Holding

The State authorities failed to demonstrate any relevant material establishing urgency, rendering the invocation of Section 17(4) improper, but the Court will not set aside the acquisition and directs the parties to pursue relief under Section 48.

Summary

The appellants, owners of lands in village Chhalera Banger, challenged the Uttar Pradesh government's notifications under Sections 4 and 6 of the Land Acquisition Act, 1894, which invoked Section 17(4) to dispense with the mandatory Section 5‑A inquiry on the ground of urgency for planned industrial development by NOIDA. They argued that no material existed to justify the claim of urgency and that their lands, being "abadi", were covered by a State policy that barred acquisition of such lands. The Court examined the statutory amendments to Section 17, the requirement of a real urgency, and the delay of more than a year between the proposal and the issuance of the notification, finding no relevant material to support the State's satisfaction. While the Court held that the invocation of Section 17(4) was improper, it declined to set aside the acquisition proceedings, directing the appellants to seek relief under Section 48 of the Act. The appeals were dismissed, but the Court granted the appellants liberty to file written representations before the State authorities regarding the abadi issue.

Issues considered

The State authorities' justification for invoking Section 17(4) of the Land Acquisition Act to dispense with the Section 5‑A inquiry.
Whether the lands in question, being "abadi", are exempt from acquisition under a State policy.
Whether the Supreme Court should exercise its discretionary jurisdiction under Article 136 to set aside the notifications.

Legislation cited

Constitution of Indias. Article 136, s. Article 36
Land Acquisition Act, 1894s. 17(4), s. 18, s. 4, s. 48, s. 5-A, s. 6
U.P. Industrial Area Development Act, 1976s. 2(d), s. 3

Subjects

land acquisitionurgency clauseSection 17(4)Section 5-A inquiryabadiplanned developmentArticle 136Section 48public purpose

Judgment

-~ '

;..
OM PRAKASH AND ORS. A
v.
STATE OF U.P. AND OTHERS

JULY 15, 1998

[S.B. MAJMUDAR AND A.P. MISRA, JJ.] B

Land Acquisition :

Land Acquisition Act, 1894:

Sections 4, and 17(4)-State Amendments of Section 17 of the Act viz.
c
Land Acquisition (U.P. Amendment) Act 12 of 1954, Section 2-And Land
Acquisition (UP. Amendment and Validation) Act 8 of 1974, Section 3 after
26.4.1974-Ejfect of such amendments-Notification issued under Section 4
read With Section 17(4) dispensing with inquiry under Section 5-A for
acquisition of lands in public interest for planned development of various D
"\.. sectors-Delay of more than a month in issuing the notification under Section
4 from the date ofproposal for urgent requirement of additional lands-Even
declaration under Section 6 was issued after more than nine months after
issuance of notification under Section 4-Held, conduct of State authorities
falsified their claim of urgency of acquisition-Further held, planned
E
development of city does not always justify invocation of Section 17(4)-
Court can examine whether there was relevant material before the authority
to enable it to arrive at its subjective satisfaction with regard to existence
of urgency for invoking Section 17(4)-0n facts, held, there was no relevant
material before the State authorities for invoking Section 17(4).
F
Section 4 read with 17(4) and 6-Notification issued under-
Invocation of Section 17(4) on the existence of urgency found to be not
justified in absence of relevant material before the State authorities-9110th
qf the lands already acquired-Disputes with regard to II/0th of the lands
owned by the appellants on the sole ground that their lands having abadi
could not be acquired in view of a policy decision of State-Notification
G
issued under Section 4 and consequent notification under Secfion 6-State
_., invoking Section 17(4) of the Act on the ground of existence of urgency in
>-,
acquiring the land and hence dispensing with Section 5-A inquiry-Whether
notifications issued under Section 4 and consequent notification under Section
6 could be struck down by Supreme Court under its discretionary jurisdiction H
643
644 SUPREME COURT REPORTS (1998] 3 S.C.R.

A under Article I 36-He/d, jurisdiction has to be exercised in the light offacts
and circumstances of the case-On facts, held, that notifications need not be
set aside as that will open up the Pandora's box and those accupants who
were uptil now sitting on the face might also get a hint to file further
proceedings on the ground of discriminatory treatment by the State
B Authorities-All these complications are required to be avoided-Constitution
of India, Article I 36-Jurisdiction under.

Section 4-Notification acquiring certain /ands-Appellants claimed
that lands under acquisition having abadi could not be acquired under a
policy decision of the State Government-Lands sought to be acquired out
C of agricultural holdings of the appellants were subjected to construction of
abadi prior to notification dated 17.04.1976 issued under Section 2(d) read
with Section 3 of U.P. Industrial Area Development Act, I 976 or subsequent
thereto- All disputed questions of facts-Hence no direction be issued to
State authorities to release these lands for acquisition-Question whether
appellants' land covered by the policy decision of the State Government left
D open for decision of the State authorities-Section 2(d) read with Section 3
of U.P. Industrial Area Development Act, I 976.

Section 48-Liberty of the Government to withdraw from the acquisition
of land of which possession has not been taken-Objection against
E acquisition-Notification issued acquiring the lands of the appellants
invoking Section 17(4) dispensing with the inquiry under Section 5-A-
Possession of the lands acquired not taken-Landowners' only objection was
that their lands having abadi could not be acquired in view of a policy
decision of State Government-Held, it is for the State Government to decide
whether lands having abadi on the date of Section 4 notification and that
F it had continued without any additional construction thereon till the date
of Section 6 notification and whether such abadi was squarely covered by
the State policy-Liberty granted to landowners to raise objection before
State authorities-State authorities directed to invoke power under Section
48(1) to consider their representations.
G
Practice and Procedure-One of the landowners intervening in the
proceeding before this Court-Had not filed any substantive writ petition
before the High· Court-A/legation of lands were acquired for being allotted
to persons closely related to the State authorities-Liberty granted to
intervenor to file writ petition before the High Court challenging the allotment
H on these allegations-Constitution of India, Articles I 36 and 226-Writ
OM PRAKASH v. STATE 645
... petition-Disputed question of law. A
Words and Phrases-Words "waste or arable"-Meaning of-In the
context of land Acquisition Act, 1894.

There was State amendment to Section 17 of the land Acquisition Act
viz. Land Acquisition (U.P. Amendment) Act 12of1954 and Land Acquisition B
(U.P. Amendment and Validation) Act 8of1974, after 26.4.1974, to the effect
that if lands of any type, apart from being waste or arable, were sought to
be acquired under the Land Acquisition Act as applicable to the State of Utter
Pradesh, in case of urgency, provisions of Section 5-A could be dispensed
with provided such lands were acquired for or in connection with sanitary C
improvements of any kind or planned development. NO IDA was entrusted
with the task of developing lands in Ghaziabad District. In the year 1976,
NO IDA had acquired large tracts of lands from a village CB for the planned
industrial development of Ghaziabad and at that stage, the state, at the
instance of NOIDA, had invoked the provisions of sub-section(!) and(4) of
Section 17 of Land Acquisition Act as acquisition was considered to be of D
an urgent nature. Further lands were acquired from the same village for the
~-. purpose ofNOIDA by way ofa notification under Section 4 of the act issued
by the state on 30. IO. 1987. This notification was issued without invoking
Section 17(4) of the Act. After hearing the objections against the acquisition
by the objectors, State issued notification under Section 6 of the Act on
14.12.1989. Thereafter, in 1989 NOIDA sought to acquire further 494. 26 E
acres of land urgently from village CB for development of Sector 43 and
other sectors. State issued a notification under Section 4(1) on 06.01.1991.
In this notification it was stated that land mentioned in the Schedule of the
notification was for public purposes and that the Governor was of the opinion
that Section 17(1) of the Act was applicable for the acquisition of this land F
and in view of the urgency, the Governor in exercise of power under S.17(4)
of the Act, dispensed with the application of Section 5-A of the Act. By way
of another notification dated 07.01.1992 issued under Section 6 of the Act,
the Governor in exercise of power under Section 17(1) of the Act, directed
that though no decision had been given under Section 11, the Collector could
take possession of the aforesaid land mentioned in the Schedule for public G
interest after 15 days of publication of the notice under Section 9(1) of the
Act.

These two notifications were challenged by the appellants before the
High Court in writ petitions wherein High Court directed that status quo be
maintained by the parties to the writ petition. Hence this appeal. H
646 SUPREME COURT REPORTS (1998] 3 S.C.R.

A Appellants had also filed suits for permanent injunction against NO IDA
from acquiring the appellants' lands covered by such abadi and the judgement
of the civil court was rendered on 14.12.1989 must prior to issuance of the
•.
Section 4 notification wherein a clear finding was given by the civil court
that there was existing abadi on the land in dispute and the said decision
B was confirmed by the District Judge.

The appellants contended that there was no relevant material before
the State authorities to enable them to invoke Section 17(4) of the Act and
to dispense with the inquiry under Section 5-A of the Act; that the grounds
sought to be made out by the State authorities in this connection were legally
C unsustainable and, therefore, the direction contained in the impugned
notification under Section 4 invoking Section 17(4) of the Act and in
dispensing with inquiry under Section 5-A was liable to be set aside and
consequent notification under Section 6 of the Act was also required to be
quashed; that the land occupied by the appellants which were sought to be
acquired in the present proceedings were having abadi-Constructions
D occupied for residential and industrial purposes by the appellants and that
a policy decision was taken by the respondents not to acquire lands covered
by such abadi. _,
On the other hand, respondents contended that no error was committed
by High Court in upholding the applicability of Section 17 (4) to the present
E proceedings as there was sufficient material before the authorities, urgent
situation was implicit is such acquisition and if Section 5-A inquiry was not
dispensed with, years would have passed before Section 6 notification could
have been issued; and that this Court could not sit in appeal against the
subjective satisfaction of the authorities in dispensing with inquiry under
F Section 5-A.

Dismissing the appeal, this Court

HELD: I.I. As a result of two State amendments to Section 17 of the
Land Acquisition Act viz. Land Acquisition (U.P. Amendment) Act 12of1954
G and Land Acquisition (U.P. Amendment and Validation) Act 8of1974, after
26.4.1974, if lands of any type, apart from being waste or arable, were .~ought
to be acquired under the Land Acquisition Act as applicable to the State, in
case of urgency, provisions of Section 5-A could be dispensed with provided
such lands were acquired for or in connection with sanitary improvements
of any kind or planned development Thus, this enabling provision was available
H to the appropriate Government functioning in the State, if it was satisfied
OM PRAKASH v. ST ATE 647

.. that the situation was so urgent that Section 5-A inquiry was to be dispensed A
with in connection with acquisition of any type of lands for the planned
development of any area. However, still one basic requirement remained for
being satisfied before such power could be exercised, namely, that there
should be a case of urgency. Even if the acquisition was for the planned
development of any area and there was no material before the appropriate
Government for dispensing with inquiry under section 5-A on the touchstone B
of urgency as found by the appropriate Government, the provisions of Section
17(4) as amended by the Amending Act 8 of 1974 could not have been
invoked. However, parent Act itself underwent an amendment in 1984, and
the words "waste and arable" were taken out from the sweep of Section 17
sub-section(l) read with sub-section (4) thereof. The net result is that after c
1984, for acquisition of any type of lands if the appropriate authority is
satisfied about the existence of urgency requiring acceleration of taking of
possession as per Section 17(1) before award or acceleration of issuance of
notification under Section 6 as per Section 17 (4), whether such acquisition
was for the planned development of any area or for sanitary improvements
in the area or for any other public purpose or for a company for objection D
under section 5-A to be dispensed with. [660-C-H; 661-A)
'\.. 1.2. It will be necessary to find out whether there was any relevant
material with the appropriate Government, namely, the respondent, State of
U.P. to enable it to arrive at its subjective satisfaction about dispensing with
inquiry under Section 5-A in connection with the present acquisition. E
[661-B-C)
1.3. In the case in hand despite invocation of urgency by NO IDA by its
letter dated 14-12-1989 the notification under Section 4 read with section
17(4) was issued after lapse of more than one year. No explanation for this
delay was given. Moreover, on the one hand, the respondents had deprived F
the petitioners of filing th.eir objections under Section 5-A on the ground of
urgency of acquisition, but on the other hand, they themselves had taken
more than nine months in issuing the declaration under Section 6. This
conduct of the respondents falsified their claim of urgency of acquisition.
1.4. Possibility of encroachment over the area cannot be considered to
be a germane ground for ·invoking urgency powers for dispensing with G
Section 5-A inquiry. Even if acquisition takes place urgently by dispensing
with inquiry under Section 5-A and the possession is taken urgently after
....
~
Section 6 notification within 15 days of issuance of notice under Section
9(1), there is no guarantee that the acquired land would not be encroached
upon by unruly persons. It is a law and order problem, which has nothing H
648 SUPREME COURT REPORTS [1998) 3 S.C.R.

