Supreme Court of India
DEVENDER KUMAR TYAGI AND ORS.versusSTATE OF U.P. AND ORS.
- Citation
- 2011 INSC 602
- Decided
- 23 August 2011
- Disposal
- Case Allowed
- Bench
- G S SINGHVI
Holding
The declaration under Section 6 was beyond the one‑year limitation and the urgency provision was not justified, rendering the notifications void.
Summary
The petitioners challenged two notifications issued by the State of Uttar Pradesh for acquiring land to develop a Leather City Project aimed at relocating polluting bone mills. The Court examined whether the declaration under Section 6 of the Land Acquisition Act, dated 18 December 2007, was made within the one‑year limitation period prescribed by the proviso to Section 6(1), and whether the State could invoke the urgency provisions of Section 17(1) and exclude the enquiry under Section 5‑A. It held that the notification under Section 4 was validly published in Hindi newspapers on 4 July 2006, making that the relevant date of publication; the declaration under Section 6 was issued more than a year later, thus outside the statutory period. Moreover, the acquisition for a residential‑commercial‑industrial scheme did not constitute a real urgency, and the State had not obtained the required sub‑regional plan approval under the NCRPB Act, rendering the urgency clause inapplicable. Consequently, the notifications were quashed and the petitioners’ right to object under Section 5‑A was upheld.
Issues considered
- Whether the declaration under Section 6 of the Land Acquisition Act dated 18 December 2007 falls within the one‑year limitation period prescribed by the proviso to Section 6(1).
- Whether the State was justified in invoking the urgency provision under Section 17(1) and excluding the application of Section 5‑A under Section 17(4) for the acquisition of land for the Leather City Project.
Legislation cited
- Land Acquisition Act, 1894s. 17, s. 27, s. 4, s. 5-A, s. 6
- National Capital Region Planning Board Act, 1985s. 19, s. 20, s. 27, s. 29
Subjects
Land acquisitionUrgency provisionSection 5-ALimitation periodNCRPB approvalPublic purposeEnvironmental relocationLeather City Project
Judgment
(2011] 15 (ADDL.) S.C.R. 641
DEVENDER KUMAR TYAGI AND ORS. A
v.
STATE OF U.P. AND ORS.
(Writ Petition (C) No. 66 of 2007)
AUGUST 23, 2011
B
[G.S. SINGHVI AND H.L. DATIU, JJ.]
Land Acquisition Act, 1894:
ss. 4 and 6 - Publication of Notification in two Hindi c
newspapers having circulation in the locality where the land
is situated and where people are well conversant with Hindi
amounts to ample compliance with the requirement of the
publication uls.4(1) of the LA Act - In view of that, the
subsequent publication of English translation of the said D
Notification uls. 4 of the LA Act in two newspapets would be
unnecessary and would not extend the period of limitation
envisaged in the proviso to s. 6(1) of the LA Act - Therefore,
the last date of publication for the purpose of s.4(1) of the LA
Act,' which can be treated as date of publication, is the date E
on which, the Notification uls.4 of the LA Act was published
in the Hindi newspaper - In the instant case, notification ul
s.4(1) of the LA Act was made on 4. 7.2006 - The declaration
u/s. 6 was issued on 18. 12. 2007 which was clearly beyond the
period of limitation of one year as mandated by the proviso F
to s.6(1) of the LA Act.
ss.5-A, 17(1) and 17(4)- Construction of the Leather City
Project - Elimination of enquiry uls.5-A - Held: Acquisition
of land for public purpose by itself shall not justify the exercise
of power of eliminating enquiry u/s.5-A in terms of s.17(1) and G
s.17(4) of the LA Act- Court should take judicial notice of the
fact that certain schemes or projects, such as the construction
of the Leather City Project for public purpose, which
contemplate the development of residential, commercial,
641 H
642 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A industrial or institutional areas, by their intrinsic nature and
character require the investment of time of a few years in their
· planning, execution and implementation - Therefore, the land
acquisition for said public purpose does not justify the
elimination of enquiry u/s.5-A of the LA Act.
B
s.17(1) and 17(4) - Justification of invoking the urgency
provision uls.17(1) and excluding the application of s.5-A in
terms of s.17(4) of the LA Act for acquisition of the land for
the development of the Leather City Project - In terms of
directions of the Supreme Court to the respondents to identify
C the area for relocation of bone mills and allied industries
causing environment pollution and health hazards as per the
recommendations of the CPCB, the respondents specified the
construction of the Leather City Project at Hapur in
Ghaziabad - Subsequently, it was only after the lapse of two
D years, the State Government published Notification u/s. 4 on
04.07.2006 - Thereafter, the State Government took more
than 17 months in order to make a declaration of the
Notification u/s.6 - This showed that the government
functionary had proceeded at very slow pace at two levels, that
E is, prior to the issuance of the Notification uls. 4 and post the
issuance of the Notification uls. 4, for acquisition of the land
for construction of the Leather City Project, which undoubtedly
is a public purpose ~ In the light of these circumstances, the
respondents were not justified in invoking the urgency
F provisions u/s.17 of the LA Act, thereby, depriving the
landowners of their·valuable right to raise objections and
opportunity of hearing before the authorities in order to
persuade them that their property may not be acquired.
Judgment/Order: Directions or orders issued by the
G Supreme Court - Held: Must be abided by within the four
comers of the legal framework and statutory provision. - The
State Government is not allowed to transgress the express
legal provisions and procedure thereunder in the garb or guise
of implementing the Court's guidelines or directions - The
H
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 643
U.P. AND ORS.
directions of the Supreme Court are issued with a purpose A
and the said purpose is supposed to be followed in the realm
of legal structure and principles.
