1. The petitioner No. 1, Jagriti Sahkari Awas Samiti Limited, Ghaziabad through its Secretary Sri Raja Ram Pandey who has also joined as petitioner No. 2, have filed this writ petition under Article 226 of the Constitution of India, aggrieved by the Notifications dated 10th March, 1988 issued by the State Government under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the ‘Act’) and dated 8th July, 1988 published under Section 6 of the Act for acquisition of certain land mentioned therein situate at village Makanpur, Pargana Loni, District Ghaziabad for Planned Industrial Development through New Okhla Industrial Development Authority (hereinafter referred to as the ‘NOIDA). They have also sought a writ of certiorari for quashing notice dated 19th January, 1989 issued under Section 9 of the Act. A writ of mandamus re-straining Page: 44 the respondents from interfering with the ownership, possession and use of the land in dispute has also been sought in the present writ petition.

2. The facts in brief giving rise to the present dispute are; the petitioner a Co-operative Housing Society got itself registered in accordance with the provisions of U.P Cooperative Societies Act, 1965 (in short 1965 Act) on 16th April, 1982. A copy of the bye-laws of the Society are on record as Annexure No. 3 to the writ petition. The petitioner No. 1 also became member of U.P Cooperative Housing Federation Limited, an Apex Body under Section 2(a-4) (10) of 1965 Act. The petitioner-Society purchased in all about 20 plots in Village Makanpur, Pargana Loni, District Ghaziabad between March 1983 to November 1985 measuring 31 Bighas, 7 Biswas and 19 Biswansis after paying a total consideration of Rs. 19,91,880/- for providing housing accommodation to its members. The name of petitioner No. 1 was also mutated in the revenue records. The Society formed a Scheme, namely Shyam Vihar Yojna, to be developed on the aforesaid land, which it has purchased between 1983 to 1985 and, accordingly, it carved out small plots measuring about 200 yards for the purpose of distribution thereof to its members. It is said that the petitioner No. 1-Society carved out in total about 287 plots, out of which it entered into agreement for sale with the members in respect to 181 plots and those members paid price of the plot of land as well as development charges. It is said that the agreements for sale were entered into prior to 10th March 1988. In April 1985 and onwards, the petitioner No. 1 started development activities including filling and levelling of land, construction of boundary wall, boring of tube well etc. On 26th August, 1985, the petitioner No. 1 sent a letter to NOIDA inquiring as to whether the aforesaid land of the petitioner No. 1 had been acquired. The NOIDA vide its letter dated 5th September, 1985 replied in negative. However, some employees of NOIDA started interfering with the petitioners' activities on the land in question where against it filed Original Suit No. 333 of 1986 in the Court of Munsif, Ghaziabad seeking injunction restraining NOIDA from interfering with the petitioner's ownership, possession and use of the said land. The petitioner No. 1 learnt that on 31st December, 1986, the State Government through Industries Department got a proposal for acquisition of petitioner's land showing objective as “planned development of the area”. The proposal included certain documents including draft proposal, notification under Section 4 of the Act showing purpose of acquisition as “Planned Development of Industries in District Ghaziabad” and seeks to invoke urgency clause under Section 17(1) and (1-A) of the Act and to dispense with the provision of Section 5-A thereof. A draft notification under Section 6 of the Act, a preliminary report purporting to have been prepared by Special Land Acquisition Officer, NOIDA (in short SLAO) and chart of plots proposed to be acquired were also appended to the said proposal. On 5th May, 1987, the District Magistrate sent a letter to NOIDA stating that 20% of the price of the land to be acquired had to be deposited by it prior to issuance of Notifications under Sections 4, 6 and 17 of the Act but was not deposited and, therefore, he required NOIDA to deposit the same immediately. Again on 10th June, 1987, another proposal for acquisition of the said land was made stating that the land is required for “planned industrial development in District Ghaziabad” through NOIDA appending similar documents as were in the earlier proposal. It is said that the preliminary report accompanying the application dated 10th June, 1987 was same as it was submitted earlier. On 15th June, 1987, the SLAO pointed out certain defects in the land acquisition proposal to Tahsildar requiring it to do needful for removal of such defects. NOIDA passed a resolution on 29th June, 1987 for acquisition of about 1762.194 Acres of land in village Khora, 366.680 Acres of land in Rasulpur, Navada and 480.219 Acres at village Makanpur, all in District Ghaziabad, for utilization for institutional allotment etc. It also resolved that the land use would be prescribed in the draft master plan which was being revised by Chief Town and Page: 45Country Planner, U.P The SLAO again sent a letter dated 13th July, 1987 complaining that the Tahsildar had not taken steps for clarifying on the 17 points raised by him with respect to acquisition proposal of the land. On 13th August, 1987, Administrative Officer, NOIDA sent a letter to SLAO, NOIDA stating that the land in village Rasulpur Nawada, Khora and Makanpur was required for the purpose of entertainment/recreation, industrial purposes etc. and therefore, the acquisition proceedings be initiated at the earliest. On 28th October, 1987, the District Magistrate, however, sent a letter to the State Government that the land at village Makanpur to the extent of 463.02 Acres is required for public purpose and, therefore, he recommended for issuance of Notification under Section 4(1) and 6 read with Section 17 of the Act, so that the development activities may be undertaken smoothly. The State Government sought more information for justifying Section 17 of the Act and, accordingly, the District Magistrate vide letter dated 19th November, 1987 directed Secretary, NOIDA to give its justification at the earliest. The NOIDA Authorities vide letter dated 19th November, 1987 gave reasons for invoking Section 17 of the Act which in short are:

