the Right to Information Act, 2005, is a notification dividing existing market area of Jalalabad into two distinct market yards i.e. Jalalabad and Allahganj and not with regard to creation of new market yard at Allahganj. He submits that there was no need or justification for acquisition of land in question for construction of sub-market yard. Sri Tripathi has placed reliance on a Division Bench judgment of this Court in Writ Petition No. 18918 of 2006 (Ramesh and others v. State of U.P. and others) decided on 18th December, 2007 and the judgment of the Supreme Court in Civil Appeal No. 2523 of 2008 (Anand Singh and another \/. State of U.P. and others) decided on 28th July, 2010.;