National Capital Region Planning Board Act, 1985:
Object of the Act - Discussed. B
s.19 - Absence of grant of approval of Sub-Regional
plan by NCRPB - Held: Would vitiate the acquisition
proceedings - In the instant case, the respondents had
authorized the NCRPB to prepare Sub-regional plan.of c
construction of the Leather City Project at Hapur in the district
of Ghaziabad - Subsequently, the NCRPB issued a draft
Sub-regional plan, wherein the Leather City Project was not
mentioned - The respondents had made several requests
to NCRPB to include Leather City Project but no reply D
granting approval has come in terms of s. 19(2) of the NCRPB
Act - Therefore, the acquisition of land in the absence of
express approval in terms of s.19 and operation of s.27 of
the LA Act renders the entire acquisition proceedings illegal
and hence vitiated - Land Acquisition Act, 1894 - s.27.
E
In 1994, public interest proceedings were initiated for
relocation of the bone mills and allied industries in
various parts of the State of Uttar Pradesh including the
District of Ghaziabad. The Supreme Court has been
monitoring the relocation. From time to time, the F
Supreme Court has issued various orders and directions
including inspection of polluting bone industries in
Ghaziabad. The Supreme Court by its order dated
17.8.2004 in a pending matter directed the respondents
to relocate the bone mills and allied industries as per the G
recommendations of the Central Pollution Control Board
and further directed the respondents to identify the
definite area suitable.for relocation of the said industries.
Pursuant to this order, the respondents had filed an
affidavit before the Supreme. Court in the month of H
644 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A December, 2004 proposing the Leather City Project for
relocation of the said bone industries.
The respondents issued a notification dated 3.7.2006
under Section 4 r/w Section 17(4) of the Land Acquisition
Act for acquisition of 28.804 hectares of land for the
8
public purpose of planned development of the Leather
City Project by invoking the urgency provision under the
LA Act, thereby, dispensing with inquiry under Section
SA of the LA Act. The same was published in two daily
Hindi Newspaper on 4.7.2006. Subsequently, the English
c version of the said notification was also published in two
daily newspapers dated 24.1.2007. Thereafter, the
respondent issued a Notification dated 18.12.2007 under
Section 6 read with Section 17 (1) of the LA Act, whereby,
it directed the Collector of Ghaziabad to take possession
D of the said land on the expiry of 15 days from the date of
publication of the Notice under Section 9(1) even though
no award was made under Section 11. The same was
published in two newspapers on 05.01.2008.
E The petitioners-land owners filed the instant writ
petitions under Article 32 of the Constitution of India
seeking quashing of the Notifications issued under
Sections 4 and 6 of the LA Act. The issues involved in
the writ petitions were whether the Notification dated
F 18.12.2007 issued by the respondents under Section 6
read with Section 17 (1) of the LA Act was within the
period of limitation as contemplated by proviso (ii) to
Section 6 (1) of the LA Act and whether the respondent
was justified in invoking the urgency provision under
G Section 17(1) and excluding the application of Section 5-
A in terms of Section 17(4) of the LA Act for acquisition
of the land for the development of the Leather City
Project.
Allowing the writ petitions, the Court
H
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 645
U.P. AND ORS.
HELD: 1. The Notification under Section 4 of the A
Land Acquisition Act has to be published in'the manner
laid down therein. As against this, under Section 6, a
declaration has to be first made and that declaration is
then to be published in the manner provided in Section
6(2) of the LA Act. Also, the proviso (ii) to Section 6(1) lays B
down a time-limit within which declaration has to be
made. The said proviso (ii) significantly only provides a
time-limit for a declaration and not for publication as it has
been incorporated in sub-section (1) of Section 6 of the
LA Act. It is not in dispute that the declaration of the c
Notification under Section 6 was issued on 18.12.2007. It
is also not in dispute that the Notification under Section
4 was issued on 03.07.2006 and the same was published
in two daily newspapers in Hindi language on 04.07.2006
·having circulation in the locality where the land is D
situated. Also, the people at Pargana Hapur in the
Ghaziabad district are well conversant with the Hindi
language. The publication of the Notification in two
newspapers having circulation in the locality where the
land is situated and where people are well conversant
with Hindi amounts to ample compliance with the E
requirement of the publication under Section 4(1) of the
LA Act. In view of that, the subsequent publication of
English translation of the said Notification under Section
4 in two newspapers on 05.01.2007 was unnecessary and
would not extend tf\e period of limitation envisaged in the F
proviso to Section 6(1} of the LA Act. Hence, the last date
of publication for the purpose of Section 4(1) of the LA
Act, which can be treated as date of publication, is the
date on which, the Notification under Section 4 was
published in the newspaper, that. is, 04.07.2006. G
Therefore, the period of limitation commences from
04.07.2006, which is the date of publication of the
Notification under Section 4(1) of the LA Act. If the
declaration under Section 6 of the LA Act is made before
the expiry of the period of one year starting from H
646 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A 04.07.2006, then, only such declaration will be
considered as valid for the .Purpose of the acquisition of
land. However, in the instant case, the declaration under
Section 6 was issued on 18.12.2007 which was clearly
beyond the period of limitation of one year as mandated
B by the proviso to Section 6(1) of the LA Act. Therefore,
the declaration of Notification under Section 6 and its
subsequent publications are clearly beyond the period of
limitation of one year starting from the date of publication
of Notification under Section 4 of the LA Act. Act. [Paras
C 10, 11] [658-E-H; 659-A-F]
S.H. Rangappa v. State of Karnataka & Anr.. (2002) 1,
SCC 538: 2001(3) Suppl. SCR 545; Sriniwas Ramnath
Khatod v. State ofMaharashtra & Ors. (2002) 1 SCC 689:
2001 (5) Suppl. SCR 255 -referred to.
D
2. It is well settled that acquisition of land for public
purpose by itself shall not justify the exercise of power
of eliminating enquiry under Section 5-A in terms of
Section 17(1) and Section 17(4) of the LA Act. The Court
E should take judicial notice of the fact that certain
schemes or projects, such as the construction of the
Leather City Project for public purpose, which
contemplate the development of residential, commercial,
industrial or institutional areas, by their intrinsic nature
F and character require the investment of time of a few
years in their planning, execution and implementation.