(1) the village fell within the National Capital Region and there was a proposal by the Central Government to transfer some of its Projects to NOIDA, who has to make provisions for accommodating those projects, The transfer of the land has to be made immediately to the Central Government and ordinary acquisition shall take a long time. Delay would prolong the Project of the Central Government.

(2) some colonizers had made unauthorized sales of land in the region and had made unauthorized construction. Any delay would increase the number of such unauthorized constructions which may also result in developing slum area causing obstruction in planned development.

(3) Increase of unauthorized constructions resulting in dense population on the land affecting public amenities.

(4) The land is marked as green belt and any construction made on the land would affect the environment.

3. The petitioner No. 1 learning that its land is likely to be acquired, sent representations dated 7-12-1987 and 9-12-1987 requesting the Government not to acquire the said land. However, on 10th March, 1988, the State Government published Notification under Section 4 of the Act proposing acquisition of certain land in village Makanpur which included land in dispute of the petitioner No. 1. The Notification also provided that in view of the pressing urgency, the inquiry under Section 5-A shall not apply and Section 17(4) of the Act was invoked. The said Notification was published in the newspapers on 1st April, 1988. The petitioner No. 1 made a representation on 11th April, 1988 to the District Magistrate. The Munsif, Ghaziabad granted an injunction in favour of the petitioner No. 1 on 13th April, 1988 restraining NOIDA from interfering in the development activities carrying out in the land in question for residential purposes of the petitioner. Thereafter on 8th July, 1988, the State Government issued Notification under Section 6 of the Act declaring that the land in question was needed for “planned industrial development” through NOIDA and invoking urgency clause under Section 17(1) of the Act directed Collector, Ghaziabad not to wait for award under Section 11 and to proceed to take possession of the land within 15 days from publication of notices under Section 9 of the Act. The Notification dated 8th July, 1988 was published in the U.P Gazette Extraordinary dated 9th July, 1988 and in newspapers on 29th July, 1988. On 23rd August, 1988, the District Magistrate, Ghaziabad required NOIDA to pay 80% of the price of the land and thereafter on 19th January, 1989, the petitioner received notice under Section 9 of the Act whereagainst made representation on 31st January, 1989 and thereafter filed the present writ petition before this Court which was entertained on 16th February, 1989 and an interim order was passed restraining respondents from taking possession of the disputed land.

