Bhagat Singh Vs. State of U.P. and Ors
EmailAppeal: Civil Appeal No. 6226 of 1998 ETC.
(From the Judgment and order dated 24.4.97 of the Allahabad High Court in C.M.W.P.No. 39430 0f 1994)
(From the Judgment and order dated 24.4.97 of the Allahabad High Court in C.M.W.P.No. 39430 0f 1994)
Petitioner: Bhagat Singh
Respondent: State of U.P. and Ors
Apeal: Civil Appeal No. 6226 of 1998 ETC.
(From the Judgment and order dated 24.4.97 of the Allahabad High Court in C.M.W.P.No. 39430 0f 1994)
(From the Judgment and order dated 24.4.97 of the Allahabad High Court in C.M.W.P.No. 39430 0f 1994)
Judges: S.B. MAJRUDAR & M. JAGANNADHA RAO, JJ.
Date of Judgment: Dec 08, 1998
Appearances:
Mr. Raju Ramachandran and Mr. O.P. Rana, Senior Advocates Mr. R.K. Khanna, Mr. Surya Kant, Mr. A.D. Vaishnav, Mr. Vinay Kumar Garg, Mr. Pradeep Misra, Mr. T. Mahipal and Ms. Niti Dikshit, Advocates with them for the appearing parties.
Head Note:
LAND ACQUISITION
Land Acquisition Act,1894
Section 5 A – Dispensing with enquiry under – Urgency – Question of – Existng market situated in congested area – No scope for expansion – No adequate space for parking – Market devoid of amenities. Held that urgency clause was rightly invoked. Case law discussed.
Held:
The establishment of a Market Yard is not merely one of mere urgency but one which makes it necessary to dispense with inquiry under Section 5-A.
The subjective satisfaction for dispensing with inquiry under Section 5-A is based on sufficient material and cannot be faulted. The photographs as to the filthy state of the present Mandi with grabage and stray cattle and gigs show that the place is so loathsome that it will be precarious and perhaps hazardous to store vegetables or foodgrains in the existing market. We are, therefore, of the view that the urgency clause was rightly invoked by the government.
Section 6, 4(1) – Delay in declaration – Various steps required for finalising proccedings, issuing newspaper notifications and local publication and administrative procedure. Held that delay has been amply justified.(para 17,18)
JUDGEMENT:
M. JAGANNADHA RAO, J.
1. Leave granted.
2. These aopeals all arise out of the common Judgment of the Allahabad High Court dated 24.4.1997. By that judgment, the writ petitions filed by the appellants questning the validity of land acquiition proceedings were all dismissed.
3. The following are the facts common to all the matter. On 25.9.1991, the District Magistrate, Agra sent proposals to the U.P. Government for acquisition of 10.175 hectares of land in village Bainpur, U.P. for construction of a market yard for fruits and vegetables. Various plots of land were included in the notification. The Section 4(1) notification was issued under the Land Acquisition Act, 1894 (hereinunder called the Act) on 5.10.1993 for auquisition of 7.334 hectares. The notification stated that provisions of Section 5-A were bing dispensed with in view of the urgency of the matter and this was being done in exercise of powers under Section 17(4) of the Act. The notifica-tion insofar as it related to urgency, and dispensing with Sec-tion 5-A inquiry read as foloows:
“Being of the opinion that the provisions of sub-section (1) of Section 17 of the said Act are applicable to the said land inasnuch as the said land is urgently required for the con-struction of Fruits and Vegetables Market Yard in District gra and that in view of the pressing urgency it is as well neces-sary to eliminate dely likely to be caused by an inquiry under Section 5-A of the said Act, the Government is further pleased to direct under sub-section (4) of Section 17 of the said Act, that the provisions of Section 5-A of the Act shall not apply.
For what purpose required- For the construction of Fruits and Vegetables Market Yard in District Agra.
Note-A: Site plan of the land may be Inspected in the office of the Collector, Agra.”
4. Thereafter, Section 6 deciaration was issued on 6.10.94 acquiring the land for the above market yard under a planed development scheme and the notification directed the Collector to take possession of take possession of the land in 15 days under Section 9(1) of the Act.
5. It was this acquisition that was questioned in the batch of writ petitions in the High Court. The writ petitions raised two general issues,namely, that there was no such urgency which required dispensing with the inquiry under Section 5-A of the Act and that, that the land of the petitioners which was sought to be acquired was marked in the Master Plan for Agra for the use of ‘ligh industries’ and later as ‘green belt’ and it was therefore not permissible to acquire the same for locating the Fruits and Vegetables Market Yard for that would amount to violating the Master Plan. Some special points were raised in some of the writ petitions.
6. The Hight Court of Allahabad, in anelaborate judgment re-jected the above contentions and referred to the reasons given by the respondents in their respective Counter affidavits as suffi-cient for idspensing with the Section 5-A inquiry. The High Court also held, following rulings of this court and of the Allahabad High Court that even if the user for a market yard was not one of the permissible uses of the land as per the Master Plan, still once the land was acquired, the Market Committee could take steps to have the Master Plan suitabley amended. The High Court also rejected the special points raised in some of the writ petitions.