Therefore, the land acquisition for said public purpose
does not justify the invoking of urgency provisions under
the LA Act. [para 15) [666-A-C] ·
G Jai Narain and Ors. v. Union of India (1996) 1 SCC 9:
1995 (5) Suppl. SCR 769; Radhey Shyam v. State of U.P.
(2011) 5 sec 553 - referred to.
3. In the facts and circumstances of the instant case,
H it is clear that this Court by its Order dated 17.08.2004,
DEVENDER KUMAR TYAGI AND ORS. v. STATE QF 647
U.P. AND ORS.
has issued a direction to the respondents to relocate the A
bone mills and allied industries causing environment
, pollution and health hazards as per the recommendations
of the CPCB and, inter alia, respondents were also
directed to identify the area for relocation. Pursuant to
this, respondents have filed an affidavit in the month of B
December, 2004 specifying the construction of the
Leather City Project at Hapur in Ghaziabad.
Subsequently, it was only after the lapse of two years, the
State Government had issued a Notification under
· Section 4 on 03.07.2006 and the same was published on c
04.7.2006. Thereafter, the State Government took more
than 17 months in order to make a declaration of the
Notification under Section 6 from the date of publication
of the Notification under Section 4 of the LA Act. In view
of that, it is crystal clear that the government functionary D
has proceeded at very slow pace at two levels, that is,
prior to the issuance of the Notification under Section 4
and post the issuance of the Notification under Section
4, for acquisition of the land for construction of the
Leather City Project, which undoubtedly is a public E
purpose. Therefore, the series of the events amply
exhibited the lethargical and lackadaisical attitude of the
State Government. In the light of these circumstances, the
respondents were not justified in invoking the urgency
provisions under Section 17 of the LA Act, thereby,
depriving the appellants of their valuable right to raise F
objections and opportunity of hearing before the
authorities in order to persuade them that their property
may not be acquired. [para 17] [668-D-H; 669-A]
Dev Sharan & Others v. State of U. P. (2011) 4 SCC 7695 G
- referred to.
4. The directions or orders issued by this Court must
be abided by within the four corners of the legal
framework and statutory provisions. The State H
648 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A Government is not allowed to transgress the express
legal provisions and procedure thereunder in the garb or
guise of implementing the guidelines or directions issued
by this Court. The directions of this Court were issued
with a purpose and the said purpose is supposed to be
B followed in the realm of legal structure and principles.
Therefore, the respondents were not justified in invoking
the urgency provisions of the LA Act in an arbitrary
manner by referring to the earlier directions as a defense
for their illegal and arbitrary act of acquiring land without
c giving an opportunity of raising objections and hearing
to the petitioners in terms of Section 5-A of the LA Act.
Admittedly, the respondents had not obtained the
approval of the National Capital Region Planning Board
(NCRPB) for construction of the Leather City Project as
Sub-regional plan in terms of Section 19(2) of the National
0
Capital Region Planning Board Act (NCRPB Act). The
purpose or aim of the NCRPB Act is to provide for co-
ordinated, harmonized and common plan development
of the National Capital Region at the central level in order
to avoid haphazard development of infrastructure and
E land uses in the said region, which includes the district
of Ghaziabad in the Uttar Pradesh. Under this Act, the
NCRPB has been constituted with the Union Minister for
Urban Development as the Chairperson and the Chief
Ministers of Haryana, Rajasthan and Uttar Pradesh and
F Lt. Governor of Delhi as its members in order to undertake
the task of development of the National Capital Region.
The object of the NCRPB is to prepare, modify, revise and
review a regional and functional plan for the development
of said region and, further, to co-ordinate and monitor its
G implementation. Section 19(1) mandates the State
government or Union Territory to submit their sub-
regional plan to the NCRPB for examination in order to
ensure that it is in conformity with the regional plan. Once
the NCRPB affirms the conformity of the said plan with
H regional plan, only then the State government can finalize
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 649
U.P. AND ORS.
it. Thereafter, the State Government is entitled to A
implement the Sub-regional plan by virtue of Section 20
of the NCRPB Act. [Paras 19, 20] [669-E-H; 670-A-E]
M.C. Mehta v. Union of India, (2004) 6 SCC 588: 2004
(2) Suppl. SCR 504: Ghaziabad Development Authority v.
8
Delhi Auto & General Finance (P) Ltd. (1994) 4 SCC 42;
Sheikhar Hotels Gulmohar Enclave v. State of Uttar Pradesh
(2008) 14 sec 716: 2008 (8) SCR 273 - relied on.
5. In the facts and circumstances of the instant case,
the respondents by its resolution dated 19.04.2005, had C
authorized the NCRPB to prepare Sub-regional plan of
construction of the Leather City Project at Hapur in the
district of Ghaziabad for the HPDA. Subsequently, the
NCRPB issued a draft Sub-regional plan, wherein the
Leather City Project was not mentioned. The respondents D
had made several requests to NCRPB to include Leather
City Project but no reply granting approval had come in
terms of Section 19(2) of the NCRPB Act. Section 19 of
the NCRPB Act contemplates the grant of approval by the
NRCPB, and finalization by the State Government, of the E
Sub-Regional Plan if it is in consonance and consistent
with the Regional Plan for the National Capital Region.
Furthermore, Section 29 of the NCRPB Act contemplates
that the State Government shall not undertake any
development activity, which is inconsistent with the F
Regional Plan for the National Capital Regional. Also,
Section 27 of the NCRPB Act has overriding effect on
any other inconsistent law or instrument. The overall
scheme of the NCRPB Act contemplates common plan,
coordination and harmony in the formulation of policy of G
land uses and development of infrastructure in the
National Capital Region. Therefore, the acquisition of land
in the absence of express approval in terms of Section
19 and operation of Section 27 of the LA Act renders the
entire acquisition proceedings illegal and hence vitiated. H
650 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A Thus, the declaration of Notification dated 18.12.2006
under Section 6 of the LA Act is beyond the period of
limitation as envisaged by proviso to Section 6(1) of the
LA Act. The State Government was not justified, in the
facts and circumstances of this case, to invoke the
B urgency provision of Section 17(4) of the LA Act.