4. On behalf of respondent-State, a counter-affidavit has been filed sworn by Sri Gopi Nath Srivastava, Section Officer, Industry U.P Civil Secretariat, Lucknow stating that the proposal was received by the State Government from NOIDA that the land in question and some other land was required for planned industrial development. The need and purpose for acquisition of land was placed before the Government and after examining the same, the Government was satisfied that the land in question was required urgently and, accordingly, acquisition proceedings invoking Section 17 of the Act were initiated and the inquiry under Section 5-A of the Act was dispensed with. On behalf of respondent No. 4 i.e NOIDA, a separate counter-affidavit has been filed stating that the U.P Legislature enacted U.P Industrial Area Development Act, 1976 (in short 1976 Act) for development of certain areas into industrial, commercial and urban township (planned industrial development). The NOIDA is an authority constituted under 1976 Act for the purpose of development of the area within its jurisdiction as per the objective of the said Act. In April 1976, a Notification was issued by the State Government declaring area of about 37 villages as “industrial development area” which was to be developed by NOIDA. By subsequent Notification dated 18th May, 1978, several other villages were declared as industrial development area which included the village Makanpur where the land in dispute is situate. Anticipating prospective development of the area in question, a number of persons like petitioners started negotiation with the farmers for purchase of agricultural land with the intention of speculation of land transactions by carving out small plots for different purposes including residential. The activities undertaken by some persons including the petitioners were in complete defiance of section 154 of U.P Zamindari Abolition and Land Reforms Act, 1951 (in short 1951 Act). It has denied that the petitioner undertook any development activities on the land in question and has spent over huge amount as stated in the writ petition. With respect to the injunction obtained by the petitioner, it is said that the NOIDA filed an appeal against injunction order wherein the Appellate Court by order dated 17th May, 1988 modified the same. With respect to the need and purpose of acquisition, NOIDA placed before the Government enough material showing urgency of acquisition of land and dispensation of inquiry under Section 5-A and after applying mind, the State Government dispensed with the said inquiry and has published Notification under Sections 4 and 6 of the Act invoking Section 17(1) & (4) of the Act. It has denied allegation that there was no certain objective justifying urgency in the impugned acquisition proceedings.

5. It appears that respondent No. 3 was directed to produce relevant record before the Court showing urgency for possession of the land in question vide Court's order dated 8th May, 1989 pursuant whereto record was produced before the Court. The copy of the requisite documents have also been placed on record along with the affidavit of Sri Basdeo Gupta, Amin, in the office of SLAO, Ghaziabad which are in respect to the factum of urgency for applying Section 17(4) of the Act in the matter in question. We propose to refer the said documents later on.

6. Heard Sri S.P Gupta, Senior Advocate assisted by Sri A.K Srivastava, Advocate for the petitioners, learned standing counsel for respondent Nos. 1, 2 and 3 and Sri U.S Awasthi for respondent No. 4.

7. Sri S.P Gupta, Senior Advocate assailing the impugned Notification has contended: (i) that dispensation of inquiry under Section 5-A and invoking Section 17(4) of the Act is wholly illegal and invalid since neither there was any material before the State to dispense with the said inquiry nor even otherwise there was anything to show existence of urgency warranting immediate taking of possession of the land justifying dispensation of inquiry under Section 5-A; (ii) change of purpose of acquisition was communicated by NOIDA to the State Government from time to time negativing existence of urgency either under Section 17(1) and/or Section 17(4) of the Act and to exclude inquiry under Section 5-A of the Page: 47Act; (iii) the planned industrial development through NOIDA, the purpose stated cannot be considered to be of such urgency so as to attract Section 17(1) or 17(4) of the Act and to exclude inquiry under section 5-A of the Act; (iv) long delay in taking over possession despite decision taken on 31-12-1986 to acquire the land in question does not justify urgency for attracting section 17(1) and/or 17(4) of the Act and dispensing with inquiry under Section 5-A thereof; (v) mere urgency under section 17(1) of the Act alone is not sufficient to exercise power under Section 17(4) and dispensing inquiry under Section 5-A of the Act. In fact, it requires some more facts or reasons justifying the said dispensation; (vi) no such facts whatsoever were available with the State Government to invoke Section 17(4) of the Act or exclude inquiry under Section 5-A thereof; and that (vii) exercise of power under Section 17(4) of the Act and dispensation of inquiry under Section 5-A is mechanical without application of mind vitiating the entire acquisition proceedings including the impugned Notifications. In support of the aforesaid submissions, learned Senior Counsel placed reliance on Apex Court's decision in Union of India v. Krishan Lal Ameja, (2004) 8 SCC 453 : (AIR 2004 SC 3582); Union of India v. Mukesh Hans, (2004) 8 SCC 14 : (AIR 2004 SC 4307) and two Division Bench decisions of this Court, i.e, Kshama Sahkari Avas Samiti Ltd. v. State of U.P, 2007 (1) AWC 327 : (2006 (6) ALJ 363) and Mahavir Sahkari Awas Samiti Ltd. v. State of U.P, 2007 All CJ 212 : (2006 (6) ALJ (NOC) 1375).

