Bhagat Singh v. State of U.P., (SC) BS29805
SUPREME COURT OF INDIA

Before:- S.B. Majmudar and M. Jagannadha Rao, JJ.

Civil Appeal No. 6226 of 1998 (Arising out of SLP (C) No. 14512 of 1998). D/d. 8.12.1998.

Bhagat Singh - Appellant

Versus

State of U.P. - Respondents

WITH

Civil Appeal No. 6227 of 1998 (Arising out of SLP (C) No. 14513 of 1997).

Rajiv Jain - Appellants

Versus

State of U.P. - Respondents

AND

Civil Appeal No. 6228 of 1998 (Arising out of SLP (C) No. 14848 of 1997)

Dr. Smt. Usha Sirohi - Appellant

Versus

State of U.P. - Respondents

AND

Civil Appeal No. 6229-6230 of 1998 (Arising out of SLP (C) Nos. 14921- 14922 of 1997).

Ranjit Singh Chauhan - Appellants

Versus

State of U.P. - Respondents

AND

Civil Appeal Nos. 6231-6235 of 1998 (Arising out of SLP (C) Nos. 17203- 17207 of 1997).

Smt. Lalita Bhonsley - Appellants

Versus

State of U.P. - Respondents

For the Appearing Parties :- Mr. Raju Ramachandran and Mr. O.P. Rana, Sr. Advocates with Mr. R.K. Khanna, Mr. Surya Kant, Mr. A.D. Vaishnav, Mr. Vinay Kumar Garg, Mr. Pradeep Misra, Mr. T. Mahipal and Ms. Niti Dikshit, Advocates.

A. Land Acquisition Act, 1894, Sections 4(1), 5A, 6, 17A - Acquisition of land - Urgency - Acquisition of land for fruit and vegetables market yard - Existing market yard situated in very congested locality having no scope of expansion - No adequate space for free movement and parking of trucks and bullock carts etc. - Also devoid of amenities necessary for hundreds of people who visit market every day - Held, urgency clause rightly invoked by Government.

[Paras 8 and 9]

B. Land Acquisition Act, 1894, Sections 4(1) and 6 - Notification - Declaration - Delay - Delay of one year between notification and declaration - Delay caused because various steps were required to be taken to finalise proceedings - Necessity to issue newspaper publication and also to make local publications - Delay also caused on account of following other administrative procedure - Delay between notification and declaration has no great impact on subjective satisfaction arrived at when orders dispensing with section 5A inquiry were passed.

[Paras 14 and 15]

C. Land Acquisition Act, 1894, Sections 5A, 17(1) - There is no need that land proposed to be acquired by Government for a particular public purpose should be for same purpose or use mentioned in Master plan of that area - Acquisition will be valid of it is for a public purpose even if it is not for type of user permitted by Master plan in force at time of acquisition is made - It is for beneficiaries of acquisition to obtain sanction from competent authority for suitable modification of master plan so as to permit use of land acquired for public purpose.

[Paras 16 and 17]

Cases Referred :-

Satyendra Prasad Jain (S.P. Jain) v. State of U.P., 1987 AWC 382.

Kailaswati v. State of U.P., AIR 1978 Allahabad 181.

Hari Singh v. State of U.P. and others, 1984(2) SCC 624.

Union of India v. Praveen Gupta & others, 1996(9) JT 624.

M.C. Mehta v. Union of India, W.P. (Civil) No. 13381 of 1984.

Aflatoon v. Lt. Governor of Delhi, 1975(4) SCC 285.

Patna Improvement Trust v. Smt. Lakshmi Devi, 1963 Suppl.(2) SCR 812.

Kendriya Karamchari Evam Mura Sahkari Avas Samithi Ltd. etc. v. State of U.P., 1988 U.P.L.B.E.C. 645.

Om Prakash v. State of U.P., 1998(6) SCC 1.

JUDGMENT

M. Jagannadha Rao, J. - Leave granted.

2. These appeals all arise out of the common judgment of the Allahabad High Court dated 24.4.1997. By that judgment, the writ petitions filed by the appellants questioning the validity of land acquisition proceedings were all dismissed.