Therefore, the appellants cannot be denied of their
valuable right under Section 5-A of the LA Act. (paras 23-
24] (673-G-H; 674-A-F]
Case Law Reference:
c 0
2001 (3) Suppl. SCR 545 referred to Para 11
2001 (5) Suppl. SCR 255 referred to Para 11
1995 (5) Suppl. SCR 769 referred to Para 13
D
(2011 > 5 sec 553 referred to Para 14, 15
(2011) 4 sec 7695 referred to Para 16
2004 (2) Suppl. SCR 504 relied on Para 20
E (1994) 4 sec 42 relied on Para 21
2008 (8) SCR 273 relied on Para 22
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
66 of 2007.
F
Under Article 32 of the Constitution of India.
WITH
W.P. (C) No. 67 of 2007.
G
Pradeep Misra, Dr. Sushi! Balwada, Ashok Kumar Sharma
for the Petitioner.
Pallav Sisodia, R.K. Dash, Shail K. Dwivedi, R.K. Gupta,
Rajiv Dubey, Kamlendra Mishra, Reena Singh, Devesh Kumar,
H
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 651
U.P. AND ORS.
Nandini Gore, Ashok Kumar Sharma, Lakshmi Raman Singh, A
P.K. Manohar, Anil Kumar Jha, Chander Shekhar, Ashri, Anu
Mohla, Varinder Kumar Sharma, Sunil Kumar Jain, J.S. Wad
& Co., Dr. Vipin Gupta for the Respondent.
The Judgment of the Court was delivered by B
H.L. DATTU, J.1. The petitioners have filed this writ
petition under Article 32 of the Constitution of India, inter alia,
challenging the Notification dated 03.7.2006 issued under
Section 4 and the Notification dated 18.12.2007 issued under
Section 6 of the Land Acquisition Act, 1894 (hereinafter C
referred tb as "the LA Act") for acquiring their lands for a
planned development of the Leather City Project in order to
relocate bone mills and allied industries by invoking the urgency
provisions under Section 17(1) and 17(4) of the LA Act.
D
2. This Court is monitoring the re-location of the bone mills
and allied industries in the various parts of State of Uttar
Pradesh including the district of Ghaziabad in the public interest
proceedings, which were initiated in the year 1994. Since then,
this Court has time and again issued various orders and E
directions including inspection of polluting bone industries in
Ghaziabad by the U.P. Pollution Control Board (hereinafter
referred to as "the UPPCB") and Central Pollution Control
Board (hereinafter referred to as "the CPCB"). This Court, vide
its Order dated 17.08.2004 in the Civil Appeal No. 3633-3634 F
of 1999 (U.P. Pollution Control Board v. Anil K. Kamwa/ &
Ors.), which is still pending before us, had directed the
respondents to relocate the bone mills and allied industries as
per the recommendations of the CPCB and further directed the
respondents to identify the definite area suitable for relocation G
of the said industries. Pursuant to this Order, the respondents
had filed an affidavit before this Court in the month of
December, 2004, inter a/ia, proposing the Leather City Project
for relocation of the said bone industries.
H
652 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A 3. In this backdrop, the respondents had issued a
Notification dated 03.7.2006 under Section 4 read with Section
17 (4) of the LA Act for acquisition of 28.804 hectares of the
land at village lmtori, Chitoli, Sabli of Hapur-Pargana in the
district of Ghaziabad for the public purpose of planned
B development of the Leather City Project by invoking the urgency
provision under the LA Act, thereby, dispensing with inquiry
under Section 5-A of the LA Act. The same was published in
two daily Hindi newspapers on 04.07.2006. Subsequently, the
English version of the said Notification was also published in
c two daily newspapers dated 24.01.2007. The relevant part of
the Notification is extracted below:
"The Governor is pleased to order the publication of the
following English translation of Notification No. 1588Nlll-
3-2006-183 LA-2005, dated July 03, 2006:
D
No. 1588Nlll-3-2006-183 LA-2005
Dated Lucknow, July 3, 2006
Under subsection (1) of section 4 of the Land Acquisition
E Act, 1894 (Act No. 1 of 1894), the Governor is pleased to
notify for general information that the land mentioned in the
schedule below is needed for the public purpose namely,
for construction of Leather City Scheme at Village<1-Chitoli,
Sabli and lmtori, Pargana-Hapur, district-Ghaziabad by the
F Hapur-Pilkhuwa Development Authority, Hapur.
The Governor being of the opinion that provisions of
subsection (1) of section 17 of the said Act are applicable
to the said land in as much as the said land is urgently
G required for construction of Leather City Scheme at
Villages-Chitoli, Sabli and lmtori, Pargana-Hapur, district-
Ghaziabad by the Hapur-Pilkhuwa Development Authority,
Hapur under planned development Scheme, it is as well
necessary to eliminate to delay likely to be caused by an
enquiry under section 5-A of the said Act the Governor is
H
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 653
U.P. AND ORS. [H.L. DATTU, J.)
further pleased to direct, under subsection (4) of section A
17 of said Act, that the provisions of section 5-A shall not
apply."