A to do with the acquisition and urgency for taking possession. The stand of
the State authorities could have been appreciated for invoking the urgency
clause under Section 17(4) of the Act on the ground that when about 500
acres of land were to be acquired for further planned development of Sector
43 and other sectors of NO IDA, as mentioned in the impugned notification,
B hearing of objectors who might have filed written objections when there are
a large number of occupants of these lands and who possess about 438 plots
of land under acquisition, would have indefinitely delayed the acquisition
proceedings and years would have rolled by before Section 6 notification
could have been issued. Under these circumstances, the entire further
development of the area would have, on the peculiar facts and circumstances
C of these cases, come to the grinding halt. Such a stand would have justified
the subjective satisfaction of the authorities for invoking Section 17(4) of
the Act. Such satisfaction then could not have been gone behind by a court
of law. But such was not their case nor did they even whisper in these cases
that these aspects were kept in view while dispensing with Section 5-A
inquiry. The Court, cannot, therefore, make out a new case for them, which
D is not pleaded in these proceedings to justify their action.
(664-G-H; 665-A; 666-A-CJ
1.5. The observation made in A.P. Sareen case that urgency can be said
to exist when land proposed to be acquired is needed for planned development
of any city or town, etc. shows that in appropriate cases when acquisition is
E needed for planned development of any city or town, the urgency position can
be invoked. This aspect is legislatively recognised by enactment of Section
17(1-A) by the U.P. Legislature. But the said observation cannot be read to
mean that in every case of planned development of city or town, necessarily
and almost automatically the urgency clause has to be invoked and inquiry
under Section 5-A is to be dispended with. It will all depend upon the facts
F and circumstances of each case. The aforesaid observations cannot be held
to be laying down any absolute proposition that whenever any acquisition is
to take place for planned development of city or town, Section 5-A should
be treated to be almost otiose or inoperative. Such is not the ratio of the
aforesaid decision and nothing to that effect can even impliedly be read in
G the aforesaid observation, which is ofa general na_ture. (672-A-D]

A.P. Sareen v. State of UP., I1997( 9 SCC 359, referred to.

J.6. There was no relevant material before the State authorities when
it invoked powers under sub-section(4) of Section 17 for dispensing with
H Section 5-A inquiry while issuing the impugned notifications under Section
OM PRAKASH v. ST ATE 649

4 followed by Section 6 notification. 1666-D-EI A
"'
State of Punjab v. Gurdiyal Singh, 119801 2 SCC 471, relied on.

Rajasthan Housing Boardv. Shri Kishan, 1199312 SCC 84; Nandeshwar
Prasadv. U.P. Govt., 1196413 SCR 425; Gha:::iabad Development Authority
v. .Jan Kalyan Samit!, 119961 2 SCC 365 and .Jai Narain v. Union of India, B
[1996) I SCC 9, distinguished.

Sate of U.P. v. Pista Devi, 11986) 4 SCC 251 and Narayan Govind
Gavate v. State of Maharashtra, 119971 I SCC 133, referred to.

2. It was not the appellants' contention that the proposed acquisition c
was not for public purpose nor any ma/a fide were alleged to be behind such
acquisition. In the circumstances of the case it is neither advisable nor
feasible to interfere with the acquisition of such large tracts of land when
the occupants of 9/IOth of the acquired lands have not thought it fit to
challenge these acquisition proceedings and the occupants of only I/10th of
the lands are agitating their grievance since more than six years firstly D
before the High Court and then before this Court. The grievance of the
.,_ appellant relating to the lands being abadi could have been made under
section 5-A inquiry if it was held. But that could have been urged years back
before section 6 Notification saw the light of the day in 1992. Now after a
passage of more than six years, it would not be feasible to put the clock back E
and permit the appellants to agitate this contention which appears to be the
sole contention for opposing the acquisition proceedings in the facts of the
present cases by permitting them to urge this grievance in Section 5-A
inquiry which according to them should be held at this stage. This solitary
grievance of the appellants could be vendicated before the State authorities
themselves by relegating the appellants to proper remedy by way of F
representation under Section 48 of the Act and when that remedy is available
to the appellants and when that is the sole grievance of the appellants, at this
stage no useful purpose would be served by striking down the notification
under Section 4(1) qua the appellants so far as invocation of Section 17(4)
is concerned and the consequent notification under Section 6. If on this
G
point, the notifications are quashed for non-compliance of Section 5-A, that
would open the Pandora's box and those occupants who are uptil now sitting
on the fence may also get a hint to file further proceedings on the ground
-+
;.._ of discriminatory treatment by the State authorities. All these complications
are required to be avoided and hence while considering the question of
exercise of the discretionary jurisdiction under Article 136, it is not a fit H
650 SUPREME COURT REPORTS [1998] 3 S.C.R.

A case for interference in the present proceedings with the impugned
notifications. [678-A-H; 679-A-C)
3. Under Section 48(1), the Government is at liberty to withdraw from
the acquisition of any land of which possession has not been taken. On the
facts of the present case it must be held that possession of the lands under
B acquisition belonging to the present appellants has remained with the
appellants till date. Once that conclusion is reached, section-48(1) can be
legitimately invoked by the appellants for consideration of the State
authorities. It is, of course, true that the said provision gives liberty to the
State to withdraw from acquisition of any land but if the appellants are in
a position to convince the State authorities that their lands were having auadi
C on the date on which Section 4 notification was issued and it was that abadi
which had continued without any additional construction thereon till the date
.of Section 6 notification and thereafter such abadi was squarely covered by
the State policy of not acquiring the lands having abadi, then it will be open
to the State authorities to pass appropriate orders for withdrawing such
D lands from acquisition and give appropriate relief to the applicants concerned.
Liberty is therefore granted to the appellants, if so advised to file, written
representations before appropriate authorities of the State by invoking the
State Government's powers under Section 48(1) of the Act. It is made clear
that no opinion is expressed on the question whether the appellants' lands
had such abadi on the date of Section 4 notification which would attract the
E State policy of not acquiring such lands and whether such policy had continued
thereafter at the stage of Section 6 notification of 07.01.1992 and whether
such policy is still current and operative at the time when the appellants'
representations come for consideration of appropriate authorities of the
State Government. It will be for the Sate authorities to take their informed
F decision in this connection. In short, the entire matter is left at large for
the consideration of the State authorities in the appellants' representations.
If the appellants file their written representations on or before 31.08.1998,
then the appropriate authorities of the State Government shall consider their
representations regarding the feasibility of releasing such lands form
acquisition under Section 48(1) of the Act on the ground that there were
G "abadis" on these lands at the relevant time and are governed by any existing
State policy for releasing such lands from acquisition on that score as
indicated herein-above and for that purpose they may give a hearing to the
appellants, either personally or through their counsel, and permit them to
lead whatever evidence they want to lead in this connection. The State
H authorities shall consider these representations within a period of two months
OM PRAKASH v. STATE [S.B. MAJMUDAR, J.] 651
from the date such representations are received, i.e. latest by 31.10.1998 and A
"'' will take appropriate decisions on these representations and will inform the
representationists concerned in writing about the decision of the State
Government in this connection.
(680-B; 681-G-H; 682-A-C-G-H; 683-A-B)
4. As far as contention of Respondent No. 5 whose intervention B
application was allowed by this court, that serious objections were required
to be considered against the acquisition of land which were being acquired
for being allotted to close, relatives of the Chairman and other powers and
that he had not filed any writ petition before the High Court, may be given
the liberty to file fresh writ petition, is reasonable. It would be appropriate
to relegate Respondent No. 5-intervener to the remedy of filing a substantive c
writ petition before the High Court. (683-E-H)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3261 of
1998 Etc.

From the Judgment and Order dated 24.8.95 of the Allahabad High Court D
--=r in C.M.W.P. No. 9734of1992.
"l;_ Shanti Bhusan, K.K. Venugopal, V.A. Mohta, Dr. N.M. Ghatate, Ms.
0 Reena George, Ms. Priya Kumar, Jayant Bhusan, Krishan Datta, Uma Datta,
K.V. Viswanathan, K.V. Venkatraman Gopal Banwant Sathe, Arvind Sharma,
Kamlendra Mishra and R.B Misra for the appearing Parties. E
The Judgment of the Court was delivered by

S.B. MAJMUDAR, J. Leave granted in all these special leave petitions.

I.A. filed in Civil Appeal arising out of S.L.P. (C) No. 164 of 1996 for
bringing on record legal representatives of respondent no. 37 Mahi pal is F
granted. The title of the Civil Appeal concerned shall be corrected accordingly.

By consent of learned senior advocates appearing for the contesting
parties, the appeals were finally heard and are being disposed of by this
judgment. These appeals arise out of a common judgment rendered by a
G
Division Bench of the High Court of Judicature at Allahabad on 24th August
1995. The High Court dismissed the writ petitions filed by the appellants who
were petitioners before the High Court who challenged the notification issued
i by the State of Uttar Pradesh on 5th January 1991 under Section 4 ( 1) of the
Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') and also the
notification under Section 6 of the Act whereby the writ petitioners' lands H
652 SUPREME COURT REPORTS (1998] 3 S.C.R.

A situated at village Chhalera Banger then situated in District Ghaziabad in the
State of Utter Pradesh were sought to be acquired. The impugned acquisition
was for the planned· industrial development of District Ghaziabad through
New Okhla Industrial Development Authority ('NOIDA' in short), Ghaziabad.
As the writ petitions raised a common challenge on diverse grounds, they
were all heard together and were disposed of by the impugned common
B judgment of the High Court. The High Court after considering the submissions
raised by the learned counsel for the writ petitioners for challenging the
acquisition proceedings, came to the conclusion that the land acquisition
proceedings were not vitiated in law and consequently the writ petitions were
dismissed. That is how the original writ petitioners are before us in these
C proceedings. They are now confined to the appellants in these 8 Civil Appeals
arising from Special Leave Petitions filed by the original writ petitioners
concerned.

Before we deal with the main contentions canvassed by learned senior
counsel, Shri Shanti Bhushan, appearing for appellants in some of the appeals,
D and Shri Uma Dutta, learned counsel for appellants in other appeals, it will
be necessary to note a few background facts leading to these proceedings.

