Pankaj Mithal, J.
1. The petitioner has assailed the notification dated 03.10.2005 (annexure-1 to the writ petition) issued under Section 4(1) read with Section 17(1) and Section 17(4) of the Land Acquisition Act (hereinafter referred to as an Act). Primarily, as it would appear from the facts and discussions herein under, the petitioner has only attacked the notification issued under Section 17(1) and 17(4) of the Act by which the provisions of Section 5A of the Act have been excluded and the petitioner's right to file objections against the proposed acquisition has been taken away.
2. The petitioner is a cooperative housing Society duly registered under the U.P. Cooperative Societies Act. The petitioner for the purposes of developing land and promoting residential colony had purchased the land in dispute in the city of Agra. The petitioner for developing the said land had submitted a lay out plan to the Agra Development Authority (hereinafter referred to as A.D.A.) for approval and when the same was not approved, the petitioner approached the High Court by filing a writ petition wherein vide order dated 06.10.2005 passed by this Court, directions were issued to the A.D.A. to consider the lay out plan of the petitioner in accordance with law on merit provided the land is not under acquisition.
3. In the meantime, the State of U.P. on 03.10,2005 issued the impugned notification under Section 4 read with Section 17 of the Act proposing to acquire 395.5726 Hectare of land of the villages Barauli, Ahir, Bagda, Tora, Lakawali, Chamrauli, Mayapur and Kala! Kheria in Agra including the land in dispute. In the aforesaid notification, it has been clearly stated that the land is needed for the public purpose of plan development of a residential colony. The respondents further invoked the provisions of Section 17(4) of the Act and on account of urgency dispensed with the inquiry provided under Section 5A of the Act. The aforesaid acquisition in effect is for the purposes of developing a residential colony with the name of Taj Nagari phase-Ill. The petitioner further states that the development authority is already possessed of over 800 bighas of land, which was acquired by it for Taj Nagari phase-II and this acquired land has not been developed by it, therefore, there is no need for acquiring any further land. The acquisition of land belonging to Cooperative Housing Society is in violation of Government Orders dated 27th October 1986, 2.6.1998 and 22.10.2002. The petitioner by filing supplementary affidavit dated 12.12.2005 (served upon A.D.A. on 1.3.2006) has further alleged that the acquisition is in effect for providing land to Private Colonizers, which is not a public purpose. It has also been stated in the petition that the respondents have left out or released some plots of land from the acquisition on account of political influence or pressure and as such the action of the respondents in acquiring the land of the petitioner is arbitrary and discriminatory in nature. The Development Authority is not possessed with sufficient funds to meet out the expenses of the acquisition and the amount of Rs. 26,00,87,354.30 deposited by it is highly inadequate and insufficient.
4. The petitioner has mainly attacked the action of the respondents in invoking the provisions of Section 17(4) of the Act so as to dispense with the inquiry provided under Section 5A of the Act. The petitioner contends that the valuable right of the petitioner to file objections under Section 5A of the Act against the proposed acquisition cannot be taken away as the respondents have not applied mind as to whether there was any urgency of such a nature so as to exclude the petitioner's rights under Section 5A of the Act. The plea of urgency is belied from the fact that despite the impugned notification having been issued on 3.10.2005 even then the respondents have not cared to issue the final declaration under Section 6 of the Act till date.
5. At the time of filing of writ petition, a preliminary objection was raised on behalf of A.D.A. that the petition is premature and is not maintainable. The petitioner has no cause of action to challenge the notification issued under Section 4 of the Act independently. However, despite the above preliminary objection, the writ petition was duly entertained and an interim order was passed on 23.11.2005 directing the parties to maintain status quo for a limited period which order is continuing. In the meantime, many other writ petitions challenging the impugned notification on the same footing were entertained and interim orders on the same lines were passed therein by the High Court. Few of the other writ petitions of similar nature challenging the impugned notification came to be dismissed as premature and not maintainable. Against the ad interim orders passed in the writ petitions including the present writ petition, A.D.A. went before Hon'ble the Supreme Court and filed Special Leave Petitions. However, Hon'ble Supreme Court vide order dated 3,3.2006 dismissed all Special Leave Petitions on the ground that they arise from an interim order passed by High Court directing for maintaining status quo. Hon'ble Supreme Court further while dismissing the Special Leave Petitions hoped that the High Court shall dispose of the writ petitions pending before it within three months after notice to the respondents. The order of Hon'ble Supreme Court dated 3.3.2006 passed in the bunch of S.L.P. in which S.L.P. No. 3667 of 2006 Agra Development Authority v. Nisha Sahakari Avam Samiti Ltd. and Ors. was treated as the leading case is quoted below:
We do not wish to entertain these petitions. These petitions are filed against ad-interim order passed by the High Court. However, since the High Court has passed an order for maintenance of status quo, we expect the High Court to dispose of these petitions when they come up after notice and, in any case, not later than three months from today. The Special Leave Petitions are dismissed.
Counsel for the respondents undertake before us that no adjournment shall be prayed for on any ground by them.