3. The following are the facts common to all the matters. On 25.9.1991, the District Magistrate, Agra sent proposals to the U.P. Government for acquisition of 10.175 hectares of land in village Banipur, U.P. for construction of a market yard for fruits and vegetables. Various plots of land were included in the notification. The Section 4(1) notification was issued under the Land Acquisition Act, 1894 (hereinafter called the Act) on 5.10.1993 for acquisition of 7.334 hectares. The notification stated that the provisions of Section 5A were being dispensed with in view of the urgency of the matter and this was being done in exercise of powers under Section 17(4) of the Act. The notification insofar as it related to urgency, and dispensing with Section 5A inquiry read as follows :

Thereafter, Section 6 declaration was issued on 6.10.1994 acquiring the land for the above market yard under a planned development scheme and the notification directed the Collector to take possession of the land in 15 days under Section 9(1) of the Act.

4. It was this acquisition that was questioned in the batch of writ petitions in the High Court. The writ petitions raised two general issues, namely, that there was no such urgency which required dispensing with the inquiry under Section 5A of the Act and that, that the land of the petitioners which was sought to be acquired was marked in the Master Plan for Agra for the use of 'light industries' and later as 'green belt' and it was therefore not permissible to acquire the same for locating the Fruits and Vegetables Market Yard for that would amount to violating the Master Plan. Some special points were raised in some of the writ petitions.

5. The High Court of Allahabad, in an elaborate Judgment rejected the above contentions and referred to the reasons given by the respondents in their respective Counter affidavits as sufficient for dispensing with the Section 5A inquiry. The High Court also held, following rulings of this Court and of the Allahabad High Court that even if the user for a market yard was not one of the permissible uses of the land as per the Master Plan, still once the land was acquired, the Market Committee could take steps to have the Master Plan suitably amended. The High Court also rejected the special points raised in some of the writ petitions.

6. In these appeals we have heard the arguments of Shri Raju Ramachandran, learned senior counsel appearing in the Civil appeals arising out of SLPs 14921-22 of 1997, Sri R.K. Khanna in appeals arising out of SLPs 14512/97, 14513/97 and 14848 of 1997 and Mr. Vinay Kumar Garg in the appeals arising out of SLPs 17203-17207 of 1997 and in Contempt Petition No. 381 of 1998. For the respondents, the Mandi Market was represented by Senior Advocate Shri O.P. Rana and the State of U.P. was represented by Ms. Niti Dikshit.

7. Learned counsel for the appellant Shri Raju Ramachandran urged that there was no such urgency as required dispensing with the inquiry under the Act, that the acquired land was reserved for 'light industries' (later amended as green belt) in the Master Plan and, therefore, it was not permissible to acquire the land for Fruit and Vegetable Market Yard, and in any event the appellant must be permitted to make a representation to the Government for withdrawal of the acquisition so far as his client's land was concerned. Some special points based on the location of the plots or present user, were also raised. These submissions were countered by the learned senior counsel for the Market Committee and counsel appearing for the State. We shall first deal with these general points which are common to all the appeals.

8. On the question of urgency, the following facts and contentions emerge from the Counter affidavits. The establishment of a Market Yard is not merely one of mere urgency but one which makes it necessary to dispense with inquiry under Section 5A. The existing market yard is situated in a very congested locality having no scope for expansion and the place where the Market is now located is not sufficient to cater to the growing needs of its constituents. There is no adequate space for free movement and parking of trucks/bullock carts etc. nor for providing necessary shelter for those who come to the market. The existing market is also devoid of any amenities necessary for hundreds of people who visit the market every day or for the bullocks which are being used to draw the carts. During rainy season it becomes well-nigh impossible to find out suitable shelters for the farmers and producers of vegetables. It has become necessary to provide amenities and also construct roads in a planned manner.

