1. Petitioners in these writ petitions have sought quashing of the same notifications under sections 4 and 6 of the Land Acquisition Act, 1894 whereby they have been deprived of their plots. Since the same notifications and common questions of law and facts are involved in the cases, therefore, all these writ petitions are being decided by a common judgment. The counsel for the parties have agreed for decision of these writ petitions on merits at the stage of admission, therefore, we have proceeded to decide these writ petitions under Chap. XXII Proviso to Rule 2 of the Rules of the Court.
2. Notification No. 3058/XI-5-85-11(4) Land Acquisition Act relates to notification under Section 4 of the Land Acquisition Act, 1894 and was published in the Gazette on 11-6-1985 whereas notification No. 3637/XI-5-85-11-(4) Land Acquisition Act relates to notification under Section 6 of the Land Acquisition Act and was published in the Gazette on 13-6-1985. The notification under Section 4 of the Act was published in daily newspapers on 19-7-1985 and the notification under Section 6 of the Act was published in newspapers on 25-7-1985 but the substance of the two notifications was given at convenient places in the locality on 25-7-1985. The plots of the petitioners have been required for construction of residential/commercial buildings for the people of Meerut on Sardhana Road by the Meerut Development Authority, Meerut under planned development scheme.
3. On behalf of the petitioners in these writ petitions the following contentions have been raised :
Firstly, that the substance of the two notifications contemplated by the provisions of Sections 4 and 6 of the Act were given in the locality on 25-7-1985, therefore, the acquisition of the petitioners' plots is bad in law. According to the learned Counsel for the petitioners the two notifications contemplated under the provisions of Sections 4 and 6 of the Act cannot be published on the same day.
Secondly, it has been contended on behalf of the petitioners that the appropriate Government mechanically applied the provisions of Section 17(4) of the Act to the claim of the petitioners.
Thirdly, it has been contended that the plots of the petitioners have not been acquired in the public interest. Rather, a large number of residents of the village would be uprooted.
Fourthly, it has been contended that there did not exist any such urgency as to eliminate opportunity to the petitioners to file objections under Section 5A of the Act.
Fifthly, it has been contended that the Government has acted arbitrarily and discriminately in acquiring the plots of the petitioners.
Lastly, it has been contended that there was no development plan, yet the petitioners land has been acquired arbitrarily and discriminatory. In this connection Shri J.N. Tiwari, a senior counsel of this Court, has referred to Annexures C.A.V. and C.A.VI attached with the counter-affidavit of Shri Om Pal Singh.
4. Counsel for the State and the Meerut Development Authority have tried to refute the contentions raised on behalf of the petitioners. According to them the acquisition of the petitioners' plots was fully in consonance with the provisions of law and the writ petitions should be dismissed. It has been submitted on behalf of the opposite parties that even if the substance of the two notifications contemplated by the provisions of Sections 4 and 6 of the Act was given on 25-7-1985 in the locality, it would not affect the acquisition in any manner. According to them the contesting opposite parties were not at fault if due to some circumstance the substance of the two notifications was given on pne day due to mistake on the part of some official and it would not be such a mistake as to warrant interference of this Court in the exercise of powers under Article 226 of the Constitution.
5. We have heard the counsel for the parties at great length and we have gone through the contents of the writ petition and counter-affidavits and we have considered the rulings cited at the bar.
6. With a view to examine the first contention raised on behalf of the petitioners it is proper to quote the amended provisions of sections 4, 6 and 17 of the Act.
7. Amended Section 4 reads as below : --
"Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a Company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification).
Amended Section 6(2) of the Act reads as below :
"6(2). Every declaration shall be published in the Official Gazette, and in two daily newspapers circulating in the locality in which the land is situate of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such declaration to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration), and such declaration shall state the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area, and, : where a plan shall have been made of the land, the place where such plan may be inspected."
Amended provision of Section 17(4) of the Act reads as below :
"In the case of any land to which, in the opinion of the appropriate Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the appropriate Government may direct that the provisions of section 5a shall not apply, and, if it does so direct, a declaration may be made under Section 6 inrespect of the land at any time after the date of the publication of the notification under Section 4, Sub-section (1)."