4. Thereafter, the respondent had issued a Notification
dated 18.12.2007 under Section 6 read with Section 17 (1) of 8
the LA Act, whereby, it directed the Collector of Ghaziabad to
take possession of the said land on the expiry of 15 days from
the date of publication of the Notice under Section 9(1) even
though no award has been made under Section 11. The same
was published in two newspapers on 05.01.2008. The relevant C
portion of the Notification is extracted below:
"The Governor is pleased to order the publication of the
following English translation of notification No. 2647Nlll-
3-2006-136L.A.-2006, dated September 18, 2006:
D
No. 2647NII l-3-2006-136L.A.-2006
Dated Lucknow, September 18, 2006
Under, sub-section (1) section 4 of the Land Acquisition
Act, 1894 (Act No. 1 of 1894) the Governot is pleased to E
notify for general information that the land mentioned in the
schedule below, is needed for a public purpose namely for
construction of planned Leather City scheme at village
Rampur, Paragana Hapur, District Ghaziabad by the
Hapur Pilkhuwa Development Authority, Hapur. F
2. The Governor, being of the opinion that the
proivision of sub-section (1) of section 17 of the said Act
are applicable to the said land in as much as the said land
is urgently required, for the construction of planned Leather G
City scheme at village Rampur, Paragna Hapur, District
Ghaziabad by the Hapur Pilkhuwa Development Authority,
Hapur under planned development scheme, it is as well
necessary to eliminate the delay likely to be caused by an
inquiry under section 5A of the said Act. The Governor is
H
654 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A further pleased to direct under sub-section (4) of section
17 of the said Act that the provisions of section 5A of the
said Act shall not apply."
5. Since the Petitioners' land situated at Hapur is included
8 in these Notifications, the petitioners have filed present Writ
Petition under Article 32 of the Constitution praying for issuance
of appropriate writ or directions to quash these Notifications
issued under Section 4 and Section 6 of the LA Act.
6. In this Writ Petition, the issues before us are :
c
I. Whether the Notification dated 18.12.2007 issued
by the respondents under Section 6 read with
Section 17 (1) of the LA Act is within the period of
limitation as contemplated by proviso (ii) to Section
D 6 (1) of the LA Act.
II. Whether the respondent is justified in invoking the
urgency provision under Section 17(1) and
excluding the application of Section 5-A in terms of
Section 17(4) of the LA Act for acquisition of the
E land for the development of the Leather City Project.
7. Mrs. Pinky Anand, the learned senior counsel for the
petitioners, submits that declaration of Notification dated
18.12.2007 under Section 6 is beyond the pew,d of limitation
F of one year from the date of the publication of Notification under
Section 4, as mandated by proviso (ii) to Section 6(1) of the
LA Act. In other words, she submits that respondents had failed
to make the declaration of Notification under Section 6 within
a period of one year starting from the last date of publication
G of Notification under Section 4 in two newspapers as
contemplated by Section 4(1) of the LA Act. The learned senior
counsel would argue that the publication of Notification under
Section 4 in two newspapers in the Hindi language on
04.07.2006 was sufficient compliance of Section 4(1) of the LA
H
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 655
U.P. AND ORS. [H.L. DATIU, J.]
Act in order to commence the period of limitation for the A
purpose of proviso (ii) to Section 6(1) of the LA Act from the
said date. In other words, she contends that since the people
residing at Hapur, Ghaziabad are well conversant and
acquainted with the Hindi language, the publication of the
Notification under Section 4 in two newspapers in the Hindi B
language on 04.07.2006 duly fulfils the requirement of the
publication of the Notification as contemplated by Section 4(1)
of the LA Act. Therefore, the period of limitation for declaration
of Notification under Section 6 would commence from
04.07.2006 and not from the date of subsequent publication of c
the said Notification under Section 4 on 24.1.2007. She
submits that the declaration of Notification dated 18.12.2007
under Section 6 by the respondents is made after the expiry of
one year and is beyond the period of limitation in terms of the
proviso to Section 6 (1) of the LA Act. fn other words, the period D
of limitation commences from date of completion of the
necessary requirement of publication as contemplated by
Section 4(1) of the LA Act. She further submits that in view of
this, the acquisition proceedings are vitiated and should be set
aside.
E
8. Per Contra, Shri. Pallav Sisodia, learned senior counsel
for the respondents, submits that the declaration of Notification
under Section 6 of the LA Act is well within the period of
limitation of one year starting from the date of the last
publication of the Notification under Section 4 of the LA Act, F
as mandated by proviso to Section 6(1) of the LA Act. He further
submits that it is amply clear that the last date of publication of
the Notification under Section 4 would be treated as the date
of publication of the said Notification for all purposes in terms
of Section 4(1) of the LA Act. He states that the respondents, G
after publishing the Notification under Section 4 on 4.07.2006
in the regional language, that is, Hindi, had also published the
said Notification in English language on 05.01.2007. In this
regard, the learned senior counsel .argues that the period of
limitation of one year in terms of proviso to Section 6(1) of the H
656 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A LA Act would commence only from 05.01.2007, that is, the date
of the last publication of the Notification under Section 4 of the
Act. He further submits that the proviso to Section 6(1) refers
only to the declaration of the Notification under Section 6 within
the period of one year from the date of publication of the
B Notification under Section 4 of the LA Act and not the
publication of the declaration under Section 6 (2). In other
words, the proviso to Section 6(1) whilst prescribing the period
of limitation, only refers to the declaration under Section 6,
which is in the nature of order and excludes the publication of
C the declaration from its ambit. Therefore, the subsequent
publication of declaration of Notification under Section 6 will not
be taken into consideration in order to calculate the period of
limitation in terms of proviso to Section 6( 1) of the LA Act. The
learned senior counsel, in support of his contention, has placed
reliance on the decisions of this Court in S.H. Rangappa v.
0
State of Kamataka & Anr., (2002) 1 SCC 538 and Sriniwas
Ramnath Khatod v. State of Maharashtra & Ors., (2002) 1
sec 689.
9. To appreciate the point in issue, it would be appropriate
E to set out relevant portion of Sections 4(1) and 6 of the LA Act.
"4. Publication of preliminary notification and powers of
officers thereupon.-(1) Whenever it appears to the
appropriate Government that land in any locality is needed
or is likely to be needed for any public purpose or for a
F
company, a notification to that effect shall be published in
the Official Gazette and in two daily newspapers circulating
in that locality of which at least one shall be in the regional
language and the Collector shall cause public notice of the
substance of such notification to be given at convenient
G
places in the said locality (the last of the dates of such
publication and the giving of such public notice, being .
hereinafter referred to as the date of the publication of the
notification).
H
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 657
U.P. AND ORS. [H.L. DATIU, J.]
