N.K. Mehrotra, J.
1. Petitioner, Molahey and another have filed Writ Petition No. 3768 (M/B) of 2005 for issuing a writ in the nature of certiorari quashing the Master Plan, especially the portions of the Master Plan 2021 relating to the land mentioned in paragraph 2 of the writ petition allegedly belonging to them and the notices under Sections 4(1)(6) of the Land Acquisition Act dated 31.3.2005 with its' corrigendum dated 5th May, 2005 and 24th October, 2005 respectively.
2. Adarsh Samuhik Sahkari Krishi Samiti Limited has filed Writ Petition No. 4099 (M/B) of 2005 for issuing a writ in the nature of certiorari quashing the same Master Plan, 2021 relating to the land of the petitioner mentioned in paragraph 3 of the writ petition and the same Notification under Section 4(1)(6) of the Land Acquisition Act. This writ petition came up for hearing before this Bench at the request of the parties to the petition on the ground that the same Master Plan and the Notification under the Land Acquisition Act have been challenged in these writ petitions as in Writ Petition No. 3768 (M/B) of 2005. The grounds to challenge the Master Plan, 2021 and the Notification under Land Acquisition Act in both the writ petitions and the defence taken by the State Government and the Lucknow Development Authority are near-about similar.
3. The Lucknow Development Authority (hereinafter referred to as 'Authority') issued a Public Notice on 23.2.2005 inviting objections/suggestions to the Draft Master Plan by 4.3.2005. In this Draft Master Plan, the disputed land in Writ Petition No. 3768(M/B) of 2005 was shown for parks and open spaces/green belt. The Technical Committee constituted by the State Government with the consent of the Lucknow Development Authority considered the various objections/suggestions provided by the Public and the other institutions and after considering those objections this Committee finalised the Master Plan and recommended the rejection of the objections/suggestions of the Public seeking the change in the land use of the land of the petitioners involved. Thereafter, it was sent to the Government. The State Government approved it on 31.3.2005 and issued a required notification on 9th April, 2005. After that the State Government issued notification under Sections 4 and 6 read with Section 17 of the Land Acquisition Act dispensing with the requirement of the objections under Section 5A of the Land Acquisition Act.
4. The case of the Lucknow Development Authority is that the writ petitions are not maintainable as the Master Plan, 2021 for the city of Lucknow has been prepared under Section 8 of the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter to be referred as 'Act') after following the procedure under Section 11 of the Act and after submitting it to the State Government under Section 10(2) of the Act. The State Government filed the approved Master Plan for 2021, vide notification dated 31.3.2005. The Vice-chairman, Lucknow Development Authority also issued a public notice in the newspaper 'Dainik Jagaran' in pursuance of Section 12 of the Act on 9.4.2005 to the effect that the Master Plan, 2021 for the city of Lucknow has also been approved by the State Government under Section 10(2) of the Act and the same is operative under Section 12 of the Act. It is submitted by the Lucknow Development Authority that Section 11(3) of the Act provides that a Draft Master Plan will be prepared by the Lucknow Development Authority and copy of the said Draft Master Plan will be available for inspection so that the public who desire to file objection may file objection or suggestion in respect of the Draft Master Plan. The objections received were duly considered by a Committee constituted by the State Government vide G.O. dated 20.12.2003. It is submitted that total 278 objections/suggestions were received from the Public against the Draft Master Plan including 22 objections/suggestions of the Lucknow Development Authority. The suggestion of the Lucknow Development Authority before the Committee was to the effect that the land in village Ujariyaon which was actually green belt in the Master Plan of 2021 may be earmarked in the proposed Master Plan, 2021 for the purpose of residential use. The suggestion of the Lucknow Development Authority were approved by the Committee with only condition that the protective measures will be taken and only thereafter, the land assigned in the proposed Master Plan, 2021, will be used for the purpose of residential land use. The individual also may suggest for the change of the land for the purpose of residential land use but those suggestions were not accepted by the Committee in view of the fact that the individuals are not in a position to provide the protective measures for using the low-lying area which can only be provided by the Lucknow Development Authority. It is also submitted that earlier also the low-lying area of Gomti Nagar was acquired for the purpose of