8. Sri U.S Awasthi learned counsel appearing for NOIDA submitted that in view of the averments contained in the counter affidavit filed by NOIDA there is no error or illegality in acquisition proceedings and, therefore, the writ petition deserves to be dismissed. He also submitted that challenging this very notification dated 10-3-1988 and 8-7-1988, though in respect to some other property in the same village, i.e, village Makanpur, Pargana Loni, Tahsil Dadri, District Ghaziabad, a Writ Petition No. 8001 of 1989, Kendriya Swasthya Mantralaya v. State of U.P, was filed by some other society which has been dismissed by a Division Bench of this Court vide judgment dated 8-4-1993. Therefore, this writ petition also deserves to be dismissed for the same reasons. Lastly he contended that notification under Section 6 was issued on 8th July, 1988 though this writ petition was filed in February 1989 when notice under Section 9 of the Act was issued and, therefore, the petitioners are guilty of delay and laches. The acquisition proceedings having completed, the same at such belated stage could not have been challenged and the writ petition deserves to be dismissed on the ground of delay and laches as held by a Division Bench of this Court in Brij Bhushan Goswami v. State of U.P, AIR 1990 Allahabad 15.

9. Learned Standing Counsel contended that there was enough material before the State to show that the land was required to be acquired for well recognised public purpose and the reasons justifying for invoking Section 17(1) and 17(4) and dispensation of inquiry under Section 5-A of the Act were available on record in abundance. After considering all those material the State Government has published the impugned notifications. He took the Court through various documents filed along with affidavit of Sri Basdeo Gupta annexing various documents of NOIDA and District Magistrate, showing urgency and submitted that the said material cannot be said to be non est so as to vitiate application of Section 17(4) of the Act and dispensation of inquiry under section 5-A. He also submitted that once material is there and that too not imaginary or flimsy or artificial, the application of Section 17(4) of the Act and dispensation of inquiry under Section 5-A thereof cannot be said to be illegal by weighing adequacy of such material since it is beyond the scope of judicial review. He said that once the Government shows that the material existed which has been taken into account to form opinion by the Government to apply Section 17(4) and to dispense with inquiry under section 5-A of the Act, sufficiency thereof shall not be adjudicated by this Court Page: 48unless it can be shown that the said material is imaginary or artificial which the petitioners have failed to demonstrate. He also supported the contention of Sri Awasthi that the petitioner is guilty of laches and on that account also the petition is liable to be dismissed. Lastly, he contended that there was no variation or change in the objective and purpose for which the land was acquired by NOIDA though in different letters at some point of time, the purpose has been coined or worded differently but the intent, meaning and central idea behind all that is same and there is no real variation at all.

10. We have seriously considered the submission advanced on both the sides and have also gone through the written brief submitted by learned Senior Counsel on behalf of the petitioners and have perused the record including the authorities cited at the Bar.

11. In short, the real issue in dispute, raised and argued is whether application of Section 17(1) & (4), and dispensation of inquiry under Section 5-A of the Act in the present case is valid or not. Various arguments of learned senior counsel for the petitioners ultimately touches to his main argument that the application of Section 17(1) and/or (4) and dispensation of inquiry under Section 5-A was bad and vitiates both the Notifications published under Sections 4 and 6 of the Act.

12. We now proceed to examine the same. Ordinarily, the Act provides protection to a person whose land is to be acquired by conferring upon him right to file objection to the proposed acquisition. Opportunity of hearing is also provided to show that the proposal to acquire the land was unwarranted or unjust or otherwise is not legal. Such opportunity is consistent with the principle of fairness in every State action and, therefore, the procedure of inquiry contemplated under Section 5-A has to be followed ordinarily unless there are circumstances warranting dispensation of the same by invoking the exceptional procedure provided under Section 17 of the Act. Section 17 confers power upon the State to dispense with the normal procedure of inquiry under Section 5-A. However from a conjoint reading of the said provisions of the Act, it is clear that it is only in exceptional cases of urgency such procedure can be followed and not otherwise.

