TMI Blog2010 (9) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... and 17(4) to these acquisitions, thereby depriving the appellants of an opportunity to be heard u/s 5A. HELD THAT:- We are completely convinced that there was necessity in this Project considering the various reasons like enormousness of the Project, likelihood of the encroachments, number of appellants who would have required to be heard and the time taken for that purpose, and the fact that the Project had lingered already from 2001 till 2008. The law on this subject was thoroughly discussed in Tika Ram and Ors. etc. etc. vs. State of U.P. and Ors. etc[ 2009 (9) TMI 713 - SUPREME COURT] , to which one of us (V.S. Sirpurkar) was a party. In that decision also, we had reiterated that the satisfaction required on the part of Executive in dispensing with the enquiry u/s 5A is a matter subject to satisfaction and can be assailed only on the ground that there was no sufficient material to dispense with the enquiry or that the order suffered from malice. It was also found that there was no charge of malafide levelled against the exercise of power and there was material available in support of the satisfaction on the part of the Executive justifying the invocation of the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 6 of the Act. The High Court also declined to give any direction to the State Government to consider to exempt 21.03 hectares of land relating to the 35 petitioners therein on account of the fact that the construction of the road had to be made in an alignment and that alignment could not be changed. Identical view was taken in another Writ Petition filed by one Balbir Singh. The High Court also expressed its concerns that any direction to exempt the land covered by the construction might seriously jeopardize the Project. The High Court also reiterated that the acquisition of the land for interchange of the road was the essential part of the Project, as also the construction of bridges, culverts and interchanges, which were essential for the fast moving six lane Expressway. 4. Before we approach the arguments, it would be interesting to see some facts of this litigation. 5. A notification dated 20.2.2009 was issued by the Government of Uttar Pradesh under Section 4(1) read with Sections 17(1) and 17(4) of the Act. Thereunder, the lands described in the schedules appended thereto in District Agra, Pargana Etmadpur, Tehsil Etmadpur, Village Kuberpur were covered f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose for the Company-J.P. Infratech Ltd.-respondent No.5 and would be covered under Part VII of the Act. In that, the learned Counsel appearing on behalf of the appellants urged that there could be no dispensation with enquiry under Section 5A of the Act. It was pointed out that the compensation was payable by the private party under the scheme and, therefore also, this could not be viewed as a public purpose. It was also suggested that this was virtually a perpetual lease in favour of the Company and, therefore, the Company was getting deemed proprietary rights. 7. In the two impugned judgments, the Allahabad High Court has repelled all the challenges. In fact in the earlier round of litigation that is in the Public Interest Litigation itself the Division Bench of the Allahabad High Court repelled the challenges to this Project which was then known as Taj Expressway Project and the land acquisition made therefor. 8. Before we approach the questions argued, it will be better to refer to the judgment of the Allahabad High Court in the Public Interest Litigation, which, in itself, refers the enquiry held by Mr. Justice Sidheshwar Narain (Retd.). In fact one of the prayers in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges were thrown against the Agreement dated 7.2.2003, the Division Bench came to the conclusion that there was no procedural infirmity in the contract having been awarded to the Company. The Division Bench then considered the other challenges namely: 1) huge chunks of lands had been given to respondent No.2 on lease for 90 years at a very nominal lease rent. 2) Exemption of stamp duty has been given to respondent No.2 causing loss of revenue to the State exchequer. 11. The Division Bench in detail considered the nature of lease and the nature of the transaction. For that it went on to analyze the whole Project which had the three objectives, namely: (1) provide a fast moving corridor to minimize travel time (2) to connect the main township/commercial centres on the Eastern side of Yamuna (3) to relieve the National Highway No.2 which was already congested and ran through the heart of cities like Faridabad, Ballabhgarh and Palwal. 12. The High Court then discussed the financial ramifications resulting out of the Agreement and then after referring various judgments of this Court, went on to decide the question whether before finalizing the contract in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst this, learned Counsel appearing for the State as also for the Company and YEIDA supported the acquisition and contended that it was futile to oppose the acquisition, particularly, when the acquisition was virtually accepted by all except a few, inasmuch as the learned Counsel contended that majority of the landlords have accepted the compensation also and have not challenged the acquisition in any manner. It is only a few extremely insignificant pockets which are now caught in this litigation. The learned Counsel have specifically averred that the whole process was extremely transparent and that there was necessity of this land considering the public purpose involved and that all care was taken to safeguard the