7. In these appeals we have heard the arguments of Shri Raju Ramachandran, learned senior counsel appearing in the Civil Appeals arising ourt of SLPs 14921-22 of 1997, Shri R.K.Khanna in appeals ariing out of SLPs 14512/97, 14513 and 14848 of 1997 and Mr. Vinay Kumar Grg in the appeals arising out of SLPs 17203-17207 of 1997 and in Contempt Petition No. 381 of 1998. For the respondents, the Mandi Market was represented by Senior Advocate Shri O.P.Rana and the State of U.P. was represented by Ms. Niti Diskshit.
8. Learned counsel for the appellant Shri Raju Ramachandran urged that there was no such urgency as required dispensing with the inquiry under the Act, that the acquired land was reserved for ‘light industries’ (later amended as green belt) in the Master Plan and, therefore, it was not permissible to acquire the land for Fruit and Vegeable Market Yard, and in any event the appellant must be permitted to make a representation to the Government for withdrawel of the acquisition so far as his cliant’s land was concerned. Some special points based on the location of the plots or present user, were also raised. These submissions were countered by the learned senior counsel for the Market committee and counsel appearing for the state. We shall first deal with these general points which are common to all the appeals.
9. On the question of urgency, the following facts and conten-tions emerge from the Counter affidavits. The establishment of a Market Yard is not merely one of mere urgency but one which makes it necessary to dispense with inquiry under Section 5-A. The existing market yard is sit uated in a very congested loclity having no scope for expansion and the place where the Market is now located is not sufficient to cater to the growing needs of its constituents. There is no adequate space for free movement and parking of trucks/bullock carts etc. nor for providing neces-sary shelter for those who come to the market. The existing market is also devoid of any amenities necessary for hundreds of people who visit the market every day or for the bullooks which are being used to draw the carts. During rainy season it becomes well-nigh impossible to find out suitable shelters for the farm-ers and producers of vegetables. It has become necessary to provide amenities and also construct roads in a planned manner.
10 In our view, the subjective satisfaction for dispensing with inquiry under Section 5-A is based on sufficient material and cannot be faulted. The photographs as to the filthy state of the present Mandi with grabage and stray cattle and gigs show that the place is so loathsome that it will be precarious and perhaps hazardous to store vegetables or foodgrains in the existing market. We are, therefore, of the view that the urgency clause was rightly invoked by the government. There are also enough precedents in connection with acquisition of land for markets where Section 5-A has been dispensed with and such action was upheld.
11. In connection with a similar acquisition for a market yard, when Section 5-A inquiry was dispensed with or the ground of urgency, the Allahabad High Court in Satyendra Prasad Jain (S.P. Jain) and others v. State of U.P. (1987 A.W.C. 382) observed:
” The question herein is whether the state was justified in dispensing the requirements of enquiry contemplated under Section 5-A. It could be taken judicial notice of, that in regard to agricultural produce there were no proper market facilities. There were innumerable charges, levies and ex-actions which the agriculturists were required to pay without having any say in the proper utilisation of the amound paid by them. The Government of India and the various committees and commissions appointed to study the condition of agricultural markets in the country had stressed the need to provide proper market yards for the sale and purchase of agricultural pro-duce. The Planning Commission also stressed long ago in this regard. The Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 has been enacted to provide for the regulation of sale and purchase of agricultural produce and for the establishment, superintendence and control of markets therefore, in Uttar Pradesh. The proposed construction of market and market yard by the Mandi Samiti is, therefore, a step forward to amelio-rate the conditions of producers with due representation to them in the Mandi Samities for the fair settlement of disputes relating to their transactions. It is is a long felt need which is said to have been included in the planned Development Scheme.”
It was futher stated (p.3 & 4) as follows:
“It cannot be said that there is no urgency in matter of acquiring the land in question.”
12. The same question arose again kailaswati v. state of U.P. (AIR 1978 All 181.). That was a case where land was acquired for purpose of Maret Yard to be constructed by the Krishi Utpadan Mandi Samithi, Meerut. The inquiry under Section 5-A was dis-pensed with. The same was upheld and it was held that there was immediate urgency as there was acute scarcity of godowns and wasehouses where foddgrains purchased by Government had to be stocked. In our opinion , tha bove Judgment is also in point. Whenin such circumstances market yards are proposedtobe estab-lished,it is,in our view, permissible to invoke the provisions of Setion 17(4) and dispense with section 5-A inquiry.
13. The decisions of this cour in Hari Singh and others v. State of U.P and others (1984 (2) SCC 624) where acquisition was made for a market yard and Union of India v. Praveen Gupta & ors. (1996 (9) J.T. 624) where the acquisition was for a timber yard – show that the establishment of markets has been treated as one of grave urgency to remove congestion. The dispensing with Section 5-A inquiry was upheld in these cases.
14. An additional point was made before us by the respondents that in M.C. Mehta v. Union of India (W.P. (Civil) No. 13381 of 1984) this court had directed inspection in regard to Pollution Control Board & other senior officials of the Muncipal Cropora-tion and that, a team of officials inspected Agra City on 29.11.96 and made various observations in the 2nd Report dated 20.11.96 and one of the observations related to the shifting of this very Mandi in agra and read as follows: (see page 6 of the Report):
“The officials from Mandi Samithi stated that the vegetable market, which is responsible for generating huge quantity or garbage, is being shifted. The shifting is likely to be done by June, 1997.”
15. There after this court issued directions on 3.12.96 that the authorities must take steps to remedy the ills which have come to light from the above said Report.