Introductory Facts

NOIDA is an authority entrusted with the task of developing lands in
E the district of Ghaziabad in the State of Uttar Pradesh. In the year 1976,
NOIDA had acquired large tracts of lands in the Ghaziabad district including
lands of village Chhalera Banger for the planned industrial development of
Ghaziabad. At that stage, the State of Uttar Pradesh, at the instance of
NO IDA had invoked the provisions of sub-sections (I) and (4) of Section 17
of the Act as acquisition for the purposes of NO IDA was considered to be
F of an urgent nature. Thereafter, again in the year 1987, further lands were
acquired from the same village for the purpose ofNOIDA by the State ofUttar
Pradesh issuing notification under Section 4 of the Act on 30th October, 1987.
The said notification was issued without invoking Section 17(4) of the Act.
After hearing the objections put forward against the acquisition by the
G objectors concerned, ultimately the State of Uttar Pradesh issued notification
under Section 6 of the Act on 14th December, 1989. On that occasion, 353
acres of lands consisting of diverse survey numbers were acquired from the
occupants of the lands in village Chhalera Banger. It was thereafter that +
NOIDA submitted a proposal to acquire the lands under the present acquisition
on 14th June, 1988. It also made a written request in this connection on 14th
H December, 1989 to the State authorities. By a communication dated 14th
OM PRAKASH v. STA TE (S.B. MAJMUDAR, J.] 653
,., December 1989 addressed by the Personnel Officer, NOIDA to the Special A
Land Acquisition officer, NOIDA, Ghaziabad, it was submitted that 494.26
acres of land of village Chhalera Banger were urgently required for the
development of Sector No. 43 and other sectors ofNOIDA. Therefore, it was
requested that necessary notification under Section 4 read with Section 17 of
the Act may be got issued immediately. It was thereafter that on 5th January,
1991, the impugned notification was issued by the Government of Uttar
B
Pradesh in exercise of powers under sub-section ( 1) of Section 4 of the Act.
It was stated therein that the lands mentioned in the Schedule to the
notification were required for public interest, that is, for the planned industrial
development of District Ghaziabad through NOIDA. It was recited in the said
notification that the Governor was of the opinion that sub-clauses of sub- c
section (1) of Section 17 of the Act shall apply to the aforementioned land
because the said land was essentially urgently required for the planned
industrial development in District Ghaziabad through NOIDA and in view of
this urgency and essential requirement, it was also necessary that possible
delay for inspection under Section 5-A may be condoned . Therefore, in
D
exercise of powers under sub-section (4) of Section 17 of the Act, Governor
,._ also directed that provisions of Section 5-A of the said Act shall not be
applicable and were dispensed with. This notification was followed by another
• notification dated 7th January, 1992 under Section 6 of the Act. It was
declared therein that the land mentioned in the notification was required in
public interest, i.e., for the planned development of District Ghaziabad through E
NOIDA. It was also stated that the Governor was satisfied that this matter
was to be disposed of urgently, therefore, in exercise of powers under sub-
section (I) of Section 17 of the Act he was also pleased to direct that though
no decision had been given under Section 11, the Collector of Ghaziabad
could take possession of the aforesaid land mentioned in Schedule for public
>' F
interest after 15 days of the publication of the notice under sub-section ( 1)
of Section 9.

The aforesaid two notifications were brought in challenge by the
appellants herein, amongst others before the High Court of Allahabad, as
noted earlier. In these writ petitions, the High Court by its order dated 31st G
march, !992 directed that status quo may be maintained by the parties to the
writ petitions. The State of Uttar Pradesh as well as NO IDA were the contesting
1 respondents in the writ petitions and in the present appeals also they are the
main contesting respondents.

Rival Contentions H
654 SUPREME COURT REPORTS [1998] 3 S.G.R.

A Shri Shanti Bhushan, learned senior counsel for the appellants in some
of the appeals and Shri Uma Dutta, learned counsel for the other appellants
contended that the impugned notifications are null and void mainly on two
grounds - (i) that there was no relevant material before the State authorities
to enable them to invoke Section 17(4) of the Act and to dispense with the
inquiry under Section 5-A of the Act; and that the grounds sought to be
B made out by the State authorities in this connection were legally unsustainable
and, therefore, the dir~ction contained in the impugned notification under
Section 4 invoking Section 17 sub-section (4) of the Act and in dispensing
with inquiry under Section 5-A was liable to be set aside and consequently
notification under Section 6 also was required to be quashed. (ii) It was also
C contended that in any case the lands occupied by the appellants which were
sought to be acquired in the present proceedings were having Abadi -
constructions occupied for residential and industrial purposes by the appellants
concerned and that a policy decision was taken by the contesting respondents
not to acquire land covered by such Abadi. The acquisition proceedings
were, therefore, required to be set aside even on that ground. Shri Shanti
D Bhushan, learned senior counsel appearing for appellants in appeal arising
from Special leave Petition (c) No. 20905of1995 submitted that these appellants _f

had already filed a suit against NOIDA for permanently restraining NOIDA
from acquiring the appellants' land which is covered by the present acquisition
proceedings on the ground that it was having Abadi thereon. That the
E judgment of the Civil Court was rendered on 14th December, 1989 much prior
to the issuance of the Section 4 notification in the present case wherein a
clear finding was reached by the Civil Court on evidence that there was
existing Abadi on the land in dispute and the said decision was confirmed
by the District Court in Civil Appeal No. 46 of 1990 on 17th November, 1990.
We are informed by learned senior counsel, Shri Mohta, for respondent
F NOIDA that the decision of the District Court has not become final and is
pending scrutiny in Second Appeal before the High Court of Allahabad. Shri
Shanti Bhushan, learned senior counsel for the appellants, in support of his
submission that there was an existing Abadi on the land sought to be
acquired, invited out attention to the relevant evidence on the record and
G contended that in any view of the matter appellants' land having Abadi in
the light of the policy consistently followed by the contesting respondents
could not have been acquired. Learned counsel appearing in the other appeals,
Shri Uma Dutta also adopted these very contentions in support of his appeals .
+-
and submitted in addition that the High Court had erred in taking the view
that the subjective satisfaction for invoking the provisions of Section 17(4)
H of the Act was not independent of satisfaction for invoking Section 17 sub-
OM PRAKASH v. STATE [S.B. MAJMUDAR, J.] 655
....
1 section (I) and that both these satisfactions were really independent of each A
other and had to be arrived at as such.

In support of the aforesaid contentions learned senior counsel for the
appellants placed before us certain decisions of this Court to which we will
refer at an appropriate stage in the latter part of this judgment. It was
contended by learned counsel for the appellants that the High Court had B
erred in taking the view that the State was justified in involving the provisions
of Section 17(4) of the Act on the facts and circumstances of the cases. He,
however, fairly stated that if it is hdd that the State authorities could not have
dispensed with Section 5-A inquiry and if the appellants are to be given an
opportunity to put forward their written objections before the acquiring C
authority under Section 5-A of the Act then the second question regarding
Abadi lands immunity from being acquired may not be decided at this stage.
Hence this question may also be permitted to be raised by the objectors in
Section 5-A proceedings.

Repelling these contentions, Shri Mohta, learned senior counsel for D
NOJDA and Dr. N.M. Ghatate, learned senior counsel appearing for the state
of Uttar Pradesh contended that no error was committed by the High Court
in upholding the applicability of Section 17 sub-section (4) to the present
proceedings as there was sufficient material before the authorities to come to
that decision. That the High Court rightly held that for acquisition of the E
present type wherein large acreage of lands had to be acquired for the
purpose of the planned industrial development of the area undertaken by
NOIDA, urgency clause could be legitimately invoked. Urgent situation was
implicit in such acquisition proceedings and if Section 5-A inquiry was not
dispensed with, years would have passed before Section 6 notification could
have been issued. It was also submitted by them that the material relied upon F
by the State authorities for dispensing with inquiry under Section 5-A of the
Act was quite relevant and this Court would not sit in appeal over the
subjective satisfaction of the authorities in this connection as it is well settled
that if such subjective satisfaction for invoking Section 17(4) of the Act is
found to be based on relevant material it cannot be challenged in a court of
law by requesting the court to re-appreciate such evidence especially when G
there was no challenge to the acquisition proceedings on the ground of mala
rf tides. The High Court's decision in this connection, therefore, requires to be
upheld. It was also submitted that possession of the lands in question was
already taken by NOIDA on 30th March, 1992 prior to the date on which the
High Court granted status quo order. It was next contended that the appellants' H
656 SUPREME COURT REPORTS [1998] 3 S.C.R.

A lands cannot be said to be having Abadi as mere stray construction on
agricultural lands cannot be termed Abadi. That 'Abadi' is a term of art which
connotes construction for residential purposes on village-site lands and it has
nothing to do with agricultural lands situate beyond village sites. It was also
submitted by Shri Mohta, learned senior counsel for NOIDA, that the Civil
B Court's judgment which is not final till date had loosely treated lands having
construction as Abadi lands and consequently, it could not be urged by the
appellants that their lands having some stray construction thereon could not
have been acquired under the Act in the light of the policy decision of the
State authorities of the contesting respondents not to acquire lands having
Abadi. In this connection, Shri Mohta also submitted that the documentary
C material which is furnished in the present proceedings by some of the appellants
to show that their lands were having Abadi appears to be interpolated and
such forged documents cannot be permitted to be relied upon by the appellants.
Dr. Ghatate, learned senior counsel for State of U.P. submitted that the state
was not a party to the Civil Court litigation and hence was in no way bound
D by the finding arrived at by the Civil Court regarding the abadi nature of the
lands under acquisition.

It was lastly contended placing reliance on some of the judgments of
this Court, to which we will make a reference hereinafter, that acquisition for
the planned development of a township on a large scale would entitle the
E authorities to invoke urgency provisions of Section 17(4) of the Act and that
the High Court has not erred in relying upon this legal position. It was
ultimately submitted that as almost 494 acres of lands were sought to be
acquired by the impugned notifications and only some of the persons whose
lands were being acquired had challenged the notifications in the High Court
and that challenge in the present proceedings gets confined to about 40 acres
F in all, and as the planned development of the sector is already underway and
pipelines and other infrastructure facilities are being made available on spot,
this court in exercise of its discretionary powers under Article 136 of the
Constitution of India may not interfere in the peculiar facts of the case at such
a late stage. Learned senior counsel Shri Shanti Bhushan, repelling these
G contentions, submitted that the material on which contesting respondents
relied upon for supporting the invocation of powers under Section 17(4) of
the Act is not at all genuine or relevant for supporting such an exercise and
that there is no universal formula that acquisition for planned development
of a township nece,ssarily has to be treated to be of an urgent nature without
anything more. The applicability of Section 17(4) of the Act in the peculiar
H facts of the present case should be treated to be uncalled for. It was submitted
OM PRAKASH v. STATE (S.B. MAJMUDAR, J.] 657
that the appellants, given an opportunity to have their written objections A
under Section 5-A of the Act, will fully co-operate in the proceedings and will
abide by the appropriate directions regarding maintenance of time schedule
for such an inquiry as may be fixed by this Court. Shri Shanti Bhushan further
submitted that once it is shown that the impugned notifications were liable
to be set aside, on non-compliance with Section 5-A of the Act, which was
wrongly excluded by the authorities, then this Court being a final Constitution B
Court may not refuse appropriate relief to the appellants by not interfering
under Article 136 of the Constitution of India. Shri Shanti Bhushan also
sought to distinguish judgments of this Court on which strong reliance was
placed by learned senior counsel for contesting respondents.

In the light of the above rival contentions, the following points arise
c
for our determination :

I. Whether the State authorities were justified in invoking Section
17(4) of the Act for dispensing with inquiry under Section 5-A
of the Act. D
2. In any case, whether the appellants' lands have to be treated as
immune from acquisition proceedings on the ground that they
were having Abadi thereon and were, therefore, governed by the
policy decision of the State of U.P. not to acquire such lands.

3. Whether this Court should refuse to exercise its discretionary E
jurisdiction under Article 136 of the Constitution of India in the
facts and circumstances of the case.

4. What final orders ?

We shall deal with these points seriatim.
F
Point No. I

So far as the question of dispensing with inquiry under Section 5-A is
concerned, the scheme of the Land Acquisition Act has to be kept in view.
Sub-section (I) of Section 4 of the Act lays down that whenever it appears G
to the appropriate Government that land in locality is needed or is likely to
be needed for any public purpose or for a company, a notification to that
· effect has to be published in the Official Gazette and also to proceed further
according to the mode laid down in the said provision. Then follows Section
5-A. Sub-section (I) thereof provides that any person interested in any land
which has been notified under section 4, sub-section (I), as being needed or H
658 SUPREME COURT REPORTS (1998] 3 S.C.R.