6. During the pendency of the present writ petition and other connected writ petitions, impugning the notification in dispute, the respondents refrained themselves from proceeding ahead with the acquisition and to declare the notification under Section 6(2) of the Act in respect of the land covered by pending writ petitions as the court was seized of the matter. However, in respect of the land, which was not involved in any of the writ petitions, the respondents proceeded further to issue a declaration under Section 6 of the Act which was issued on 23.05.06
7. Some petitions have now been filed challenging both the notifications issued under Section 4 and 6 of the Land Acquisition Act. These writ petitions shall be dealt with separately.
8. In the present writ petition, counter affidavits have been filed separately by the respondent No. 1-State of U.P., respondents No. 2 and 3 Collector and Land Acquisition Officer, Agra respectively and respondent No. 4-A.DA
9. We have heard Sri Manish Goyal, Advocate for the petitioner alongwith Sri P.C. Jain, advocate in some of the connected writ petitions and learned standing counsel-Sri Alok Kumar Singh and Smt. Sarita Singh on behalf of respondents No. 1, 2 and 3 and Sri Pradeep Kumar assisted by Sri Atul Mehra, advocate for A.D.A. Since in the present writ petition, necessary counter and rejoinder affidavits have been exchanged and the counsels have agreed for the final disposal of all the writ petitions on the basis of the above pleadings, as such, the same are being disposed of finally with the consent of the parties. Sri P.C. Jain, learned Counsel for the petitioner in some connected petitions also consented for the disposal of the petitions on the basis of counter and rejoinder affidavits filed in the present petition.
10. It may not be out of context to point out that this Court had ordered the respondents and have directed them to produce the original record. In pursuance of the said order, learned Standing Counsel has produced the record of State of U.P. and Mr. Pradeep Kumar has produced the record of A.D.A.
11. Sri Pradeep Kumar, learned Counsel for A.D.A. has reiterated the preliminary objection that the petitioner has no cause of action for filing the writ petition as in respect of the petitioner's land, only a notification under Section 4 of the Act has been issued and there is no final declaration under Section 6 of the Act. He has relied upon few orders passed by this Court wherein the writ petitions challenging the notification under Section 4 of the Land Acquisition Act were, dismissed summarily as premature with liberty to the petitioners to approach the Court as and when occasion arises i.e. after the issuance of declaration under Section 6 of the Act.
12. Sri Manish Goyal, learned Counsel for the petitioner in reply to the above preliminary objection and the submissions of Sri Pradeep Kumar, Advocate has emphasized that the notification issued under Section 4 of the Act can also be challenged independently if there are legal mala-fides in issuing the same i.e. it has been issued for non existing purposes or for any oblique motive. In support, he has relied upon the decisions of Hon'ble Supreme Court in Collector Allahabad v. Raja Ram Jaiswal : [1985]3SCR995 and Radhey Shyam v. State of Haryana AIR 1982 P&H; 519 (FB).
13. Now let us take up the preliminary objection of the A.D.A. that the petition challenging the notification issued under Section 4 of Act is 'premature and is not maintainable. In the case of Collector Allahabad v. Raja Ram Jaiswal (Supra), the land purchased for establishing a Cinema Hall in front of Hindi Sahitya Sammelan was notified to be acquired under Section 4 of the Act. The said notification alone was challenged directly in the High Court inter-alia on the grounds that the notification has not been validly published in all the three modes prescribed under the Act i.e. in the Official Gazette, Daily News Papers and in the locality. The other ground of the attack was that the acquisition was a colourable exercise of power based upon legal malafides. The acquisition was at the behest of Hindi Sahitya Sammelan, which was against the opening of a Cinema Hall in front of its premises. The High Court, while entertaining the writ petition, had quashed the notification under Section 4 of the Act 'on the solitary ground that the mandatory requirement of publishing the notification in the locality was not resorted to. Against the judgment and order of the High Court, the Collector, Allahabad as well as the owner of the land Raja Ram Jaiswal went before the Supreme Court by separate appeals. The Hon'ble Supreme Court overruled the preliminary objection that the writ petition is premature and held that where there is frontal attack upon the notification as the legal requirements have not been followed in issuing or publishing the same, such legal infirmities cannot be wholly overlooked merely on the ground that the Court do not interdict at the stage of a mere proposal. The notification was also held to be bad as it was issued malafidely. In short, the plea that the writ petition challenging the notification under Section 4 of the Act as premature was not accepted and it was observed that though ordinarily the Court do not interfere at the stage of proposal but where there is a frontal attack to the notification on account of legal infirmities and there are legal mala fides, the Court is not powerless in issuing an appropriate writ even at the stage of proposal.
14. Similar view has been expressed by Full Bench of Punjab and Haryana High Court in the case of Radhey Shyam Gupta v. State of Haryana (Supra) wherein it has been held that:
where the very initiation of the proceedings are tainted with mala fides, the notification under Section 4 of the Act can be challenged on the basis of a colourable exercise of power forthwith.
15. The orders of the High Court dismissing some of the writ petitions as premature and not maintainable are summary decisions which contains no discussion on law and as such cannot be treated as precedent and therefore are of no help to the respondents.