13. In (1980) 2 SCC 471 : AIR 1980 SC 319, State of Punjab v. Gurdial Singh in para 16, while considering emergency power under Section 17 of the Act, the Court held as under:—

“it is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing, land acquisition authorities should not, having regard to Articles 14 (and 19), burke an enquiry under Section 17 of the Act.”

14. In Narayan Govind Gavate v. State of Maharastra, (1977) 1 SCC 133 : AIR 1977 SC 183, the Court ex pressed its endeavour to make inquiry normally in all cases of acquisition, under Section 5-A of the Act, unless there is material to show that the urgency is of such a nature that the inquiry under Section 5-A has to be eliminated. In this regard what aspect has to be concentrated, pointing out the same the Court said as under:

“the mind of the officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5-A of the Act should be eliminated. It is not just the existence of urgency but the need to dispense with an inquiry under Section 5-A which has to be considered.”

15. Where dispensation of inquiry under Section 5-A is challenged on the ground that there was no material before the State Government, and on behalf of the respondents such material is placed before the Court. It has been held that the question of urgency in acquisition under Section 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and is not open to the Court to make scrutiny of the propriety of that satisfaction and objective by appraisal of facts as an appellate authority (see First Land Acquisition Collector v. Nirodhi Prakash Page: 49Gangoli & another (2002) 4 SCC 160 : (AIR 2002 SC 1314).

16. In Chameli Singh v. State of U.P, (1996) 2 SCC 549 : (1996 All LJ 413) the Court held when the Government on the basis of the material, formed its opinion of urgency, the Court not being an appellate forum would not disturb the finding unless the Court conclusively finds the exercise of the power mala fide.

17. In Union of India v. Praveen Gupta, (1997) 9 SCC 78 : AIR 1997 SC 170, in para 9 of the judgment, it was held :-

“decision on urgency is an administrative decision and is a matter of subjective satisfaction of the appropriate Government on the basis of the material available on record. Therefore, there was no need to pass any reasoned order to reach the conclusion that there is urgency so as to dispense with the enquiry under Section 5-A in exercise of power under Section 17(4).”

18. In Nandeshwar Prasad v. State of U.P, AIR 1964 SC 1217, the Court said that it is not necessary even where the Government makes a direction under Section 17(1) that it should also make a direction under Section 17(4). If the Government makes a direction only under Section 17(1) the procedure under Section 5-A would still have to be followed before a notification under Section 6 is issued but it is only when the Government makes a declaration under Section 17(4) also that it becomes unnecessary to take action under Section 5-A and make a report thereunder that such inquiry shall not be made. It was thus held that there has to be an application of mind to the facts of the case with special reference to facts for dispensation of inquiry under Section 5-A of the Act.

19. In Munshi Singh v. Union of India, ((1973) 2 SCC 337 : AIR 1973 SC 1150) the Apex Court noticed that the limited right given to an owner/person interested in the land to object to the acquisition proceedings is not an empty formality but is a substantive right which can be taken away for good and valid reason and within the limitation prescribed under Section 17(4) of the Act. Since the right of representation and hearing under Section 5 A is a very valuable right of a person whose property is sought to acquired, therefore, such right cannot be denied on flimsy ground. On the contrary, the State Government must have before it material on record to support its decision to take away this minimal requirement by invoking Section 17(1) and (4) of the Act.

20. In Union of India v. Mukesh Hans : ((2004) 8 SCC 14 : AIR 2004 SC 4307) (supra) after referring to Sections 17(1), (4) and 5-A of the Act and considering various earlier authorities, it was held in para 32:-

“A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of the Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 5-A inquiry. If that was not the intention of the legislature then the latter part of sub-section (4) of Section 17 would not have been necessary and the legislature in Section 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. But then that is not the language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5-A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does not mean that in each and every case when there is an urgency contemplated under Section 17(1) and unforeseen Page: 50emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5-A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5-A inquiry is inherent in the two types of urgencies contemplated under Section 17(1) and (2) of the Act.”

21. The scope of judicial inquiry in such matter has been reiterated in Ved Prakash v. Ministry of Industry, Lucknow, (2003) 9 SCC 542 : AIR 2003 SC 3479 : (2003 All U 1256) and it says that in-examining such matters, the test is to see whether there is any infirmity in decision making process and not the decision itself.