8. In view of the aforesaid provisions it is evident that in the cases before us the publication of notification under Section 4 of the Act as well as the publication of declaration under Section 6 would fall on the same day, i.e., 25-7-1985 because the substance of the two notifications were given in the locality on that day. It is true that the two notifications were published in Gazette on different dates and they were also published on different dates in two daily newspapers as contemplated by the Sections under consideration but the substance of the two notifications were given on the same day in the locality. Therefore, it has been contended before us that the acquisition of the petitioners' plots was bad in law. Rather, attention has been drawn to the ruling reported in AIR 1987 All 113 Kashmir Singh v. State of U.P. wherein a Division Bench of this Court has held as below vide para 4 : --
".....Thus, prior to the amendment of Section 17(4) by the Amendment Act No. 68 of 1984, a declaration as contemplated by Section 6 of the Act could be made at any time after the publication of the notification under Section 4 of the Act, but after the amendment of Section 17(4) a declaration as contemplated by Section 6 of the Act can be made only "after the date of publication of the notification under Section 4 Sub-section (1)." In view of this amendment notification under Section 6 of the Act has to be made after the notification under Section 4(1) of the Act is published. The expression "after the date of publication of the notification" as added to Sub-section (4) of Section 17 of the Act contemplates the issue of notification under Section 6 of the Act, only after the publication of the notification under Section 4(1) of the Act. Prior to the amendment the declaration under Section 6 of the Act could be made simultaneously with the publication of the notification under Section 4(1) of the Act, but now after the amendment a declaration can be made only after the date of publication of the notification under Section 4 of the Act. This means that there must be difference of dates between the date of publication of the notifications under Sections 4 and 6 of the Act. Now after the amendment both the notifications cannot be published on the same date. The publication of the notifications under Sections 4 and 6 of the Act on the same date would be contrary to Sub-section (4) of Section 17 of the Act as amended by Act No. 68 of 1984, which would render the notification under Section 6 of the Act invalid."
9. In the cases giving rise to the above-noted writ petitions, it is evident that in law the notification under Section 4 of the Act will be deemed to have been published on 25-7-1985 and on that very date the declaration under Section 6 of the Act would be deemed to have been done because the substance of the two notifications were published in the locality on 25-7-1985. In view of the observations made in the ruling (supra) we think that the notification under Section 6 is in clear violation of the provisions of Section 17(4) of the Act and is illegal. Therefore, the opposite parties cannot acquire the plots of the petitioners in these writ petitions in pursuance of the impugned notification under Section 6 of the Act. The first contention raised on behalf of the petitioners has merits and on this ground alone, all the writ petitions deserve to be allowed.
10. It is noteworthy that the counsel for the opposite parties placed reliance upon the rulings reported in AIR 1963 SC 151, Smt. Somwanti v. State of Punjab and AIR 1979, SC 1713, Babu Singh v. Union of India and they have tried to justify the stand that notifications under Sections 4 and 6 of the Act may be on the same day. No doubt the aforesaid rulings do indicate that the two notifications could be published on the same day but the aforesaid rulings are inapplicable to the facts and circumstances giving rise to the above-noted writ petitions. In view of the amendments effected in the provisions of sections 4, 6(2) and 17(4) of the Act by Act No. 68 of 1984, we think that the Division Bench ruling of this Court (mentioned supra) would govern the facts and circumstances under our consideration. We are in respectful agreement with the observations made in the Division Bench ruling reported in AIR 1987 All 113, Kashmir Singh v. State of U.P,
11. Shri A.S. Kapoor counsel for Meerut Development Authority opposite party No. 3, submitted before us that the provision ofi Land Acquisition Act was amended by U.P. Act No. 8 of 1974. Therefore, in Uttar Pradesh the amendment effected by central act no. 68 of 1984 would not be relevant and for the purpose of Section 4 of the. Land Acquisition Act only publication in the official gazette would be the relevant date. In the facts and circumstances of the present cases, the notifications under Sections 4 and 6 of the Act were published in Gazette on different dates, therefore, the contention raised on behalf of the petitioners should be repelled. In this connection the learned counsel placed reliance upon the provisions of Article 254(2) of the Constitution which provides as below : --
"(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State :
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of State."