A is likely to be needed for a public purpose may, within 30 days from the date ~
of publication of the notification, object to the acquisition of the land or of
any land in the locality, as the case may be. Sub-section (2) of Section 5-A
of the Act lays down the procedure in connection with such in,1airy. The
objections under Section 5-A are to be lodged in writing with the Collector
B and the Collector is required to give the objector an opportunity of being
heard in person or by any persons authorised by him in this behalf or by
pleader and shall after hearing all such objections and after making such
further inquiry, if any, as he thinks necessary, either make a report in respect
of the land which has been notified under Section 4 sub-section ( 1), or make
different reports to the Government and in the light of the said report, the
C appropriate government has to come to its own decision on the objections
and such decision is made final under the Act. Then follows Section 6 sub-
section (I) which lays down that subject to the provisions of part VII of the
Act, when the appropriate Government is satisfied, after considering the
report, if any, made under Section 5-A, sub-section (2), that any particular
land is needed for a public purpose, or for a company, a declaration can be
D made by the appropriate Government for acquiring such lands. It is, therefor,
obvious that under the normal scheme of land acquisition proceedings under -1
the Act before any land can be acquired, by issuing notification under
Section 6, the gamut of hearing of objections to such proposed acquisition
as laid down by Section 5-A has to be followed. It is in this light that Section
E 17 of the Act which permits dispensing with inquiry under Section 5-A in
appropriate cases has to be appreciated. Sub-sections ( 1) and (4) of Section
17 deserve to be noted in extenso. They read as under:

"17. Special powers in cases of urgency. - (1) In cases of urgency,
whenever the appropriate Government so directs, the Collector, though
F no such award has been made, may, on the expiration of fifteen days
from the publication of the notice mentioned in Section 9, sub-section
(I), take possession of any land needed for public purpose. Such land
shall thereupon vest absolutely in the Government, free from all
encumbrances.

G (2) ··············· .......... .

(3) ......................... .

(3-A) ......................... .

H (3-B) ......................... .
OM PRAKASH v. STATE [S.B. MAJMUDAR, J.] 659
'I
l
(4) In the case of any land to which, in the opinion of the appropriate A
Government, the provisions of sub-section (1) or sub-section (2) are
applicable, the appropriate Government may direct that the provisions
.of Section 5-A shall not apply, and, if it does so direct, a declaration
may be made under Section 6 in respect of the land at any time after
the date of the publication of the notification under Section 4, sub-
section(!)."
B

It may be noted that prior to 1984, sub-section (I) of section 17 could be
invoked only in cases oflands which were waste and arable and qua acquisition
of such lands, if there was any urgency Section 17 sub-section (I) could be
invoked and accordingly even after issuance of notification of Section 6 and
before award is passed, possession of such lands could be taken on expiry
c
of 15 days of the publication of notice under Section 9 sub-section ( 1). But
if the lands were not waste or arable, neither section 17 sub-section (I) nor
Section 17 sub-section (4) could have been invoked prior to 1984 qua them
as sub-section (4) of Section 17 has a clear linkage with the lands to which
provisions of sub-section (1) are applicable. Consequently, prior to 1984, the D
~- parent Act did not permit dispensing with inquiry under Section 5-A or for
taking possession prior to the award of the acquired lands if the lands were
not waste or arable even though there might be any urgency centering round
such acquisition. The words 'Waste or arable', however, were deleted from
the parent Act by Amending Act 68 of 1984 with the result that now under
the main Central Act for any type of lands even if they may be waste or E
arable, or may not be so, in cases of urgency, provisions of section 17 sub-
section (I) can be invoked and equally for any type of lands sought to be
acquired, in cases of urgency, the provisions of section 17 sub-section (4) can
be invoked, meaning thereby~ the intermediate procedure under Section 5-A
)L
sandwiched between Sections 4 and 6 can be legitimately dispensed with and
notification under Section 6 can follow almost on the heels of Section 4 F
notification in cases of urgency , when appropriate direction under Section
17 sub-section (4) is issued by the appropriate Government being subjectively
satisfied about the requisite requirements about invoking these provisions.
Even though under the Central Act, no such power could have been invoked
prior to 1984 for lands which were not waste or arable so far as State of Uttar G
Pradesh was concerned, a special provision was made by amending Section
-t
./ 17 of the Central Act by the Lanci Acquisition (UP Amendment Act) XXII of
1954. Pursuant to the said State amendment, a new sub-section (1-A) was
added to Section 17 of the Parent Act in its application to Uttar Pradesh to
the following effect: H
660 SUPREME COURT REPORTS [1998) 3 S.C.R.

A "The power to take possession under sub-section (I) may also be "
exercised in the case of other than waste or arable land, where the
land is acquired for or in connection with sanitary improvements of
any kind or planned development

"Therefore, so far as the State of Uttar Pradesh if concerned, any type
B of land after 19th November, 1954 even though, not being waste or arable
could be subjected to the provisions of Section 17 sub-section (I). However,
so far as sub-section (4) of section 17 was concerned, no amendment was
made in the State of Uttar Pradesh till 26th April, 1974, when by the Land
Acquisition (U.P. Amendment and Validation) Act VIII of 1974, Section 17
c sub-section (4) was also amended by subsisting the words, brackets and
figures "sub-section (I), sub-section l(A) or sub-section (2)" as applicable to
the State of Uttar Pradesh. The net result of these two State amendments is
that after 26th April, 1974, if lands of any type, apart from being waste or
arable, were sought to be acquired under the Land Acquisition Act as
D applicable to the State of Uttar Pradesh in case of urgency, provisions of
Section 5-A could be dispensed with provided such lands were acquired for
or in connection with sanitary improvements of any kind or planned
development. Thus, this enabling provision was available to the appropriate
Government functioning in the State of Uttar Pradesh, if it was satisfied that
the situation was so urgent that Section 5-A inquiry was to be dispensed with
E
in connection with acquisitions of any type of lands for the planned
development of any area. However, still one basic requirement remained for
being satisfied before such power could be exercised, namely, that there
should be case of urgency. Even if the acquisition was for the planned
development of any area and there was no material before the appropriate
F Government for dispensing with inquiry under Section 5-A on the touchstone .-'\

of any urgency as found by the appropriate Government, the provisions of
Section 17 sub-section (4) as amended by the Amending Act VIII of 1974
could not have been invoked. However, the parent Act itself underwent an
amendment in 1984, as noted earlier, and the words 'waste or arable' were
taken out from the sweep of Section 17 sub-section (I) read with sub-section
G
(4) thereof. The net result is that after 1984, for acquisition of any type of
lands if the appropriate authority is satisfied about the existence of urgency
requiring acceleration of taking of possession as per section 17(1) before ... -
award or acceleration of issuance of notification under section 6 as per '
section 17(4) whether such acquisition was for the planned development of
H any area or for sanitary improvements in the area or for any other public
OM PRAKASH v. STATE [S.B. MAJMUDAR, J.) 661

purpose or for a company. A
"'
As we are concerned only with the applicability of Section 17 sub-
section (4), it will be necessary to find out whether there was any relevant
material with the appropriate Government, namely, respondent, State of UP
herein, to enable it to arrive at its subjective satisfaction about dispensing
with inquiry under Section 5-A in connection with the present acquisition. B
Before we deal with the judgments of this Court on the point, it will be
necessary to quickly glance through the factual backdrop leading to the
present proceedings. As we have noted earlier, NOIDA was entrusted with
the task of developing areas under its jurisdiction and that development could
necessarily be a planned development on a large scale. Such development
could not be confined only to a few pockets of the land but must necessarily
c
encompass in its fold schemes pertaining to large tracts of lands which were
lying undeveloped and which had to be developed on a systematic basis. It
is not in dispute between the parties that initially in I 976 large tracts of lands
in Ghaziabad District in the State ofUttar Pradesh were acquired from the very
village from which the present lands also are sought to be acquired. By a D
notification dated 30th April, 1976, the State of Uttar Pradesh exercising
~ powers under sub-section 1 of Section 4 issued a notification in the name of
the Governor of Uttar Pradesh to the effect that various plots of lands
mentioned in the notification were needed for public purpose, that is, for the
planned industrial development in the district which was then known as
E
Bullandshahar and the said acquisition was through the NOIDA for that
purpose. The said notification showed that 121 and odd acres of lands were
sought to be acquired and at that stage, Section 5-A inquiry was dispensed
with by the State authorities by invoking powers under Section 17 sub-
section (4) thereof. This notification worked itself out and was followed by
Section 6 notification and various chunks of land were acquired even from F
" village chhalera Banger amongst others. It appears that thereafter necessary
development was carried out on the acquired lands by NOIDA and as a part
and parcel of the comprehensive plan for industrial development, further
lands were sought to be acquired by it by stages as development of any area
or township is a long drawn process spread over years. A further notification
under Section 4( 1) was issued by the State of Uttar Pradesh on 30th October,
G
1987 acquiring further lands for NOIDA from this very village. A number of
-t plots of land from this village were sought to be acquired an they in all
_, amounted to 353 acres of land. At this stage, the state authorities did not
think it fit to dispense with inquiry under Section 5-A of the Act and invited
parties affected by the proposed acquisition of the lands by submitting H
662 SUPREME COURT REPORTS [ 1998) 3 S.C.R.

A objections in writing to the Collector, Ghaziabad. The purpose of acquisition
was the same, namely, for the planned industrial development in district
Ghaziabad through NO IDA. As by the time, district Bullandshahar was renamed
as Ghaziabad. It is, therefore, obvious that for further development in the area,
no urgency was felt at that stage for dispensing with the provisions of
B Section 5-A of the Act. It is not in dispute between the parties that the further
acquisition was for developing Sector no. 42 in this very Scheme run by
NOIDA. The aforesaid notification under Section 4 was followed by notification
under Section 6 dated 14th December, 1989, within two years of the issuance
of Section 4 notification dated 30th October, 1987 after the inquiry under
Section 5-A was over and the report was submitted to the appropriate
C Government. It is interesting to note that on the very day on which Section
6 notification was issued on 14th December 1989, acquiring these additional
lands, NOIDA proposed to the State Government that further 494.26 acres of
land out of this very village Chhalera Banger were urgently required for the
development of Section 43 and other sectors ofNOIDA. It was also requested
that necessary notification under Section 4 read with Section 17 of the Act
D with regard to the said lands may be issued immediately. We were informed
by senior counsel, Shri Mohta for NOIDA that even though in the earlier
acquisition of 1987, pursuant to Section 4 notification inquiry under Section
5-A was not dispensed with, by the time Section 6 notification came to be
issued Section 17(1) was resorted to as urgency had developed at least by
E the end of December, 1989. If that is so, it was expected that pursuant to the
requisition of 14th December, 1989 by NOIDA invoking urgency powers of
the State Government, consequential notification under Section 4(1) would
liave seen light of the day at the earliest in connection with acquisition of
proposed 494.26 acres of land for the development of Sector 43 and other
sectors. But curiously enough, nothing happened urgently and Section 4
F notification which is impugned in the present case was issued on 5th January,
199 I. Thus despite the invocation of urgency by NO IDA by its letter dated
14th December, 1989 it appears that the State did not think the said proposal
to be so urgent as to immediately respond and to issue notification under
Section 4 read with Section 17, sub-section (4) till 5.1.91. More than one year
G elapsed in the meantime. Why this delay took place and why the State did
not think it fit to urgently respond to the proposal of NOIDA has remained
a question mark for which there is no answer furnished by the respondent
authorities in the present cases and nothing is brought on the record by them
to explain this delay. It has, therefore, necessarily to be presumed that despite
the emergency powers of the State Government being invoked by NOIDA, the
H State authorities in their wisdom did not think the matter to be so urgent as
OM PRAKASH v. STATE [S.B. MAJMUDAR, J.] 663
to immediately respond the promptly issue section 4 notification read with A
Section 17(4). The impugned notification of 5.1.91 recites that for public
interest, i.e., for the planned industrial development through NOIDA, the
lands mentioned in the schedule to the notification were required to be
acquired. It was further recited in the notification that because the lands were
essentially required for the planned development in District Ghaziabad through B
NOIDA, in exercise of powers under sub-section (4) of Section 17, provisions
of Section 5-A of the Act were dispensed with. The learned senior counsel
for the appellants vehemently submitted that in the backgrrmnd of the aforesaid
fact situation, it appeared that when the State authorities invok.:d sub-section
(4) of Section 17 on 5.1.91 in connection with present acquisition, in fact, there
was no urgency as even earlier in 1987, when from this very village for the C
very purpose lands were acquired, the State authorities in their wisdom did
not think it fit to apply urgency clause and to dispense the inquiry under
Section 5-A and in fact heard the objectors. Even that apart, despite proposal
to acquire this land was moved by NOIDA, as early as on 14th June, 1988,
and even thereafter when the request was sent in this connection on 14th
December, 1989, the State authorities did not think the situation to be so D
urgent as to respond quickly and could wait for m01 e than one year. When
the appellants in the writ petitions before the High Court raised their grievances
regarding dispensing with inquiry under Section 5-A being not backed up by
relevant evidence and the subjective satisfaction of the State in this connection
was brought in challenge, all that was stated by NOIDA in its counter in para E
26 was to the effect that the contents of paras 25 and 26 of the writ petition
were denied and that the petitioners were not able to point out any lacunae
in the proceedings under the Land Acquisition Act. Position was no bt:tter
so far as the counter of the State authorities was concerned. In paragraph 24
of the counter before the High Court all that was stated was that paragraphs
25 and 26 of the writ petition were denied. When we tum to paragraphs 25 F
and 26 of the writ petition, we find averments to the eff.:c, that the urgency
·of the acquisition was only for the purpose of depriving the petitioners of
their rights to file objections under Section 5-A and thei right to hold the
possession till they got compensation for which the re:-. 1 .. dents had issued
notification under Section 17(1) as well as notification under Section 17(4) of G
the Act. But so far as the process of the acquisition was concerne.d, the
respondents were taking their own time, which lhmld be evident from the fact
that the notification under Section 4 read with Section 17(4) was issued on
5th January, 1991 but was published in the newspaper on 30th March 1991,
whereas the declaration under Section 6 of the Act was made on 7th January
1992 and that on the one hand respondents had deprived the petitioners of H
664 SUPREME COURT REPORTS [1998] 3 S.C.R.