interests of the farmers and that the creation of this Expressway and creation of five townships would immensely help the general public residing on the Eastern Bank of Yamuna particularly, and the residents of UP generally. It is on these rival contentions that we have to proceed now. 16. Since the land acquisition exercise is for the Yamuna Expressway Project, it would be worthwhile to see some factual background thereof. U.P. Industrial Area Development Act, 1976 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt venture (JV) with the YEIDA or to implement the said Project without any equity partition of the said Authority. In the Bid Document, the necessity of the major highway connecting New Delhi with Mathura and Agra was reiterated with the objectives (i) to provide a fast moving corridor to minimize the travel time, (ii) to connect the main townships/commercial centres on the Eastern Side of Yamuna, and (iii) to relieve NH-2 which was already congested and ran through the heart of cities like Faridabad, Ballabhgarh and Palwal. It was informed to the interested parties that the proposed Expressway was to be about 160 Kms. in length shortening the distance between Noida and Agra with an estimated cost of US $ 350 million. It was also informed that the Expressway was to pass through virgin area along the river Yamuna and that a band of 500 meters width of land at five or more locations, of which one location was to be in Noida or Greater Noida area along the Expressway, would be offered on acquisition cost along the corridor as an integral part of the Project. It was further informed that in addition to the land for Expressway, 25 million square meters land along the same would be give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued under Section 6 of the Act. Status quo order was passed on the said Writ Petition. On its heels, other Writ Petitions were filed, the main Writ Petition being Civil Misc. Writ Petition No. 31314 of 2009 filed by one Nand Kishore Gupta. The status quo orders were passed even in that Writ Petition. Ultimately, the Writ Petition of Balbir Singh was dismissed by a judgment dated 5.10.2009 and that of others including Nand Kishore's came to be dismissed on 30.11.2009. It is on this historical backdrop that we have now to consider the correctness or otherwise of these two judgments, which pertain to, more or the less, same subject, but with slight variation. 19. The Writ Petition filed by Balbir Singh proceeded, inter alia, on the grounds that acquisition was a colourable exercise of power and was one which should have been accomplished by complying with the provisions of Part VII of the Act as this was an acquisition for company. By the judgment dated 5.10.2009, the High Court dismissed the Writ Petition holding that (a) the entire process of acquisition was in accordance with the provisions of the Act and this was not a colourable exercise of powers, (b) the land in insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plots were owned by Trishul Awas Sahkari Awas Samiti. It was stated in Civil Misc. Writ Petition No. 50474 of 2009 (Rajo Devi and Ors. vs. State of U.P. and Ors.) that the petitioners had a house and a boundary wall on some Khasras and some constructions on the others. In Civil Misc. Writ Petition No. 35090 of 2009 (J.S. Horticulture Pvt. Ltd. vs. State of U.P. and Ors.), it was urged that there was a 10'X11' high boundary wall and constructed rooms inside a Goshala' and 3 tube wells with several trees. In Civil Misc. Writ Petition No. 51537 of 2009 (Bhupendra Singh and Ors. vs. State of U.P. and Ors.), it was urged that this was an agricultural land and the petitioners therein depended on the same for their livelihood. In still other Writ Petitions being Civil Misc. Writ Petition No. 51543 of 2009 (Mukesh Singh vs. State of U.P. and Ors.), Civil Misc. Writ Petition No. 51546 of 2009 (Vijay Singh and Anr. vs. State of U.P. and Ors.) and Civil Misc. Writ Petition No. 51551 of 2009 (Jagvir Singh and Ors. vs. State of U.P. and Ors.), the same plea of cultivation was raised. In Civil Misc. Writ Petition No. 60587 of 2009 (Kadival Infrastructure Pvt. Ltd. and Anr. vs. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellants, vehemently urged that this acquisition, in the first place, is colourable exercise of power. All the learned Counsel urged that the very nature the whole transaction showed was that the whole acquisition was tailor made for the respondent Company. The learned Counsel further urged that it was meant only for the benefit of the Company, inasmuch as, though the acquisition should have been made under the provisions of Part VII of the Act, it was carried out in terms of the provisions of the Part II of the Act, citing this to be an acquisition for public purpose. According to the learned Counsel, there already existed a road which was a functional road and Yamuna Expressway is only an excuse to develop the feeder road to connect the five proposed townships. The learned Counsel urged that the huge land of 25 million square meters has virtually been handed over to the respondent Company on a platter and, therefore, all this exercise was clearly not for the public purpose. It was further urged that the so-called Concession Agreement dated 7.2.2003 was one-sided, inasmuch as, even if it was terminated, the land which was given to the Company for development, would have r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was 160 Kilometers long alongwith five developed parcels of land on the Eastern Side of Yamuna river. The learned Counsel also pointed out that all this was going to help the industrialization and the overall development of that area in particular and the State in general, apart from the fact that this highway would reduce the traffic congestion presently felt on N.H.