16. No doubt, learned senior counsel for the appellants is right in his submission that these are events of 1996 and cannot have any retrospective bearing on events of 1993 when section 5-A inquiry was dispensed with. It is true that these facts may not reprospectively justify the above action but, in our view, they reveal a state of environmental degreation in Agra City which was continuing from several years before 1996. Further, learned counsel for the respondents submitted that, in any event, the directions issued by this Court in the above public interest case on 3-12-96 will certainly come in the way of this Court in the present proceedings in holding that Section 5-A inquiry should have been conducted or that such an inquiry should be now con-ducted. It is also submitted for the respondents that these facts are being relied upon to show that, at any rate, this Court should not interfere in its jurisdiction under Article 136 of the Constitution of India. We find sufficient force in these conten-tions of the respondents.
17. It was then urged for the appellant that there was a delay of full one year between the Section 4(1) notification and Sec-tion 6 declaration and this showed the lethargy of the Government and this would reveal that Government would not have lost any-thing if only a hearing under Section 5-A was given to the owners so that they could place their grievances before the Government. In this connection, we may state that the respondents have ex-plained the delay as having been caused inasmuch as of various steps were required to be taken to finalise the proceedings. It was necessary to issue newspaper publications and also make local publication of the substances of the Section 4(1) notifica-tion. There was also delay on account of following other admin-istrative procedure. In view of the above explanation we are not prepared to hold that the latter delay between Section 4(1) notification and Section6 declaration has any great impact on the subjective satisfaction arrived at when orders dispensing with the Section 5-A inquiry were passed earlier.
18. For the aforesaid reasons, we agree with the High Court that the respondents were amply justified in dispensing with inquiry under Section 5-A by exercising powers under Section 17(4) of the Act.
19. The next question relates to the contention of the appell-ants that under the Master Plan for Agra City, the land of the appellants which is proposed for acquisition is in an area where the permitted use is for flight industries’ and therefore it will not be permissible to use the acquired land for purpose of a Market Yard. It is pointed out that, in fact, later on the per-mitted use was modified and the land is now shown as ‘green belt’. On the other hand,it is submitted for the respondents that if the land is proved to have been acquired for a valid public purpose, then the beneficiary of the acquisition can later on move the concerned authority for change of land use.
20. An analogous issue arose in the case Aflatoon vs. Lt. Gover-nor of Delhi (1975 (4) SCC 285). In that case a notification was issued under Section 4(1) of the Act for acquisition of a vast extent of land for the planned development of Delhi. The said acquisition was questioned. On of the contentions was that for such a purpose, development, action had to be taken only under the Delhi Development Act, 1957 and that too by the Chief Commis-sioner of Delhi under that Act and not by the Central Government under the Land Acquisition Act. It was there argued that inasmuch as there was no Master Plan nor Zonal Plan in existence on the date of notification, the acquisition was bad. This Court reject-ed objection raised by the owners and observed, after referring to Sections 12 and 15 of the Delhi Development Act, 1957, as follows (para 23):
“The Planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of the Delhi Development Act after that Act came into force but there is no inhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready. (See the decision in Patna Improve-ment Trust vs. Smt. Lakshmi Devi (1963 Suppl. (2) SCR 312). In other words, the fact that actual development is permis-sible in an area other than a development area with the approval of sanction of the local authority did not preclude the Central Government from acquiring the land for Planned development under the Act. Selection 12 is concerned only with the planned development. it has nothing to do with acquisition of property; acquisition generally precedes development”.
This Court observed:
“For planned development in an area other than a development area, it is only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3). The Central Government could acquire any property under the Act and develop it after obtained the approval of the local authority”.
21. The above decision of this Court was followed by the Allaha-bad High Court in Kendriya Karamchari Evam Mura Sahkari Avas Samithi Ltd. etc. v. State of U.P. (1988 U.P.L.B.E.C. 645). It was held in that case that the government could acquire any property under the Act and later develop the same after obtaining the necessary approval of the concerned local authority under the Development Act. It was stated (at page 651):
“Amendment of Master Plan is permissible with the approval of the State Government under Section 13 of the U.P. Urban Planning and Development Act, 1973 and in the present case the Master Plan showing the area in question as green belt was modified with the approval of the State Government which approval no doubt was accorded subsequent to the issue of notification under Section 4 and 6. However, as observed by their lordships of the Supreme Court the mere fact that till the date of the issue of the notification under Section 4 the necessary approval of the Government had not been obtained can not preclude the Government from acquiring the land for planned development under the Land Acquisition Act. Acquisi-tion generally Precedes development and consequently the land in question could be acquired in anticipation of the approval of the State Government for the change of the land use of the Master Plan prepared by the Development Authority”.
22. As pointed out in the above Judgments, there is no need that the land proposed to be acquired by the Government for a particu-lar public purpose should be for the same purpose or use men-tioned in the Master Plan or Zonal Plan for the said area. Nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality. Acqui-sition will be valid if it is not for the type of user permitted by the Master Plan or Zonal Plan in the force at the time the acquisition is made. It will be for the beneficiary of the acqui-sition to move the competent authority under the Development Act and obtain the sanction of the authority for suitable modifica-tion of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking per-mission to change of land use even before the land acquired or before possession is given to the beneficiary. On the principle stated in Aflatoon’s case, it is clear that acquisition for a public purpose and obtaining permission from competent authority under the concerned Development Act for change of land use are different from one another and the former is not dependent upon the latter.