A filing their objections under Section 5-A of the Act on the ground of urgency .._
of acquisition, but on the other hand, they themselves had taken more than
nine months in issuing the declaration under section 6 of the said Act. This
conduct of the respondents falsified their claim of urgency of acquisition.
These averments in the writ petitions, to say the least, almost went
B unchallenged and nothing concrete could be pointed out by the respondents
before the High Court to support their stand as noticed from their counters
referred to earlier. Thereafter, an additional model counter affidavit was filed
by the State authorities in the High Court for explaining the reasons why
Section 5-A inquiry was dispensed with. In paragraph 9 of the additional
model counter affidavit it was averred that it was necessary to bring material
C before the date of notification under Section 4 for showing as to why sub-
section (4) of Section 17 was invoked. The additional material which was
produced before the High Court was by way of Annexures - CA 3, CA 4 and
CA 5. When we tum to these annexures, we find that Annexure - CA 3 is a
letter dated 21st April, 1990 written by the District Magistrate, Ghaziabad, to
the Joint Secretary, Industries, Government of Uttar Pradesh. It recites that on
D examination, it was found that the land was immediately required in public
interest so that the development work in the said land could be carried out
smoothly. What was the nature of urgency is not mentioned in the said letter.
Therefore, the position remains as vague as it was earlier. When we tum to
Annexure - CA 4 which is dated 12th June, 1990, we find that the District
E Magistrate, Ghaziabad wrote to the Joint Secretary, Industries, State of U.P.,
that as to how many farmers were going to be affected by the proposed
acquisition. It does Iiot even whisper about the urgency of the situation
which requires dispensing with Section 5-A inquiry. The last Annexure - CA
5 is the letter dated 14th December; 1989 written by NOIDA to the Land
Acquisition Officer proposing urgent acquisition of the lands in question. We
F have already made a reference to the said letter. It recites that if immediate
action for acquisition of the aforesaid lands adjacent to Sector 43 for
development of which the acquisition was to be resorted to was not taken
them there was possibility of encroachment over this area. That other land
adjacent to this sector was already being proposed for the botanical garden.
G To say the least, possibility of encroachment over the area cannot by any
stretch of imagination be considered to be a germane ground for invoking
urgency powers for dispensing with Section 5-A inquiry. Even if acquisition
takes place urgently by dispensing with inquiry under Section 5-A and the
possession is taken urgently after Section 6 notification within 15 days of
issuance of notice under Section 9 sub-section (I), even then there is no
H guarantee that the acquired land would not be encroached upon by unruly
OM PRAKASH v. STATE [S.B. MAJMUDAR, J.] 665

persons. It is a law and order problem which has nothing to do with the A
,,,
'
' acquisition and urgency for taking possession. Even that apart, it is easy to
visualise that if objectors are heard in connection with Section 5-A inquiry
and in the meantime, they remain in possession of land sought to be acquired
they would be the best persons to protect their properties against encroachers.
Consequently, the ground put forward by NOIDA in its written request dated
14-12-1989 for invoking urgency powers must be held to be totally irrelevant.
B
Even that apart, if that was the urgency suggested by NOIDA on 14-12-1989,
we fail to appreciate as to how the State authorities did not respond to that
proposal equally urgently and why they issued notification under Section 4
read with Section 17(4) after one year in January, 1991. On this aspect no
explanation whatsoever was furnished by the respondent State authorities c
before the High Court. It is also interesting to note that even after dispensing
with inquiry under Section 5-A pursuant to the exercise of powers under
Section 17(4) on 5th January, 1991, Section 6 notification saw the light of the
day only on 7 .1.1992. If the urgency was of such a nature that it could not
brook the delay on account of Section 5-A proceedings, it is difficult to
appreciate as to why Section 6 notification in the present case could be D
issued only after one year from the issuance of Section 4 notification. No
~
explanation for this delay is forthcoming on record. This also shows that
according to the State authorities, there was no real urgency underlying
dispensing with Section 5-A inquiry despite NOIDA suggesting at the top of
its voice about the need for urgently acquiring the lands for the development E
of sector no. 43 and other sectors.

So far as the present proceedings are concerned, the situation was tried
to be salvaged further in the: counter-affidavit filed on behalf of NO IDA. Its
working Secretary Ram Shankar has filed a counter-affidavit in the present
proceedings explaining the necessity to apply emergency provisions. It has F
been averred in para 9 of the counter to the effect that what necessitated
application of emergency provisions was imminent possibility of unauthorised
construction and/or encroachment upon the suit land which would have
hammered the speedy and planned industrial development of the area which
was the purpose of acquisition proceedings. This stand is in line with the
G
earlier stand ofNOIDA in its written requisition dated 14th December, 1989.
We have already seen that the said stand reflects a ground which is patently
-t irrelevant for the purpose of arriving at the relevant subjective satisfaction by
,,
the State authorities about dispensing with Section 5-A inquiry. We could
have appreciated the stand of the State authorities for invoking urgency
clause under Section 17(4) of the Act on the ground that when about 500 H
666 SUPREME COURT REPORTS [1998] 3 S.C.R.

A acres of land were to be acquired for further planned development of Sector ...
43 and other sectors of Noida, as mentioned in the impugned notification,
hearing of objectors who might have filed written objections when there are ...
large number of occupants of these lands and who possess about 438 plots
of land under acquisition, would have indefinitely delayed the acquisition
proceedings and years would have rolled by before Section 6 notification
B could have been issued. Under these circumstances, the entire further
development of the area would have, on the peculiar facts and circumstances
of these cases, come to a grinding halt. Such a stand would have justified
the subjective satisfaction of the authorities for invoking Sectior. 17 (4) of the
Act. Such satisfaction then could not have been gone behind by court of law.
c But unfortunately for the respondents such was not their case nor did they
even whisper in these cases that these aspects were kept in view while
dispensing with Section 5-A inquiry. The court cannot obviously, therefore,
make out a new case for them which is not pleaded in these proceedings to
justify their action.

D In the light of the aforesaid factual position emerging on the record of
the case it becomes clear that there was no relevant material before the State
-
authorities when it invoked powers under sub-section (4) of section 17 for ~

dispensing with Section 5-A inquiry while issuing the impugned notifications
under Section 4 followed by Section 6 notification of 7 .1.92.
E
It is in the background of the aforesaid fact situation that we now turn
to consider the relevant decisions of this Court on which strong reliance was
placed by either side before us. We may note that the High Court while
repelling the contention centering round the question of dispensing with
inquiry under Section 5-A of the Act has placed strong reliance on the two
F decisions of this Court having noted that as large acres of lands were to be
acquired, it was necessary for the State to dispense with inquiry under
Section 5-A. In the case of State of U.P. etc. v. Smt. Pista Devi and others,
[1986] 4 SCC 251, a Bench of two learned Judges of this Court speaking
through E.S. Venkataramiah, J., (as he then was) had to consider the fact
situation existing in Meerut city which was densely populated part of the
G State of Uttar Pradesh and was growing very fast. A Development Authority
was constituted under the provisions of U .P. Urban Planning and Development
Act, 1973 for the purpose of tackling the problem of town planing and urban
~-
development. 662 bighas I 0 biswas and 2 biswanis of land situated in the '
.surrounding villages in the periphery of Meerut town were sought to be
H acquired urgently by dispe11sing with inquiry under Section 5-A. The High
OM PRAKASH v. STATE [S.B. MAJMUDAR, J.] 667

Court before which the acquisition proceedings were challenged took the A
~
; view that because there was delay of one year between Section 4 and Section
6 notifications, the urgency clause under Section 17(4) was wrongly invoked.
Upturning the said decision of the High Court, this Court held that the delay
of one year was clearly explained on the facts of the case as there was a
corrigendum to be issued to Section 4 notification and when it was pointed
out to the State authorities by the Collector, the authorities issued the
B
corrigendum and simultaneously issued section 6 notification. Thus the delay
of one year between Section 4 and Section 6 notifications was satisfactorily
explained by the authorities in that case. But even that apart, the nature of
the population pressure in the Meerut town and the urgent need for providing
for housing accommodation to those residents in view of this Court's directionsc
in the aforesaid decision, authorities were justified in invoking powers under
Section 17 (4) of the Act. It is no doubt true that in the aforesaid decision,
this Court referred to the earlier three Judge Bench judgment of this Court in
the case of Narayan Govind Gavate andothers etc. v. State of Maharashtra
and others etc., [1977] 1 SCC 133, on which strong reliance was placed by
Shri Shanti Bhushan, learned senior counsel for the appellants and observed D
that perhaps at the time to which the said decision related situation might
~ have been that the schemes relating to development of residential areas in the
urban centres were not so urgent and it was not necessary to eliminate the
· inquiry under Section 5-A of the Act. The acquisition proceedings which had
been challenged in that case related to the year 1963. During this period of E
nearly 23 years since then the population of India has gone up by hundreds
of millions and it is no longer possible for the Court to take the view that the
schemes of development of residential areas do not appear to demand such
emergent action as to eiiminate summary inquiry under Section 5-A of the
Act. But even on this basis it has to be shown by the authority invoking such
emergent action to satisfy the Court when challenge is raised that the particular F
development of residential areas concerning the acquired lands in the then
existing fact situation required dispensing with Section 5-A inquiry. In the
present case no such data was even whispered about by the respondents
either before the High Court or before us, as we have seen earlier. Apart from
that, as noted in the said judgment, the delay between Section 4 and Section
G
6 notifications was adequately explained and that is how the acquisition was
upheld by this Court. With respect, the High Court seems to have read much
more in the said decision than what was contemplated by this Court when
-t
, it delivered the said decision. In the case of Rajasthan Housing Board and
ors. V. Shri Kisan and ors, [1993] 2 sec 84, another Bench of two learned
Judges of this Court consisting of Kuldip Singh and B.P. Jeevan Reddy, JJ., H
668 SUPREME COURT REPORTS (1998] 3 S.C.R.

