JUDGMENT
Binod Kumar Roy and Lakshmi Bihari, JJ.
1. Shri Mahadeoji and Shri Hanumanji, the two deities, through their Mutawalli Bindeshari Prasad, have filed this writ petition praying to quash the Notification dated 25.2.1991 under Section 4 of the Land Acquisition Act (hereinafter referred to as ‘the Act’) as contained in Annexure-3 and the Notification dated 20.6.1991 under Section 6 of ‘the Act’ as contained in Annexure-4. in so far as they relate to their 1.38 Acres of lands bearing plot No. 372/2 (= 372/3 as per Khatauni) of Village Lalpur-II, (Meerapur Bashi) Pargana Shivpur, Tehsil and district Varanasi. Their further prayer is to command the respondents not to dispossess them from their aforementioned lands and to demolish construction made thereon or acquire them.
2. Vide order dated 8.8.1991, time was granted to the respondents to file counter-affidavit and the Court directed that ‘the petitioner shall not be dispossessed from the land in dispute, if he has not already been dispossessed therefrom.’
2.1. Thereafter vide order dated 6.3.1998, this writ petition was admitted as even though “more than six and a half years have elapsed the said respondents have not cared to file counter-affidavit.”
3. In the supplementary counter-affidavit filed on 31.8.1999 which has been sworn by Sri R. Y. Mlshra, the Additional City Maglstrate-IV In-charge/Special Land Acquisition Officer (J.O.) Varanasi, it has been stated that pursuant to the interim order of the Court, possession of the land in question was not taken.
3.1. No affidavit in opposition has been filed by respondent No. 4 to the statement made by respondent Nos. 1 to 3 in this supplementary counter-affidavit despite grant of opportunity.
The Pleadings :
4. The case of the petitioners is to this effect : Manno Lal and Dhanno Lal, who were owners of the aforesaid land, executed a registered deed of trust dated 25.8.1942/30.9.1946, as contained in Annexure-2, in their favour and since then they are owners thereof. Their name also stands recorded in the khatauni of 1393 to 1398–Fasli of khata khatauni No. 193, Khasra Nos. 372/3 Area = 1.38 Acres and 394/4 Area = 1.25 Acres of village Lalpur. The place is holy and surrounded by pucca boundary walls of about 8 feet height, on which there are two big temples of theirs. Besides the temples, there is a dharamshala, consisting of more than 30 pucca rooms being used by the pilgrims. There is a big Varendah having shed thereupon, a pucca Well having a chabutra, which are in existence for about 40-45 years, all presently worth not less than Rs. 10.00.000. On the North, there is link road known as Verra Patti Road, on the West there is land belonging to Cantt. used for Chandmari, on the East there is densely populated Abadi adjacent to the main Bhojoobir-Sindhaura Road and towards South, there is a very meagre area of land and thereafter there is again Abadi. The land and constructions do not fall within the Nagar Mahapalika, Varanasi. The Notifications have been made dispensing with the provisions under Section 5A of the Act for construction of Residential colony, but without making any spot inspection. otherwise the facts aforementioned would have come to the notice and the land could not have been acquired for the purpose. Towards North side of Verra-Patti Road, there exists 500 Acres of vacant lands which could have been easily used for the purpose in question, but they seek to acquire a very meagre area towards North side of the said road. In the Master Plan of the Varanasi Development Authority, prepared under the Urban and Planning Development Act, 1973. the lands of village Lalpur-II have been reserved for agricultural purpose and, thus, it could not be used for residential purpose. Even though the lands are sought to be acquired for Varanasi Development Authority, which had large scheme of constructing residential colonies. 3 or 4 years ago its two schemes named Pahariya Avas Yojna and Konia Avas Yojna, have not been given any shape as yet and thus by invoking the emergent provisions of Section 17(I) of the Act, merely a colour has been given to the urgency though there was not such an urgency and there was no material before the Government to form such an opinion justifying invoking of emergent provisions of ‘the Act’. The impugned Notifications were also not circulated three times in the daily newspapers having wide circulation in the locality.