12. In our opinion, the submission made by the learned counsel has no merits. According to the provisions of Article 254(2) the law made by the State Legislature shall prevail over an earlier law made by the Parliament or an existing law. In the present case the amendment made by the State Legislature is of the year 1974 whereas the Central law is of the year 1984. Therefore, the amendment effected by the Central law would be quite in consonance with the proviso added to Article 254(2) of the Constitution of India. The Parliament was quite competent to amend, vary or repeal the law made by the Legislature of a State. According to the amended provisions of sections 4, 6 and 17 after the year 1984 there is a clear repugnancy between the amended law and the law prevailing in this State in the year 1974. Therefore, we think that the amended provisions of the Act would be applicable to the cases under our consideration. The submission of the learned counsel to the effect that in the State of Uttar Pradesh only the date of the publication of notification under Section 4 of the Act in Gazette would be the relevant date is without any merit and against the amendments effected in relevant provisions by Central Act 68 of 1984.
13. In AIR 1954 SC 752, Zaverbhai Amaidas v. State of Bombay and in AIR 1983 SC 150, T. Barai v. Henry Ah Hoe, their Lordships of the Supreme Court have indicated that the position under the Constitution is that Parliament can, acting under the proviso to Article 254(2), repeal a State law but where it does not expressly do so even then the State law will be void under that provisions if it conflicts with a latter law with respect to the same matter that may be enacted by Parliament. In the latter case their Lordships of the Supreme Court vide para 15 have indicated as below : --
".....The predominance of the State law may however be taken away if Parliament legislates under the proviso to Clause (2). The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President's assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the 'same matter'. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the Subsequently law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together, e.g. where both prescribe punishment for the same offence but the punishment differs indegree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1). That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a later law made by Parliament "with respect to the. same matter", the West Bengal Amendment Act stood impliedly repealed."
14. Relying upon the above observations of their Lordships of the Supreme Court we have no hesitation in rejecting the submission of the learned Counsel to the effect that in this State the amendment made in the year 1974 would be operative and the amendment made by the Central Parliament would not change the position.
15. In support of the second and fourth contentions, the learned Counsel for the petitioners have placed reliance upon the ruling reported in AIR 1977 SC 183, Narayan Govind Gavate v. State of Maharashtra, Paragraphs 32 and 37 to 42 of this ruling have been placed before us and it has been emphasized that the opposite parties have acted illegally in applying the provisions of Section 17(4) of the Act and in not affording opportunity to the petitioners contemplated by the provisions of section 5a of the Act.
16. In this connection our attention has been drawn to the ruling reported in 1983 All LJ 1016, A.P. Sareen V. State of U.P. and it has been contended that-the petitioners are being deprived of their plots without an enquiry under Section 5A of the Act.
17. In AIR 1978 All 181, Smt. Kailashwati v. State of U. P. a Division Bench of this Court has considered the abovementioned ruling reported in AIR 1977 SC 183 and has observed in para 10 as below : --
".....It is true that in para 39 of the judgment, the Supreme Court made observation to that effect, but it would not be correct, in our opinion, to say that the Supreme Court laid down exhaustively the list of cases where alone such a power could be exercised. The example taken was only illustrative. In Narayan's case before the Supreme Court, neither in the counter-affidavit filed on behalf of the acquiring body nor in the notification issued, there was any material showing that the State Government had applied its mind to the question that there existed urgency which warranted the elimination of the enquiry contemplated by Section 5A of the Act, on the special facts and circumstances of the case, the Supreme Court dismissed the State appeal and issued a direction that the enquiry under Section 5A of the Act be held........"
18. In 1985 All LJ 718, Trilochan v. State of U.P. another Division Bench of this Court has indicated in paras 12 and 13 of its judgment that the learned Judges agreed with the observations made in paragraphs 8 to 10 of AIR 1978 All 181, Smt. Kailashwati v. State of U. P.