issuing a scheme in the year 1983 and it was later on developed by taking protective measures. Final proposed Master Plan was placed before the Board of the Lucknow Development Authority on 19.3.2005; which was approved by the Board. In this Master Plan the land in question was shown for the purpose of residential land use. After approval by the Board the Master Plan was submitted to the State Government for its' approval on 24.3.2005 under Section 10(2) of the Act. The objections/suggestions and minutes of the deliberation before the Committee were also enclosed with the proposed Master Plan submitted to the State Government, The State Government considered all the objections and submissions, minutes of the Committee and the proposed Master Plan and approved the same as final Master Plan under Section 10(2) of the Act on 31.3.2005. It is alleged that no procedural irregularity has been committed by the Lucknow Development Authority while preparing the Master Plan. 2021 under Section 8 of the Act as the procedure prescribed under Section 11 of the Act was fully complied with. It is also alleged that Section 11(3) of the Act clearly provides that after considering all the objections/suggestions and representations that may have been received by the authority, the authority shall finally prepare the proposed Master Plan and submit the same to the State Government for its' approval. Section 11(3) of the Act does not provide that the Draft Master Plan has to be submitted before the State Government for its' approval under Section 10 of the Act. It is further alleged that the petitioners of these two writ petitions have not submitted their objections at all in spite of the public notice ; therefore, none of the petitioners is entitled to raise those objections/suggestions which might have been taken before the Committee for the preparation of the Master Plan, 2021 nor they have participated during the hearing between 23.2.2005 to 4.3.2005 even after the dates being notified by means of the public notice. Further the case of the Lucknow Development Authority is that the land use of the petitioners and several other persons in village Ujariyaon, Gomti Nagar was shown as recreational park in the amended Master Plan, 1991, effective upto 2001 but the State Government by notification made an amendment on 7.1.1997 from recreational park to agriculture/green belt. It is alleged that the Master Plan was prepared considering the various aspect particularly ever increasing urban population and acute need of housing for the public. Therefore, the residential area of 15,923.8 hectares in the Master Plan, 2001 has been increased to 20.100 hectares. The green area in the Master Plan, 2001 has been assigned to 8,400 hectares against 1,868.5 hectares. The total area of the Master Plan, 2001 was only 23.682 hectare while in the Master Plan. 2021 the total area in the Master Plan is 41,360 hectares. Therefore, the increase in the total area of the Master Plan, 2021 has necessitated the increase of the residential area as well as green area in the current Master Plan, 2021. Thus, no environmental or ecological imbalance will be affected as stated by the petitioners. It is alleged that the Master Plan has been prepared keeping in view that there may not be haphazard growth, traffic hazard, environmental and ecological imbalance so that the public at large may be benefited with all the basic amenities. It is also alleged that the petitioners in Writ Petition No. 3768 (M/B) of 2005 have admitted in Para 31 of the writ petition that their land in question is an agriculture land and not the green belt and the plea of green belt is without any basis. Similarly, the petitioner in Writ Petition No. 4099 (M/B) of 2005 has also admitted that the land in dispute is an agriculture land.
5. The notification under Sections 4 and 6 read with Section 17 of the Land Acquisition Act has been challenged on the ground that on the date of the notification under Section 4 of the Land Acquisition Act, the acquired land was shown as agriculture/green belt and there was no land for the use of residential purpose as shown in the notification under Section 4 and thus, this notification was contrary to the land use shown in the Master Plan and the notification under Section 4 of the Land Acquisition Act is bad on this ground. The second ground to challenge the notification under Section 6 of the Land Acquisition Act is that six months' time was available for the State Government between the two notifications and there was no urgency in dispensing with the enquiry requisite under Section 5A of the Land Acquisition Act. It is alleged that there was no urgency for dispensing with the enquiry under Section 5A of the Land Acquisition Act so as to deprive the petitioners. Another ground to challenge the notification of the acquisition is that very low-lying area even after rejection by the Committee has been acquired which is unfit for residential use.