23. For the aforesaid reasons this contention of the appellants is rejected.
24. It was then argued that as done in the case of Om Prakash v. State of UP (1998 (6) SCC 1), the appellants be permitted to move the Competent authority under the Land Acquisition Act for with-drawl of these plots of land from acquisition under Section 48 of the Act. This request is opposed by the respondents. In our opinion, the procedure adopted in Om Prakash cannot be treated as a precedent in all Land acquisition cases where Section 5-A inquiry is dispensed with. The procedure adopted in that case is based upon the special circumstances obtaining there. In the case before us there are no such circumstances which warrant a similar procedure to be followed. In that case, the land was acquired in a village in U.P. under a notification of 5-1-91 for the purpose of industrial development. The appellants contended before this court that the land was abandi land as per a report submitted by an officer of the department as late as on 11-3-96, that the land was being used in 1996 for residential purposes and that the policy of the State Government was not to acquire resi-dential property for industrial use. This Court …… that by 1998, the Government of U.P. had acquired acres 496 for the purpose of industrial development in the village. The appellants were owners of a small extent of 50 acres. In those circumstanc-es, this Court, while declining to quash the action of the Gov-ernment in dispensing with inquiry under Section 5-A, thought it fit to permit the appellants therein to move the concerned au-thority by way of a representation for withdrawl of the land acquisition proceedings. This Court directed the authorities to consider whether there was any abadi at the time when Section 4(1) notification was issued, whether such abadi was a legally permissible abadi, whether the abadi continued to exist on the date of representation, whether such abadi was covered by any order of government in the force at the time when either Section 4(1) notification or Section 6 declaration were made, and whether such abadi continued to be there as on date of representation. No such facts exist in the present case before us. We accordingly hold that no case out for permitting the appellants to submit a representation for withdrawl of the land acquisition proceedings under Section 48 of the Act.
25. We shall now deal with certain supplementary points raised in the individual cases.
26. In Civil appeal arising out of S.L.P.(C) No. 14921-14922 of 1997 it was argued by the learned Senior Counsel Shri Raju Ra-machandran that as seen from the Map of the Master Plan, it was clear that some other property is earmarked for the Mandi and that instead of using that area, the Market Committee had sought the pointed out that on 5/6-12-95, the Director of the Mandi had addressed a letter to the Joint Secretary, Agriculture Depart-ment, Government of U.P. that on the ……. No. 1324, the ap-plant had been running a bakery inasmuch as the compensation to be paid for acquisition thereof was likely to be higher, the land must be released from acquisition. Learned senior counsel also relied upon a similar letter dated 18.7.96 by the same Director of the Mandi to the Government. We find from the counter affida-vit of the respondent in Para 3(viii) that the State Government has since not accepted the advice of the Mandi Director. In the light of the Government’s rejection and in view of what we have stated earlier, we cannot permit the appellant to now go before the Government seeking exercise of power under Section 48. We are not, therefore, inclined to direct the Government to consider withdrawl of plot 1324 from land acquisition. The above appeals are, therefore, liable to be dismissed.
27. In the Civil Appeals arising out of S.L.P.(C) Nos. 14512-14513, 14848 of 1997 learned counsel for the appellant Shri R.K. Khanna argued that the plots of his cliants were on the extreme western side of the land sought to be acquired and were in fact separated by a road which runs from North to South, that the market is now proposed on the eastern side of the road large ?????? and that there was no immediate need for this land and hence, Section 5-A ought not to have been dispensed with so far as his cliants’ plots were concerned. He pointed out that the proposed construction of market was in two phases, each phase divided into four sub-phases and that each sub-phase would take considerable time and therefore, his cliants’ land, which was away from the main area in the eastern side of the North-South road, should have been excluded and that if Section 5-A were held, it would have certainly been excluded. He also contended that in the remaining land, i.e. excluding his cliants’ lands, all facilities which were necessary for a market had been provid-ed and hence his cliant’s lands were not necessary for acquisi-tion. He argued further that on the other side of the proposed market, there were admittedly vacant land available and that land was not included in the acquisition because the owners thereof were highly influencial.
28. It has to be stated that the appellant has not alleged malafides against the respondents. It is not for this Court to decide whether these plots are necessary or not for the proposed Market. Learned counsel for the State Ms. Niti Dikshit argued, – with reference to the plan, – that the plots of these appellants were necessary inasmuch the Market had to be approached from this side where the appellants’ property was located. The vacant land on the otherwise not being adjacent to be the proposed market, could not be acquired. The Government was able to get some land in land ceiling proceedings and from the Gaon Sabha and therefore with the monies available and earmarked for the market, it was considered that more land should be acquired keeping in view the future plans for the development of the market. It is now planned that in the first phase, there will be four sub-phases, in the following manner for 24 shops; – 24 shops; 40 shops and 4 auction halls. Nearly Rs. 2 crores was set apart for development of Ac 18.00 initially.
29. We are of the view that the above facts do show that devel-opment of the market is in various phases and the future develop-ment of the Market in a growing town like Agra was kept in mind while acquiring this area. It is not for this Court to say that there was no need to acquire the appellant’s lands for the Market and that the remaining land was sufficient. If such a contention were to be accepted, each of the owners could equally advance such an argument making the scheme wholly unworkable. These appeals are therefore liable to be dismissed.