5. It has been stated by Sri P. K. Bisaria, learned standing counsel appearing on behalf of respondent Nos. 1 to 3. that a counter affidavit was also filed on 11.8.1999 which, however, is not on the record. From the copy of the counter-affidavit allegedly filed on behalf of respondent Nos. 1 to 3. as shown to us, it appears that it has been stated therein, inter alia, to the effect that the statement that there was no material justifying invoking of the emergent provisions is not admitted and that looking to the urgency, it was invoked.
6. In the counter-affidavit, filed on behalf of respondent No. 4. which has been sworn by its Head Clerk, it has been stated, to this effect : The temple of Hanumanji and Shivji is only on 8 decimals of land and the remaining area is vacant used for agricultural purpose and thus not Abadi. It has been incorrectly stated that there is a dharamshala with 30 rooms. There are only 2 rooms adjacent to the temple, and a Varandah of 6 feet width. The boundary walls are of about 3 feet height. All these have not been-touched at all and left from acquisition. It has been incorrectly stated that pilgrims used to stay In the rooms which are being used by the servants. The village Lalpur comes within the limit of Varanasi Development Authority and has nothing to do with the Nagar Mahapalika, Varanasi. Link Road is at the distance of one furlong towards North of the disputed land, though on the West there Is military land over which trees have been planted by the Forest Department and no Chandmari is there. It has been Incorrectly stated that there is Abadi towards East of the land, though there is Slndhaura Road. Survey as well as Spot Inspection were done (copy appended as Annexure-C.A.-l) and only the vacant lands have been acquired to meet the acute shortage of the Houses at Varanasl. Vide Government Order dated 2.4.1990 (copy appended as Annexure-C.A. 2) the State Government has consented acquisition of 51.632 Acres of lands of Village Lalpur-II for construction of colony. Bhoo Udyog Parishad has also given its permission for acquisition. Vide Notification dated 11.11.1991, as contained in Annexure-C.A. 3, the nature of the land was also changed from agricultural to residential purpose by changing the Master Plan of Varanasi. The Notification made under Section 4 of the Act was published in the daily news papers ‘Dalnik Jagran” and ‘Gandiv’ dated 8.4.1991 and 9.4.1991. The Notification made under Section 6 of the Act, apart from being published in Gazette Extra-Ordinary on 21.6.1991, was also published in the news papers ‘Jaydesh’ and ‘Gandiv’ dated 2.7.1991. copies of cuttings of which are appended as Annexures-C.A. 4 to 7. The two yojnas have already been finalised and houses have been allotted. It has been wrongly stated that 3-4 years time are being taken for completion of the residential colony. As the matter was urgent, the provisions of Section 5A were dispensed with and Section 17(1) of the Act invoked. As on the vacant land the petitioners illegally started making constructions in 1991 for which notices were sent and they were directed to stop Illegal constructions. It has been incorrectly stated that the residential constructions are existing since long back. For these reasons the writ petition be dismissed.
7. Rejoinder-affidavits have also been filed by the petitioners in opposition to the counter-affidavits aforementioned reiterating the facts earlier stated by them.
The submissions :
8. Sri Sankatha Rai, learned counsel appearing in support of this writ petition, contended that, in the absence of any material before the State Government the emergent provisions of Section 17(1) and (4) were wrongly Invoked and wrongly dispensing with the statutory requirement of Section 5A of the Act. which requires disposal of objection within 21 days, whereas the gap between the Notifications was of about 4 months. In this context, he also drew our attention to the statements made in paragraph numbers 20 and 26 of the writ petition in which it has been categorically stated that there was no material before the State Government to form an opinion and invoke emergent clause and dispensing with of the provisions as contained in Section 5A of the Act accordingly, this writ petition be allowed. In support of his submissions he strongly relied upon a three Judges Bench decision of the Apex Court in Narayan Govind Gauate v. State of Maharashtra, (1977) 1 SCC 133.
9. Sri Bisaria. learned standing counsel appearing on behalf of respondent Nos. 1 to 3, submitted that in paragraphs 16 and 19 of the counter-affidavit the statements made in paragraphs 19 to 23 of the writ petition have not been admitted and looking at the urgency of the Residential Colony the emergent clause of Section 17(1) of the Act was correctly invoked dispensing with the provisions of Section 5A of the Act.