6. So far as the challenge to the notification of acquisition is concerned, it has been stated by the Land Acquisition Act that the acquisition of any land can be made by the State Government for the public purpose irrespective of the fact that the land use of the acquired land is in conformity of the existing master plan or not the land use of the acquired land if, not in conformity with the land use even then the land use can be got converted by means of an amendment as provided in Section 13 of the U.P. Urban Planning and Development Act and only thereafter the development can be proceeded further. It is alleged that in the past mostly agriculture land was acquired by the State Government for the public purpose, i.e., for planned development and construction of Ujariyaon Housing Colonies Part 1, 2 and 3, Kanpur Road Part 1, 2, 3 and 4, Sitapur Road, Hardoi Road. It is alleged that on account of every increase in population in the city of Lucknow the acquisition is necessitated. It is further submitted that the delay in publication of the notification under Section 6 of the Land Acquisition Act is not sufficient to infer that there was no urgency and the order made by the State Government dispensing with the compliance of Section 5A of the Land Acquisition Act at the time of notification under Section 4(1) of the Act would stand vitiated. It is also submitted that at the time of preparing the Master Plan of 2021 every possible measure was taken in allocating the land in question as well as other land of the village Ujariyaon for the purpose of residential land use so that the environment is protected and there is no violation of any provisions under Article 48A of the Constitution of India while preparing the Master Plan of 2021. In Writ Petition No. 2435 (M/B) of 2001, Nishatganj Residents Welfare Association v. State of U.P. and Ors., this Court has only directed that no land use will be changed till the new Master Plan 2021 is prepared. The fresh Master Plan, 2021 was prepared, ultimately finalised and approved by the State Government on 31.3.2005 itself in which the land in question was allocated as residential land use. No amendment has been made or land use has been converted as stated by the petitioners in the Master Plan, 2001 while converting the land use in question from agriculture/green belt to residential area because a fresh Master Plan has been prepared under Section 8 of the Act in which the land use of the land in question alongwith other several land of the village Ujariyaon has been allocated for the purpose of residential land use so that the urban public at large may be benefited for their housing purpose.
7. The State Government has also filed the counter-affidavit in both the writ petitions taking the same plea as that of Lucknow Development Authority. In Writ Petition No. 4099 (M/S) of 2005, an additional fact has been stated by the State of U.P. that Khasra of Plot Nos. 2214 to 2218, 2241, 2245, 2247, 2266, 2272, 2295/1, 2310 have already been declared surplus land under the provisions of Urban Land (Ceiling and Regulation) Act, 1976 and the possession of those plots have already been taken over by the State Government before Repeal Act of the year 1999.
8. After hearing the learned Counsel for the parties, we find that this fact is not denied that the new Master Plan, 2021 has been prepared after the order passed in P.I.L. Writ Petition No. 2435 (M/B) of 2001, Nishatganj Residents Welfare Association v. State of U.P. and Ors., and in that writ petition, this Court has only directed that no land use will be changed till the new Master Plan, 2021 is prepared and the Lucknow Development Authority has prepared the new Master Plan, 2021 showing the disputed land as residential area instead of agriculture/green belt as was shown in earlier Master Plan. 2001. This Court has restrained only the changes by amendment in the Master Plan of 2001 and the new Master Plan has been prepared only at the direction of this Court. It is also not denied that the procedure as prescribed under Sections 8 to 11 of Urban Planning and Development Act, 1973 has been followed in preparation of the Master Plan, 2021. It has been duly got approved by the State Government on 31.3.2005 and it was notified by the State Government on 9th April, 2005. Therefore, there does not appear any violation of the order of this Court passed in P.I.L. Writ Petition No. 2435 (M/B) of 2001, Nishatganj Residents Welfare Association v. State of U.P. and Ors..