6. Declaration that land is required for a public A
purpose.-(1) Subject to the provisions of Part VII of this
· Act, when the appropriate Government is satisfied, after
considering the report, if any, made under Section 5-A
sub-section (2), that any particular land is needed for a
public purpose, or for a company, a declaration shall be B
made to that effect under the signature of a Secretary to
such Government or of some officer duly authorised to
certify its orders and different declarations may be made
from time to time in respect of different parcels of any land
covered by the same notification under Section 4 sub- c
section (1 ), irrespective of whether one report or different
reports has or have been made (wherever required) under
Section 5-A sub-section (2):
Provided that no declaration in respect of any
particular land covered by a notification under Section 4 D
sub-section (1 ),-·
(i) published after the commencement of the Land
Acquisition (Amendment and Validation) Ordinance, 1967,
but before the commencement of the Land Acquisition E
(Amendment) Act, 1984, shall be made after the expiry of
three years from the date of the publication of the
notification; or
(ii) published after the commencement of the Land
Acquisition (Amendment) Act, 1984, shall be made after F
the expiry of one year from the date of the publication of
the notification:
Provided further that no such declaration shall be made
unless the compensation to be awarded for such property G
is to be paid by a company, wholly or partly out of public
revenues or some fund controlled or managed by a local
authority.
2) Every declaration shall be published in the Official H
6"5"8 .. SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A Gazette, and in two daily newspapers circulating in the
locality in which the land is situate of which at least one
shall be in the regional language, and the Collector shall
cause public notice of the substance of such declaration
to be given at convenient places in the said locality (the
B last of the dates of such publication and the giving of such
public notice, being hereinafter referred to as the date of
the publication of the declaration), and such declaration
shall state the district or other territorial division in which
the land is situate, the purpose for which it is needed, its
c approximate area, and, where a plan shall have been
made of the land, the place where such plan may be
inspected.
(3) The said declaration shall be conclusive evidence that
the land is needed for a public purpose or for a company,
D as the case may be; and, after making such declaration,
the appropriate Government may acquire the land in
manner hereinafter appearing." ·
10. The Notification under Section 4 has to be published
E in the manner laid down therein. As against this, under Section
6, a declaration has to be first made a!"ld that declaration is then
to be published in the manner provided in Section 6(2) of the
LA Act. Also, the proviso (ii) to Section 6(1) lays down a time-
limit within which declaration has to be made. The said proviso
F (ii) significantly only provides a time-limit for a declaration and
not for publication as it has been incorporated in sub-section
(1) of Section 6 of the LA Act.
11. It is not in dispute that the declaration of the Notification
under Section 6 was issued on 18.12.2007. It is also not in
G dispute that the Notification under Section 4 ·"•1as issued on
03.07.2006 and the same was publishe1 in two daily
newspapers in Hindi language on 04.07.2006 having circulation
in the locality Where the land is situated. Also, the people at
Pargana Hapur in the Ghaziabad district are well conversant
H with the Hindi language. In our considered view, the publication
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 659
U.P. AND ORS. [H.L. DATTU, J.]
of the Notification in two newspapers having circulation in the A
locality where the land is situated and where people are well
conversant with Hindi amounts to ample compliance with the
requirement of the publication under Section 4(1) of the LA Act.
In view of this, the subsequent publication of English translation
of the said Notification under Section 4 in two newspapers on B
05.01.2007 is unnecessary and will not assist the respondents
to extend the period of limitation envisaged in the proviso to
Section 6(1) of the LA Act. Hence, the last date of publica
ion for the purpose Section 4(1) of the LA Act, which can be
treated as date of publication, is the date on which, the s c
cond Notification under Section 4 was published in the news
aper, that is, 04.07.2006. Therefore, the period of lim
talion commences from 04.07.2006, which is the date of publicati
n of the Notification under Section 4(1) of the LA Act. If
the declaration under Section 6 of the LA Act is made before D
the expiry of the period of one year starting from 04.07.2006,
then, only such declaration will be considered as valid for the
purpose of the acquisition of land. However, in the present
case, the declaration under Section 6 was issued on
18.12.2007 which is clearly beyond the period of limitation of E·
one year as mandated by the proviso to Section 6( 1) of the LA
Act. Therefore, the declaration of Notification under Section 6
and its subsequent publications are clearly beyond the period
of limitation of one year starting from the date of publication of
Notification under Section 4 of the LA Act. In our opinion, due
to the aforesaid reasons, the reliance placed by Shri. Pallav F
Sisodia, learned senior counsel for respondents, on the
decisions of this Court in S.H. Rangappa v. State of Karnataka
& Anr., (2002) 1 SCC 538 and Sriniwas Ramnath Khatod v.
State of Maharashtra & Ors., (2002) 1 SCC 689 in support of
his contention that the proviso to Section 6(1) whilst prescribing G
time-limit, contemplates and refers only to the date of
declaration and not publication under Section 6 of the LA Act
will not come to the rescue of the respondents.
12. The second point in issue before us is the invocation H
660 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A of the urgency clause by the respondents to acquire the lands
in dispute. Mrs. Pinky Anand, learned senior counsel, submits
that this Court has issued direction to relocate the bone
industries in Ghaziabad vide its Order dated 17.08.2004, since
then, the State Government had not shown any kind of urgency
B and was only considering the proposal of the Leather City
Project in order to relocate the said industries for public
purpose as they were located in the dense human habitation
and causing environmental pollution and health hazards. It was
only in July, 2006 that the State Government had issued the
c Notification under Section 4 on 3. 7.2006, in continuation with
this, after the lapse of more than a year, the State Government
has issued Notification under Section 6 on 18.12.2007 by
invoking urgency provision as contemplated by Section 17(1)
and 17(4) of the LA Act. In other words, the lackadaisical
attitude of the State Government since the direction of this
0
Court in 2004 nearly 2 years age! and in making the declaration
under Section 6 after the lapse of more than one year, form the
issuance of the Notification under Section 4 of the LA Act does
not exhibit or depict any kind of urgency but only lethargy on
their part in acquiring the lands. Therefore, the urgency
E contemplated in the LA Act cannot be equated with dereliction
of responsibility on the part of the State Government. The
learned senior counsel contends that the respondents had
unnecessarily invoked the urgency provisions under Section 17
(1) read with 17 (4) for the acquisition of the land for construction
F of the Leather City Project in order to relocate the said
industries in view of the delay of two years in the issuance of
the Notification under Section 4 and delay of more than
seventeen months in making declaration under Section 6 from
the date of publication of the Notification under Section 4. The
G learned senior counsel argues that the invoking of the urgency
provision under Section 17(4), which excludes the application
of the Section 5-A, by the respondents in the absence of any
real urgency as contemplated by Section 17 amounts to illegal
deprivation of the right to file objection and hearing of the
H appellants and inquiry under Section 5-A of the LA Act. She
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 661
U.P. AND ORS. [H.L. DATTU, J.]