10. Sri A. K. Dwivedi learned counsel appearing on behalf of respondent No. 4, contended as follows : (i) the claim of the petitioners that their entire lands measuring 1.38 acres have been acquired is apparently incorrect inasmuch as 8 decimals of land, on which there are constructions, viz. temples, well and Varandah etc., have not been acquired ; and (ii) there were materials on the record before the Government justifying invoking the provisions of Section 17(1) and dispensing with of the proceeding under Section 5A of the Act.
The Questions :
11. Two questions crop up for our consideration–(i) whether there was any material before the State Government Justifying invoking of the emergent clause and dispensing with of the provisions of Section 5A of the Act? and (ii) whether 1.38 acres of lands have been acquired as claimed by the Petitioners or only 1.30 acres. i.e.. minus 8 decimals, as claimed by the respondents have been acquired?
Our Findings :
12. Let us take the Second question First. A perusal of the Impugned notifications clearly show that only 1.30 Acres of lands of Plot No. 372/3 were acquired. Thus, we find substance in the argument of Sri Dwivedi in this regard and accept it. Question No. 2 stands answered accordingly.
13. Now we take up the first question. The relevant statements made in regard to the question are in paragraphs 20 and 26 of the writ petition, which are reproduced below :
“20. That there was no material on record before respondents to determine that the matter was so urgent that the provisions of Section 17(1) of the Act were applicable and urgency was that the provisions of Section 5A be made inapplicable in the exercise of powers under Section 17(4) of the Act.”
x x x x
“26. That there was no material on record before the authorities for the formation of opinion that the provisions of Section 17(1) of the Act were applicable on the lands in dispute and even if there was any urgency, it was such as to dispense with the inquiry under Section 5A of the Act.”
14. Paragraph numbers 16 and 19 of counter-affidavit filed on behalf of respondent Nos. 1 to 3 read thus t
“16. That the contents of paragraphs 19 to 23 of the writ petition are not admitted.”
x x x x
“19. That the contents of paragraphs 26 of the writ petition are not admitted. Looking into the urgency of the residential colony, the provisions of Section 17(1) of the Act was applied.”
15. So far as respondent No. 4 is concerned, the aforementioned two paragraphs have been answered in paragraph numbers 26 and 32 of its counter-affidavit which are reproduced below :
“26. That the statements contained in paragraph 20 of the aforesaid writ petition are incorrect and hence are denied. There is acute shortage of residential houses in Varanasi. as such, the matter was an urgent one and the provisions of ‘Section 17(1) of the Act are squarely applicable in the case and the provisions of Section 5A have rightly been dispensed with.”
x x x x
“32. That the statements contained in paragraph 26 of the writ petition are incorrect and hence are denied. As has already stated earlier, there has been acute shortage of residential houses in Varanasi, as such, the land acquisition proceedings were Initiated. The provisions of Section 17(1) of the Act are applicable in the land and the provisions of Section 5A of the Act were rightly dispensed with.”
16. In Narayan Govind Gavate supra, it was observed thus :
“Here the public purpose Indicated is the development of an area for Industrial and residential purposes. Such a statement Indicated the absence of such urgency, on the apparent facts of the case as to require the elimination of an enquiry under Section 5A of the Act……. Again, the uniform and set recital of a formula, like a ritual or mantra, apparently applied mechanically to very case, Itself Indicated that the mind of the Commissioner concerned was only applied to the question whether the land was waste or arable and whether its acquisition is urgently needed. Nothing beyond that seems to have been considered. The recital itself shows that the mind of the Commissioner was not applied at all to the question whether the urgency is of such nature as to require elimination of the enquiry under Section 5A of the Act ….. It is certainly a case in which the recital was at least dejective. The burden, therefore, rested upon the State to remove the deject, if possible, by evidence to show that some exceptional circumstances which necessitated the elimination of an enquiry under Section 5A of the Act and that the mind of the Commissioner was applied to this essential question. The High Court correctly applied the provisions of Section 106 of the Evidence Act to place the burden upon the State to prove those special circumstances ….. Here the failure of the State to produce the evidence of facts especially within the knowledge of its officials, which rested upon it under Section 106 of the Evidence Act, taken together with the attendant facts and circumstances, including the contents of recitals, had enabled the petitioners to discharge their burdens under Sections 101 and 102 of the Evidence Act.”
