- (1.) D. K. Seth, J. In this writ petition, the petitioners have challenged the notification issued under Sections 4 and 6 read with Section 17 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') OD the ground that the said notification has been issued by the Secretary, Revenue and Waqf Department, Government of Uttar Pradesh, who is not authorised to issue the said notification in view of authorisation of the Director, Land Acquisition. It was further urged that there was no urgency for dispensing with the enquiry under Section 5-A for the purpose of attracting the provisions of Section 17 of the Act. It was further alleged that the public purpose for which the land was acquired had already been completed on same other land. The said notifications were issued without any application of mind. The Director was never consulted before issuing the said notification or arriving at the decision for acquiring the said land. It was further alleged that the Gazette Notifica tion was published after publication in the Newspaper and, therefore, there was no notification in the eye of law since Gazette Notification is required to precede the Newspaper publication.
(2.) IN the counter affidavit filed by the respondents, a detailed history leading to the decision for acquiring the said land has been given. It has been pointed out that a new district Maharajganj was created by the State Govern ment under a notification dated 30th September, 1989. With effect from the date of the said notification, the said District was created on the basis of popular demand. IN order to establish the Headquarter of the said District for the functioning of the land administration, site selection was necessary. , For the purpose of selection of site, a Committee was constituted by the Government on 3rd February 1990. The said Committee was headed by the Commissioner, Gorakhpur Division. IN the process of selecting site, the Chief Town Planner, Village Planner and concerned officials were deputed for examining several chunks of land and making spot enquiries. The Committee proposed the acquisition of 400 acres of land in village Satbhriya and Gaonariya Babu as most suitable. The said proposal was submitted on 19th January, 1991 to the State Government for approval by the Commissioner, Gorakhpur Division. It was also alleged that the selection of land was a time consuming one, since in view of several local pressure which were to be re conciled. After the said plan was submitted, the State Government applied its mind and the proposal was partially modified deciding to acquire 138. 91 acres of land in village Satbhriya and 179. 70 acres of land in village Gaonaria Babu aggregating to 318. 61 acres only. The site being situated on Maharajganj- Gorakhpur Marg having direct link with the Commissioner's Headquarter, it was found to be most suitable. Accordingly, the State Government issued an order on 25th April, 1991 informing the District Magistrate Maharajganj about the decision and requiring him to submit the proposal for issuance of notification under Section 4 and Section 6/17 of the Act, In compliance with the Government Order, the Special Land Acqui sition Officer, Gorakhpur, by his letter dated 19th August, 1991 requested the State Government for issuing notifications under Sections 4 and 6/17 of the Act. The District Magistrate, Maharajganj, also issued a similar letter on 2nd September 1991 to the State Government. These two letters were received by the Government on 21st August, 1991 and 6th September, 1991 respectively. Thereafter some other representations were also made opposing the said acquisition, on the basis whereof, the District Magistrate, Maharajganj was asked to submit his comment. The said objectors had pointed out various other difficulties as enumerated in paragraphs 14 and 15 of the counter affidavit. After applying his mind, the District Magistrate, Maharajganj was satisfied that the said site was most suitable but the area required was reduced to 284. 23 acres. The matter of acquisition was also sent to the Planning Department for purposes of consideration by the Bhumi Upyog Parishad (Land Use Board) headed by the Chief Minister as its Chairman. The Land Use Board asked for certain informations which were provided by the District Magistrate, Maharajganj on 22nd February, 1992. After consider ing the same, the Land Use Board accorded its approval on 24th July, 1992. Thereafter the District Magistrate submitted the proposal in proper form for acquisition of land and for issuing necessary notifications by his letter dated 31st August, 1992 received by the State Government on 2nd September, 1992. The proposal was examined by the Law Department and was approved on 30th September, 1992. Thereafter the notification dated 13th November 1992 was issued under Section 4 of the Act and was published in the Extraordinary Official Gazette dated 13th November, 1992, Thereafter the notification under Section 6 read with Section 17 of the said Act was issued on 4th February, 1993 in the Extraordinary official Gazette dated 4th February 1993. It was contended that in the situation prevailing, there was grave urgency for establishing the Headquarters of the District for which the dispensing with enquiry under Section 5-A was justified. It was further contended that under the rules of business, the Secretary is entitled to take decision regarding acquisition of land and the power has been exercised by the Secretary under the rules of business framed under Article 166 of the Constitution of India. The Director is a subordinate to the Secretary who has been appointed for the sake of convenience. Rule 69 of the Land Acquisition Manual supported by G. O. No. 7-4- (9)-86-114-R-13, dated 4th July, 1987 empowers the Revenue Department to deal with Land Acquisition matters. The Director is required to work under the full supervision of the Revenue Secretary, In any event the Government Order has not excluded the power of the Secretary of the Revenue Department. Along with the said counter affidavit, the relevant notifications have duly been annexed as Annexures 'ca-2' and 'ca-3'.
(3.) THE petitioners have filed their rejoinder-affidavit to the said counter affidavit and denied the allegations made in the counter-affidavit. A supple mentary counter-affidavit was filed seeking to elucidate the points already urged in the counter-affidavit, to which a supplementary rejoinder-affidavit was filed by the petitioner seeking to controvert the statements made in the supplementary counter affidavit. We have heard the learned counsel appearing for the respective parties and have perused the pleading and the records.;