22. Recently in Sheikhar Hotels Gulmohar Enclave v. State of U.P, JT 2008 (7) SC 120 : (2008 (5) ALJ 148) the Court while stressing upon the importance of Section 5-A observed that though the right to file objection under Section 5-A is a valuable right and the Government does not have a free hand to dispense with Section 5-A but in effect, Section 5-A is only a safeguard against arbitrary exercise of power by the State and it depends upon case to case as to whether the State has rightly dispensed with such inquiry on account of urgency by invoking Section 17(4) of the Act and whether such exercise of power is based on material on record or not.

23. Thus if there exist some material whereupon the Government has formed opinion that there exists urgency and inquiry under Section 5-A needs to be dispensed with, and thereupon the notification has been issued, this Court will not sit in appeal over sufficiency or adequacy of such material provided the material does not show flimsy, imaginary and non est reasons. It would be appropriate at this stage now to refer the documents appended to by the respondents to show the material whereupon the Government has taken decision to dispense with inquiry under Section 5-A invoking urgency clause. The letter dated 25-8-1987 of NOIDA inter alia, says as under:

“(I) The Government of India has proposed to move out certain institutions under the National Capital Region Plan (in short ‘NCR Plan’) from Delhi to neighbouring areas and several institutions have approached for providing land and names of such institutions are : Oil and Natural Gas Commission, Department of Tourism, Central Inland Waterways Authority, Central Excise, Central Board of Secondary Education, Indian Council of Medical Research, Indian Oil Corporation, Indo-Burma Petroleum, Hindustan Petroleum Corporation, Bharat Petroleum Corporation, Institute of Chartered Accounts, Oil India and Naval Design Bureau. Unauthorized colonizers are coming of in the area and to provide them, immediate acquisition is necessary.

(II) The acquisition of land in question would not affect the farmers but basically the land is in the hands of colonizers who are going with unauthorized colonial blocks which is against the entire master plan, NOIDA, N.C.R approved plan and approval given by the authority.

(III) Exact lay out plan can be finalized only after acquisition of the land and possession thereof.”

24. In the letter dated 19-11-1987 reiterating the aforesaid reasons it was further pointed out that any delay in acquisition may result in increased construction by the Colonizers which would also cause increased slum area and that would obstruct planned development of the area as well as the availability of the public amenities. With respect to green belt it stated that most of the part in the proposed acquisition is to be left for green belt. Green belt as well as sports area are the lungs of NOIDA and any destruction thereof would adversely affect the environment.

25. Moreover, NOIDA is an authority constituted under the 1976 Act for development of Industrial Development Area. Therefore, the basic objective in an area which is declared to be an industrial development area is Page: 51that development in that area must take place in the planned manner and for the NOIDA, the reasons assigned for the said purpose in the aforesaid two letters in our view cannot be said to be imaginary, flimsy or artificial.

26. Here it would be appropriate to refer certain provisions of 1976 Act. Section 6 of 1976 Act provides the functions of the authority and reads as under:

“Functions of the Authority.— (1) The object of the Authority shall be to secure the planned development of the industrial development areas.

(2) Without prejudice to the generality of the objects of the Authority, the Authority shall perform the following functions-

(a) to acquire land in the industrial development area, by agreement or through proceedings under the Land Acquisition Act, 1984 for the purposes of this Act;

(b) to prepare a plan for the development of the industrial development area;

(c) to demarcate and develop sites for industrial, commercial and residential purposes according to the plan;

(d) to provide infra-structure for industrial, commercial and residential purposes;

(e) to provide amenities;

(f) to allocate and transfer either by way of sale or lease or otherwise plots of land for industrial, commercial or residential purposes;

(g) to regulate the erection of building and setting up of industries; and

(h) to lay down the purpose for which a particular site or plot of land shall be used, namely, for industrial or commercial or residential purpose or any other specified purpose in such area.”

