M/S Sheikhar Hotels Gulmohar Enclve. & ANR Vs. State Of U.P & Ors.
 INSC 889 (12
CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. OF 2008 [Arising out of S.L.P.(C) No.3193 of 2007] M/s.Sheikhar
Hotels Gulmohar Enclave & Anr. Appellants Versus State of Uttar Pradesh
& Ors. Respondents
A.K. MATHUR, J.
1. Leave granted.
2. This appeal is directed against
the order dated 6.12.2006 passed by the Division Bench of the Allahabad High
Court whereby the High Court affirmed the notification dated 15.6.2006 issued
under Section 4 (1) read with Section 17(1) and 17(4) of the Land Acquisition
Act (hereinafter referred to as `the Act') and the notification dated
19.10.2006 issued under Section 6 of the Act. A preliminary objection was
raised before the High Court on behalf of the respondent- Bulandshahr-Khurja
Development Authority, Bulandshahr that the writ petition was not maintainable
at the instance of the appellants and secondly it was contended that the writ
petition was bereft of basic pleadings with regard to the challenge of
dispensing with Section 5-A of the Act.
3. The first question which was
agitated before the High Court was that dispensing with requirement of Section
5-A of the Act was arbitrary. The Division Bench of the High Court after referring
to couple of decisions of this Court took the view that the urgency shown for
invoking Section 5-A was justified as it was necessary to remove the traffic
congestion. It was also found that there was no co-relation between the
argument and the pleadings contained in the writ petition. The High Court found
that there was no infirmity in the impugned notifications. Hence this appeal on
grant of special leave.
4. We have heard learned counsel
for the parties and perused the record. Before we address to the main issue it
will be relevant to mention a few facts. Respondent No.3- Bulandshahr Khurja
Development Authority, Bhuandshahr ( hereinafter to be referred to as the
Development Authority) in its 25th Board meeting held on 3.5.2002 decided to
establish at the present site, "Transport Nagar" abutting to the
National Highway No.91. Under the regional plan of the National Capital
Regional Planning Board (hereinafter to be referred to as the Board) National
Highway No.91 is proposed to be made a four lane road. Out of the plots
described in the paper-book, plot Nos.
424, 424-M, 430, 443, 449M and 492
are not under acquisition under notification dated 10.7.2006. Plot No.428-M was
purchased by M/s.
Allied Construction under sale
deed dated 5.12.2003, plot No.429 was purchased by Krishan Kumar son of Shankar
Lal vide sale deed dated 18.9.2003, plot No.442 was purchased by Smt. Asha
under sale deed dated 18.9.2003. Plot No.430 was purchased by Vipul Kaushik and
Vinay Kaushik both minors. Plot No.449 was purchased by 2 Chandrasekhar, Naresh
Kumar and Kishan Kumar under sale deed dated 18.9.2002 and plot No.450 was
purchased by the same vendees under two sale deeds dated 18.9.2003 and
12.2.2004. Same was the case with regard to Plot No.478. It was contended that all
these plots were purchased after the resolution was passed by the Board to set
up the Transport Nagar. None of the plots were recorded either in the name of
M/s.Sheikhar Hotels or Shri Chandrasekhar Sharma, the appellants herein.
Therefore, a preliminary objection was raised on behalf of the respondents
before the High Court that the writ petition was not maintainable at the
instance of the writ petitioner-appellants, who not being the owners of the
plot, cannot file the objection under Section 5-A of the Act. It was also
pointed out that the U.P.
Urban Planning and Development
Act, 1973 ( hereinafter to be referred to as `the Development Act') had come
into force on 12.6.1973 with the object of development of certain areas. A
Master Plan was prepared under the Development Act and after the same was
published and objections and suggestions were invited. Thereafter, the Master
Plan was finalized. In the said Master Plan this area was ear-marked for the
Transport Nagar. At present the State Road Transport Bus Terminal is situated
in the thickly populated area and there is really traffic congestion. The
Master Plan contemplated acquisition of total area of 501.58 hectares of land
for the integrated plan for the purpose of alleviation of all the traffic problems
inter alia by constructing the Transport Nagar new Bus Stand at Delhi-Khureja
and Shikarpur Roads and widening of the roads. For the purpose of establishing
Transport Nagar the National Capital Regional Planning Board (hereinafter to be
referred to as the Board) sanctioned a loan of Rs.20.65 crores the Development
Authority for construction. But because of the litigation it could not proceed
further and the Board 3 is incurring heavy interest. It was contended that
compensation to the tune of Rs.17.42 crores have already been spent. It was
also pointed out that the Parliament has enacted the National Capital Region
Planning Board Act ( Act 11 of 1985) which came into force on 9.2.1985. The aim
of this Act is for providing common plan for National Capital Region, which
includes the District Bulandshahr of State of Uttar Pradesh. This Act of 1985
was passed by resolutions of the States of Haryana, Rajasthan and Uttar Pradesh
under Article 256 of the Constitution. Therefore, in order to have the
development of the said region of the Capital Region a Corporate Body has been
constituted with the Union Minister for Urban Development as the Chairperson
and the Chief Ministers of Haryana, Rajasthan and Uttar Pradesh and Lt.