-2. The learned Counsel pointed out that it will also release the congestion, as it exists in the cities and would help smooth movement of people, goods and material. 25. The learned Counsel also urged that the creation of five planned parcels of land under the Scheme would immensely help the trading activities in the State and would be extremely useful for the citizens. The learned Counsel further pointed out that the land would be put to the industrial, commercial, residential, amusement or institutional purposes which would ultimately serve the public purpose. Lastly, on this question, the learned Counsel urged that it was a misnomer to say that the compensation was coming only from the private coffers of the Company. The learned Counsel also referred to the nature of the agreement i.e. the BOT contract. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be the only reason to hold against the appellants (petitioners), however, that fact will have to be kept in mind while deciding the issues which cover the whole acquisition process, which acquisition is for the purpose of development of 25 million square meters of land. The High Court has also noticed this aspect. We have mentioned this aspect only with a limited objective of showing that the criticism against the whole scheme which would invalidate the acquisition would be difficult to be accepted, particularly in this case, in view of the fact that majority of the land owners have parted with possession, taken the compensation and thus, the whole scheme has progressed to a substantial level, wherefrom it will be extremely difficult now to turn back to square one. 28. We must point out that at the time when the Project conceived in 2001, the present Company was not in existence. It came in existence only later on. This is an admitted position also. Therefore, it cannot be said that the whole Project was envisaged keeping this Company in view. That would be the first reason to reject the argument that the whole scheme was a result of colourable exercise of power. We also can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se was exercised by the State Government so that the acquired land was to belong or vest permanently in the Company for its own purpose. It was pointed out that the lease is going to be for 90 years after which the whole land is going to revert back to the State Government, so also the whole land acquired and used actually for the purpose of the highway would also go back to the State after the period of 36 years, during which the Company would have the right to levy and collect the toll. It is not as if a public purpose is relevant in Part VII, where under Section 39, the previous consent of appropriate Government is required for execution of an agreement between the Government and the Company. Section 40 of the Act then puts a specific rider that the State Government shall not give the consent unless it is satisfied of any of the contingencies described in sub-Sections (a), (aa) and (b) thereof, which are as under:- 40. Previous enquiry:- (1) Such consent shall not be given unless the appropriate Government be satisfied, either on the report of the Collector under Section 5A, Sub-section (2), or by an enquiry held as hereinafter provided,- (a) that the purpose of the acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correctly come to the conclusion that this acquisition was not meant only for the Company and on that count, it could not be said that this is not for the public purpose. The learned Counsel, however, vehemently argued that the whole compensation had come from the Company and, therefore, this acquisition cannot be said to be for a public purpose. We shall tackle this point a little later. However, before we proceed to do that, we must express on the utility of the Expressway, which was conceived, as also the development of five parcels of land. 30. During the debate, our attention was invited to Section 3(f) of the Act, which contains a definition for public purpose'. It was pointed out that where the acquisition is for the Company, it cannot amount to a public purpose. There can be no dispute about this proposition that where the acquisition of land is for the companies, it cannot amount to a public purpose. It was, therefore, our endeavour to find out whether this land was for the Company and we are quite satisfied with a finding recorded by the High Court that this acquisition was not for the Company but was for the public purpose. The Expressway is a work of immense publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the whole assets would go to the Company. At least that is envisaged in Part VII of the Act. Here, that is not the case. The assets are to revert back to the acquiring body or, as the case may be, the Government. Even the lands which are utilized for the construction of the Expressway are to go back to the Government barely after 36 years i.e. after the Company has utilized its rights to recover the toll on the Expressway. Secondly, it must be borne in mind that the Concession Agreement has been executed in February, 2003, whereas the acquisition process started somewhere in the month of September, 2007. When the Concession Agreement was executed, the cost factor was not known. The acquiring body was only to make available the land to the concessionaire to implement the Project. There would be number of difficulties arising, as for example, it would be clearly not contemplated that the land would be made available without any value or that there would no scheme for the State Government