27. Thus from a perusal of the aforesaid, it is evident that the primary object of constitution of authority under 1976 Act is planned development of the industrial development areas” which includes acquisition of land for the said purpose, preparation of a plan, demarcate and develop site for industrial, commercial and residential purposes according to plan, provide infrastructure for the said purpose and amenities, allocate and transfer the land for industrial, commercial or residential purposes, and regulate erection of building and setting up of industries etc. Keeping in view the aforesaid objective and functions of the authorities, it is well conceivable that when certain land is sought to be acquired by NOIDA it may request the Government to complete the process urgently so as to avoid any constructions in the hands of scrupulous persons which may create obstruction in discharge of its smooth functioning under the Act. Here we may also refer to Section 9 of 1976 Act which provides that the authority may by Notification and with the prior approval of the State Government make regulations to regulate erection of building etc. and no person shall erect or occupy any building in the industrial development area in contravention of any such Building Regulation. NOIDA was constituted vide Notification dated 17th April, 1976 and has also framed its Regulations for regulating building construction etc. The petitioners while dealing with the question that unauthorised colonizers are making construction in the area which would create further complication in the matter have nowhere said in the writ petition that they initiate construction activities in accordance with the regulations. In para 31 of the writ petition, the petitioners have said that the planned development was in accordance with the bye-laws by architect, engineers and experts of higher reputation and wide experience but there is not even a whisper in the entire writ petition that the said plan was ever approved by NOIDA. Moreover what they have said in para 63 of the writ petition while dealing with the points given by NOIDA for showing existence of urgency is that if the constructions are going on unauthorizedly the remedy lie elsewhere and not to invoke urgency provisions. This shows virtually admission on the part of the petitioners that the construction by colonizers and in particular by them was going on with pace and that too unauthorizedly.

28. This necessarily attracted the action urgently so as to prevent such further construction otherwise the NOIDA may not have been able to fulfill its objective for which Page: 52it has proposed to acquire the said land. Almost considering the similar circumstances, the Apex Court in Chameli Singh, (1996 All LJ 413)(supra) observed that very often persons interested in the land proposed to be acquired make representations etc. to the authority concerned which is bound to result in multiplicity of enquiries, communications and discussions leading invariably to delay in the execution of urgent projects. Very often delay make the problem more and more acute and increases urgency for the necessity of acquisition. Very often even the officials due to apathy in implementation of the policy and programmes of the Government themselves adopt dilatory tactics to create cause to the owners of the land to challenge the validity or legality of the exercise of power to defeat the urgency existing on the date of taking decision under Section 17(4) and to dispense with inquiry under Section 5-A of the Act.

29. It is also worthy to notice at this stage that in respect to the impugned notifications which are of Village Makanpur, besides the present one we have come across another writ petition of Kendriya Swasthya Mantralay Sahkari Awas Samiti Ltd. (supra) which has been relied on by the learned counsel for the respondent No. 4 and there also the petitioner was a registered housing society having purchased about 24.5 acres of land during the period of 1983–86 which was sought to be acquired by the NOIDA by the same notifications which are impugned in this writ petition. This fortifies the contention of the NOIDA that it is not the farmers who are mainly affected by the acquisition in question but mostly these are the housing societies or colonizers who have already purchased the land from the farmers for speculative transaction of land with the prospective buyers. In the totality of the circumstances and considering material on record, we have no hesitation to hold that it is not a case where there did not exist any material before the Government to form an opinion with respect to urgency as well as the question as to whether the enquiry under Section 5-A should be dispensed with or not. The power so exercised by the Government under section 17(1) and (4) and dispensation of inquiry under Section 5-A thus is neither illegal, j nor otherwise vitiated in law.

30. The contention of the petitioners' counsel that planned industrial development is not a public purpose for which Section 17(1) and (4) can be invoked and inquiry under Section 5-A can be dispensed with. We find that it is difficult to say that planned development of industrial area is not a public purpose in Kendriya Swasthya Mantralay Sahkari Awas Samiti Ltd. (supra). This Court held as under:

“The plots in question were acquired for planned Industrial Development of Ghaziabad by Noida. It is a public purpose. The State Government was justified in applying the provisions of Section 17(4) and thereby dispensing with enquiry under Section 5 A for acquiring plots of land for planned Industrial Development”.

31. Once it is found to be a public purpose it is difficult to hold that it can be further divided in the category where it can attract the provision of urgency and those where it would not. The contention, therefore, of the learned Senior Counsel is thus rejected.

32. In Chameli Singh, (1996 All LJ 413)(supra) almost a similar argument was negated by observing : “the pre notification and post notification delay caused by officer concerned does not create a cause to hold that there is no urgency.”

33. The contention of the petitioner that there ‘has been some delay from the date of first proposal made in 1986 and ultimate notification issued in March and July, 1988 also would not deviate us. In our view, here is not a case where the said period is the result of lethargy or laxity or inaction on the part of the employees and officers of respondents but in the matter of acquisition when so many departments and agencies are involved, normally such time is consumed and it cannot be said to be unreasonable.