16. In view of the above discussions, we are of the view that even though the notification issued under Section 4 of the Act is merely a proposal and is not a conclusive proof of acquisition, the Court may exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India to quash the same if the notification is per se illegal and the mandatory procedure prescribed has not been followed in issuing and publishing the same and where the proposal is tainted by mala-fides. Therefore to conclude the writ petition challenging the notification under Section 4 of the Act is some times maintainable at least in the above two exceptional circumstances at the discretion of the Court.
17. In the present case, it is admitted that there is no legal discrepancy in issuing and publishing the notification under Section 4 of the Act, The notification has duly been published in the Official Gazette dated 3.10.2005, Daily News Papers 'Amar Ujala' and 'Dainik Jagran' of Agra both dated 10.11.2005. The substance of the notification has also been published in the locality by beat and drums on 28.4,2005 as well as by pasting public notices at the convenient places in the locality, Thus admittedly there is no frontal attack on the validity of the notification issued under Section 4 of the Act.
18. So far as, the second aspect of the matter is concerned that the proposal for acquisition is based on the legal mala fides in as much as, there is no public purpose to acquire the land, we are of the opinion that the notification in unequivocal terms states that the land 'is' needed for the public purpose of plan development of a residential colony. However, merely because the development authority is possessed of sufficient other land and is unable to develop the land already in its possession it in no way suggest that the land in dispute is not needed for any further plan development. The submission that the land is actually being acquired for development by private builders and as such there is no public purpose, has no base to stand. The record of the A.D.A. contains a letter of the Vice Chairman, A.D.A. dated 2.8.2005 addressed to the Secretary, Awas Avam Shram Niyojan Vibhag stating clearly that the land under acquisition is not being allotted for the promotion of any high-tech city but is required for residential colony of the A.D.A. Moreover, the manner of development and promotion of a residential colony on the acquired land is within the domain of the A.D.A. Therefore, the A.D.A. for whom the land is being acquired, is free to develop it according to the approved plan either itself or through Private builders/ Colonizers. It can partly be developed by the A.D.A. and partly by other agencies may be private. Therefore, the argument that the proposal to acquire the land is tainted with legal mala-fides and is a colourable exercise of power is not acceptable to us. The Hon'ble Supreme Court in Bajirao T Kote and Anr. v. State of Maharashta and Ors. 1994-2004 S.C. Judgments on Land Acquisition has held as under:
When the State Govt. have exercised the power under Section 4(1) for a public purpose and the public purpose was mentioned therein, the exercise of the power cannot be invalidated on grounds of malafides or colour able exercise of power so long as the public purpose is shown and the land is needed or is likely to be needed and the purpose subsists at the time of exercise of the power. It is primarily for the State Government to decide whether there exists public purpose or not, and it is not for this Court or the High Courts to evaluate the evidence and come to its own conclusion that it is a malaflde or colourable exercise of the power.
19. In view of the above discussions, we are of the view that the petitioner has failed to bring his case within the exceptional categories on which the notification under Section 4 of the Act can be challenged independently and therefore, we are not inclined to accept the challenge to the impugned notification issued under Section 4 of the Act.
20. Sri Manish Goyal has then asserted that even if the notification issued under Section 4 of the Act is held to be a valid notification, the other part of the impugned notification in so far as it invokes the provisions of Section 17(1) and 17(4) of the Act dispensing with enquiry under Section 5A of the Act is bad in law as the statutory right of the petitioner to file objection has been taken away without there being any urgency to acquire the land. The above power has been invoked without any application of mind.
21. To test the above argument, it is appropriate to examine the scheme of the Act. The scheme of the Act makes it abundantly clear that the notification under Section 17(4) of the Act is quite distinct, separate and independent from the notification issued under Section 4 of the Act. The notification under Section 17(4) of the Act follows the notification issued under Section 4 of the Act and precedes the declaration, which is issued under Section 6 of the Act. Some times, the notification under Section 17(4) of the Act is simultaneously issued and published with the notification under Section 4 of the Act and there is no illegality in doing so. This is what has been done in the present case. The impugned notification is in two parts. The first part of the notification contains the proposal of the respondents to acquire the land in dispute in public interest for the plan development and the second part of the notification relates to invoking the powers under Section 17(4) of Act excluding the inquiry contemplated by Section 5A of the Act. The notification under Section 17(4) of the Act is independent and conclusive and the Act does not provide for any remedy against the same, therefore, the same is open to judicial review in exercise of powers under Article 226 of the Constitution of India.
22. No doubt the correctness of such a notification can be examined while testing the validity of the declaration issued under Section 6 of the Act. But it is sometimes too late in the day to challenge the same as once a declaration under Section 6 of the Act is issued after invoking urgency provisions, the Collector is entitled and do takes over the possession of the acquired land on the expiry of fifteen days of the notice under Section 9 of the Act. (Thus, vesting the land in State free from all encumbrances as even taking of symbolic possession is sufficient to vest the land in the State. Once vesting gets completed, it becomes next to impossible to divest the land to the original owners/tenure holders. Moreover, the Apex Court has repeatedly held that the delay in challenging the notification for acquisition is fatal and if the land acquisition proceedings stood finalized, interference by the Court is not called far. Therefore, the notification issued under Section 17(4) of the Act is open to challenge independently even before the issuance of the declaration under Section 6 of the Act where prima facie, there is no material before the authorities to record subjective satisfaction about urgency. Thus, where the power is arbitrarily exercised without there being any material on record, the action can be subjected to the judicial review on the grounds permitted under Article 226 of the Constitution of India and where the notifications under Section 4 and 17(4) of the Act are simultaneously issued, the objectionable portion which suffers from the vice of arbitrariness alone can be quashed.
