- (1.) V. C. Misra, J. The present writ petition has been filed by the petitioners-Sundar Garden Welfare Association formed by the residents of the society. The petitioner No. 2 is the Secretary of the society who has been authorized by the residents of the colony to prefer the present writ petition vide resolution dated 28. 11. 2004 of the association and authorized the petitioner No. 2 to sign and contest the petition on their behalf challenging the notification issued under Sections 4 and 6 of the Land Acquisition Act (here in after referred to as the Act) in respect with the plots purchased and owned by the petitioners mentioned in para 5 of the writ petition and seeking a writ, order or direction in the nature of certiorari for quashing the said gazette notification alongwith a writ of mandamus commanding the respondents not to dispossess the petitioners by demolition of the houses situate on the aforesaid plots have been acquired by the State Government.
(2.) THE facts of the case of the petitioners in brief are that the petitioners- association purchased the aforesaid bhumidhar land free from all encumbrances bearing plot Nos. 496, 497, 544, 501, 500, 578, 502, 504,505, 498, 536, 538, 539 and 541 distributed amongst its members through registered sale-deeds. After purchasing the aforesaid plots a colony was developed by the petitioners in the name of Sundar Garden Colony and after developing the said land the houses were constructed thereupon by the members of the society. THE said houses are being occupied by the members of the society. THE State Government acquired a largeare a of land under the Act. THE members of the petitioners society nad filed Case No. 2 of 2001 before the Assistant Collector under Section 143 of U. P. Z. A. and L. R. Act for being declared as abadi land. Since the petitioners, as per the reportof the Tehsildar, were registered as bhumidhar with transferable rightsover the said land on 2. 1. 2001, the Tehsildar, Ghaziabad recommended for declaration of the said land as abadi and the same was being used as tenure holders for residential purposes and was not being used for Agriculture, Horticulture and Animal Husbandry. THE Sub Divisional Magistrale, Loni, Ghaziabad vice its order dated 19. 3. 2001 declared the said land as abadi. On coming to know of some acquisition proceedings to be initiated by the respondents State Government in respect with the said land, they filed their ob-jections before the State Government and a survey was made by the concerned authorities of the State Government. As per survey report there exists several residential houses of the members of the society on the aforesaid plots. However, the State Government vide gazette notification dated 16. 4. 2003 acquired the afore -. said land which was published in an unknown newspaper, namely, "dainik Pralayankar". A gazette notification dated 16. 4. 2003 under Section 17 (1) of the Act was issued by the State Government to the effect that the provisions of Section 17 (1) of the Act are applicable to the said land in as much as the same was urgently required for the Planned Industrial Development in District Ghaziabad and it was necessary to ward off the delay likely to be caused by an inquiry and hearing of objections from the owners of the land under Section 5-A of the Act with further directions under Section 16 (4) of the Act making the provisions of Section 5-A of the Act inapplicable. Thus, the due procedure as provided under Section 4 of the Act was not followed as the notification was not published in two local newspapers having wide circulation neither local publication was made in original language nor the notice was pasted on conspicuous place, even Munadi was not made. This notification was followed by a gazette notification dated 30. 6. 2003 under Section 6 of the Act being satisfied that the land mentioned in the schedule was needed for the purpose of Industrial Development of Ghaziabad through Uttar Pradesh State Industrial Development Corporation, Kanpur (hereinafter referred to as the Corporation) and directed the Collector, Ghaziabad to take out the order of acquisition for the said land under Section 7 of the Act and that there being urgency to take possession of the land under Section 9 (1) of the Act and to pass an award under Section 11 of the Act. The members of the society on gaining knowledge of such acquisition filed a representation dated 12. 5. 2004 before the State Government that the aforesaid plots of the petitioners are a bad land declared wde order dated 19. 3. 2001 by the revenue authorities over which their houses are standing and the same may be excluded from the acquisition. Since no action was taken by the State Government on the representation and the authorities were in not haste to demolish the construction standing upon the land, in question, the petitioners filed the present writ petition and prayed for an interlocutory order restraining the respondents from dispossessing and demolishing the constructions made upon the said land and obtained an interim order dated 20. 12. 2004.
(3.) THE main ground raised in this petition is that the land in question was recorded as abadi land in the revenue records and was being used as such and was not being used as agricultural land and thus could not be acquired, as per the decision given by the Hon'ble Apex Court in the case of Ved Prakash and others v. Ministryofindustries, Lucknow and ariother, 2003 (9) SCC 542. Learned Counsel for the petitioners has submitted that the notification issued under Sections-4 and 6 of the Act were null and void as mandatory requirements regarding gazette and publication etc. prescribed under the Act had not been followed and complied with. More so, there was no necessity of applying the provisions of urgency under Section 17 (4) of the Act dispensing with the provisions of Section 5-A of the Act preventing the petitioners from being heard of their objections and holding of an inquiry. In the counter-affidavit filed on behalf of the State-respondents No. 1,2 and 3 it has been stated that the plots of land in question have been acquired under, the provisions of U. P. Z. A. and L. R. Act and the owners of the aforesaid land have obtained money and the affected persons have not challenged the Government Notification dated 30. 6. 2003 thereafter the agreement has come to an end which has not been challenged, and that the petitioners have not been shown as the owners of the land and as such the writ petition is liable to be dismissed with costs. It has also been submitted that the State Government published a news item in two daily newspapers, viz. "dainik Jagran" on 23. 5. 2003 and "dainik Pralayankar" on 25. 5. 2003 and a beat of drum was also made and therefore, after expiry of the agreement the petitioners did not continue as owner of the Sundar Garden and since their names do not find place in the revenue record, it seems doubtful that the petitioners have purchased the land for construction of the colony. It is also stated that the General Manager of the Corporation made a proposal for reguirement of land for the development of industrial area. On 3. 6. 1997 about 83. 9 acres of land was acguired but considering the gravity of the grievance of the villagers 12 bighas and odd land was left for the interests of the villagers and according to the Nigam proposal for amended acguisition was made. It has also been stated that in the order dated 19. 3. 2001 passed by Sub Divisional Magistrate with reference to the report of the Tehsildar dated 2. 2. 2001 where in it has been mentioned over the vacant land in which plotting had been done for abadi, roads are being constructed between the plots 4 and 5 and consequently, acquiring body entered into some agreement with the land holders which was done in accordance with Section 11 (2) of the Act and after the decision the land owners have been paid their compensation. It has been further stated that the petitioners (Sundar Garden Welfare Association) had entered into an agreement with the land owners' through power of attorney and the sale-deeds were executed after the expiry of the period of agreement and as such the petitioners are left with no right, title or interest over the land and as the land in question is registered in the names of land holders in the revenue records, therefore, after settlement with the acquiring body the compensation has been paid to them.;