9. In our view, the subjective satisfaction for dispensing with inquiry under Section 5A is based on sufficient material and cannot be faulted. The photographs as to the filthy state of the present Mandi with garbage and stray cattle and pigs show that the place is so loathsome that it will be precarious and perhaps hazardous to store vegetables or foodgrains in the existing market. We are, therefore, of the view that the urgency clause was rightly invoked by the government. There are also enough precedents in connection with acquisition of land for markets where Section 5A has been dispensed with and such action was upheld.

10. In connection with a similar acquisition for a market yard, when Section 5A inquiry was dispensed with on the ground of urgency, the Allahabad High Court in Satyendra Prasad Jain (S.P. Jain) and others v. State of U.P., 1987 AWC 382 observed :

It was further stated (p., 3 and 4) as follows :

The same question arose again Kailaswati v. State of U.P., AIR 1978 Allahabad 181. That was a case where land was acquired for purpose of Market Yard to be constructed by the Krishi Utpadan Mandi Samithi, Meerut. The inquiry under Section 5A was dispensed with. The same was upheld and it was held that there was immediate urgency as there was acute scarcity of godowns and warehouses where foodgrains purchased by Government had to be stocked. In our opinion, the above Judgment is also in point. When in such circumstances market yards are proposed to be established, it is, in our view, permissible to invoke the provisions of Section 17(4) and dispense with Section 5A inquiry.

11. The decisions of this Court in Hari Singh and others v. State of U.P. and others, 1984(2) SCC 624 where acquisition was made for a market yard and Union of India v. Praveen Gupta & others, 1996(9) JT 624 where the acquisition was for a timber yard, show that the establishment of market has been treated as one of grave urgency to remove congestion. The dispensing with Section 5A inquiry was upheld in these cases.

12. An additional point was made before us by the respondents that in M.C. Mehta v. Union of India, W.P. (Civil) No. 13381 of 1984 this Court had directed inspection in regard to pollution in Agra and submission of reports by the Central Pollution Control Board & other senior officials of the Municipal Corporation and that, a team of officials inspected Agra City on 29.11.1996 and made various observations in the 2nd Report dated 20.11.1996 and one of the observations related to the shifting of this very Mandi in Agra and read as follows (see page 6 of the Report):

Thereafter this Court issued directions on 3.12.1996 that the authorities must take steps to remedy the ills which have come to light from the above Report.

13. No doubt, learned senior counsel for the appellants is right in his submission that these are events of 1996 and cannot have any retrospective bearing of events of 1993 when Section 5A inquiry was dispensed with. It is true that these facts may not retrospectively justify the above action but, in our view, they reveal a state of environment degradation in Agra City which was continuing from several years before 1996. Further, learned counsel for the respondents submitted that, in any event, the directions issued by this Court in the above public interest case on 3.12.1996 will certainly come in the way of this Court in the present proceedings in holding that Section 5A inquiry should have been conducted or that such an inquiry should be now conducted. It is also submitted for the respondents that these facts are being relied upon to show that, at any rate, this Court should not interfere in its jurisdiction under Article 136 of the Constitution of India. We find sufficient force in these contentions of the respondents.

14. It was then urged for the appellant that there was a delay of full one year between the Section 4(1) notification and Section 6 declaration and this showed the lethargy of the Government and this would reveal that Government would not have lost anything if only a hearing under Section 5A was given to the owners so that they could place their grievances before the Government. In this connection, we may state that the respondents have explained the delay as having been caused inasmuch as of various steps were required to be taken to finalise the proceedings. It was necessary to issue newspaper publications and also make local publication of the substance of the Section 4(1) notification. There were also delay on account of following other administrative procedures. In view of the above explanation we are not prepared to hold that the latter delay between Section 4(1) notification and Section 6 declaration has any great impact on the subjective satisfaction arrived at when orders dispensing with the Section 5A inquiry were passed earlier.

15. For the aforesaid reasons, we agree with the High Court that the respondents were amply justified in dispensing with inquiry under Section 5A by exercising powers under Section 17(4) of the Act.

16. The next question relates to the contention of the appellants that under the Master Plan for Agra City, the land of the appellants which is proposed for acquisition is in an area where the permitted use is for 'light industries' and therefore it will not be permissible to use the acquired land for purposes of a Market Yard. It is pointed out that, in fact, later on the permitted use was modified and the land is now shown as 'green belt'. On the other hand, it is submitted for the respondents that if the land is proved to have been acquired for a valid public purpose, then the beneficiary of the land acquisition can later on move the concerned authority for change of land use.

