Mathur. J. - (1.) THESE three writ petitions have been referred to this Bench at the instance of a learned Single Judge as he was of the view that certain Single Judge decisions cited be fore him required reconsideration. In these petitions the petitioners have challenged the acquisition of their land in pursuance of two schemes which were framed under the U. P. Town Im provement Act, 1919, but were finalised and sanctioned under the U. P. Avas Evam Vikas Parishad Adhiniyam. 1965.
(2.) IN or about the year 1965, the Gorakhpur Improvement Trust framed two bousing accommodation schemes the Rustampur-Tiwaripur Hous ing Accommodation Scheme and the Surajakund Housing Accommodation Scheme. The notices under Section 36 of the Town Improvement Act in res pect of the Rustampur-Tiwaripur Hous ing Accommodation Scheme were pub lished in the U. P. Gazette dated March 13. 1965. The notices relating to the Suraikund Housing Accommodation Scheme were published in the U. P. Gazette dated June 12, 1965. By these notices objections were invited to the schemes. The petitioners filed certain objections. Before these objections could be disposed of by the Improve ment Trust, the U. P. Avas Evam Vikas Parishad Adhiniyam, 1965 (U. P. Act No. 1 of 1966) (hereinafter referred to as the Parishad Act) came into force from February 16. 1966. This Act pro vided for the establishment, incorpora tion and functioning of a housing and development Board called the U. P. Ayas Evam Vikas Parighad (this will herein after be referred to as the Board). The Board was established on December 6, 1967 and from that date the Parishad Act was made applicable to the area of the Gorakhpur Improvement Trust. By virtue of the provisions of sub-section (1) of Section 97 of the Parishad Act the Gorakhpar Improvement Trust stood dissolved from December 6. 1967. By virtue of sub-section (3) of this section the schemes framed by the Gorakhpur Improvement Trust stood transferred to the Board and the Board was required to proceed further with these schemes in accordance with the corresponding provisions of the Parishad Act. By a resolution dated March 23. 1968 the Board re-designated the Rustampur-Tiwaripur Housing Accommodation Scheme as the Rustampur- Tiwaripur Bhoomi Vikas Yojna No. 5 and the Suraikund Scheme as the Surajkund Bhoomi Vikas Yojna. Thereafter the objections which had been filed by the petitioners to the schemes notified under Section 36 of the Town Improvement Acts were considered and decided by the Board. On June 17, 1968, the Board sanctioned the Rustampur-Tiwaripur Bhoomi Vikas Yojna No 5 under Sec tion 31 (1) of the Parishad Act. This sanction was published under Section 32 (1) of the Parisihad Act in the U. P. Gazette dated May 3, 1969. The Surai kund Bhoomi Vikas Yojna which in volved an expenditure of more than Rs. 20 lacs was referred by the Board to the State Government for sanction as required by Section 31 (1). The State Government sanctioned the scheme on May 30, 1968 and the sanction was pub lished in the U. P. Gazette dated Sep tember 14. 1968. Section 55 (1) of the Parishad Act provides that any land re quired by the Board for any of the pur poses of the Act may be acquired under the provisions of the Land Acquisition Act. 1894 as amended in its application to U. P. and further modified as speci fied in the Schedule to the Parishad Act. A notification dated December 31, 1969 under Section 17 of the Land Ac quisition Act. 1894, as modified by the Parishad Act was published in the U. P. Gazette dated January 10. 1970 in res pect of the land required for Rustampur-Tiwaripur Bhoomi Vikas Yoina No. 5, directing the Collector of Gorakhpur to take possession of the land needed for the purpose after 15 days even though no award had been made. Thereupon the petitioners whose lands are affected by these two schemes filed these three writ petitions. The acquisition proceedings have been challenged by the petitioners on the following six grounds. (i) that the Gorakhpur Improvement Trust could not legally function and frame the original schemes as the com mencement of the terms of the Chair man and trustees were not notified under Section 8 of the Town Improve ment Act; (ii) that the housing accommodation schemes framed by the Gorakhpur Im provement Trust were invalid as no housing accommodation schemes could be framed under the Town Improve ment Act for municipal areas; (iii) that the notification published under Section 32 (1) of the Parishad Act, in respect of the Rustampur- Tiwari pur Bhoomi Vikas Yoina No. 5 (which notification is equivalent to a notifica tion under Section 6 of the Land Ac quisition Act 1894), is invalid as it was not published within two years after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 as required by Section 4 (2) of the Land Acquisition, (Amendment and Vali dation) Act 1967: (iv) that the notification under Sec tion 17 of the Land Acquisition Act is void as the land sought to be acquired is neither waste nor arable land; (v) that the scheme sanctioned by the Board is not the same scheme which was framed and notified by the Improve ment Trust and. therefore, the Board was not entitled to proceed with it under Section 97 of the Parished Act; and (vi) that the acquisition of the plots belonging to the petitioners violates Article 26 of the Constitution. We shall deal with these grounds in this order.
(3.) THE U. P. Town Improvement Act was enacted in the year 1919. Sub section (2) of Sec. 1 provided that the Act shall extend to the whole of Uttar Pradesh. Sub-section (3) of Section 1 provided that Section 1 and Section 66 shall come into force at once. It fur ther provided that the State Govern ment may, by notification direct that the rest of the Act shall come into ope ration in the whole or any part of any municipality and in any area adjacent thereto, on such date as may be specifi ed in such notification. The U. P. Town Improvement (Adaptation) Act. 194, 8, empowered the State Government when bringing the Town Improvement Act into operation in any area to extend it to such area with the omissions, additions and modifications specified in the Sche dule to the Adaptation Act. By a notifi cation dated March 21 1963 published in the U. P. Gazette (Extraordinary) of the same date the Governor of Uttar Pradesh in exercise of powers under sub-section (3) of Section 1 of the Town Improvement Act brought the Town Im provement Act, with the omissions, ad ditions and modifications specified in the Schedule to the Adaptation Act, into operation, from the date of the notifi cation in the following area:- "Area falling within the limits of the Municipality of Gorakhpur and a distance of five miles around the Municipal limits but excluding the area within the limits of Gorakhpur Canton ment." ;