for recovering the expenses that it would incur in obtaining the land. The learned Counsel appearing for the State as also for the Company and YEIDA argued that in order to overcome and iron out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the highway Project was assumed to be for the public purpose, the acquisition of the land far away therefrom would not amount to a public purpose nor would it be covered by the provisions of the Karnataka Industrial Areas Development Act, 1966 (KIAD Act). In the present case also, it was argued that the lands which are being acquired for the interchange would not at all be necessary. Further, it was argued that the five parcels of land which is being acquired for the development of five industrial townships, could not be said for the public purpose nor could it be said to be a part of the present integrated scheme. This Court had refuted this argument holding that even in case of Bangalore-Mysore highway Project, the lands even little away from the main alignment of the road, had to be a part of this Project and the Project was an integrated infrastructure development Project and not merely a highway Project. It was conceived originally as the Bangalore-Mysore Infrastructure Corridor Project, which conceived of the development of roads between Bangalore and Mysore, for which there were several interchanges in and around the periphery of the city of Bangalore, together with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling houses, and providing amenities for the benefit of the workmen employed by it and construction of some work of public utility do not serve a public purpose. We have already considered this question that in the present case, there is nothing to indicate that the acquisition is for the Company i.e. for Jaiprakash Industries Ltd. It is only, therefore, that we are at pains to point out that the Government was only using the Company for implementing its policy. 35. In the aforementioned judgment of Sooraram Pratap Reddy and Ors. vs. District Collector, Ranga Reddy District and Ors. etc. etc. (cited supra), Hon'ble Thakker, J. has also referred to the decision in Pandit Jhandu Lal vs. State of Punjab [AIR 1961 SC 343], where the acquisition was for construction of houses by members of Thapar Industries Cooperative Housing Society Ltd., Yamuna Nagar. The challenge was that there was non-compliance of the provisions of Part VII of the Act, though the acquisition was for the Company under Part VII of the Act. The High Court, in that case, held that the acquisition was for a public purpose and there was no need to comply with the provisions of Part VII of the Act. In fact, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this judgment and even at the cost of repetition, we may say that this judgment is practically, the law setter on the subject of eminent domain, as also on the other allied subjects of acquisition. The judgment has also explained the concept of public purpose', which has been held to be wider than public necessity'. The judgment proceeds on a basis that merely because the benefit goes to a particular section of the society, the acquisition does not cease to be for the public purpose. It has been specifically held that where the State is satisfied about the existence of a public purpose, the acquisition would be governed by Part II of the Act, as has happened in the present matter. The judgment in Sooraram Pratap Reddy and Ors. vs. District Collector, Ranga Reddy District and Ors. etc. etc. (cited supra) is an authoritative pronouncement on the mode of payment, as also on the construction of Sections 40 and 41 of the Act. In fact, this judgment is a complete answer to the argument of the appellants that this acquisition is not for public purpose. 36. The respondents then fall back upon the nature of the transaction, saying that since the whole transaction is on the BO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is acquisition was indeed for the public purpose and cannot be held to be for respondent Company. In that view, the criticism is not justified. The decision in Pandit Jhandu Lal vs. State of Punjab (cited supra) was also referred to and, more particularly, the observations in Paragraph 8 therein. There can be no dispute about the principles laid down; however, as we have already pointed out, this case has been thoroughly considered in Sooraram Pratap Reddy and Ors. vs. District Collector, Ranga Reddy District and Ors. etc. etc. (cited supra). We have already returned a finding that the compensation in this case does not come from the respondent Company alone. We approve of the finding returned by the High Court in that behalf. During the debate, the decision in Devinder Singh and Ors. vs. State of Punjab and Ors. [2008(1) SCC 728] was also referred to. It was urged that there was a conflict in this decision and the decision in Pratibha Nema's Case (cited supra). This was a case where the petitioners who were the owner of the agricultural lands, had challenged the acquisition of lands for M/s. International Tractors Ltd. It was claimed that the land was being acquired for public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s Case (cited supra) and the decision in Devinder Singh and Ors. vs. State of Punjab and Ors. (cited supra), so as to require a reference to the larger Bench. In our opinion, the decision in Pratibha Nema's Case (cited supra) applies to the fact situation in this case. Therefore, considering the overall factual situation, we are of the opinion that the High Court was right in holding that the acquisition was made for the public purpose. We find from the order of the High Court that the High Court has considered the question of public purpose keeping in mind the correct principles of law. We are, therefore, of the opinion that the contention raised by the learned Counsel for the appellants that this acquisition was not for the public purpose for various reasons which we have discussed, is not correct. 