30. In the appeals arising out of SLP (C) Nos. 17203-17207, it was argued by the learned counsel for the appellants that the appellants had obtained a status quo order on 22.9.97 and inspite of that a boundary wall was constructed in such a manner that the appellant was unable to enter his plot nor take any trucks into the said land. In fact, on these allegations, the appellant has filed the Contempt case which is also now before us.
31. The respondents have pointed out that admittedly no con-struction was made by the respondents in the appellants’ plot. The wall was built by respondents in their own property in re-spect of which the status quo order would not apply. The wall was actually put up in ????? to prevent encroachment and to safeguard the respondents’ property. It is pointed out that there is enough space between the said wall and the gate of the appellants’ property for egress and ingress and the appellant was not pre-cluded from reaching his property. It is also pointed out that the 2 rooms constructed but the appellant in his property are vacant, none is living there and no business is being conducted there. ????? merits, the appellants’ case is no different from case of the appellants in other cases. We are of the ??? that these appeals also deserve to be dismissed.
32. The learned counsel in the remaining case adopted the gener-al arguments in the above cases. For the reasons already given, these appeals also deserve to be dismissed.
33. In the result, all the appeals are dismissed. In the circum-stances, there will be no order as to costs.
1. Leave granted.
2. These aopeals all arise out of the common Judgment of the Allahabad High Court dated 24.4.1997. By that judgment, the writ petitions filed by the appellants questning the validity of land acquiition proceedings were all dismissed.
3. The following are the facts common to all the matter. On 25.9.1991, the District Magistrate, Agra sent proposals to the U.P. Government for acquisition of 10.175 hectares of land in village Bainpur, U.P. for construction of a market yard for fruits and vegetables. Various plots of land were included in the notification. The Section 4(1) notification was issued under the Land Acquisition Act, 1894 (hereinunder called the Act) on 5.10.1993 for auquisition of 7.334 hectares. The notification stated that provisions of Section 5-A were bing dispensed with in view of the urgency of the matter and this was being done in exercise of powers under Section 17(4) of the Act. The notifica-tion insofar as it related to urgency, and dispensing with Sec-tion 5-A inquiry read as foloows:
“Being of the opinion that the provisions of sub-section (1) of Section 17 of the said Act are applicable to the said land inasnuch as the said land is urgently required for the con-struction of Fruits and Vegetables Market Yard in District gra and that in view of the pressing urgency it is as well neces-sary to eliminate dely likely to be caused by an inquiry under Section 5-A of the said Act, the Government is further pleased to direct under sub-section (4) of Section 17 of the said Act, that the provisions of Section 5-A of the Act shall not apply.
For what purpose required- For the construction of Fruits and Vegetables Market Yard in District Agra.
Note-A: Site plan of the land may be Inspected in the office of the Collector, Agra.”
4. Thereafter, Section 6 deciaration was issued on 6.10.94 acquiring the land for the above market yard under a planed development scheme and the notification directed the Collector to take possession of take possession of the land in 15 days under Section 9(1) of the Act.
5. It was this acquisition that was questioned in the batch of writ petitions in the High Court. The writ petitions raised two general issues,namely, that there was no such urgency which required dispensing with the inquiry under Section 5-A of the Act and that, that the land of the petitioners which was sought to be acquired was marked in the Master Plan for Agra for the use of ‘ligh industries’ and later as ‘green belt’ and it was therefore not permissible to acquire the same for locating the Fruits and Vegetables Market Yard for that would amount to violating the Master Plan. Some special points were raised in some of the writ petitions.
6. The Hight Court of Allahabad, in anelaborate judgment re-jected the above contentions and referred to the reasons given by the respondents in their respective Counter affidavits as suffi-cient for idspensing with the Section 5-A inquiry. The High Court also held, following rulings of this court and of the Allahabad High Court that even if the user for a market yard was not one of the permissible uses of the land as per the Master Plan, still once the land was acquired, the Market Committee could take steps to have the Master Plan suitabley amended. The High Court also rejected the special points raised in some of the writ petitions.
7. In these appeals we have heard the arguments of Shri Raju Ramachandran, learned senior counsel appearing in the Civil Appeals arising ourt of SLPs 14921-22 of 1997, Shri R.K.Khanna in appeals ariing out of SLPs 14512/97, 14513 and 14848 of 1997 and Mr. Vinay Kumar Grg in the appeals arising out of SLPs 17203-17207 of 1997 and in Contempt Petition No. 381 of 1998. For the respondents, the Mandi Market was represented by Senior Advocate Shri O.P.Rana and the State of U.P. was represented by Ms. Niti Diskshit.
8. Learned counsel for the appellant Shri Raju Ramachandran urged that there was no such urgency as required dispensing with the inquiry under the Act, that the acquired land was reserved for ‘light industries’ (later amended as green belt) in the Master Plan and, therefore, it was not permissible to acquire the land for Fruit and Vegeable Market Yard, and in any event the appellant must be permitted to make a representation to the Government for withdrawel of the acquisition so far as his cliant’s land was concerned. Some special points based on the location of the plots or present user, were also raised. These submissions were countered by the learned senior counsel for the Market committee and counsel appearing for the state. We shall first deal with these general points which are common to all the appeals.