17. We further find that in O m Prakash v. State of U. P., AIR 1998 SC 2504, it was observed and held as under :
“So far as the present proceedings are concerned, the situation was tried to be salvaged further in the counter-affidavit filed on behalf of NOIDA. Its working Secretary Ram Shankar has filed a counter-affidavit in the present proceeding explaining the necessity to apply the emergency provisions. It has been averred in para 9 of the counter to the effect that what necessitated application of emergency provisions was eminent possibility of unauthorised construction and/or encroachment upon the suit land which would have hammered the speedy and planned development of the area which was the purpose of the acquisition proceedings. This stand is in line with the earlier stand of NOIDA in its written requisition dated 14th December, 1989. We have already seen that the said stand reflects a ground which is patently irrelevant for the purpose of arriving at the relevant subjective satisfaction by the State Authorities about dispensing with Section 5A inquiry. We could have appreciated the stand of the State authorities for invoking urgency clause under Section 17(4) of the Act on the ground that when about 500 acres of land were to be acquired for further planned development of Sector 43 and other Sectors of NOIDA, as mentioned in the impugned notification, hearing of objectors who might have filed written objections when there are large number of occupants of these land and who possess about 438 plots of land under acquisition would have indefinitely delayed the acquisition proceedings and years would have rolled by before Section 6 notification could have been issued. Under these circumstances, the entire further development of the area would have, on the peculiar facts and circumstances of these cases come to a grinding halt. Such a stand would have justified the subjective satisfaction of the authorities for invoking Section 17(4) of the Act. Such satisfaction then could not have been gone behind by Court of law. But unfortunately for the respondents such was not their case nor did they even whisper in these cases that these aspects were kept in view while dispensing with Section 5A inquiry. The Court cannot obviously, therefore, make out a new case for them which is not pleaded in these proceedings to justify their action.
In the light of the aforesaid factual position emerging on the record of the case it becomes clear that there was no relevant material before the State authorities when it invoked powers under sub-section (4) of Section 17 for dispensing with Section 5A Inquiry while issuing the impugned notifications under Section 4 followed by Section 6 notification of 7.1.92.’
x x x x
“In the light of the aforesaid discussion, therefore, the conclusion becomes inevitable that the action of dispensing with inquiry under Section 5A of the Act in the present cases was not based on any real and genuine subjective satisfaction depending upon any relevant data available to the State authorities at the time when they issued the impugned notification under Section 4(1) of the Act and dispensed with Section 5A Inquiry by resorting to Section 17, subsection (4) thereof. The first point is therefore, answered in the negative In favour of the appellants and against the contesting respondents.”
18. The aforesaid legal principles have not been countered by the learned counsel for the respondents. The lands arc undisputedly debottar. Nothing has been brought on the record to show as to whether the State was aware of this fact while Invoking the provisions of Section 17(1) of the Act and dispensing with the requirement of the provisions of Section 5A of the Act. Admittedly possession of lands has also not been taken from the petitioners.
19. Apparently no material has been brought before us to show that there were materials before the Government Justifying dispensing with the enquiry under Section 5A of the Act, The statements made in opposition by the respondents are not worthy of acceptance.
20. For these reasons, we are of the view that the impugned Notifications made under Sections 4 and 6 of the Act, in so far as they relate to eliminate enquiry under Section 5A of the Act in regard to the lands in question of the petitioners are concerned, cannot be sustained.
21. Accordingly, these two notifications. In so far as they relate to non-holding of an enquiry under Section 5A of the Act concerning 1.30 acres lands of Plot No. 272/3 of Village Lalpur-II are concerned are hereby quashed. The State Government is directed to Invite objections from the petitioners under Section 5A of the Act and till disposal of the objections, the status-quo of the lands in question shall be maintained.
22. In the result, this writ petition succeeds in part to the extent indicated as above but having regard to the peculiar facts and circumstances, we make no order as to cost.
23. The office is directed to hand over a Xerox copy of this order within one week to Sri P. K. Bisaria. learned standing counsel, for Its intimation to the Government and for further proceeding in accordance with the law, If it still wants to acquire the lands of the petitioners.