Sheikhar Hotels Gulmohar Enclave vs State of U.P.

M/s.Sheikhar Hotels Gulmohar Enclave & Anr. Appellants

Versus

State of Uttar Pradesh & Ors. Respondents

J U D G M E N T

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.

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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 & Ors. 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.

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.

7 .....................................J [A.K. MATHUR]

.................................

.....J New Delhi, [ALTAMAS KABIR] May 12, 2008.

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