17. An analogous issue arose in the case Aflatoon v. Lt. Governor of Delhi, 1975(4) SCC 285. In that case, a notification was issued under Section 4(1) of the Act for acquisition of a vast extent of land for the planned development of Delhi. The said acquisition was questioned. One of the contentions was that for such a purpose, development, action had to be taken only under the Delhi Development Act, 1957 and that too by the Chief Commissioner of Delhi under that Act and not by the Central Government under the Land Acquisition Act. It was there argued that inasmuch as there was no Master Plan nor Zonal Plan in existence on the date of notification, the acquisition was bad. This Court rejected objection raised by the owners and observed, after referring to Sections 12 and 15 of the Delhi Development Act, 1957, as follows (para 23) :

This Court observed :

The above decision of this Court was followed by the Allahabad High Court in Kendriya Karamchari Evam Mura Sahkari Avas Samithi Ltd. etc. v. State of U.P., 1988 U.P.L.B.E.C. 645. It was held in that case that the Government could acquire any property under the Act and later develop the same after obtaining the necessary approval of the concerned local authority under the Development Act. It was stated (at page 651) :

As pointed out in the above Judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the Master Plan or Zonal Plan for the said area. Nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan and Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master Plan or Zonal Plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the decision to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is given to the beneficiary. On the principle stated in Aflatoon's case, it is clear that acquisition for a public purpose and obtaining permission from competent authority under the concerned Development Act for change of land use are different from one another and the former is not dependent upon the latter.

18. For the aforesaid reasons this contention of the appellants is rejected.

19. It was then argued that as done in the case of Om Prakash v. State of U.P., 1998(6) SCC 1, the appellants be permitted to move the Competent authority under the Land Acquisition Act for withdrawal of these plot of land from acquisition under Section 48 of the Act. This request is opposed by the respondents. In our opinion, the procedure adopted in Om Prakash cannot be treated as a precedent in all Land Acquisition cases where Section 5A inquiry is dispensed with. The procedure adopted in that case is based upon the special circumstances obtaining there. In the case before us there are no such circumstances which warrant a similar procedure to be followed. In that case, the land was acquired in a village in U.P. under a notification of 5.1.1991 for the purpose of industrial development. The appellants contended before this court that the land was abadi land as per a report submitted by an officer of the department as late as on 11.3.1996, that the land was being used in 1996 for residential purposes and that the policy of the State Government was not to acquire residential property for industrial use. This Court noticed that by 1998, the Government of U.P. had acquired acres 496 for the purpose of industrial development in the village. The appellants were owners of a small extent of 50 acres. In those circumstances, this Court, while declining to quash the action of the Government in dispensing with inquiry under Section 5A, thought it fit to permit the appellants therein to move the concerned authority by way of a representation for withdrawal of the land acquisition proceedings. This Court directed the authorities to consider whether there was any abadi at the time when Section 4(1) notification was issued, whether such abadi was a legally permissible abadi, whether the abadi continued to exist on the date of representation, whether such abadi was covered by any order of Government in force at the time when either Section 4(1) notification or Section 6 declaration were made, and whether such abadi continued to be there as on date of representation. No such facts exist in the present case before us. We accordingly hold that no case is made out for permitting the appellants to submit a representation for withdrawal of the land acquisition proceedings under Section 48 of the Act.