19. Several Division Benches of this Court lave indicated that the question whether enquiry under Section 5A was necessary or not is a question of fact which should be determined in the facts and circumstances of each case, formally this question is a matter of subjective satisfaction of the State Government. Such a decision cannot be questioned in any Court f the Government has applied its mind and has acted in good faith. When the Government is the best judge for determining the question it is only in the case of mala fide exercise of power that this Court can interfere. See 1985 All LJ 1182 and 1985 All LJ 1405).
20. In the cases under our consideration we find the contentions Nos. 2 and 4 raised on behalf of the petitioners without any merit in view of the averments made in paras 4, 5 and 6 of the counter-affidavit filed in support of the stay vacation application. We find that one of the reasons given by the contesting opposite parties is to the effect that if the provisions of Section 17(4) of the Act had not been applied, unauthorised colonies would have sprung up and the individuals would have transferred their lands and created problems in the acquisition of the land. Therefore, we are unable to say that the Government acted illegally in applying the provisions of Section 17(4) of the Act and in dispensing with the enquiry contemplated by the provisions of section 5a of the Act. However, it is the satisfaction of the Government and we are unable to say that the Government was moved by any extraneous or irrelevant consideration or exercised powers mala fide in acquiring the plots of the petitioners. In our opinion, the 2nd and 4th contentions on behalf of the petitioners have no merits. The petitioners cannot succeed in challenging the Notifications under Sections 4 and 6 of the Act on the aforesaid grounds.
21. As regards the third contention it is sufficient to observe that the acquisition of the petitioners' plots is for the purpose of constructing residential and commercial buildings for the people of Meerut on Sardhana Road by the Meerut Development Authority under a planned development scheme. Therefore, the acquisition is for 'public interest. We are not satisfied with the contention of the learned counsel for the petitionersthat in the factsand circumstances of the case a section of the public would be uprooted and, therefore, the acquisition cannot be termed for public purposes. We think that larger number of persons shall be accommodated in the buildings so constructed and greater benefit to a larger number of persons would ensure, therefore, the interest of the individuals can be sacrificed when it is negligible to the number contemplated to be benefited by the scheme.
22. In 1983 All LJ 1016, A.P. Sareen v. State of U.P. a Division Bench of this Court on the facts of the case came to a conclusion that the State Government had assumed existence of a reason for considering the case to be one of urgency which was, in reality, non-existent when reasonably visualised. According to the judgment the inference of urgency in the circumstances of the case was clearly based on consideration of non-existent reasons. In law, according to them, the case was of non-application of mind to the problem of urgency by the appropriate authority. Therefore, the acquisition proceedings were held invalid.
23. In AIR 1982 All 435, Ajadul Bux v. State of U.P. another Division Bench of this Court on the facts of the case found that no material was placed by State Government as to why the provisions of section 5a were dispensed with. Therefore, the notification under Section 4(1) was held invalid. The learned Judges mainly relied upon the dictum of law laid down in AIR 1977 SC 183, Narayan Goyind Gavate v. State of Maharashtra.
24. Recently their Lordships of the Supreme Court in AIR 1986 SC 2025, State of U.P. v. Smt. Pista Devi have considered the dictum of law laid down in Narayan Govind Gavate v. State of Maharashtra, (AIR 1977 SC 183) and have observed as below : --
"...... The provision of housing accommodation in these days has become a matter of national urgency. We may take judicial notice of this fact. Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is necessary to invoke Section 17(1) of the Act and to dispense with the compliance of Section 5A of the Act. Perhaps at the time to which the decision in Narayan Govind Gavatev. State of Maharashtra ( 1977) 1 SCR 763 : ( AIR 1977 SC 183) related to situation might have been that the schemes relating to development of residential areas in urban centres were not so urgent and it was not necessary to eliminate the enquiry under Section 5A of the Act. The acquisition proceedings which had been challenged in that case related to the year 1963. During this period of nearly 23 years since then the population of India has gone up by hundreds of millions it is no longer possible for the Court to take the view that the schemes of development of residential areas do not appear to demand such emergent action as to eliminate summary enquiries under Section 5A of the Act."