9. The next admitted fact is that neither of these petitioners has filed objections against the proposed Master Plan, 2021. No doubt, total 278 objections/suggestions were received from the Public against the Draft Master Plan. These objections include 22 objections filed by the Lucknow Development Authority. The objections of the Lucknow Development Authority were duly considered by the Committee and the Committee approved the suggestions of the Lucknow Development Authority for converting the land shown as agriculture in the earlier Master Plan into residential land with the condition that the protective measures will be taken and only thereafter, the land assigned in the proposed Master Plan, 2021 will be used for the purpose of residential land use. The objections received from the public proposing the residential use of the land were not accepted because of the fact that the individuals were not in a position to provide protective measures for the use in low-lying area which can only be provided by the Lucknow Development Authority being an authority. We have noted that earlier also the Lucknow Development Authority has developed low-lying area for the purpose of using a scheme in Gomti Nagar for which the land was acquired in the year 1983. Since these petitioners have not filed any objection against the draft of the proposed Master Plan, they have no locus to come to this Court to make grievance for converting the agriculture land into residential land for which several persons from public have also sought changes from agriculture to residential use.
10. Further we have noted that there is no rebuttal of the fact averred in the counter-affidavit of the State Government in Writ Petition No. 4099 (M/B) of 2005 that the land of Plot Nos. 2214 to 2218, 2241, 2245, 2247, 2266, 2272, 2295/1, 2310 have already been declared surplus before the repeal of Urban Land (Ceiling and Regulation) Act, 1976 and the possession of those plots have already been taken by the State Government under the said Act.
11. The main contention of the learned Counsel for the petitioners is that at the time of preparation of Master Plan, 2021, the land earlier left for open space/green belt has been converted into residential area but this fact does not appear to be correct because earlier the land was shown left for open space/green belt but in the year 1997 the disputed land has been shown as agricultural land by making amendment in the Master Plan. The second contention of the learned Counsel for the petitioner is that at the time of preparing the Master Plan, the objections were invited from the public and there were several objections in which it was suggested that the land should remain as agriculture land while in certain objections several persons suggested to convert it into residential area. The Technical Committee constituted for the purpose of considering the objections, rejected all the suggestions and recommended that the land use in residential as desired by the petitioners should not be accepted because of the several reasons shown in the recommendations of the Technical Committee but at the time of finalisation of the Master Plan, the Lucknow Development Authority acted in arbitrary and mala fide manner and beyond the scope and power under Section 11 of the Act by affecting the changes in Master Plan, 2021 relating to the land in question as the land use was changed from open space for green belt into residential area while doing so there was absolutely no material available with the Development Authority. It is also submitted that the Town Planner in his report dated 5th April, 2003 (Annexure-6 to the writ petition) has already found that the construction of the 'bandh' was not a permanent solution of the land in view of the location, situation and surroundings of the land in question. Similarly, the contention of the petitioners is that the State Government also did not apply its mind while granting approval to the Master Plan because it was legally incumbent upon the State Government to examine the records of survey, technical reports, recommendations of the Committee whereby, it was evident that in view of the location, situation, surroundings and the nature of the land being low lying and in absence of any sewage disposal system as well as ecological balance, it could not be used or found fit for residential purposes,
12. It appears from the record that there were two types of objections, one for keeping the land as residential existing houses being adjusted in the Master Plan and another for keeping the land as agriculture. In the Master Plan prepared by the Lucknow Development Authority, the disputed land has been shown as residential and the main argument of the learned Counsel for the petitioners is that while rejecting the objections of the private objectors, the suggestions of the Lucknow Development Authority have been accepted and the land has been earmarked as residential. We are of the view that there cannot be any comparison between the private objectors and the Lucknow Development Authority, The suggestions of the Lucknow Development Authority were accepted for the reasons that the Lucknow Development Authority discharged the duties of carrying out the land development and for this purpose the land is also acquired and in fact the land has been acquired by issuance of notification under Section 4 of the Land Acquisition Act and declaration under Section 6 of the Land Acquisition Act read with Section 17 of the Act. The land in question could not be the land as 'residential' at the instance of private objectors who do not have the means to keep the land acquired as statutory body. Moreover, the Lucknow Development Authority being a statutory body having resources and its command, the land use could be promoted to be residential only when protective measures like bandh were taken. It is true that no private individual could undertake or could be permitted to undertake a construction of the 'bandh'. The raising of 'bandh' costs Rs. 45.8 crores and the Lucknow Development Authority is only in a position to spend such amount. It appears that the Lucknow Development Authority has taken all the preventive measures and it is only after that the land has been permitted to be used as residential. It also appears that on account of acquisition of the land, the Housing Colonies shall come in a planned manner but individual extra houses as were being suggested in the objections of the private persons, could not achieve that purpose and therefore, the individuals' contention that their houses should be adjusted in the Master Plan is not tenable. Once the land having been acquired, the petitioners' land including their houses would also be acquired and it will be open to them to apply to the Lucknow Development Authority for allotment of plots for constructing houses. The private objectors would receive compensation for the land and there can be no basis to infer any arbitrariness and mala fide merely on the ground that the private persons' objections were rejected and the suggestions of the Lucknow Development Authority was accepted for the land being shown as residential. It also appears that the private persons have not suffered any prejudice as referred at the suggestions of the Lucknow Development Authority.