20. We shall now deal with certain supplementary points raised in the individual cases.

21. In Civil appeal arising out of SLP (C) Nos. 14921-14922 of 1997 it was argued by the learned Senior Counsel Shri Raju Ramachandran that as seen from the Map of the Master Plan, it was clear that some other property is earmarked for the Mandi and that instead of using that area, the Market Committee had sought the acquisition of the appellants' land. It was also pointed out that on 5/6.12.1995, the Director of the Mandi had addressed a letter to the Joint Secretary, Agricultural Department, Government of U.P. that on the plot No. 1324, the appellant had been running a bakery and inasmuch as the compensation to be paid for acquisition thereof was likely to be higher, the land must be released from acquisition. Learned senior counsel also relied upon a similar letter dated 18.7.1996 by the same Director of the Mandi to the Government. We find from the counter affidavit of the respondent in para 3(viii) that the State Government has since not accepted the advice of the Mandi Director. In the light of the Government's rejection and in view of what we have stated earlier, we cannot permit the appellant to now go before the Government seeking exercise of power under Section 48. We are not, therefore, inclined to direct the Government to consider withdrawal of plot 1324 from land acquisition. The above appeals are, therefore, liable to be dismissed.

22. In the Civil Appeals arising out of SLP (C) Nos. 14512-14513, 14848 of 1997 learned counsel for the appellant Shri R.K. Khanna argued that the plots of his clients were on the extreme western side of the land sought to be acquired and were in fact separated by a road which runs from North to South, that the market is now proposed on the eastern side of the road large extent and that there was no immediate need for this land and hence, Section 5A ought not to have been dispensed with so far as his client's plots were concerned. He pointed out that the proposed construction of market was in two phases, each phase divided into four sub-phases and that each sub-phase would take considerable time and therefore, his client's land, which was away from the main area in the eastern side of the North-South road, should have been excluded and that if Section 5A were held, it would have certainly been excluded. He also contended that in the remaining land, i.e. excluding his client's lands, all facilities which were necessary for a market had been provided and hence his client's land were not necessary for acquisition. He argued further that on the other side of the proposed market, there were admittedly vacant land available and that land was not included in the acquisition because the owners thereof were highly influential.

23. It has to be stated that the appellant has not alleged mala fides against the respondents. It is not for this Court to decide whether these plots are necessary or not for the proposed Market. Learned counsel for the State Ms. Niti Dikshit argued, with reference to the plan, that the plots of these appellants were necessary inasmuch the Market had to be approached from this side where the appellants' property was located. The vacant land on the other side not being adjacent to be the proposed market, could not be acquired. The Government was able to get some land in land ceiling proceedings and from the Gaon Sabha and therefore with the monies available and earmarked for the market, it was considered that more land should be acquired keeping in view the future plans for the development of the market. It is now planned that in the first phase, there will be four sub-phases, in the following manner for 24 shops; - 24 shops; 40 shops and 4 auction halls. Nearly Rs. 2 crores was set apart for development of Ac 18.00 initially.

24. We are of the view that the above facts do show that development of the market is in various phases and the future development of the Market in a growing town like Agra was kept in mind while acquiring this area. It is not for this Court to say that there was no need to acquire the appellant's land for the Market and that the remaining land was sufficient. If such a contention were to be accepted, each of the owners could equally advance such an argument making the scheme wholly unworkable. These appeals are therefore liable to be dismissed.

25. In the appeals arising out of SLP (C) Nos. 17203-17207, it was argued by the learned counsel for the appellants that the appellants had obtained a status quo order on 22.9.1997 and inspite of that a boundary wall was construed in such a manner that the appellant was unable to enter his plot nor take any trucks into the said land. In fact, on these allegations, the appellant has filed the Contempt case which is also now before us.

26. The respondents have pointed out that admittedly no construction was made by the respondents in the appellants' plot. The wall was built by respondents in their own property in respect of which the status quo order would not apply. The wall was actually put up in August 1998 to prevent encroachment and to safeguard the respondents' property. It is pointed out that there is enough space between the said wall and the gate of the appellants' property for egress and ingress and the appellant was not precluded from reaching his property. It is also pointed out that the 2 rooms constructed by the appellant in his property are vacant, none is living there and no business is being conducted there. On the merits, the appellants' case is no different from case of the appellants in other cases. We are of the view that these appeals also deserve to be dismissed.

27. The learned counsel in the remaining case adopted the general arguments in the above cases. For the reasons already given, these appeals also deserve to be dismissed.

28. In the result, all the appeals are dismissed. In the circumstances, there will be no order as to costs.

Appeals dismissed.