A had to consider the question of urgency requiring dispensing with Section ~

5-A inquiry in connection with a housing scheme promulgated by the Rajasthan '
Housing Board for settling Harijans who were the weaker sections of the
society. The Court in para 14 of the Report noted that there was material
before the Government in the case upon which it could have acted when it
formed the requisite opinion that it was a case calling for exercise of power
B under Section 17 sub-Section (4). The material placed before the Court disclosed
that the Government found on due verification that there was an acute
scarcity of the land and there was heavy pressure for construction of houses
for weaker sections and middle income group people; that Ho:.:sing Board had
obtained a loan of Rs. 16 crores under a time bound programme to construct
c and utilise the said amount by 31st march 1983; that in the circumstances the
Government was satisfied that unless possession was taken immediately and
the Housing Board permitted to proceed with the construction, the Board
would not be able to adhere to the time-bound programme. It was also noted
that there was material on record to show that the Housing Board had already
appointed a large number of engineers and other subordinate staff for carrying
D out the said work and that holding an inquiry under Section 5-A would have
resulted in uncalled for delay endangering the entire scheme and time schedule
of the Housing Board. It was also noted that satisfaction under Section 17 ..r
sub-section (4) was a subjective one and that so long as there was material
upon which the Government could have formed the said satisfaction fairly, the
Court would not interfere nor would it examine the material as an appellate
E
authority. We fail to appreciate as to how the said decision rendered in the ·
peculiar facts of the case before this Court could ever be pressed in the
service in the peculiar facts of the present cases to which we have made a
detailed reference earlier. No such urgency based on any time bound scheme
is found in the present cases as was in the case of Rajasthan Housing Board
F (supra). It is, of course, true that the High Court has noted that large areas
of lands are being acquired for NOIDA and the activity carried out by it in
the region is very laudable and that NO IDA not only is an authority constituted
under the Act of 1976 but also caters to a well developed locality which is
situated in near proximity to Delhi and the entire concentration of the State
of Uttar Pradesh is to develop it in such a fashion so as to attract the biggest
G entrepreneurs from India and abroad. NOIDA is the only jewel in the industrial
crown of the State of UP and, therefore, acquisition of land for the planned
industrial development in NOIDA is nothing but emergent. We fail to appreciate ;...
as to how the High Court could persuade itself to come tn the aforesaid
conclusion about emergency when such was not the case pleaded either by
H the State or by NOIDA bt:.fore it. The only justification with which they came
OM PRAKASH v. STATE [S.B. MAJMUDAR, J.] 669
p forward was about the possibility of encroachers usurping the land if it was A
not acquired urgently. That ground, as we have noted earlier, to say the least,
is totally irrelevant one for basing any subjective satisfaction of the State
authorities for invoking powers under sub-section (4) of Section 17.

It is time for us now to refer to a few other judgments to which our
attention was invited by learned senior counsel for the respective parties. B

In the case of Narayan Govind Gavate & others etc. v. State of
Maharashtra & Ors. etc., [1977] 1 SCC 133, a three-Judge Bench of this Court
speaking through Beg, J. had to consider the question whether invocation of
powers under Section 17 sub-section (4) of the Land Acquisition Act for C
dispensing with the inquiry under Section S-A in connection with acquisition
of land for development of industrial areas and residential tenements could
be justified on the facts of that case. The following pertinent observations
in paragraphs 40, 41 & 42 of the Report were pressed in service :

"40. In the case before us, the public purpose indicated is the
D
development of an area for industrial and residential purposes. This,
~- in itself, on the face of it, does not call for any such action, barring
exceptional circumstances, as to make immediate possession, without
holding even a summary enquiry under Section SA of the Act,
imperative. On the other hand, such schemes generally take sufficient
period of time to enable at least summary inquiries under Section SA E
of the Act to be completed without any impediment whatsoever to the
execution of the scheme. Therefore, the very statement of the public
purpose for which. the land was to be acquired indicated the absence
of such urgency, on the apparent facts of the case, as to require the
elimination of an enquiry under Section SA of the Act.
F
41. Again, the uniform and set recital of a formula, like a ritual of
mantra, apparently applied mechanically to every case, itself indicated
that the mind of the Commissioner concerned was only applied to the
question whether the land was waste or arable and whether its
acquisition is urgently needed. Nothing beyond that seems to have
been considered. The recital itself shows that the mind of the
G
Commissioner was not applied at all to the question whether the
-+
~
urgency is of such a nature as to require elimination of the enquiry
under Section SA of the Act. If it was, at least the notifications gave
no inkling of it at all. On the other hand, its literal meaning was that
nothing beyond matters stated there were considered. H
670 SUPREME COURT REPORTS [ 1998] 3 S. C.R.

A 42. All schemes relating to development of industrial and residential
areas must be urgent in the context of the country's need for increased
production and more residential accommodation. Yet, the very nature
of such schemes of development does not appear to demand such
emergent action as to eliminate summary enquiries under Section 5A
of the Act. There is no indication whatsoever in the affidavit filed on
B behalf of the State that the mind of the Commissioner was applied at
all to the question whether it was a case necessitating the elimination
of the enquiry under Section 5A of the Act. The recitals in the
notifications, on the other hand, indicate that elimination of the enquiry
under Section 5A of the Act was treated as an automatic consequence
c of the opinion formed on other matters. The recital does not say at
all that any opinion was formed on the need to dispense with the
enquiry under Section 5A of the Act. It is certainly a case in which
the recital was at least defective. The burden, therefore, rested upon
the State to remove the defect, if possible, by evidence to show that
some exceptional circumstances which necessitated the elimination of
D an enquiry under Section 5A of the Act and that the mind of the
Commissioner was applied to this essential question. It seems to us
that the High court correctly applied the provisions of Section I 06 of
the Evidence Act to place the burden upon the State to prove those
special circumstances, although it also appears to us that the High
E Court was not quite correct in stating its view in such a manner as
to make it appear that some part of the initial burden of the petitioners
under Sections I 0 I ar.d I 02 of the Evidence Act had been displaced
by the failure of the State to discharge its duty under Section 106 of
the Act The correct way of putting it would have been to say that
the failure of the State to produce the evidence of facts especially
F within the knowledge of its officials, which rested upon it under
section 10 I of the Evidence Act, taken together with the attendant
facts and circumstances, including the contents of recitals, had enabled
the petitioners to discharge their burden under Sections 101 and I 02
of the Evidence Act."
G It is no doubt true that the aforesaid decision of three Judge Bench of
this Court was explained by latter two Judge Bench decision of this Court in
State of UP. v. Smt. Pista Devi (supra) as being confined to the fact situation
in those days when it was rendered. However, it is trite to note that the latter
Bench of two learned judges of this court could not have laid down any legal
H proposition by way of a ratio which was contrary to the earlier decision of
OM PRAKASH v. ST ATE [S.B. MAJMUDAR, J.) 671
three Judge Bench in Narayan govind Gavate (supra). In fact, both these A
decisions referred to the fact situations in the light of which they were
rendered.

Our attention was also invited by Shri Shanti Bhushan, learned senior
counsel for the appellants to a decisions of a two Judge Bench of this Court
in the case of State of Punjab and Anr. v. Gurdial Singh and Ors., (1980] 2 B
SCC 471 wherein Krishna Iyer, J dealing with the question of exercise of
emergency powers under section - of the Act observed in para 16 of the
Report that save in real urgency where public interest did not brook even the
minimum time needed to give a hearing land acquisition authorities should
not, having regard to :\rticles 14 and 19 burke an inquiry under Section 17 C
of the Act. Thus, according to the aforesaid decision of this Court, inquiry
under Section 5-A is not merely statutory but also has a flavour of fundamental
rights under Articles 14 and 19 of the Constitution though right to property
has now no longer remained a fundamental right, at least observation regarding
Article 14, vis-a-vis, Section 5-A of the Land Acquisition Act would remain
apposite. D

We may now refer to decision of a three judge Bench of this Court in
the case of Nandeshwar Prasad and Anr. v. The State ofU.P. and Ors., (1964]
3 SCR 425, to which our attention was invited by learned counsel, Shri Dutta
appearing for appellants in some of the appeals. Therein Wanchoo J. speaking E
for the Court observed to the effect that just as Section 17(1) and 17(4) are
independent of each other, Section 17(1A) and Section 17(4) are independent
of each other and an order under section l 7(1A) would not necessarily mean
that an order under Section 17(4) must be passed. There cannot be any
dispute on this legal position. However, the question with which we are
concerned is entirely different. It is to the effect whether on the facts of these F
cases, there was any relevant material before the State authorities to invoke
powers under Section 17 sub-section (4).

It is now time for us to refer to certain latter decisions of this Court to
which strong reliance was placed by Shri Mohta, learned senior counsel for G
NO IDA. In the case of A.P. Sareen and Others v. State of U.P. and Others,
(1997] 9 SCC 359, a two Judge Bench of this Court consisting of Ramaswamy
J. and G. T. Nanavati J, had to consider the question whether the need for
urgent possession underlying acquisition proceedings could cease to exist
only because of bureaucratic inadvertence. It was held on the facts of that
case that urgency continued so long as the scheme was not initiated, action H
672 SUPREME COURT REPORTS [1998] 3 S.C.R.

A taken and process completed. It is, of course, true that while deciding this
question, it is observed that it is well settled legal position that urgency can
be said to exist when land proposed to be acquired is needed for planned
development of the city or town etc. The said observation clearly shows that
in appropriate cases when acquisition is needed for planned development of
B city or town urgency provisions can be invoked. This aspect is legislatively
recognised by enactment of Section 17( IA) by U.P. legislature. But the said
observations cannot be read to mean that in every case of planned development
of city or town necessarily and almost automatically urgency clause has to
>
be invoked and inquiry under Section 5-A is to be dispensed with. It will all
depend upon the facts and circumstances of each case. The aforesaid
C observations cannot be held to be laying down any absolute proposition that
whenever any acquisition is to take place for planned development of city or
town, Section 5-A should be treated to be almost otios or inoperative. Such
is not the ratio of the aforesaid decision and nothing to that effect can even
impliedly be read in the aforesaid observation which is of general nature. It
only suggests that in appropriate cases, urgency clause can be invoked when
D the land is proposed to be acquired for planned development of city or town.
Another decision to which our attention was invited by Shri Mohta,
learned senior counsel for NOIDA is reported in, [1996) 2 SCC 365, Ghaziabad
Development Authority v. Jan Kalyan Samiti, Sheopuri, Ghaziabau· and Anr.
E In that case, a Bench of two learned Judges consisting ofK. Ramaswamy and
G.B. Pattanaik. JJ examined an entirely different question as to whether
notification under Section 6 could be issued simultaneously with the notification
under Section 4 (I) When Section 5-A was dispensed with under Section 17
sub-section (4). This decision therefore, cannot be of any avail to Shri Mohta
In the case of Jai Narain and Ors. v. Union of India and Ors., [1996) I SCC
F 9, another bench of two learned Judges consisting of Kuldip Singh and S.
Saghir Ahmad, JJ. had to examine the question whether invocation of urgency
provisions under Section 17 (4) for acquiring lands for constructing a Sewage
Treatment Plan (STP) in Okhla area of this city could be said to be well
justified. Upholding the said exercise by the acquiring authorities, Kuldip
G Singh, J in para 3 of the Report clearly noted the peculiar fact situation under
which Section 5-A inquiry was dispensed with in that case. It was noted that
this Court itself had issued earlier time bound directions for procurement of
land for STP in various parts of Delhi. In the aforesaid judgement, it was also
observed in an earlier decision dated 24th march, 1995, this Court had observed
that sewage problems were of grave nature and so far as discharge of effluent
H in Yamuna was concerned, the industries were the prime contributors apart
OM PRAKASH v. STATE (S.B. MAJMUDAR, J.) 673
,., from MCD and NDMC which were also discharging Sewage directly into the A
' river Yamuna and thereafter on 21st April, 1995, this Court regarding the
construction of STP had observed that the treatment of sewage was of utmost
importance for health and for supply of pure water to the citizens of Delhi.
Any delay in this respect was a health hazard and could not be tolerated. It
was also observed therein that this Court had earlier directed to the authorities
to take up the work of land acquisition and sewage on war footing. In view
B
of the directions of this Court, therefore, the authorities were bound to apply
urgency clause and invoke urgency powers for dispensing with Section 5-A
inquiry so that the sewage treatment plant could be established at the earliest
and on a war footing. We fail to appreciate as to how the aforesaid fact
situation and the direction to the State to move quickly and urgently as c
issued by this Court which was binding on the State authorities could be
legitimately pressed in service by Shri Mohta in the facts of this case which
stand on an entirely different footing, as noted earlier.

In the light of the aforesaid discussion, therefore, the conclusion
becomes inevitable that the action of dispensing with inquiry under Section D
5-A of the Act in the present cases was not based on any real and genuine
subjective satisfaction depending upon any relevant data available to the
State authorities at the time when they issued the impugned notification
under Section 4(1) of the Act and dispensed with Section 5-A inquiry by
resorting to Section 17 sub-section (4) thereof. The first point is, therefore, E
answered in the negative, in favour of the appellants and against the contesting
respondents.