submits that an expropriatory legislation like the LA Act must A
be given strict construction. She further submits that Section 5-
A is a substantial right and akin to fundamental right which
embodies a principle of giving of proper and reasonable
opportunity to the land loser to persuade the authorities against
the acquisition of their lands which can be dispensed with only B
in exceptional cases of real urgency and not by side-wind. The
learned senior counsel also submits that the entire acquisition
proceedings are vitiated as the respondents have failed to
obtain the approval of development of the Leather City Project
as a sub-regional plan under Section 19 of the National Capital c
Region Planning Board Act, 1985 (hereinafter referred to as
"NCRPB Act"). She further submits that such approval is
mandatory in view of Section 27 of the NCR PB Act, which has
overriding effect on any other inconsistent law or instrument.
13. Per contra, Shri. Pallav Sisodia, learned senior counsel D
for respondents, submits that the bone mills and allied industries
were causing environmental pollution and health hazards to the
public at large in the district of Ghaziabad. This Court has
issued directions to relocate the said industries in accordance
with the recommendation of the CPCB. The State Government, E
in strict compliance of the Order of this Court dated 17.08.2004,
acquired the lands for construction of the Leather City Project
by invoking the urgency provisions under Section 17 of the LA
Act. He further submits that in view of the said urgency, the State
Government had issued a Notification dated 3.4.2006 under F
Section 4 of the LA Act for the acquisition of the said land for
public purpose of urgent construction of the Leather City
Project by invoking Section 17(4) of the LA Act in order to
eliminate delay likely to be caused by enquiry under Section ·
5-A of the LA Act. The same was published in Hindi and English G
in two daily newspapers on 4.03.2006 and 24.01.2007,
respectively. Subsequently, the State Government had issued
the Notification dated 18.12.2007 under Section 6 read with
Section 17(1) of the LA Act and published it in the newspapers
dated 5.01.2008. The learned senior counsel submits that there H
662 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A is no lethargy or negligence on the part of the State Government
to acquire the said land. He contends that the construction of
the Leather City Project, in view of the pollution of environment
caused by these industries as observed by this Court, is an
urgent matter requiring acquisition of the land by invoking the
B urgency provisions under Section 17(1) and Section 17(4),
thereby, dispensing with the enquiry under Section 5-A of the
LA Act. The learned senior counsel, by placing reliance on the
decision of this Court in Jai Narain and Ors. v. Union of India,
(1996) 1 sec 9, would argue that the invoking of the urgency
C provisions is justified in a situation where the entire acquisition
proceedings are initiated in compliance with the series of
directions of this Court, which itself indicates the existence of
urgency in acquiring the land for relocating the polluting
· industries. He further contends that the right of the land owner
for filing of objections and opportunity of hearing under Section
0 5-A are subject to the provisions of Section 17 and the same
can be legally curtailed in the event of any pressing need and
· urgency for the acquisition of land in order to eliminate delay
likely to be caused by an enquiry under Section 5-A of the LA
Act. The learned senior counsel further submits that the Hapur
E . Pilkhuwa Development Authority (hereinafter referred to as "the
HPDA") vide its resolution dated 19.04.2005, has authorized
the National Capital Region Planning Board (hereinafter
referred to as "the NCRPB") to prepare master plan for Hapur
containing the Leather City Project termed as Sub-regional
F plan. Subsequently, the NCRPB in June, 2009, issued draft
Sub-regional plan but without indicating the Leather City
Project. Thereafter, the HPDA has made series of requests
dated 27.08.2009, 18.08.2010 and 22.04.2011 to the NCRPB
to include the Leather City Project in its Sub-regional plan. The
G respondents are keenly awaiting reply to these requests and
hence, the grant of approval is still pending. Arguendo, the
learned senior counsel submits that the Leather City Project
pending approval of the NCRPB will not adversely affect the
acquisition of the Land in any manner in view of the presence
H of the Chief Coordinator Planner of the NCR Cell, Ghaziabad
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 663
U.P. AND ORS. [H.L. DATIU, J.)
in almost all the meetings wherein the Leather City Project has A
been discussed and deliberated upon as he is a nominated
member of the HPDA Board vide the Government Order and
the Office Memo dated 08.06.2004 and 26.05.2011,
respectively, amounts to implied consent or approval of the
NCRPB. B
14. We have heard the learned counsel for the parties
before us. The second point in issue before us is no more
res integra as it has already been decided by this Court
in Radhy Sh yam v. State of U.P. (2011) 5 SCC 553, to
which one of us was the party (G.S. Singhvi, J.), wherein C
this Court has considered the development of the
jurisp odence and law, with respect to invoking of the
urgenoy provisions under Section 17 vis-a-vis right of the
landowner to file objections and opportunity of hearing and
enquiry under Section 5-A, by refer~nce to a plethora of D
earlier decisions of this Court. This Court had culled out
the various principles governing the acquisition of the land
for public purpose by invoking urgency thus:
"77. From the analysis of the relevant statutory provisions E
and interpretation thereof by this Court in different cases,,
the following principles can be culled out:
(i) Eminent domain is a right inherent in every sovereign
to take and appropriate property belonging to citizens for
public use. To put it differently, the sovereign is entitled to F.
reassert its dominion over any portion of the soil of the
State including private property without its owner's consent
provided that such assertion is on account of public
exigency and for public good - Dwarkadas Shrinivas v.