13. The learned Counsel for the petitioners have placed reliance on a Supreme Court decision in M.C. Mehta v. Union of India and Ors. : (2004)6SCC588 . It was a case wherein a residential colony, the industries were come up and established. Therefore, the Supreme Court held that the industries cannot be permitted in the residential area even after changing the Master Plan. The main thrust of the learned Counsel for the petitioners in the instant case is that the land earlier left for recreation park and the green belt has been changed into residential area but it is not correct because as said above, the Master Plan was already amended in the year 1997 showing the disputed land as agricultural land. In M. C. Mehta case (supra) the residential area was changed into industrial area without taking precaution for prevention of environment while this is not here in the instant case.
14. The learned Counsel for the petitioners has placed arguments under the impression that a Draft Master Plan was to be prepared by the Lucknow Development Authority and it was to be submitted to the State Government while the legal position is that Section 11(3) of the Act clearly provides that after considering all objections/suggestions and representations that may have been received by the Authority, the Authority shall finally prepare the plan and submit it to the State Government for its approval. This Section 11(3) of the Act does not provide that the Draft Master Plan is to be submitted to the State Government for it's approval under Section 10(2) of the Act. Therefore, there was no necessity to submit the Draft Master Plan to the State Government for its approval. Accordingly the Draft Master Plan was prepared by the Lucknow Development Authority and the objections/suggestions were invited and after final preparation of the Master Plan, It was sent to the Government for approval as required under the law. The suggestion of the Lucknow Development Authority that the disputed land is required for the purpose of residential land use, was accepted by the Committee constituted for the purpose of considering the objections only with the condition that the preventive measures were to be taken while utilizing the land in question alongwith other land which has been earmarked in the proposed Master Plan for the purpose of residential land use. The persons including the petitioners who have not filed any objection after the public notice have no right to file writ petition to raise objections here in the Court.
15. As is clear from the counter-affidavit of the Lucknow Development Authority, the Master Plan, 2021 was prepared considering various aspects particularly ever increasing urban population and acute need of houses for the public and therefore, it was necessary to enhance the residential area in the Master Plan so that the public at large may get housing accommodation in a planned developed manner in the urban area of Lucknow. A care has been taken while increasing the residential area in the Master Plan, 2021 that the green area may not be reduced which was existing in the Master Plan, 2001. Accordingly that area has been assigned in the Master Plan, 2021 as 8,400 hectares against 1,868.5 hectares in the Master Plan, 2001. Thus, 20.30% green area has been increased in the Master Plan, 2021 from the Master Plan, 2001 which was 7.9% of the total area of the Master Plan. It appears that the Master Plan, 2021 has been prepared by the Lucknow Development Authority keeping all factors in mind which are necessary for planned development of the State, so that there may not be haphazard growth, traffic hazard, environmental and ecological imbalance so that the public at large may be benefited with all the basic amenities which are required in planned manner.