Governor of Delhi as its members. Therefore, for the development of the
National Capital Region such project has been undertaken and this Planning Body
has already sanctioned the aforesaid amount. In pursuance of this exercise the
aforesaid notification was issued dispensing with the requirement of Section 5-
A of the Act for filing of objection as there was an urgent need of
decongesting the traffic problem and to make the smooth traffic flow in the
National Capital Region area also. Therefore, Section 5-A of the Act was
dispensed with. Learned senior counsel for the appellants submitted that
dispensation of Section 5-A of the Act in the present situation was not proper
and there was no proper application of mind.
In support of that learned senior
counsel invited our attention to a decision of this Court in Union of India
& Ors. v. Mukesh Hans [(2004) 8 SCC 14]. As against this, learned senior
counsel for the respondents invited our attention to a decision of this Court
in Rajasthan Housing Bord & Ors. v. Shri Kishan & Ors. [(1993) 2 SCC
84] and another decision in Union of India & Ors. v. Praveen Gupta &
4 [(1997) 9 SCC 78]. There is no
gainsaying in the fact that this right to file objection under Section 5-A is a
valuable right and the Governments are not given a free hand to dispense with
Section 5-A is only a safeguard
against the arbitrary exercise of the power by the State. But one should also
not loose sight of the fact that invocation of such a provision is also
sometimes imperative as in order to meet the urgency of the situation it needs
to be invoked in public interest. It depends upon cases to case. Sometimes it
may not be necessary at all and the State functionaries may sometime out of
over jealousness may invoke this provision which would seriously jeopardize the
interest of the people. Therefore, it depends upon case to case where in a
given situation Section 5-A has been correctly invoked and the authorities were
satisfied in an objective manner. In the present case, there is no two opinion
that because of the globalization of economy Indian economy is progressing with
fast speed, therefore in order to keep pace with the speed, invocation of
Section 5-A has become imperative. Traffic congestion is a common experience of
one and all and it is very difficult to negotiate with the traffic congestion
in Delhi and National Capital region.
Therefore, in the present
situation, it cannot be said that the invocation of Section 5-A was for
ulterior purpose or was arbitrary exercise of the power. Since the Master Plan
has already been prepared and it has been approved by the Planning Board and
they have sanctioned a sum of Rs.20.65 crores for the development of this
Transport Nagar and widening of the National High No.91 into four lanes.
Therefore, the proposal was approved by the Board and it got the sanction from
the National Capital Region Planning Board and ultimately the Government
invoked the power under Section 17(4) read with Section 5-A of the Act
dispensing with the objections. In the 5 light of these facts it cannot be said
that invoking of power was in any way improper exercise. There is need for
decongestion of the traffic and it is really the dire need of the hour and
earliest it is implemented, better for the people at large. In this connection
learned senior counsel for the appellants invited our attention to the decision
of this Court in Union of India & Ors (supra) have held that Section 5-A is
not an empty formality but it is a substantive right which can be taken away
only for good and valid reason and within the limitations prescribed under
Section 17 (4) of the Act.
But in the present case the
notification was struck down on the facts that no material was placed on record
and secondly, it was also held that discontinuance of festival for want of land
and any hindrance in using the land was not there. It was also pointed out that
earlier an attempt was made to acquire the land for the very same purpose for
holding such festival and it was allowed to lapse by efflux of time and
consequently the Court found that there was no reference in the file to the
need of invoking Section 17(4) and therefore, in a given situation. Their
Lordships held that invocation of Section 17 (4) of the Act was vitiated by
non-application of mind by the authorities. Therefore, this case was decided on
the question of fact. As against this, learned senior counsel for the
respondents submitted that traffic congestion has been recognized by this Court
in Union of India & Ors. v. Praveen Gupta & Ors. (supra) as urgent
need. In this case, land was acquired in order to shift the timber business
from the walled city of Old Delhi as it had become the source of traffic
congestion. Therefore, it was required to be urgently shifted from the existing
place to relieve the congestion by acquiring the concerned land for the public
purpose, namely, for establishment of timber depot. In that context, their
Lordships held 6 as follows:
" Since the acquisition is
for shifting of timber business from the walled city to the outskirts of the
city, shifting itself is for urgent purpose, viz., to relieve the traffic
congestion in the walled city. Under those circumstances, the exercise of power
under Section 17(4) cannot be said to be unwarranted in this case. "
Similarly, in Rajasthan Hosing
Board & Ors. (supra) the question was with regard to acquisition of waste
and arable land for housing purpose. It was observed that Government's
satisfaction regarding, being subjective, when there is material upon which it
could have been formed fairly, court would not interfere nor would it examine
the material as an appellate authority to see existence of urgency.
The proposed acquisition for urban
housing for weaker section and middle income group of people by Housing Board
where there is a great scarcity of house was held to be good purpose for
invoking Section 17 (4) dispensing with the objection under Section 5-A.
Therefore, such invocation of Section 5-A was upheld by this Court.
5. Now, reverting to the facts of
this case also as pointed out above, this acquisition was made under the Master
Plan prepared under the U.P. Urban Planning and Development Act and the same
got approval of the National Capital Region Planning Board and loan was
sanctioned by the Board and out of which Rs.17.42 crores have already been spent.
In this given case, we are of opinion that invocation of Section 17(4) read
with Section 5-A of the Act was well warranted and we see no reason to
interfere with the order passed by the Division Bench of the High Court.
Consequently, the appeal is dismissed with no order as to costs.
.....................................J [A.K. MATHUR]
.....J New Delhi, [ALTAMAS KABIR]
May 12, 2008.