9. On the question of urgency, the following facts and conten-tions emerge from the Counter affidavits. The establishment of a Market Yard is not merely one of mere urgency but one which makes it necessary to dispense with inquiry under Section 5-A. The existing market yard is sit uated in a very congested loclity having no scope for expansion and the place where the Market is now located is not sufficient to cater to the growing needs of its constituents. There is no adequate space for free movement and parking of trucks/bullock carts etc. nor for providing neces-sary shelter for those who come to the market. The existing market is also devoid of any amenities necessary for hundreds of people who visit the market every day or for the bullooks which are being used to draw the carts. During rainy season it becomes well-nigh impossible to find out suitable shelters for the farm-ers and producers of vegetables. It has become necessary to provide amenities and also construct roads in a planned manner.
10 In our view, the subjective satisfaction for dispensing with inquiry under Section 5-A is based on sufficient material and cannot be faulted. The photographs as to the filthy state of the present Mandi with grabage and stray cattle and gigs show that the place is so loathsome that it will be precarious and perhaps hazardous to store vegetables or foodgrains in the existing market. We are, therefore, of the view that the urgency clause was rightly invoked by the government. There are also enough precedents in connection with acquisition of land for markets where Section 5-A has been dispensed with and such action was upheld.
11. In connection with a similar acquisition for a market yard, when Section 5-A inquiry was dispensed with or the ground of urgency, the Allahabad High Court in Satyendra Prasad Jain (S.P. Jain) and others v. State of U.P. (1987 A.W.C. 382) observed:
” The question herein is whether the state was justified in dispensing the requirements of enquiry contemplated under Section 5-A. It could be taken judicial notice of, that in regard to agricultural produce there were no proper market facilities. There were innumerable charges, levies and ex-actions which the agriculturists were required to pay without having any say in the proper utilisation of the amound paid by them. The Government of India and the various committees and commissions appointed to study the condition of agricultural markets in the country had stressed the need to provide proper market yards for the sale and purchase of agricultural pro-duce. The Planning Commission also stressed long ago in this regard. The Uttar Pradesh Krishi Utpadan Mandi Adhiniyam, 1964 has been enacted to provide for the regulation of sale and purchase of agricultural produce and for the establishment, superintendence and control of markets therefore, in Uttar Pradesh. The proposed construction of market and market yard by the Mandi Samiti is, therefore, a step forward to amelio-rate the conditions of producers with due representation to them in the Mandi Samities for the fair settlement of disputes relating to their transactions. It is is a long felt need which is said to have been included in the planned Development Scheme.”
It was futher stated (p.3 & 4) as follows:
“It cannot be said that there is no urgency in matter of acquiring the land in question.”
12. The same question arose again kailaswati v. state of U.P. (AIR 1978 All 181.). That was a case where land was acquired for purpose of Maret Yard to be constructed by the Krishi Utpadan Mandi Samithi, Meerut. The inquiry under Section 5-A was dis-pensed with. The same was upheld and it was held that there was immediate urgency as there was acute scarcity of godowns and wasehouses where foddgrains purchased by Government had to be stocked. In our opinion , tha bove Judgment is also in point. Whenin such circumstances market yards are proposedtobe estab-lished,it is,in our view, permissible to invoke the provisions of Setion 17(4) and dispense with section 5-A inquiry.
13. The decisions of this cour in Hari Singh and others v. State of U.P and others (1984 (2) SCC 624) where acquisition was made for a market yard and Union of India v. Praveen Gupta & ors. (1996 (9) J.T. 624) where the acquisition was for a timber yard – show that the establishment of markets has been treated as one of grave urgency to remove congestion. The dispensing with Section 5-A inquiry was upheld in these cases.
14. An additional point was made before us by the respondents that in M.C. Mehta v. Union of India (W.P. (Civil) No. 13381 of 1984) this court had directed inspection in regard to Pollution Control Board & other senior officials of the Muncipal Cropora-tion and that, a team of officials inspected Agra City on 29.11.96 and made various observations in the 2nd Report dated 20.11.96 and one of the observations related to the shifting of this very Mandi in agra and read as follows: (see page 6 of the Report):
“The officials from Mandi Samithi stated that the vegetable market, which is responsible for generating huge quantity or garbage, is being shifted. The shifting is likely to be done by June, 1997.”
15. There after this court issued directions on 3.12.96 that the authorities must take steps to remedy the ills which have come to light from the above said Report.
16. No doubt, learned senior counsel for the appellants is right in his submission that these are events of 1996 and cannot have any retrospective bearing on events of 1993 when section 5-A inquiry was dispensed with. It is true that these facts may not reprospectively justify the above action but, in our view, they reveal a state of environmental degreation in Agra City which was continuing from several years before 1996. Further, learned counsel for the respondents submitted that, in any event, the directions issued by this Court in the above public interest case on 3-12-96 will certainly come in the way of this Court in the present proceedings in holding that Section 5-A inquiry should have been conducted or that such an inquiry should be now con-ducted. It is also submitted for the respondents that these facts are being relied upon to show that, at any rate, this Court should not interfere in its jurisdiction under Article 136 of the Constitution of India. We find sufficient force in these conten-tions of the respondents.
17. It was then urged for the appellant that there was a delay of full one year between the Section 4(1) notification and Sec-tion 6 declaration and this showed the lethargy of the Government and this would reveal that Government would not have lost any-thing if only a hearing under Section 5-A was given to the owners so that they could place their grievances before the Government. In this connection, we may state that the respondents have ex-plained the delay as having been caused inasmuch as of various steps were required to be taken to finalise the proceedings. It was necessary to issue newspaper publications and also make local publication of the substances of the Section 4(1) notifica-tion. There was also delay on account of following other admin-istrative procedure. In view of the above explanation we are not prepared to hold that the latter delay between Section 4(1) notification and Section6 declaration has any great impact on the subjective satisfaction arrived at when orders dispensing with the Section 5-A inquiry were passed earlier.
