- (1.) OM Prakash, J. This bunch of as many as 13 writ petitions arising out of ac quisition proceedings raised common ques tions of law and fact and, therefore, all the writ petitions are being decided by a com mon judgment.
(2.) IN the first set of writ petitions com prising writ petitions No. 39430/94, 39854/94 and 502/95, Shri Sushil Harkauli advanced arguments for petitioners: in the second set consisting of writ petitions No. 39853/94 and 2302/96, Shri Swami Dayal appeared for petitioners and in the third set of writ petitions comprising remaining cases, counsel for the petitioners Shri P. C, Pathak holding brief of Shri V K. Shukla adopted the arguments advanced by Shri Harkauli and Shri Swami Dayal and made no new submission. As all the writ petitions are directed against a notification dated 5-10-1993 is sued under Section 4 (1), read with Section 17 (1) and (4) of the Land Acquisition Act, 1894 (shortly, called as 'the Act') and a dec laration dated 6-10-1994, issued under Sec tion 6 of the Act and as pleas raised in all the writ petitions are common, to obviate repetition of the pleas we prefer to state the factual position of Writ Petition No. 39430 of 1994. The case of petitioners is that petitioner No. 1 purchased plot No. 1324 in 1991 and set up a Bakery thereon; that petitioner No. 2 purchased plot No. 1326 in 1989 and set up a factory for manufacturing chains there; that a master plan came to be prepared in respect of the land, sought to be acquired inter alia under the aforesaid notifications; that in the master plan the area sought to be acquired under the aforesaid notifications, is earmarked for In dustries; that vide notification dated 5-10-1993 issued under Section 4 (1), read with Section 17 (1) and (4) of the Act, the plots of land as set out in the schedule forming part of the notification, are being acquired for the construction of a market yard for fruits and vegetables instead by the Krishi Ut-padan Mandi Samiti (briefly, 'the Mandi Samiti' hereafter); that in view of the master plan plots in question cannot be ac quired for the construction of the market yard; that delay between the date of proposal and the date of the notification issued under Section 4 (1) and further the delay having occurred between the date of the notification issued under Section 4 (1) and the declaration Issued under Section 6, has not been explained; that the unex plained delay shows that there was no ur gency; that issuance of the notification under Section 4 (1) read with Section 17 (4) directing that the provisions of Section 5 shall not apply was, therefore, a colourable exercise; that the land sought to be acquired under the aforesaid notification is in and odd shape, in as much as several vacant plots belonging to influential persons which were more suitable for the construction of the market yard have been left out and the plots of land on which industries/factories are situated are included in the schedule, an nexed to the notification under Section 4 (1) and, therefore, the entire acquisition proceedings are arbitrary and mala fide and that had the opportunity of being heard under Section 5 been afforded to the petitioner then they would have shown the arbitrariness on the part of the respondents in excluding the vacant plots of land of in fluential persons and including the land of the petitioners on which Industries/fac tories are situated.
(3.) A detailed counter-affidavit dated 25-4-1995 has been filed on behalf of the Mandi Samiti-respondent No. 3 pleading that a proposal accompanied by a plan was sent by the District Magistrate, Agra on 25-5- 1991 to the Government of U. P. for acquiring 10. 175 Hect. of land of village Bainptir for the construction of the market yard for fruits and vegetables pursuant to a resolution passed by the Mandi Samiti in 1991. It is denied that the plots of land belonging to influential persons were left out and that the plots of land belonging to the people of backward classes were in cluded in the notification issued under Sec tion 4 (1 ). It is averred that some plots belong to private persons and that out of the land vested in the Government or Gaon Sabha in view of the ceiling laws, the Mandi Samiti got certain plots of land released from the Government or the Gaon Sabha. It is averred that the factories situated on the plots in question are of temporary nature and most of them were established after the commencement of the acquisition proceed ings. In para 14 of the counter-affidavit, it is stated that the existing market yard is wholly inadequate to cater the needs of the growers to transact their business in the yard; that the existing market yard is bereft of basic amenities; that the existing market yard had been constructed more than 100 years back when the arrivals were meagre; that after mechanised farming the yield has grown tremendously and the existing yard is wholly illeguiped and insufficient to handle the ever increasing arrivals of the growers; that Section 5 was dispensed with as that would have considerably delayed the construction of a modern market yard and ultimately defeated the purpose; that realising the pressing urgency of setting up a modern market yard it was considered necessary to dispense with the hearing under Section 5 and, therefore, sub-sections (1) and (4) of Section 17 were invoked in the notification issued under Section 4 (1) of the Act. Another counter-affidavit has been filed by Shri S. P. Mishra, Addl. District Magistrate, Agra for respondent Nos. 1 and 2 reiterating that there was an urgent need to construct a modern market yard for vegetables and fruits as the existing market yard is wholly unsuitable for the growers to transact their business. He deposed in para 10 that apart from the land belonging to the individuals, the. plots of land comprising ceiling areas, were got released from the Government or the Gaon Sabha as the case may be and a separate resolution was sent by the District Magistrate therefore. It is stated that no delay occurred before the notification was issued under Section 4 (1) and that nor mal time was taken in processing the resolu tion of the Mandi Samiti for acquiring the land before issuing the notification under Section 4 (1) of the Act. It is averred that plots No. 1184. 1186,1187, 1194 and 1320 were declared surplus in the ceiling proceedings and they came to be vested in the State Government. The Mandi Samiti made a separate proposal for releasing that land and that land was released for the use of the Mandi Samiti besides some other land, which belong to the Gaon Sabha.;