- (1.) THE petitioners who are brothers, have come up with a prayer to quash the Notifications published under Sections 4 and 6 of the Land Acquisition Act as contained in Annexures-1 and 2 to the writ petition by filing it on 10-1-1983. This writ petition was admitted on the very next day i. e. on 11-1-1983 and notices were issued directing that in the meantime the petitioners shall not be dispossessed from the land in dispute detailed in Paragraph Nos. 1 and 2 of the writ petition.
(2.) THE grounds taken by them are that the provisions of Section 17 of the Act were incorrectly invoked, that there was neither any urgency nor was any reasonable ground for dispensing with the inviting of objections under Section 5-A of the Act; that there were no material before the State on the basis of which the Gover nor could form an opinion that the lands in question were required urgently for con structing Ganj-Distributory; that there has been a discrepancy between the two Notifications in question; that under the U. P. Rural Development (Regulation of Land) Act, 1958 the land was earlier requi sitioned which was challenged before this Court in Writ Petition No. 1414 of 1982 in which the operation of the Notification of requisition was stayed; and that on plot No. 182 of village Sultanpur they have constructed Samadhi as per the directions of the Will on death of their father. The affidavit attached with the writ petition discloses that only the statements made in Paragraphs 4 to 7 of the writ petition are based on the information derived from a perusal of the relevant papers on record. Those paragraphs read thus:- "4. That during the pendency of the aforesaid writ petition this Hon'ble Court, the State of U. P. by notification No. 990- I. L. A. /bij-nor-576-81 dated 20th May, 1982 (published in U. P. Government Gazette dated 4th Decem ber, 1982) in exercise of power under Section 4 of the Act read with Section 17 of the Act notified that the disputed land was needed for public purpose for construction of Ganj-Dis tributory from Km. 15058 to K. 16900 in District Bijnor. The Government further expressed opinion that provisions of Section 17 (1) of the Act were applicable to the disputed land. He considered land to be waste and arable and notified in notification that as land was urgently needed it was necessary to eliminate the delay likely to be caused by an inquiry under Section 5-A of the said Act and directed in exercised by power under Section 17 (4) of the Act that provisions of Section 5 of the said Act shall not apply. The copy of the aforesaid extract of notification under Section 4 of the Act dated 20th May. 1982 published in the U. P. Gazette dated 4th December, 1982at P. 4196 is attached herewith and marked as Annexure-1 to the writ petition. 5. That then on 10-6-1982 the State of U. P. issued declaration under Section 6 of the Act which was published in U. P. Government Gazette dated 4th December, 1982 at page 4197 as notification No. 900- I. L. A. /bijnor to take possession on the expiration of fifteen days from the publication of notice mentioned in Section 9 (i) of the Act even no award under Section 11 was made. A true copy of the aforesaid notification dated 10-6-1982 is at tached herewith and marked as Annexure 'if to this petition. 6. That, there was no urgency in the case. This fact is apparent. The Government issued notification under Section 4 of the Act annexure on 20-5-1982 and made declaration under Section 6 of the Act on 10-6-1982 and both the notification were got published in U. P. Govern ment Gazette dated 4th December, 1982 at page 4196 and 4197 which is self evident that there was no urgency to as to dispense with the enquiry and hearing contemplated under Sec tion 5-Aof the Act. 7. That another fact relevant to show that there is no urgency is that the State Government started proceeding under Requisition Act and revision proceeding have been stayed by this Hon'ble Court in writ petition No. 1414 of 1982. In view of this fact there was no necessity to invoke urgency clause when proceeding for ob taining possession were taken under Requisi tion Act and stayed by the High Court. " The record discloses that on 28-4-1984 an application was filed for vacating the interim stay order dated 11-1-1983 for the facts stated in the accompanying counter-affidavit which vide order dated 22-5- 1984 was directed to be listed with previous papers but the said petition thereafter was never placed on account of the elevation of the learned Counsel for the petitioners a notice was sent to them by registered post vide order dated 27-7-1995 to engage another Counsel and 11-9-1995 was the date fixed in the notice but the case was put up by the office vide its note dated 5-4-1999 and could be taken up today by us.
(3.) IN regard to the statement made in paragraph 6 of the writ petition, which was originally typed as paragraph 8, and which was not initiated by the Oath Commis sioner, the following facts have been stated in Paragraph 7 of the Counter-Affidavit:- "that the contents of paragraph 8 of the writ petition are not admitted. IN reply, it is stated that the Governor after examining the facts and circumstances of the case gave his consent to Section 5-A. The minor channel was required to be constructed immediately, hence the powers under Section 17 (2) of the Land Acquisition Act were exercised. " 5. 1. IN regard to the statement made in Paragraph 7 of the writ petition, which was originally typed as Paragraph 9, and which, too, does not contain any initial of the Oath Commissioner, the following reply has been furnished in Paragraph 8 of the Counter- Affidavit:- "that the contents of paragraph 9 of the writ petition are not admitted. IN reply, it is stated that it is true that the stay order was passed by this Hon'ble Court on 11-1-1983 but the possession had already been taken on 21 -11-1981. It is stated that the orders of this Hon'ble Court was exparte and the same was obtained by the petitioner by concealing the material facts. " 5. 2. IN other paragraphs of the counter-affidavit it has been stated, inter alia, that it is absolutely incorrect to say that the petitioners constructed Samadhi on plot No. 182 according to the directions in the Will of their father on his death; that the possession of the land in question was taken on 22-11- 1981 under the Land Ac quisition Act but on the basis of the stay order granted by this Hon'ble Court the petitioners again took possession, the in ference drawn about the non-existence of the urgency is denied and the work had to be stopped owing to the stay order passed by this Hon'ble Court in the Writ Petition No. 1414 of 1982 filed against the orders passed in requisition case; and that the writ petition is wholly misconceived, without any merit and no ground has been made out for interference under Article 226 of the Constitution of INdia. The only question, as urged by Sri Arun Kumar Singh, holding brief of Sri Navin Sinha, learned Counsel appearing for the petitioners, and Sri H. R. Misra, learned Standing Counsel appearing on behalf of the Respondents, is as to whether there were in fact materials before the State justifying invoking of emergent provisions?;