16. Now, we come to the ground on which the acquisition has been challenged. The learned Counsel for the petitioner has placed reliance on a decision of the Supreme Court in Union of India and Ors. v. Kishan Arneja and Ors. : AIR2004SC3582 , in support of their contention for quashing of the acquisition proceedings under Section 4 of the Land Acquisition Act while arguing that there was no urgency or any justification for dispensing with the enquiry requisite under Section 5A of the Land Acquisition Act because the State Government has more than six months available to complete enquiry by permitting the residents and the public at large to avail their legal rights of submitting their objections/suggestions. The judgment of the Supreme Court in Union of India and Ors. v. Kishan Arneja and Ors. : AIR2004SC3582 , is based on the earlier judgment of the Supreme Court in Banwari Lal case and Shakuntala Gupta case, : AIR2002SC3079 . In Banwari Lal case on the facts and looking to the circumstances in the background of lapsing of the Requisitioning Act and taking note of laxity and lethargy on the part of the officers, the Court concluded that there existed no urgency to invoke Section 17(1) of the Act. The plea of delay in making declaration under Section 6 of the Land Acquisition Act has not been taken into the writ petition. Moreover this plea is not acceptable in view of the fact that there are various modes of notification under Section 4 of the Land Acquisition Act which are provided in the Land Acquisition Act itself. Moreover a Division Bench of this Court in Gopal v. State of U.P. (1994) 1 LAL 211, has held that the delay of about one year between publication of Notification under Section 4 of the Act and declaration under Section 6 of the Act is not sufficient to establish that there was no urgency for acquisition of the land. The Division Bench has placed reliance on a earlier judgment of Supreme Court in State of U.P. v. Pista Devi : [1986]3SCR743 , in which notification under Section 4(1) of the Act was followed by declaration under Section 6 of the Act which was issued merely after one year, the Supreme Court held in that case that the delay of merely one year in the publication of declaration cannot be said that there was no urgency and the order made by the State Government dispensing with the compliance with Section 5A of the Act at the time of notification under Section 4(1) of the Act would stand vitiated. The same view was taken by another Division Bench of this Court in Brij Bhushan Goswami v. State of U.P. and Ors. 1989 (2) AWC 1288 : 1990 SCD 237, in which it was held that the time gap between the two notifications under Section 4 and declaration under Section 6 of the Act will not invalidate the notification under Section 4(1) of the Act.
17. Moreover, the public purpose has been defined under Section 3 of the Act which includes the land for town, rural planning, land for any other development sponsored by the Government or by approval of the Government. Similarly, in Bhopendra Singh v. State of U.P. (2005) 1 LACC 461, it has been held that the acquisition of the land for housing colony is for a public purpose.
18. The petitioner in Writ Petition No. 4099 (M/B) of 2005 is a Society. It has submitted its' claim before the competent authority for payment of compensation for its' acquired land as has been stated in the supplementary affidavit filed by the Lucknow Development Authority. The petitioner of this case has taken the plea to the effect that there is a violation of the provisions of Article 48A of the Constitution of India to the effect that the said constitutional mandate has been violated. Article 48A of the Constitution of India provides for protection and improvement of environment and safeguarding of forests and wild life. While preparing the Master Plan, 2021, every possible measures were taken in allocating the land in question as well as other land of village Ujariyaon for the purpose of residential land use so that the environment is protected. As said above, the green area in the Master Plan, 2021 is about 20.30% more than that of the green area in the earlier Master Plan, 2001 which was only 7.9% of the total area of the Master Plan. The total area of Master Plan, 2001 was only 23,682 hectare out of which 1868.5 hectares area was allocated as green area which was only 7.9% of the total area of the Master Plan. While in the Master Plan, 2021, the total area is 41,360 hectares out of which 8,400 hectares is being allpcated as green area which is about 20.30% of the total area of the land assigned in Master Plan 2021. Therefore, it appears that the precaution has been taken to protect the environment and safeguarding of forests and wild life as required under Article 48A of the Constitution of India. Thus, there is no force in the contention raised by the learned Counsel for the petitioner that at the time of preparing the Master Plan, the provisions under Article 48A of the Constitution of India has been violated.
19. In view of the discussions above, we do not find any ground to quash either the Master Plan, 2021 or any notification under the Land Acquisition Act.
20. In result both the writ petitions are dismissed.