- (1.) WE have heard Shri Pankaj Dubey, learned counsel for the petitioner. Shri Ravi Kant, Sr. Advocate assisted by Shri M.C. Tripathi, Additional Standing Counsel appears for the State respondents. Shri Navin Sinha, Sr. Advocate assisted by Shri Ramendra Pratap Singh appears for Greater Noida Industrial Development Authority (GNIDA).
(2.) THE petitioners are recorded tenure holders of Plot No.230 area.4.9333 hects. of revenue village Birandi Chakresenpur, Pargana Dadri, Tehsil Sadar, Distt. Gautam Budh Nagar. They have also constructed houses on the land used as abadi. By this writ petition the petitioners have challenged the validity of the acquisition of their land, by a proposal under Section 4 (1) read with Section 17 (1) dated 19th November, 2008 under the Land Acquisition Act, 1894 (in short, the Act). The notification records the opinion of the Governor of U.P. that the provisions of Section 17 (1) are applicable to the land as land is required for planned industrial development by GNIDA and since the land is urgently required and it is necessary for urgent acquisition of land to dispense with the provisions of Section 5A of the Act, a direction is issued that under the provisions of Section 17 (4) the provisions of Section 5A of the Act, will not be applicable. The notification included plot no.404 area 4.8435 hects. in the same village, for a total area of 9.7768 hects. The notification under Section 4 (1) read with Section 17 (1) and (4) was followed by a notification under Section 6 for acquisition of the plots with a further direction under Section 17 (1) that even if no award is declared under Section 11, the Collector may take over the possession of the land within 15 days of the notice under Section 9 (1) of the Act.
(3.) THE petitioners have challenged the acquisition of their land on the ground that the notification under Section 4 was issued without application of mind, as there was no urgency in the acquisition of land. The planned industrial development is not of such nature, for which provisions of Section 17 (1) and (4) of the Act could be invoked dispensing with enquiry under Section 5A of the Act. In paras 9, 10, 11, 12, 13, 14 and 19 of the writ petition, it is stated by the petitioner as follows: - "9. That, as per the scheme of the Land Acquisition Act each and every section from sections 4 to 17 has an independent role to play though there is an element of interaction between them. Section 5 -A has a very important role to pay in the acquisition proceedings and it is mandatory on the part of the Government to provide opportunity of hearing to the person interested in the land whose land is sought to be acquired. it is relevant to point out that the acquisition proceedings under the Act, are based on the principal of eminent domain and the only protection given to the person whose land is sought to be acquired is an opportunity under Section 5 -A of the Act to convince the enquiring authority that the purpose for which the land is sought to be acquired is in fact not a public purpose and is only purported to be one in the guise of a public purpose. 10. That, there is no acute scarcity of land and there is not a very heavy pressure/ demand of land for public purpose in question till date not any inquiry on the spot has been conducted nor any survey of the plots sought to be acquired has been got done and thus it transpires that there was no material before the State Government to make an opinion to direct that the provisions of section 5 -A shall not apply in the facts and circumstances of the present impugned notification under Section 4 (1) read with Section 17 (1) as well as under sub -Section (4) of Section 17 of Land Acquisition and there was no application of mind by State Government. 11. That, it is relevant to mention here that excluding the enquiry under Section 5 -A can only be an exception where the urgency cannot brook any delay. The enquiry provides an opportunity to the owner of land to convince the authorities concerned that the land in question is not suitable for purpose for which it is sought to be acquired or the same sought to be acquired for the collateral purposes. It is pertinent to mention here that the respondent no.1 without the application of mind dispensed with the enquiry on the ground of urgency invoking the power conferred by Section 17 (1) or (2) of the Act. 12. That, the respondent no.1 issued the notification dated 23.3.2009, issuing declaration under Section 6 of the Land Acquisition Act, 1984 and the Governor is satisfied that the land mentioned in the Schedule concerned is needed for the public purpose, namely for the "Planned Industrial Development in District Gautambudh Nagar, through "Greater Noida Industrial Development Authority" and under Section 7 of the said Act to direct the Collector of Gautambudh Nagar to take order for the acquisition of the said land. The Governor being satisfied that the case is one of urgency is further pleased under sub -section (1) of Section 17 of the said act to direct the collector of District Gautam Budh Nagar through no ward under section 11 has been made may, on the expiration of fifteen days from the date of the publication of the notice, mentioned in sub -section (1) of section 9 take possession, of the land mentioned in the schedule for the said public purpose. 13. That, the whole acquisition proceedings are void, unconstitutional, tainted with malafide, abuse of authority and power, non -application of mind and as such liable to be quashed as violative of Articles 14, 19 and 300 -A of the Constitution of India. 14. That, entire acquisition proceedings are tainted with malafide and have been issued by abusing power vested in the Respondents. Mandatory procedure and law have not been followed while issuing the impugned notification. 19. That, it is also pertinent to mention here that no notice under section 9 of the Act received by the petitioners till now and till now no award has been made and in view of the section 11A of Land Acquisition Act, 1894 entire proceedings of the acquisition becomes lapse if the award not declared in accordance to the section 11A of Land Acquisition Act, 1894." ;