34. The nature of urgency which has been taken into account in this case has arisen naturally out of the circumstances which existed when decision to acquire the land was taken and not such which is the result of deliberate Page: 53negligence, serious lapse or gross delay on the part of the acquiring authority. In Krishan Lal Arneja ((2004) 8 SCC 453 : AIR 2004 SC 3582)(supra) it was held:

“‘Urgency’ for invoking of Section 17 of the Act should be one arising naturally out of Circumstances, which exist when the decision to acquire the land is taken and not such, which is the result of serious lapse or gross delay on the part of the acquiring authority. However, the position may be different where the delay is caused or occasioned by the landowner himself. Failure to take timely action for acquisition by the authorities of the Union of India cannot be a ground to invoke the urgency clause to the serious detriment of the right of the land owner to raise objections to the acquisition under Section 5-A”

35. The submission that there has been a constant change or variation in the alleged ‘public purpose’ for which land is acquired and this also vitiates the proceedings, also has no force. The purpose for which NOIDA required the land was in the context of the objective with which NOIDA was created under 1976 Act. Its creation itself is for planned development of the industrial area. Therefore, when the NOIDA talked of planned development of the area, obviously it would relate to planned industrial development of the area. When we say planned industrial development of area, it does not restrict the scope to the establishment of only industries in the area but all the infrastructure for that purpose which include residential as well as recreational part, all amenities necessary for human being living in a society; i.e, market etc. would be within its purview. Therefore public purpose given in the letters reflects to planned industrial development of the area concerned and, in our view, it cannot be said that the NOIDA was not sure about the real public purpose for which the land is acquired. This by itself cannot be a ground to vitiate ‘the impugned notifications.

36. Now coming to the objection raised by the respondents for non-suiting the petitioners on the ground of delay and laches, we are of the view that the argument is not without any substance. Notification under Section 4 was issued on 10-3-1988 stating that the land is required urgently and therefore it is necessary to dispense with inquiry under Section 5-A to eliminate delay likely to be caused thereby. It was always open to the petitioners to challenge the said notification on the ground that the said decision is without there being any material and formation of the opinion is without any substance. However, the petitioners chose not to challenge the same at that stage. Thereafter the notification under Section 6 was published in the gazette dated 8-7-1988 but the same was also not challenged. It was only when the notice under Section 9 was issued to the petitioners on 19-1-1989 that the present writ petition was filed on 16-2-1989 after getting it reported on 15-2-1989. As held by a Division Bench of this Court in Brij Bhushan Goswami, (AIR 1990 All 15) (supra), petitioners are guilty of delay and laches and the petition deserves to be dismissed on this ground also.

37. In Kshama Sahkari Avas Samiti Ltd. (2006 (6) ALJ 363) (supra), the Division Bench also in para 22 of the judgment observed as under:

“No doubt the correctness of such a notification can be examined while testing the validity of the declaration issued under Section 6 of the Act. But it is sometimes too late in the day to challenge the same as once a declaration under Section 6 of the Act is issued after invoking urgency provisions, the Collector is entitled and do takes over the possession of the acquired land on the expiry of fifteen days of the notice under Section 9 of the Act. Thus, vesting the land in State free from all encumbrances as even taking of symbolic possession is sufficient to vest the land in the State. Once vesting gets completed, it becomes next to impossible to divest the land to the original owners/tenure holders. Moreover, the Apex Court has repeatedly held that the delay in challenging the notification for acquisition is fatal and if the land acquisition proceedings stood finalized, interference by the Court is not called for. Therefore, the notification issued under Section 17(4) of the Act is open to challenge independently even before the issuance of the declaration under Page: 54Section 6 of the Act where prima facie, there is no material before the authorities to record subjective satisfaction about urgency.”

38. Similar is the view taken recently by a Division Bench of this Court in Roopam Kumari Arya v. State of U.P, 2008 (4) ADJ 686 : (2008 (4) ALJ 26).

39. In view of the above discussion, we do not find any illegality in the acquisition proceedings impugned herein. The writ petition, therefore, lacks merit and is, accordingly, dismissed with costs which is quantified to rupees ten thousand.

40. Petition dismissed.