23. Now the next question is whether the respondents are justified in invoking the urgency provisions of Act dispensing with the enquiry contemplated by Section 5A of the Act. The scheme of Act contemplates the use of emergency powers only in exceptional circumstances provided there is real urgency where the Government cannot even wait for holding enquiry under Section 5A of the Act though in forming such a opinion elaborate reasons are not required to be given but nevertheless there must be something on record to show that the opinion of the Collector or Government has been formed on the basis of the material on record and is not arbitrary.
24. It is settled preposition of law by catena of the authorities that the decision of urgency is an administrative decision and is a matter of subjective satisfaction of the Government on the basis of material available on the record. The language of notification that the land is urgently needed is not conclusive of the fact that there is real urgency, therefore, it has been held that the Court is required to consider the material on the basis of which the decision to dispense with enquiry under Section 5A of the Act is taken so as to ascertain whether there is any urgency to exercise the powers under Section 17(4) of the Act vide Union of India and Ors. v. Praveen Gupta and Ors. : AIR1997SC170 wherein it has been held that:
It is now settled legal position that decision on urgency is an administrative decision and is a matter of subjective satisfaction of the appropriate Government on the basis of the material available on record..
The language of the notification is not conclusive but the Court is required to consider the material whether there is any urgency to exercise the power under Section 17(4) of the Act. The same view taken by this Court in Jai Narain's case 1995 AIR SCW 4717 referred to earlier
25. It may also be noted that the existence of the urgency alone is not enough to dispense with the enquiry under Section 5A of the Act, it requires consideration whether the urgency is of a type as to justify the dispensing of the enquiry. In other words, the State Government has not only to apply its mind to the urgency of the matter but also that the urgency is of such a nature that even summary proceedings contemplated by Section 5A of the Act are required to be dispensed with. In Narayan Govind Gavate etc. v. State of Maharashtra and Ors. : [1977]1SCR763 'wherein it has been held that:
The mind of the Officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary proceedings under Section 5A of the Act should be eliminated. It is not just the existence of an urgency but the need to dispense with an enquiry under Section 5A which has to be considered.
26. Similar view has been expressed by the Supreme Court in Om Prakash and Anr. v. State of U.P. and Ors. 1998 (6) SCC and the above proposition of law in Narayan Govind Gavate (Supra) has been quoted with affirmation.
27. The scheme of the Act makes it absolutely clear that the Act is a self contained code in itself. It provides for issuing the notification under Section 4 of the Act containing the proposal to acquire the land. Section 5A gives a statutory right to the person interested or to the person whose land is proposed to be acquired to file objection disputing the proposal to acquire the land. If objections are made, the Collector shall consider those objections and hear the objections before making his recommendations to the Government. It is only upon the aforesaid hearing of the objections and the decision of the Government that a declaration under Section 6(2) of the Act is required to be published acquiring the land finally. This is the usual procedure prescribed for acquiring the land. However, the Act further provides that in exceptional circumstances, where the State Government is satisfied that the land is urgently needed, it may invoke the provisions under Section 17(1) and 17(4) of the Act and exclude the provisions of Section 5A of the Act. In short, the dispensing of enquiry under Section 5A of the Act is not a normal procedure but is resorted to only in exceptional circumstances where strong reasons exist for the same.
28. Hon'ble Supreme Court in a case of Union of India v. Mukesh Hans : AIR2004SC4307 has observed that:
right of representation and hearing contemplated under Section 5A of the Act is a very valuable right of a person whose property is sought to be acquired and he should have appropriate and reasonable opportunity of persuading the authorities concerned that the acquisition of the property belonging to that person should not be made. Therefore, in our opinion, if the appropriate Government decides to take away this minimal right then its decision to do so must be based on materials on record to support the same and bearing in mind the object of Section 5A.
29. In Union of India v. Kishan Lal Arneja : AIR2004SC3582 , Hon'ble Supreme Court has observed as under:
Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a landowner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the enquiry under Section 5A of the Act. The authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the landowners and the inquiry under Section 5A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous, A citizen's property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State administration.
30. Hon'ble Supreme Court in State of Punjab v. Gurdial Singh : [1980]1SCR1071 as to the use of emergency powers under Section 17 of the Act has observed as under:
It is fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing land acquisition authorities should not, having regard to Articles 14 and 19, burke an enquiry under Section 17 of the Act.