18. For the aforesaid reasons, we agree with the High Court that the respondents were amply justified in dispensing with inquiry under Section 5-A by exercising powers under Section 17(4) of the Act.
19. The next question relates to the contention of the appell-ants that under the Master Plan for Agra City, the land of the appellants which is proposed for acquisition is in an area where the permitted use is for flight industries’ and therefore it will not be permissible to use the acquired land for purpose of a Market Yard. It is pointed out that, in fact, later on the per-mitted use was modified and the land is now shown as ‘green belt’. On the other hand,it is submitted for the respondents that if the land is proved to have been acquired for a valid public purpose, then the beneficiary of the acquisition can later on move the concerned authority for change of land use.
20. An analogous issue arose in the case Aflatoon vs. Lt. Gover-nor of Delhi (1975 (4) SCC 285). In that case a notification was issued under Section 4(1) of the Act for acquisition of a vast extent of land for the planned development of Delhi. The said acquisition was questioned. On of the contentions was that for such a purpose, development, action had to be taken only under the Delhi Development Act, 1957 and that too by the Chief Commis-sioner of Delhi under that Act and not by the Central Government under the Land Acquisition Act. It was there argued that inasmuch as there was no Master Plan nor Zonal Plan in existence on the date of notification, the acquisition was bad. This Court reject-ed objection raised by the owners and observed, after referring to Sections 12 and 15 of the Delhi Development Act, 1957, as follows (para 23):
“The Planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of the Delhi Development Act after that Act came into force but there is no inhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready. (See the decision in Patna Improve-ment Trust vs. Smt. Lakshmi Devi (1963 Suppl. (2) SCR 312). In other words, the fact that actual development is permis-sible in an area other than a development area with the approval of sanction of the local authority did not preclude the Central Government from acquiring the land for Planned development under the Act. Selection 12 is concerned only with the planned development. it has nothing to do with acquisition of property; acquisition generally precedes development”.
This Court observed:
“For planned development in an area other than a development area, it is only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3). The Central Government could acquire any property under the Act and develop it after obtained the approval of the local authority”.
21. The above decision of this Court was followed by the Allaha-bad High Court in Kendriya Karamchari Evam Mura Sahkari Avas Samithi Ltd. etc. v. State of U.P. (1988 U.P.L.B.E.C. 645). It was held in that case that the government could acquire any property under the Act and later develop the same after obtaining the necessary approval of the concerned local authority under the Development Act. It was stated (at page 651):
“Amendment of Master Plan is permissible with the approval of the State Government under Section 13 of the U.P. Urban Planning and Development Act, 1973 and in the present case the Master Plan showing the area in question as green belt was modified with the approval of the State Government which approval no doubt was accorded subsequent to the issue of notification under Section 4 and 6. However, as observed by their lordships of the Supreme Court the mere fact that till the date of the issue of the notification under Section 4 the necessary approval of the Government had not been obtained can not preclude the Government from acquiring the land for planned development under the Land Acquisition Act. Acquisi-tion generally Precedes development and consequently the land in question could be acquired in anticipation of the approval of the State Government for the change of the land use of the Master Plan prepared by the Development Authority”.
22. As pointed out in the above Judgments, there is no need that the land proposed to be acquired by the Government for a particu-lar public purpose should be for the same purpose or use men-tioned in the Master Plan or Zonal Plan for the said area. Nor will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality. Acqui-sition will be valid if it is not for the type of user permitted by the Master Plan or Zonal Plan in the force at the time the acquisition is made. It will be for the beneficiary of the acqui-sition to move the competent authority under the Development Act and obtain the sanction of the authority for suitable modifica-tion of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking per-mission to change of land use even before the land acquired or before possession is given to the beneficiary. On the principle stated in Aflatoon’s case, it is clear that acquisition for a public purpose and obtaining permission from competent authority under the concerned Development Act for change of land use are different from one another and the former is not dependent upon the latter.
23. For the aforesaid reasons this contention of the appellants is rejected.
24. It was then argued that as done in the case of Om Prakash v. State of UP (1998 (6) SCC 1), the appellants be permitted to move the Competent authority under the Land Acquisition Act for with-drawl of these plots of land from acquisition under Section 48 of the Act. This request is opposed by the respondents. In our opinion, the procedure adopted in Om Prakash cannot be treated as a precedent in all Land acquisition cases where Section 5-A inquiry is dispensed with. The procedure adopted in that case is based upon the special circumstances obtaining there. In the case before us there are no such circumstances which warrant a similar procedure to be followed. In that case, the land was acquired in a village in U.P. under a notification of 5-1-91 for the purpose of industrial development. The appellants contended before this court that the land was abandi land as per a report submitted by an officer of the department as late as on 11-3-96, that the land was being used in 1996 for residential purposes and that the policy of the State Government was not to acquire resi-dential property for industrial use. This Court …… that by 1998, the Government of U.P. had acquired acres 496 for the purpose of industrial development in the village. The appellants were owners of a small extent of 50 acres. In those circumstanc-es, this Court, while declining to quash the action of the Gov-ernment in dispensing with inquiry under Section 5-A, thought it fit to permit the appellants therein to move the concerned au-thority by way of a representation for withdrawl of the land acquisition proceedings. This Court directed the authorities to consider whether there was any abadi at the time when Section 4(1) notification was issued, whether such abadi was a legally permissible abadi, whether the abadi continued to exist on the date of representation, whether such abadi was covered by any order of government in the force at the time when either Section 4(1) notification or Section 6 declaration were made, and whether such abadi continued to be there as on date of representation. No such facts exist in the present case before us. We accordingly hold that no case out for permitting the appellants to submit a representation for withdrawl of the land acquisition proceedings under Section 48 of the Act.
