- (1.) BY filing the writ peti tion on 24-5-1990 the 4 petitioners nave come up with a prayer to quash the Notifications dated 20th June, 1981 under Section 4 of the Land Acquisition Act and 5th September, 1981 under Section 5 (1) of the Land Acquisition Act respectively published in the U. P. Gazette acquiring their lands for construction of canal and the orders dated 23-9-1986 and 3-3-1990 passed by the Special Land Acquisition Officer, Azamgarh (Respondent No. 3 ). BY the order dated 23-9-1986 award (as con tained in Annexure 5) was prepared though ex-parte. BY the order dated 3-3-1990 (Annexure 7) the application filed by the petitioners to set aside order dated 23-9-1986 was rejected holding that notice was refused to be accepted; that after non receipt of any objection, Award was made on 23-9-1986, which was also filed under Section 12 of the Land Acquisition Act in the office of the Collector and had become final. The petitioners assert, inter alia, that they had no knowledge; that resort to emergent provision was arbitrary and un reasonable, and they they are still in pos session.
(2.) THE Respondents in their Counter Affidavit, a copy of which was served on Mr. Misra on 28-11-1990, had stated, inter alia, that action under Section 17 of the Act and other actions were taken and com pleted on 23-9-1986; the award was also prepared; possession was also taken; land for construction of canal was urgently re quired; on account of taking time in the enquiry it cannot be said that the urgency has disappeared; for technical reasons also the lands in question were found most appropriate for the construction of the canal which has already been completed and water is being supplied through canal; and the writ petition is liable to be dis missed. No rejoinder to the counter af fidavit was filed till 16th November, 1998 that is to say for about 8 years. It was only on 17th November, 1998 a rejoinder has been filed to the counter affidavit sworn by substituted petitioner No. 1/1 asserting that the petitioners were never dispossessed and the allegation made to the contrary in the counter are denied; the petitioners had no knowledge or information about the proceedings under the Land Acquisition Act relating to their lands in question till 28-9-1988; the award dated 23-8-1986 was made ex-parte about which they had no knowledge till 28-9-1988; even to this day the Katargarh Distributory is not func tional for a distance of about 15 kilometers away from village Dhianipur and water has not been supplied; there was no urgency and the enquiry under Section 5-A of the Act could not be dispensed with; posses sion of the lands of the petitioners has not so far been taken by the Respondents; a Commission may kindly be issued to ascer tain true facts and if the Respondents prove the facts then the petitioners will not press this writ petition.
(3.) SRI R. S. Misra, learned Counsel appearing in support of this writ petition, while placing reliance on a recent decision of the Supreme Court in Om Prakash and another v. State of U. P. and others 1998 JCLR 519 (SC); J. T. 1998 (4) SC 601 con tended that even though the Lands of the petitioners were sought to be acquired through the emergent provisions but as till today the petitioners are in possession of their lands and that no canal having been constructed for which the lands were sought to be acquired and the impugned orders were passed illegally and thus the prayers made in this writ petition are fit to be allowed. Smt. Sarita Singh, learned standing Counsel on the other hand, contended that there is no merit in the arguments of Mr. Mishra. The facts have been correctly stated in the counter, which are now sought to be denied by the petitioner by filing a rejoinder after eight years by making self-serving statement, which be not accepted.;