31. The above preposition of law has further been reiterated by Hon'ble Supreme Court in a case of Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai : AIR2005SC3520 wherein it has been observed that:
It is not in dispute that Section 5A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300A of the Constitution of India, the State of exercise of its power of 'eminent domain' may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefore must be paid. .
The State in its decision making process must not commit any misdirection in law. It is also not in dispute that Section 5A of the Act confers a valuable important right and having regard to the provisions contained in Articles 300A of the Constitution of India has been held to be akin to a fundamental right.
32. In Om Prakash v. State of U.P. and Ors. (Supra), the Hon'ble Supreme Court has further observed as under:
According to the aforesaid decision of this Court, inquiry under Section 5A 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, visa-vis, Section 5A of the Land Acquisition Act would remain apposite.
33. Therefore, where the decision making process itself in a question, the powers of judicial review can be exercised by the Court and where the Court is of the opinion that there has been total non-compliance or substantial non-compliance of the provisions of the Act, cannot refuse to grant necessary relief to the petitioner. It has also been laid down that in order to satisfy itself as to whether one or more grounds for judicial review exist, the Court may call for record and must satisfy about the existence of the I urgency or there being application of mind by the State Government on the basis of the material on record.
34. We have perused the record of the A.D.A. and the State Government. The A.D.A. vide letter No. 715 (i) (ii)/D/L.A.C./04 dated 4.11.2004 under the signatures of the Vice Chairman has submitted the proposal to acquire the land in dispute to the Collector, Agra for being forwarded to the State Government. The said proposal states that the proposal to acquire the land in dispute has been passed by the Board of A.D.A. vide resolution No. 10 in its 96th Meeting held on 29.1.2004. The said proposal further states that Agra is an important tourist place, therefore, the development of residential colony and commercial complex are necessary. There is requirement to have a solid 'land bank' for future development. The proposal in the end states that in view of the circumstances stated above in the proposal, it is necessary to acquire the land by resorting to the provision of Section 4 and 6 of the Act. There is no whisper about the urgency to acquire the same. However, in the application form for acquisition of land which forms the part of the above proposal, it has only been stated that the possession of the land is immediately required because unauthorized developments are taking place in urgent need of residential and commercial activities. The certificate of the Secretary of A.D.A. dated 9.2.2004 which is also the part of the proposal states that the land is needed for promoting the residential colony for which purpose solid land bank is required, therefore, the land is urgently needed and the provision of Section 17 of the Act should be invoked so as to avoid the delay in holding the inquiry under Section 5A of the Act. The proposal submitted by the A.D.A. places no material on record to establish any urgency to acquire the land except stating that the land is urgently needed for consolidating the 'land bank' for future development.
35. There is absolutely no material on record to justify that the land is so urgently needed that the Collector/State Government cannot even wait for completing the summary enquiry contemplated by Section 5A of the Act. The mere reiteration that the land is urgently needed without there being any material in support is not sufficient for taking away the valuable statutory rights under Section 5A of the Act.
36. Sri Pradeep Kumar has submitted that there as real urgency and therefore, the enquiry under Section 5A has rightly been dispensed with. He has placed reliance upon paragraph-15 of the counter affidavit of the A.D.A. which states that International Olympic size stadium is to be constructed over 125 acares of proposed acquired land for holding International level sports events in Agra and for this a joint survey report was submitted by the officer on the basis of which the decision to invoke the provisions of Section 17(1) and (4) of the Act was taken. The relevant portion of the paragraph No. 15 of the counter affidavit is quoted below:
It is pertinent to state here that under the said scheme apart from other development an international size stadium is also proposed to be constructed over 125 acares of land as the State Government is interested to construct the Olympic size stadium and for providing complete infrastructure to arrange and to purpose international level sports events in Agra heritage city and this development is urgently needed also with other Urban Development of city Agra. For the said purpose a joint survey report was submitted by the officers of acquisition department and after subjective satisfaction of the appropriate government notification under Section 4(1) read with Section 17(1) of the Act has been issued strictly in accordance with law.
37. We have considered the above submission of Sri Pradeep Kumar but we fail to agree with the same. First, the land is sought to be acquired for the plan development of residential colony and there is no recital that it is needed for the purpose of providing infra structure to the International level sports activities much less for the construction of stadium. Secondly, there is no joint survey report on the record as alleged in which any urgency had been shown for acquiring the land at the time of issuing the impugned notification dated 3.10.2005. Any subsequently material, if any, though not on record is not material as the decision about urgency as required to be taken only on the basis of the material on record at the relevant time. Lastly, the A.D.A. cannot supplement reasons for urgency through counter affidavit when documents showing such urgency as described in paragraph No. 15 of the counter affidavit are not part of the record. The statutory functionaries i.e. Collector, State Government or A.D.A. cannot be permitted to supplement fresh reasons by means of counter affidavit. In Mahendra Singh and Anr. v. Chief Election Commissioner and Ors. : [1978]2SCR272 , the Hon'ble Supreme Court has observed that when statutory functionaries makes an order based on certain grounds, its validity has to be judged on the basis of the material and the reasons on the record and they cannot be permitted to supplement fresh reasons in the shape of affidavit or otherwise. Therefore, the plea of the A.D.A. that there as real urgency for the reasons that an Olympic size Stadium is to be constructed is not tenable and is not acceptable.