Point No. 2

So far as this point is concerned Shri Shanti Bhushan, learned senior F
counsel for the appellants submitted that much prior to the issuance of
Section 4 notification and after the earlier acquisition of 15 bighas of land from
the appellants' own Survey No. 488, as the appellant was apprehending
further acquisition of a portion of land on which his construction stood the
appellant was constrained to file a civil suit against NOIDA for a declaration
G
that the appellant was the owner and in possession of land measuring 4 bigha
I 0 biswas comprising in Khasra No. 488 situated in village Chhalera Banger,
and abadi stood therein for about 5-6 years. The said suit was registered as
--+
of
Case No. 46 of 1989 in the court of Munsif, Ghaziabad. After hearing the
plaintiff and NO IDA, the Civil Court came to the conclusion on evidence that
there was abadi in the disputed property. The Civil Court also noted the H
674 SUPREME COURT REPORTS [1998] 3 S.C.R.
,.._
A contention of NO IDA which was defendant in that case that if disputed land
was abadi land of the plaintiff, then he could file objections under Section 5-
A of the Land Acquisition Act against the proposed acquisition proceedings
and if his abadi was proved on the disputed land, then his abadi 1and could
be left out. Our attention was also invited to the further fact that the said

B decision of the Civil Court dated 14th December, 1989 was confirmed by the
District Court in appeal on 17th November, 1990. Thus final court of facts
came to the conclusion that there was abadi of the appellant on the land in
question even prior to the date of Section 4 notification in the present case.
It is, of course, true as informed to us by Shri Mohta, learned senior counsel
-·
for NOIDA, that the said decision of the District Court is not final and second
c appeal against the said decision is pending in the Allahabad High Court. Be
that as it may, the contention of Shri Shanti Bhushan, learned senior counsel
for the appellants, was that there was sufficient evidence on the record of this
case to show that the disputed land under acquisition was having abadi since
number of years and that was prior to the issuance of Section 4 notification
D dated 05th January, 1991. He also invited our attention to the further fact that
pending the proceeding before the High Court a site inspection report was
prepared in connection with diverse lands under acquisition and the appellant's
Khasra No. 488 was one of them. This report dated I Ith March, 1996 was
submitted by Officer on Special Duty, Land Acquisition Department, Revenue
E Board, U.P. which clearly shows that at the time when the inspection was
made of Khasra No. 488 belonging to the appellant, on the extent of 4 acres
and I 0 bighas of land factory was located and the property was being used
also for residential purpose. There was telephone number, there were three
electric meters installed, about 60 workers were found working in the factory.
Besides, 8 shops and 5 residential houses were existing where families were
F
living. It was also noted that construction was very old and people were
residing there for long time and factory was also being run. Learned senior
counsel for NOJDA submitted that the aforesaid inspection report was one-
sided and it did not indicate whether NOIDA authorities were also present
at the time of the said report. The learned counsel appearing for the appellants
G in the remaining appeals also submitted that there was abadi on the lands
occupied by these appellants also. It is submitted on behalf of the appellants
by their learned counsel that there is a policy followed by the State of Uttar t-
Pradesh not to acquire lands which are having abadi and consequently if '
Section 5-A inquiry 1was held, the appellants could have requested the
H appropriate authorities not to acquire these lands.
OM PRAKASH v. ST ATE [S.B. MAJMUDAR, J.] 675
Repelling the aforesaid contention, learned senior counsel for NOIDA A
"'I submitted that there is some misconception about the concept of abadi. That
' abadi is a term which refers to village site lands utilised for the residential
purposes. He, of course, stated that it is true that there is a policy adopted
by the State of Uttar Pradesh not to acquire lands on which there is abadi,
namely, village site lands having residential construction thereon. But according
to him, the Civil c~urt's decree which has not become final tries to equate B
construction with abadi but in the strict sense of the term it would not be
abadi which would be covered by the State policy of not acquiring lands
...., having such abadi as any stray construction made on agricultural lands
outside the village sites reserved for putting up construction of residential
quarters in villages would not be covered by the State policy of not acquiring· c
such abadi lands. He stated that whatever stand NOIDA authorities might
have taken as defendant in the suit cannot bind the state authorities. Dr.
Ghatate, learned senior counsel appearing for t!Je State of Uttar Pradesh, also
submitted that the State was not a party to the Civil Court litigation. He, of
course, stated that there is a State policy in existence as on date under which
genuine abadi lands on which abadi is situated within the village sites may D
not be acquired but only because there are some stray construction on
agricultural lands beyond the village sites they would not be covered by such
State policy. It was also submitted by Shri Mohta, learned senior counsel for
NOIDA and Dr. Ghatate, learned senior counsel for State of U.P. that what is
necessary to be seen is whether there was any real abadi on the lands under E
acquisition on the date of Section 4 notification dated 05th January, 1991 as
any subsequent construction put up thereafter by any of the occupants
would not create any equitable rights in their favour and any subsequent
construction and change of user of the land covered by Section 4 notification
cannot be of any avail.
F
In view of the aforesaid rival contentions, therefore, it appears to us
that in the present proceedings arising out of petitions under Article 226 of
the Constitution of India it is not possible to come to a definite conclusion
on these highly disputed questi~ns of fact, namely, whether the lands in
dispute were part of village site lands reserved for construction of residential
G
houses and whether they were covered by the term 'abadi' so as to be
subjected to any policy decision of the State for excluding such abadi lands
_. from acquisition proceedir.gs. EYen the Civil Court litigation which is still
subjudice before the High Court would by itself not bind the State authorities
.;
as State of U.P. was not a party to these proceedings as rightly contended
by learned senior counsel Dr. Ghatate. Not only that but the High Court in H
676 SUPREME COURT REPORTS [1998] 3 S.C.R.

A the impugned judgment has referred to the set of evidence on record and has
held that there is no evidence showing the extent of construction on the
lands. On the other hand, there is a I 7- point report by the Tehsildar, Dadri,
which is Annexure - 7 to the model counter affidavit filed by t!'e State in
which he clearly pointed out that the land sought to be acquired was agricultural
and that only boundary wall had been constructed in I I plots. The High
B Court has also observed that in exercise of the powers under clause (d) of
Section 2 read with Section 3 of the U.P. Industrial Area Development Act,
1976 the notification of 17th April, 1976 was published to declare the area
comprising the villages mentioned in the schedule annexed thereto, to be
called the New Okhla Industrial Development Area. The village Chhalera
C Banger, land of which is shown in Khasra entries, is one of the villages
comprised in the schedule. The submission of the learned standing Counsel
is that this area was already declared as industrial development area and after
the notification of 1976 was issued, such area could not have been converted
into Abadi. Therefore, a further disputed question would arise as to whether
the so-called abadi on these lands sought to be acquired out of the agricultural
D holdings of the occupants in village Chhalera Banger were subjected to
construction of abadi prior to 1976 notification or subsequent thereto.
Consequently, no direction can be issued to the State authorities straightaway
to release these lands from acquisition by coming to a firm finding that there
were existing old abadi on these lands and which were squarely covered by
E any State policy of not acquiring lands having abadi thereon.

We may also mention at this stage that apart from the appellants in Civil
Appeal arising out of S.L.P. (C) No. 20905 of 1995 in cases of other appellants
no civil suits were filed and, therefore, in their cases the question even about
construction, if any, is totally at large. That the moot question is whether the
F lands under acquisition in the present case were having abadi at the time of
issuance of Section 4(1) notification and whether such construction, if any,
could be said to be abadi as covered by a policy decision of the State of U.P.
not to acquire such lands. In fairness to Shri Shanti Bhushan it was submitted
by him that we may not answer this question one way or the other if the
G appellants are to be relegated to the remedy of filing objections under Section
5-A of the Act. It is, of course, true as found by us on point No. 1 that Section
17 sub-section (4) was not rightly invoked by the authorities in the present
cases. However, as will be seen hereafter, while considering point No. 3, we
are not inclined to give opportunity under Section SA to the appellants on
the peculiar facts of these cases. All that we can observe at this stage is that
H the question whether the appellants' lands are covered by any existing policy
OM PRAKASH v. STATE (S.B. MAJMUDAR, J.] 677
7 decision of the State of U.P. for not acquiring lands having abadi thereon, is A
required to be kept open for consideration of the proper State authorities, as
will be indicated by us hereinafter while considering point Nos. 3 and 4. Point
No. 2 is answered accordingly.

Point No. 3.
B
Now remains the vital question as to whether in the light of our finding
on Point No. 1 the notification under Section 4(1) so far as it dispenses with
Section 5-A inquiry by invoking powers under Section 17(4) of the Act and
the consequential notification under Section 6 are required to be set aside or
not. We must keep in view that we are called upon to exercise our jurisdiction C
under Article 136 of the Constitution oflndia. Such jurisdiction will necessarily
have to be exercised in the light of facts and circumstances of these cases.
Section 4 notification in the present cases is dated 5th January 1991. It is
followed by Section 6 notification dated 7th January 1992. In between the
appellants went to the High Court and got status quo order since 31st March
1992 .. Result is that till today even after the expiry of 6 years and more, the D
land acquisition proceedings qua the appellants' lands have remained stagnant.
It is also to be kept in view that the impugned notification under Section 6
of the Act was issued for the purpose of planned development of District
Ghaziabad through NOIDA and by the said notification, 496 acres of land
spread over hundreds of plot numbers have ben acquired. Out of 494.26 acres E
of land under acquisition, only the present appellants owning about 50 acres,
making a grievance about acquisition of their lands have gone to the court.
Thus, almost 9/10th of the acquired lands have stood validly acquired under
the land acquisition proceedings and only dispute centres round Ill 0th of
these acquired lands owned by the present appellants. It is a comprehensive
project for the further planned development in the district. We are informed F
by learned senior counsel Shri Mohta for NOIDA, that a lot of construction
work has been done on the undisputed land under acquisition and pipelines
and other infrastructure have been put up. That the disputed lands belonging
to the appellants may have stray complex of lands sought to be acquired.
That if notification under Section 4( 1) read with Section 17 (4) is set aside qua G
these pockets of lands then the entire development activity in the complex
will come to a grinding halt and that would not be in the interest of anyone.
It was also contended by learned senior counsel for the respondents that it
was not the appellants' contention that the proposed acquisition was not for
public purpose nor any mala tides were alleged to be behind such acquisition.
Learned senior counsel, Shri Shanti Bhushan, fairly stated that though the H
678 SUPREME COURT REPORTS [1998] 3 S.C.R.
~

A appellants might have mounted a challenge on the ground of mala tides, they
have not done so before the High Court nor before this Court. Under these
circumstances, we find considerable force in the contention of learned senior
counsel for the respondent that it is neither advisable nor feasible to interfere
with the acquisition of such large tracts of lands when the occupants of 9/
I 0th of the acquired lands have not thought it fit to challenge these acquisition
B proceedings and the occupants of only I/10th of lands are agitating their
grievance since more than six years firstly before the High Court and then
before this Court. The appellants' main grievance centres round the question -'""
whether their lands having alleged abadi could be acquired in the light of the
State policy for not acquiring such lands. For such a contention, of course,
c grievance could have been made under Section 5-A inquiry if it was held. But
that could have been urged years back before Section 6 notification saw the
light of the day in 1992. Now after a passage of more than six years, it would
not be feasible to put the clock back and permit the appellants to agitate this
contention which appears to be the sole contention for opposing the acquisition
proceedings in the facts of the present cases by permitting them to urge this
D grievance in Section 5-A inquiry which according to them should be held at
this stage. We will show presently that this solitary grievance of the appellants
could be vindicated before the State authorities themselves by relegating the
appellants to proper remedy by way of representation under Section 48 of the
Act and when that remedy is available to the appellants and when that is the
E sole grievance of the appellants, at this stage no useful purpose would be
served by striking down the notification under Section 4( I) qua the appellants
so far as invocation of Section 17 (4) is concerned and the consequent'
notification under Section 6. That we cannot permit upsetting the entire apple
cart of acquisition of 500 acres only at the behest of I/10th of land owners
whose lands are sought to be acquired. We may also keep in view the further
F salient fact that all the appellants have filed references for additional
compensation under Section 18 of the Act. Shri Shanti Bhushan, learned
senior counsel, was right when he contended that the appellants could not
have taken the risk of getting their reference applications time barred during
the pendency of these proceedings. Therefore, without prejudice to their
contentions in the present proceedings they have filed such references. Be
G that as it may., that shows that an award is also made and references are
pending. Under these circumstances for enabling the appellants to have their
say regarding release of their lands on the ground that they are having abadi t
and that the State Policy helps them in this connection the appellants can be
permitted to have their grievances voiced before the State authorities under
H Section 48 rather than under Section 5-A of the Act at such a late stage.
OM PRAKASH v. STATE [S.B. MAJMUDAR, J.] 679

'I Consequently, despite our finding in favour of the appellants on Point No. A
I
I, we do not think that this is a fit case to set aside the acquisition proceedings
on the plea of the appellants about non-compliance with Section 5-A at this
late stage. It is also obvious that if on this point the notifications are quashed
for non-compliance of Section 5-A, that would open a pandora 's box and
those occupants who are uptill now sitting on the fence may also get a hint B
to file further proceedings on the ground of discriminatory treatment by the
State authorities. All these complications are required to be avoided and
hence while considering the question of exercise of our discretionary
jurisdiction under Article 136 of the Constitution oflndia, we do not think that
this is a fit case for interference in the present proceedings with the impugned
notifications. Point No. 3, therefore, is answered in the affirmative against the C
appellants and in favour of the respondents.