25. In the cases under our consideration we have already indicated above that the acquisition was for providing housing accommodation to the residents of Meerut -City. The problem of providing housing accommodation to persons in the city today, having regard to the growth of population, can be termed as an urgent and pressing necessity, therefore, the dispensation of the provisions of Land Acquisition Act under Section 5A cannot be said to be improper in the facts and circumstances of the cases under consideration. The contention of the learned counsel in this regard fails.
26. As regards fifth and the last contentions it is sufficient to observe that where a party seeks to impeach the acquisition proceedings on the ground of discrimination and arbitrariness a heavy burden lies upon the party to establish its claim. The learned counsel for the petitioner suggested during his arguments that the land of the petitioner over which constructions existed has been acquired and where a grove existed that too has been acquired although similar other land has been omitted by the acquiring authority. The very perusal of Annexures CA-5 and CA-6 attached with the affidavit of Om Pal Singh indicates that the claims of the petitioners in this regard are ill founded. The petitioners have not been able to demonstrate before us that their constructions were legally made and under sanctioned plan. An argument was advanced that the disputed land over which the petitioners constructions existed was not within the Municipal Area, therefore, it needed no sanctioning, of any plan. However, the questions raised by the petitioners in this regard are disputed questions of fact and the petitioners cannot succeed in challenging the notifications under Sections 4 and 6 of the Act on the aforesaid grounds. During the course of arguments we were not satisfied with the the contentions raised by Sri J.N. Tiwari that the acquistion of the petitioners' land in the facts and circumstances of the case under consideration was discriminatory or arbitrary in any manner. It is also noteworthy that the contention on behalf of the petitioners to the effect that the acquisition of the petitioners' land was not under any development plan is not quite correct. In paragraph 5 of the counter affidavit of Om Pal Singh in support of the stay vacation application there is a mention of Master Plan in the district and a plan for village Dantal prepared by Town and Country Planning Department. Therefore, we are unable to accept the contention that the acquisition of the petitioners' land was not under a development plan.
27. Our attention during the course of arguments was drawn to the ruling reported in AIR 1980 SC 319, State of Punjab v. Gurdiyal Singh as well as the ruling reported in AIR 1981 SC 818, Swadeshi Cotton Mills v. Union of India. In the former ruling paragraphs 8, 9 and 16 were emphasised and in the latter ruling paragraph 60 was pressed. It is not necessary to dilate upon the contentions raised on behalf of the petitioners placing reliance upon the aforesaid rulings as recently their Lordships of the Supreme Court in AIR 1986 SC 2025, State of U.P. v. Smt. Pista Devi have discussed the scope of Narayan Govind Gavate v. State of Maharashtra reported in AIR 1977 SC 183.
28. Sri RaviKant, counsel for Sultan Singh Tomar in Writ Petition No. 12345 of 1985 invited our attention to the provisions of Sections 2(e) and 17 of the U.P. Urban Planning and Development Act, 1973 for challenging the notifications under sections 4 and 6 of the Land Acquisition Act whereby the petitioners' land has been acquired He also invited our attention to the allegations in paragraph 15 onwards of the writ petition, but he failed to develop the points. In our opinion the aforesaid provisions are not at all relevant for challenging the notifications under sections 4 and 6 of the Land Acquisition Act. Proviso to Section 17 of U.P. Urban Planning and Development Act, 1973 provides a remedy to the petitioners to approach the State Government for the reliefs if the petitioners have any grievance under the Act of 1973.
29. From the foregoing discussions we are of the view that these writ petitions should be allowed in part because the substance of the two notifications contemplated by Sections 4 and 6 of the Act were given on the same day, i.e. on the 25th July, 1985 in the locality, hence the notification under Section 6 of the Act would be invalid due to the amended provisions of Section 17(4) of the Act. We accordingly allow the writ petitions in part and quash only the notification under Section 6 of the Act in each writ petition but leave the parties to bear their costs in this court.
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