38. In view of the above discussions, it leaves no scope for us but to hold that there was no material before the Collector/State Government at the relevant time so as to invoke the provisions of Section 17(1) and (4) of the Act and to dispense with the summary enquiry under Section 5A of the Act which has the effect of taking away the minimal right of filing statutory objections against the proposed acquisition. The exception cannot be made a rule. There is no justification to deviate from the normal procedure and to resort to exceptional mode under the facts and circumstances of the present case.
39. Thus, the impugned notification issued under Section 17(1) & (4) of the Act is liable to be quashed and is hereby quashed.
40. However, the respondents are at liberty to proceed with the acquisition in accordance with law from after the stage of issuing and publishing the notification under Section 4 of the Act by affording opportunity to the petitioner or to the tenure holders to file objections under Section 5A of the Act and to proceed further only after affording them opportunity of hearing as contemplated under the Act and, if necessary, issue the declaration under Section 6 of the Act thereafter.
41. In view of Vankataswamappa v. Special Deputy Commissioner (Revenue) : AIR1997SC503 , the time during which the writ petitions had remained pending in the High Court shall stand excluded.
42. With the above observations, writ petition is party allowed and the notification dated 03.10.2005 under Section 17(1) & (4) of the Act is quashed with no order as to costs.
43. In view of the above, the connected writ petition Nos. 73290 of 2005 Nisha Sahakari Avas Samiti v. State of U.P. and Ors. 76436 of 2005 Maya Nagar Ari Avas Samiti Ltd. v. State of U.P. and Ors. 133 of 2006 Ram Vatika Colony and Ors. v. State of U.P. and Ors. 1542 of 2006 Tej Singh and Ors. v. State of U.P. and Ors. 1544 of 2006 Narayan Singh and Ors. v. State of U.P. and Ors. 1545 of 2006 Sahab Singh and Ors. v. State of U.P. and Ors. 1549 of 2006 Asharam and Ors. v. State of U.P. and Ors. 1567 of 2006 Roshan Lal and Anr. v. State of U.P. and Ors. 1573 of 2006 Ram Niwas and Ors. v. State of U.P. and Ors. 5672 of 2006 Niranjan Singh and Ors. v. State of U.P. and Ors. 5673 of 2006 Daya Kishan and Ors. v. State of U.P. and Ors. 5703 of 2006 Bani Singh v. State of U.P. and Ors. 5893 of 2006 Prabhu Lal and Ors. v. State of U.P. and Ors. 5900 of 2006 Thakur Singh and Anr. v. State of U.P. and Ors. 5973 of 2006 Gaya Prasad and Ors. v. State of U.P. and Ors. 7400 of 2006 Londu Ram v. State of U.P. and Ors. 7541 of 2006 Ram Bharosi and Ors. v. State of U.P. and Ors. 7543 of 2006 Ram Bharosi v. State of U.P. and Ors. 7544 of 2006 Munna Lal and Ors. v. State of U.P. and Ors. 7546 of 2006 Hari Mohan and Anr. v. State of U.P. and Ors. 7556 of 2006 Nawal Singh and Ors. v. State of U.P. and Ors. 7557 of 2006 Keshav Deo and Ors. v. State of U.P. and Ors. 7559 of 2006 Suresh Kumar Arora v. State of U.P. and Ors. 7562 of 2006 Ram Babu and Anr. v. State of U.P. and Ors. 7563 of 2006 Ekta Sahakari Avas Samiti Ltd. v. State of U.P. and Ors. 7564 of 2006 Golden Sahakari Avas Samiti Ltd. v. State of U.P. and Ors. 7565 of 2006 Jai Hanuman Sahakari Avas Samiti and Anr. v. State of U.P. and Ors. 8169 of 2006 Sri Ram v. State of U.P. and Ors. 8172 of 2006 Mahaveer Singh v. State of U.P. and Ors. 8174 of 2006 Rakesh Kumar and Ors. v. State of U.P. and Ors. 8176 of 2006 Mohan Singh v. State of U.P. and Ors. 8183 of 2006 Son Pal Singh v. State of U.P. and Ors. 8185 of 2006 Ram Sewak Upadhaya and Anr. v. State of U.P. and Ors. 8189 of 2006 Sundar Singh and Ors. v. State of U.P. and Ors. 72064 of 2005 Anvesh Sahakari Avas Samiti Ltd. v. State of U.P. and Ors. 72066 of 2005 Anant Sahakari Avas Samiti Ltd. v. State of U.P. and Ors. 72067 of 2005 Rajpur Sahakari Avas Samiti Ltd. v. State of U.P. and Ors. 72069 of 2005 Goyal Investment v. State of U.P. and Ors. 72070 of 2005 Seeta Ram v. State of U.P. and Ors. 