38. This takes us to the next point pertaining to the application of Sections 17(1) and 17(4) of the Act. The learned Counsel for the appellants have vociferously urged that there was no necessity whatsoever to apply the urgency clause to these acquisitions and further to avoid the enquiry under Section 5A of the Act. According to the learned Counsel, this dispensation of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment through an affidavit of one Shri Vinod Kumar Singh, ADM, Land Acquisition, Agra, wherein it was pointed out that the Project was on the mammoth scale and there was a great deal of possibility of encroachments if the Project was allowed to linger. The High Court took note of the contention that YEIDA deposited 70% of the estimated compensation on 29.5.2009 itself, since 10% of the estimated compensation was already deposited by the acquiring body (YEIDA). The High Court then referred to the various clauses of the Concession Agreement like Clause Nos. 2.1, 2.2, 3.1, 3.2, 3.6 and 4.1 (a), (b), (c) and (d) to know about the exact nature of the job which was required to be done for building the Expressway. It was after this that the High Court had recorded a finding that the integrated Project was to cover a large area of land and the requirement was of 25 million square meters of land to be acquired. The High Court, therefore, noted the plea raised to the effect that the State Government took correct decision to invoke the urgency clause, as on an enquiry into disposal of individual objections as contemplated under Section 5A of the Act, the Project itself would have lost all va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he various documents and forms on which the Collectors have recommended on Forms X alongwith justification of their recommendations as well as its summary given in the office note placed before the State Government. The three files produced before us relate to village Kuberpur, district Agra, village Malupur Pargana Atmadpur, district Agra and village Tappal district Aligarh for construction of interchange. The notification under Section 4(1)/17 of the Act for proposing acquisition of land of village Kuberpur was made on 20.2.2009 and was published in two newspapers 'Amar Ujala' and 'Dainik Jagran' on 27.7.2009. The munadi was made on 7.3.2009. The notification under Section 6(1)/17 was issued on 15.6.2009 and was published in the two newspapers on 18.6.2009. The notice under Section 9 was sent on 20.6.2009 and possession was taken on 8.7.2009. In the recommendation sent by the District Magistrate, considered by the State Government on 11.2.2009 before publication of notification under Section 4, the District Magistrate had after giving details of land proposed to be acquired, had forwarded the Form-X alongwith justification referred to in para 3 of the noting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for invoking urgency clause was placed before the State Government and was recommended and signed by the Under Secretary and Special Secretary, Industrial Development Department on 16.1.2009 ; Secretary, Rehabilitation and Industrial Development, Department of Government of U.P. on 16.1.2009 ; Principal Secretary, Industrial Development on 16.1.2009 and by the Secretary to the Chief Minister on the same day on 16.1.2009. The proposals were accepted by the State Government for acquisition and for invoking urgency clause for construction of Yamuna Expressway by Y.E.I.D.A. Ultimately, the High Court wrote a finding in the following words:- The record produced before us by the State Government enclosing the material of invoking urgency clause and the satisfaction of the State Government on the said material, has satisfied us that the State Government had sufficient material and had applied its mind to record its opinion that there was urgency to acquire the land to dispense with the enquiry under Section 5A of the Act. We have deliberately quoted the above part of the High Court judgment only to show the meticulous care taken by the High Court in examining as to wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. and Ors. (cited supra), there was unexplained delay after issuance of Section 4 notification, which is not the case here. Therefore, we do not think that what has been said in Om Prakash and Anr. vs. State of U.P. and Ors. (cited supra) would be apposite here. Every case has to be decided on its own facts. This is apart from the fact that it is not specifically laid down in Om Prakash and Anr. vs. State of U.P. and Ors. (cited supra) that the encroachment was never a relevant factor for dispensing with the enquiry under Section 5A. Again we hasten to add that this was not the only factor considered by the State Government and even the High Court has not held the same to be the only factor for dispensing with the enquiry. 41. In view of the law laid down in the last judgment on this issue i.e. Tika Ram and Ors. etc. etc. vs. State of U.P. and Ors. etc. etc. (cited supra), we are of the clear opinion that the challenge by the appellants on the ground that there was no urgency and, therefore, the enquiry under Section 5-A of the Act should not have been dispensed with, cannot be accepted. We hold accordingly. 42. No other point was canvassed before us. 43. There is no meri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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