25. We shall now deal with certain supplementary points raised in the individual cases.
26. In Civil appeal arising out of S.L.P.(C) No. 14921-14922 of 1997 it was argued by the learned Senior Counsel Shri Raju Ra-machandran that as seen from the Map of the Master Plan, it was clear that some other property is earmarked for the Mandi and that instead of using that area, the Market Committee had sought the pointed out that on 5/6-12-95, the Director of the Mandi had addressed a letter to the Joint Secretary, Agriculture Depart-ment, Government of U.P. that on the ……. No. 1324, the ap-plant had been running a bakery inasmuch as the compensation to be paid for acquisition thereof was likely to be higher, the land must be released from acquisition. Learned senior counsel also relied upon a similar letter dated 18.7.96 by the same Director of the Mandi to the Government. We find from the counter affida-vit of the respondent in Para 3(viii) that the State Government has since not accepted the advice of the Mandi Director. In the light of the Government’s rejection and in view of what we have stated earlier, we cannot permit the appellant to now go before the Government seeking exercise of power under Section 48. We are not, therefore, inclined to direct the Government to consider withdrawl of plot 1324 from land acquisition. The above appeals are, therefore, liable to be dismissed.
27. In the Civil Appeals arising out of S.L.P.(C) Nos. 14512-14513, 14848 of 1997 learned counsel for the appellant Shri R.K. Khanna argued that the plots of his cliants were on the extreme western side of the land sought to be acquired and were in fact separated by a road which runs from North to South, that the market is now proposed on the eastern side of the road large ?????? and that there was no immediate need for this land and hence, Section 5-A ought not to have been dispensed with so far as his cliants’ plots were concerned. He pointed out that the proposed construction of market was in two phases, each phase divided into four sub-phases and that each sub-phase would take considerable time and therefore, his cliants’ land, which was away from the main area in the eastern side of the North-South road, should have been excluded and that if Section 5-A were held, it would have certainly been excluded. He also contended that in the remaining land, i.e. excluding his cliants’ lands, all facilities which were necessary for a market had been provid-ed and hence his cliant’s lands were not necessary for acquisi-tion. He argued further that on the other side of the proposed market, there were admittedly vacant land available and that land was not included in the acquisition because the owners thereof were highly influencial.
28. It has to be stated that the appellant has not alleged malafides against the respondents. It is not for this Court to decide whether these plots are necessary or not for the proposed Market. Learned counsel for the State Ms. Niti Dikshit argued, – with reference to the plan, – that the plots of these appellants were necessary inasmuch the Market had to be approached from this side where the appellants’ property was located. The vacant land on the otherwise not being adjacent to be the proposed market, could not be acquired. The Government was able to get some land in land ceiling proceedings and from the Gaon Sabha and therefore with the monies available and earmarked for the market, it was considered that more land should be acquired keeping in view the future plans for the development of the market. It is now planned that in the first phase, there will be four sub-phases, in the following manner for 24 shops; – 24 shops; 40 shops and 4 auction halls. Nearly Rs. 2 crores was set apart for development of Ac 18.00 initially.
29. We are of the view that the above facts do show that devel-opment of the market is in various phases and the future develop-ment of the Market in a growing town like Agra was kept in mind while acquiring this area. It is not for this Court to say that there was no need to acquire the appellant’s lands for the Market and that the remaining land was sufficient. If such a contention were to be accepted, each of the owners could equally advance such an argument making the scheme wholly unworkable. These appeals are therefore liable to be dismissed.
30. In the appeals arising out of SLP (C) Nos. 17203-17207, it was argued by the learned counsel for the appellants that the appellants had obtained a status quo order on 22.9.97 and inspite of that a boundary wall was constructed in such a manner that the appellant was unable to enter his plot nor take any trucks into the said land. In fact, on these allegations, the appellant has filed the Contempt case which is also now before us.
31. The respondents have pointed out that admittedly no con-struction was made by the respondents in the appellants’ plot. The wall was built by respondents in their own property in re-spect of which the status quo order would not apply. The wall was actually put up in ????? to prevent encroachment and to safeguard the respondents’ property. It is pointed out that there is enough space between the said wall and the gate of the appellants’ property for egress and ingress and the appellant was not pre-cluded from reaching his property. It is also pointed out that the 2 rooms constructed but the appellant in his property are vacant, none is living there and no business is being conducted there. ????? merits, the appellants’ case is no different from case of the appellants in other cases. We are of the ??? that these appeals also deserve to be dismissed.
32. The learned counsel in the remaining case adopted the gener-al arguments in the above cases. For the reasons already given, these appeals also deserve to be dismissed.
33. In the result, all the appeals are dismissed. In the circum-stances, there will be no order as to costs.