72074 of 2005 Charan Singh v. State of U.P. and Ors. 74836 of 2005 Julian Khan v. State of U.P. and Ors. 75708 of 2005 Paras Gramin Sahakari Avas Samiti Ltd. v. State of U.P. and Ors. 76469 of 2005 Nirmala Sahakari Avas Samiti Ltd. v. State of U.P. and Ors. 78288 of 2005 Udai Singh v. State of U.P. and Ors. 78307 of 2005 Maa Gange Sahakari Avas Samiti Ltd. and Anr. v. State of U.P. and Ors. 78346 of 2005 Roshan Lal v. State of U.P. and Ors. 78041 of 2005 Viri Singh and Anr. v. State of U.P. and Ors. 78042 of 2005 Kishan Singh and Anr. v. State of U.P. and Ors. 78043 of 2005 Vipati Ram v. State of U.P. and Ors. 78044 of 2005 Kitab Singh v. State of U.P. and Ors. 78045 of 2005 Maharaj Singh and Ors. v. State of U.P. and Ors. 78046 of 2005 Gokul Singh and Ors. v. State of U.P. and Ors. 28253 of 2005 Radhey Shyam v. State of U.P. and Ors. 78770 of 2005 Maa Sharda Sahkari Avas Samiti Ltd. and Ors. v. State of U.P. and Ors. 78254 of 2005 Om Sai Sahkari Avas Samiti Ltd. Agra and Anr. v. State of U.P. and Ors. 138 of 2006 Kashi Ram v. State of U.P. and Ors. 399 of 2006 Ravi Gupta v. State of U.P. and Ors. 238 of 2006 Moti Lal and Ors. v. State of U.P. and Ors. 1674 of 2006 Vijay Singh and Ors. v. State of U.P. and Ors. 2190 of 2006 Geeta Ram v. State of U.P. and Ors. 2192 of 2006 Naval Singh v. State of U.P. and Ors. 2194 of 2006 Chittar Singh and Anr. v. State of U.P. and Ors. 2195 of 2006 Ram Kishan and Ors. v. State of U.P. and Ors. 2197 of 2006 Bhagwan Singh v. State of U.P. and Ors. 2199 of 2006 Om Prakash v. State of U.P. and Ors. 2200 of 2006 Ghandharv Singh and Ors. v. State of U.P. and Ors. 2201 of 2006 Giriraj Singh v. State of U.P. and Ors. 2449 of 2006 Ramji Lal v. State of U.P. and Ors. 2452 of 2006 Mohan Singh v. State of U.P. and Ors. 2455 of 2006 Gyasi Ram v. State of U.P. and Ors. 2686 of 2006 Prem Datta and Ors. v. State of U.P. and Ors. 6354 of 2006 Upasna Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 11541 of 2006 Govardhan Singh v. State of U.P. and Ors. 11710 of 2006 Bachchoo Singh and Ors. v. State of U.P. and Ors. 10280 of 2006 Vijay Oberoi and Ors. v. State of U.P. and Ors. 74968 of 2006 Shanti Nagar Grah Nirman Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 10902 of 2006 Mahendra Singh v. State of U.P. and Ors. 77060 of 2005 Smt. Amita Kapoor and Ors. v. State of U.P. and Ors. 77194 of 2005 Smt. Ramkali and Ors. v. State of U.P. and Ors. 2271 of 2006 Manish Surana and Anr. v. State of U.P. and Ors. 2320 of 2006 Keshav Dham and Ors. v. State of U.P. and Anr. 2321 of 2006 Pramod Kr. Agarwal and Ors. v. State of U.P. and Anr. 2323 of 2006 Laxmi Narayan and Ors. v. State of U.P, and Anr. 2847 of 2006 Mahavir Prasad and Ors. v. State of U.P. and Ors. 4249 of 2006 Kartik Chandra Samaddar v. State of U.P. and Ors. 4254 of 2006 Om Narain and Anr. v. State of U.P. and Ors. 4255 of 2006 Manik Chand and Ors. v. State of U.P. and Ors. 4257 of 2006 Nahar Singh v. State of U.P. and Ors. 4260 of 2006 Mohan Singh v. State of U.P. and Ors. 4261 of 2006 Param Singh v. State of U.P. and Ors. 4262 of 2006 Doongar Singh v. State of U.P. and Ors. 4263 of 2006 Bachchoo Singh v. State of U.P. and Ors. 4363 of 2006 Sri Krishna and Ors. v. State of U.P. and Ors. 5362 of 2006 Chittar Singh v. State of U.P. and Ors. 5363 of 2006 Vijay Singh v. State of U.P. and Ors. 6134 of 2006 Sewa Sahkari Avas Samiti Ltd. v. State of U.P. and Anr. 6137 of 2006 Anupam Sahkari Avas Samiti Ltd. v. State of U.P. and Anr. 6579 of 2006 Ashok Kumar and Anr. v. State of U.P. and Ors. 6705 of 2006 Sudhir Kumar Agarwal and Ors. v. State of U.P. and Ors. 6837 of 2006, Sri Ram Chandra v. State of U.P. and Ors. 8545 of 2006 Smt. Geeta v. State of U.P. and Ors. 8548 of 2006 Ganga Prasad and Ors. v. State of U.P. and Ors. 8908 of 2006 Ishwara @ Ishwari Prasad v. State of U.P. and Ors. 8964 of 2006 Smt. Ramkatori and Ors. v. State of U.P. and Ors. 9006 of 2006 Brij Bihari Lal and Ors. v. State of U.P. and Ors. 9043 of 2006 Naval Singh v. State of U.P. and Ors. 