Point No. 4

Now remains the moot question as to what proper orders can be passed
in the present proceedings in the light of our findings on the aforesaid points. D
We have already noted that the real and the only contention of the appellants
for effectively challenging the acquisition proceedings is that because their
lands are having abadi they are covered by the existing State policy for not
acquiring such lands under the Act. Whether these lands are having abadi
or not is a vexed question of fact which we have kept open for consideration E
of appropriate authorities instead of relegating the appellants to the remedy
under Section 5-A of the Act. We deem it fit to relegate the appellants to the
remedy by way of suitable representation before the appropriate State
authorities under Section 48 of the Act. It reads as under:

"48. Completion of acquisition not compulsory, but compensation to F
be awarded when not completed. - (I) Except in the case provided for
in Section 36, the Government shall be at liberty to withdraw from the
acquisition of any land of which possession has not been taken.

(2) Whenever the Government withdraws from any such acquisition, G
the Collector shall determine the amount of compensation due for the
damage suffered by the owner in consequence of the notice or of any
proceedings thereunder, and shall pay such amount to the person
interested, together with all costs reasonably incurred by him in the
prosecution of the proceedings under this Act relating to the said
land. H
680 SUPREME COURT REPORTS (1998] 3 S.C.R.

A (3) The provisions of Part III of this Act shall apply, so far as may
be, to the determination of the compensation payable under this
section."

As laid down by sub-section (I) of Section 48 the Government is at liberty
to withdraw from the acquisition of any land of which possession has not
B been taken. Learned senior counsel for the contesting respondents submitted
that possession of these lands has already been taken. Our attention was
invited to a possession receipt annexed to the counter affidavit filed on behalf
of Respondent No. 4, Secretary, New Okhla lndustrial Development Authority.
It is stated in the counter that NOIDA has been put in possession of the
C acquired lands from 30th March 1992 and the lands under acquisition now
form a part of Sectors 43 and 44 ofNOIDA. Secretary of New Okhla Industrial
Development Authority, Shri Rama Shankar has also earlier filed counter
affidavit to that effect. In para 6 thereof it is averred as under:

"6. I further say and submit that the Hon'ble High Court of Judicature
D at Allahabad on 31.3 .1992 passed an interim order to the effect that
there would be status quo and/or that the petitioners would not be
dispossessed from the land in dispute unless he has already been
dispossessed. I say and submit that a day prior to the date on which
the interim order was passed, the Petitioner had already lost possession
and the 4th Respondent was put in actual physical possession of the
E land which is the subject matter of this petition."

Our attention was also invited to Possession Certificate at Page 202 which
mentions that for the lands detailed in the Certificate, possession should be
given to the Tehsildar/Administrative officer, NOIDA on 30th March 1992.
Number of lands are listed totalling to 492.91 acres wherein appellants' khasra
F numbers are also mentioned. It is difficult to appreciate as to how the
Possession Certificate for all these numbers of lands would necessarily include
actual taking over of number of lands on which there were constructions on
the spot at the relevant time. It is also pertinent to note that the possession
Certificate is dated 30th March 1992 and the High Court of Allahabad granted
G status quo order on the next day, i.e., 31st March 1992. It, therefore, appears
to us that so far as the appellants' lands are concerned, only an effort was
made to take paper possession on 30th March, 1992 and actual possession
does not seem to have been taken. No possession receipt signed by any of
the appellants could be produced to substantiate that contention. Not only
that, as noted earlier, the evidence on record showed that even pending the
H writ petition, the Site Inspection Report of I Ith March 1996 showed that some
~

OM PRAKASH v. STA TE [S.B. MAJMUDAR, J.] 681
of the lands in question were actually occupied by residents and the lands A
/
' were constructed upon and factory was being run. Consequently, it is not
possible to agree with the submission of learned senior counsel for the
respondents that the possession of the acquired lands belonging to the
appellants was actually taken on the spot on 30th March, 1992. It is not in
dispute that status quo order granted by the High Court continued all
throughout till the dismissal of the writ petition. It was then contended that,
B
before this Court could grant any interim relief, possession appeared to have
been taken of these lands at least on 18th November 1995. Our attention was
·1(
invited to the authority letter written by one Shri Chandra Pal Singh, Additional
District Magistrate, Land Acquisition, NOIDA, Ghaziabad that possession
should be given on 18th November 1995. It is obviously after the decision c
of the High Court dated 24th August, 1995. However, it must be noted that
this Court by order dated 29th September, 1995 had already granted ad interim
stay limited to the extent that any existing construction should not be
demolished without leave of the Court and that order has continued all
throughout till the hearing of the present appeals. It is, therefore, difficult to
appreciate as to how despite the order of this Court, possession of the D
present appellants' lands could have been taken on 18th November, 1995.
However, Shri Mohta, learned senior counsel for NOIDA submitted that this
Court order was only not to demolish the construction and has nothing to
do with taking possession. It is difficult to appreciate this submission. If the
constructions on the disputed lands under acquisition were not to be E
distributed, how it could be contended that still the possession of the
constructions was with NOIDA and that they would not demolish the
construction having taken their possession. Even that apart, the authority
letter dated 18th Novemler, 1995 itself shows the details of lands possession
of which was given to NO IDA and the land of Survey No. 488 is not one of
them. For all these reasons, therefore, it must be held that possession of the F
lands under acquisition belonging to the present appellants has remained
with the appellants till date. Once that conclusion is reached, Section 48 sub-
' Section {I) can be legitimately invoked by the appellants for consideration of
the State authorities. It is, of course, trut; that the said provision gives liberty
to the State to withdraw form acquisition of any land but if the appellants are
G
in the position to convince the State authorities that their lands were having
abadi on the date on which Section 4 notification was issued on 5th January,
1991 and it was that abadi which had continued without any additional
.,--1 construction thereon till the date of Section 6 notification and thereafter and
such abadi was squarely covered by the Sate policy of not acquiring lands
having abadi, then it will be open to the State authorities to pass appropriate H
682 SUPREME COURT REPORTS [1998] 3 S.C.R.

A orders for withdrawing such lands from acquisition and give appropriate relief "
to the applicants concerned. We, therefore, grant liberty to the appellants, if
so advised, to file written representations before appropriate authorities of the
State ofUttar Pradesh invoking State Government's powers under Section 48
sub-section ( 1) of the Act. It is made clear that we express no opinion on the
question whether the appellants' lands had such abadi on the date of Section
B 4 notification which would attract the State policy of not acquiring such lands
and whether such policy had continued thereafter at the stage of Section 6
notification of 7th January, 1992 and whether such policy is still current and
operative at the time when the appellants' representations ;ome up for
consideration of appropriate authorities of the State Government. It will be for
C the State authorities to take their informed decision in this connection. We
may not be understood to have stated anything on this aspect, nor are we
suggesting that the State must release these lands from acquisition if the
State authorities are not satisfied about the merits of the representations. The
State authorities will have to be satisfied on the following aspects in this
connection:
D
(i) Whether there was any abadi on the acquired lands at the time of
Section 4(1) notification;

(ii) whether such abadi was a legally permissible abadi;

E (iii) Whether such abadi has continued to exist till the date of
representation;

(iv) Whether such abadi was covered by any Government policy in
force at the time of issuance of Section 4(1) notification and/or Section 6
notification for not acquiring lands having such abadi;
F
(v) whether such Government policy has continued to be in force till the
date of representation.

In short, the entire matter is left at large for the consideration of the
G State authorities in the appellants' representation. We also make it clear that
if the appellants file their written representations to the aforesaid effect on or
before 31.8.1998 then the appropriate authorities of the State Government
shall consider their representations regarding the feasibility of releasing such
lands from acquisition under Section 48(1) of the Act on the ground that there
were 'abadis' on these lands at the relevant time and are governed by any
H existing State policy for re!easing such lands from acquisition on that score
OM PRAKASH v. STATE [S.B. MAJMUDAR, J.) 683

,'I. as indicated hereinabove and for that purpose they may give hearing to the A
appellants, either personally or through their counsel, and permit them to lead
whatever evidence they want to lead in this connection. The State authorities
shall consider these written representations within a period of two months
from the date such representations are received, i.e. latest by 31.l 0.1998 and
will take appropriate decisions on these representations and will inform the B
representationists concerned in writing about the decision of the State
Government in this connection.

Subject to the aforesaid liberty given to the appellants, these appeals
will, therefore, stand dismissed. We may, however, state that the status quo
regarding possession on spot in connection with the appellants' lands shall C
be maintained by all concerned till 30.11.1998 within that time the consideration
of the appellants' representation under Section 48(1) of the Act is completed
by the State authorities and result thereof is communicated to the
representationists. We also make it clear that if the appellants do not file such
representations on or before 31.8.1998 the State authorities will not be required
to consider any such representation filed thereafter and the status quo order D
regarding possession as granted by us will stand recalled after 31.8.1998 qua
the concerned appellants who do not file such representations within the time
granted by us for the purpose.

Before parting with the present proceedings we may mention one request E
made by learned senior counsel Shri K. K. Venugopal appearing for Respondent
No. 5 whose intervention application was granted in S. L. P. (C) No. 20905 of
1995. Learned senior counsel stated that many serious objections are required
to be considered against the acquisition of the land of the intervener and it
was his contention that lands were acquired for being allotted to persons
closely related to the Chairman and other powers that be, but as these F
contentions raise disputed questions of fact and as Respondent No. 5 had
not filed any writ petition in the High Court he may be given liberty to file
writ petition under Article 226 of the Constitution of India before the High
Court. The said request is reasonable. In the present appeals arising out of
judgment of the High Court in writ petitions filed by the appellants, Respondent G
No. 5's independent grievance cannot be examined. It would, therefore, be
appropriate to relegate Respondent No. 5 intervener to the remedy of filing
a substantive writ petition under Article 226 of the Constitution of India
before the High Court. The respondent-authorities had no objection to such
course being adopted. Consequently, Respondent No. 5 - intervener's
contentions are not being examined by us in these proceedings. It is trite to H
684 SUPREME COURT REPORTS [1998] 3 S.C.R.

A observe that as and when Respondent No. 5 files a substantive writ petition
..
under Article 226 of the Constitution of India before the High Court, it will
be for the High Court to decide the merits of the said writ petition including
the question whether the writ petition at such a stage is required to be
entertained or not. In short, we express no opinion on the merits of such writ
petition that may be filed by the intervener - Respondent No. 5 in the High
B Court. The said petition will have to be decided on its merits including the
question of its maintainability by the High Court after hearing the parties
concerned.

In the result, these appeals fail and are dismissed, subject to the aforesaid
C liberty reserved to the appellants for filing written representations under
Section 48 sub-section {I) of the Act. There will be no order as to costs in
the facts an circumstances of the cases.

RKS. Appeals dismissed.