9217 of 2006 Dinesh Kumar v. State of U.P. and Ors. 9309 of 2006 Puran Chandra and Ors. v. State of U.P. and Ors. 9469 of 2006 Ashok Kumar Jam v. State of U.P. and Ors. 9470 of 2006 Madhubala and Ors. v. State of U.P. and Ors. 9471 of 2006 Allo v. State of U.P. and Ors. 9472 of 2006 Sukhoo v. State of U.P. and Ors. 9473 of 2006 Ramknmar and Anr. v. State of U.P. and Ors. 9833 of 2006 Mukesh Kumar v. State of U.P. and Ors. 9834 of 2006 Indra Prasad v. State of U.P. and Ors. 79424 of 2005 Latoori Singh v. State of U.P. and Ors. 10903 of 2006 Mahendra Singh v. State of U.P. and Ors. 10905 of 2006 Roop Singh v. State of U.P. and Ors. 11322 of 2006 Brij Mohan and Ors. v. State of U.P. and Ors. 2968 of 2006 Roop Singh and Ors. v. State of U.P. and Ors. 2979 of 2006 Kishan Singh and Ors. v. State of U.P. and Ors. 2980 of 2006 Vijendra Singh and Ors. v. State of U.P. and Ors. 3367 of 2006 Navin Sahkari Avas Samiti Ltd., Agra v. State of U.P. and Ors. 3373 of 2006 Bhagwan Singh and Anr. v. State of U.P. and Ors. 3375 of 2006 Doji Ram and Ors. v. State of U.P. and Ors. 3377 of 2006 Bhagwan Das v. State of U.P. and Ors. 3378 of 2006 Nirrotam Singh v. State of U.P. and Ors. 3694 of 2006 Hari Babu and Ors. v. State of U.P. and Ors. 4024 of 2006 Smt. Hemlata and Anr. v. State of U.P. and Ors. 75305 of 2005 Smt. Devki and Ors. v. State of U.P. and Ors. 77816 of 2005 Mahesh Chand Jain and Ors. v. State of U.P. and Ors. 2189 of 2006 Beni Ram v. State of U.P. and Ors. 12253 of 2006 Shiv Shakti Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 12257 of 2006 Chinmay Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 12261 of 2006 Ramji Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 12263 of 2006 Jai Sri Ram Gramin Sahkari Avas Samiti Ltd. and Anr. v. State of U.P. and Ors. 12823 of 2006 Smt. Kiran Singh and Ors. v. State of U.P. and Ors. 13286 of 2006 Smt. Pushpa Jain and Ors. v. State of U.P. and Ors. 13805 of 2006 Mata Din v. State of U.P. and Ors. 14857 of 2006 Nihal Singh v. State of U.P. and Ors. 14859 of 2006 Puran Singh v. State of U.P. and Ors. 14861 of 2006 Mishri Lal and Ors. v. State of U.P. and Ors. 14862 of 2006 Satyam Sahkari Avas Samiti v. State of U.P. and Ors. 14865 of 2006 Jawahar Chand v. State of U.P. and Ors. 15545 of 2006 Hoti Lal v. State of U.P. and Ors. 16421 of 2006 Shashi Bala Dixit v. State of U.P. and Ors. 24157 of 2006 Paras Gramin Sahkari Avas Samiti Ltd. v. State of U.P. and Ors. 26570 of 2006 Smt. Resham Devi v. State of U.P. and Ors. also stand partly allowed on the same terms and conditions.
44. Sri Ashish Mishra and Smt. Archana Mishra have been heard in five other connected writ petitions wherein the aforesaid notification issued under Section 4 read with Section 17 of the Act dated 3,10.2005 has been challenged alongwith final declaration made under Section 6 of the Act dated 23,05.2006. Sri Mishra has adopted the arguments of Sri Manish Goyal and has submitted that the entire acquisition stands vitiated under the Law as there was no urgency to dispense with the enquiry under Section 5A of the Act and the powers of Section 17(1) & (4) of the Act have been invoked casually in a routine manner without application of mind in as much as there was no material on record to justify the urgency.
45. Since we have already quashed the notification under Section 17(1) & (4) of the Act, the declaration issued under Section 6 of the Act dated 23.05.2006 being consequential in nature automatically falls to the ground and is also quashed,
46. Accordingly the writ petition Nos. 37767 of 2006 Sahab Singh and Anr. v. State of U.P. and Ors. 37770 of 2006 Niranjan Singh and Ors. v. State of U.P. and Ors. 37852 of 2006 Hazari Lal v. State of U.P. and Ors. 37853 of 2006 Smt. Pooran Devi v. State of U.P. and Ors. 37854 of 2006 Rakesh Kumar and Ors. v. State of U.P. and Ors. also stand partly allowed on the same terms and conditions as above.
47. Copy of this judgment and order be kept on all connected writ petitions mentioned above.