Sholapur Spg. and Wvg. Co. Ltd., Charanjit Lal Chowdhury G
v. Union of India and Jilubhai Nanbhai Khachar v. State of
Gujarat.
(ii) The legislations which pro'vide for compulsory
acquisition of private property by the State fall in the H
664 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A category of expropriatory legislation and such legislation
must be construed strictly - DLF Qutab Enclave
Complex Educational Charitable Trust v. State of
Haryana, State of Maharashtra v. B.E. Billimoria and Dev
Sharan v. State of U.P.
B (iii) Though, in exercise of the power of eminent domain,
the Government can acquire the private property for public
purpose, it must be remembered that compulsory taking
of one's property is a serious matter. If the property
belongs to economically disadvantaged segment of the
c society or people suffering from other handicaps, then the
court is not only entitled but is duty-bound to scrutinise the
LA Action/decision of the State with greater vigilance, care
and circumspection keeping in view the fact that the
landowner is likely to become landless and deprived of the
D only source.of his livelihood and/or shelter.
(iv) The property of a citizen cannot be acquired by the
State and/or its agencies/instrumentalities without
complying with the mandate of Sections 4, 5-A and 6 of
the LA Act. A public purpose, however, laudable it may be
E
does not entitle the State to invoke the urgency provisions
because the same have the effect of depriving the owner
of his right to property without being heard. Only in a case
of real urgency, the State can invoke the urgency
provisions and dispense with the requirement of hearing
F the landowner or other interested persons.
(v) Section 17(1) read with Section 17(4) confers
extraordinary power upon the State to acquire private
property without complying with the mandate of Section 5-
G A. These provisions can be invoked only when the purpose
of acquisition cannot brook the delay of even a few weeks
or months. Therefore, before excluding the application of
Section 5-A, the authority concerned must be fully satisfied
that time of few weeks or months likely to be taken in
H conducting inquiry under Section 5-A will, in all probability,
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 665
U.P. AND ORS. [H.L. DATIU, J.]
frustrate the public purpose for which land is proposed to A
be acquired.
(vi) The satisfaction of the Government on the issue of
urgency is subjective but is a condition precedent to the
exercise of power under Section 17(1) and the same can 8
be challenged on the ground that the purpose for which the
private property is sought to be acquired is not a public
purpose at all or that the exercise of power is vitiated due
to mala tides or that the authorities· concerned did not
apply their mind to the relevant factors and the records.
c
(vii) The exercise of power by the Government under
Section 17(1) does not necessarily result in exclusion of
Section 5-A of the LA Act in terms of which any person
interested in land can file objection and is entitled to be
heard in support of his objection. The use of word "may" D
in sub-section (4) of Section 17 makes it clear that it
merely enables the Government to direct that the provisions
of Section 5-A would not apply to the cases covered under
sub-section (1) or (2) of Section 17. In other words,
invoking of Section 17(4) is not a necessary concomitant E
of the exercise of power under Section 17(1).
(viii) The acquisition of land for residential, commercial,
industrial or institutional purposes can be treated as an
acquisition for public purposes within the meaning of F
Section 4 but that, by itself, does not justify the exercise
of power by the Government under Sections 17(1) and/or
17(4). The court can take judicial notice of the fact that
planning, execution and implementation of the schemes
relating to development of residential, commercial,
industrial or institutional areas usually take few years. G
Therefore, the private property cannot be acquired for such
purpose by invoking the urgency provision contained in
Section 17(1 ). In any case, exclusion of the rule of audi
alteram partem embodied in Sections 5-A(1) and (2) is not
at all warranted in such matters." H
666 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 15. In view of the above it is well settled that acquisition of
land for public purpose by itself shall not justify the exercise of
power of eliminating enquiry under Section 5-A in terms of
Section 17 (1) and Section 17 (4) of the LA Act. The Court
should take judicial notice of the fact that certain schemes or
B projects, such as the construction of the Leather City Project
for public purpose, which contemplate the development of
residential, commercial, industrial or institutional areas, by their
intrinsic nature and character require the investment of time of
a few years in their planning, execution and implementation.
C Therefore, the land acquisition for said public purpose does not
justify the invoking of urgency provisions under the LA Act. In
Radhy Shyam (Supra), this Court, whilst considering the
conduct or attitude of the State Government vis-a-vis urgency
for acquisition of the land for the public purpose of planned
D industrial development in District Gautam Budh Nagar, has
observed:
"82. In this case, the Development Authority sent the
proposal sometime in 2006. The authorities up to the level
of the Commissioner completed the exercise of survey
E and preparation of documents by the end of December
2006 but it took one year and almost three months for the
State Government to issue notification under Section 4
read with Sections 17(1) and 17(4). If this much time was
consumed between the receipt of proposal for the
F acquisition of land and issue of notification, it is not
possible to accept the argument that four to five weeks
within which the objections could be filed under sub-section
(1) of Section 5-A and the time spent by the Collector in
making enquiry under sub-section (2) of Section 5-A would
G have defeated the object of the acquisition."
16. Moreover, in Dev Sharan & Others v. State of U.P.
(2011) 4 sec 769, the acquisition of land for the construction
of a new district Jail by invoking urgency provision under
H Section 17 was quashed on the ground that the government
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 667
U.P. AND ORS. [H.L. DATTU, J.]
machinery had functioned at very slow pace after issuance of A
the Notification under Section 4 in processing the acquisition
proceedings which clearly evinces that there was no urgency
to exclude the application of Section 5-A of the LA Act. This
Court observed:
B
"35. From the various facts disclosed in the said affidavit
it appears that the matter was initiated by the
Government's Letter dated 4-6-2008 for issuance of
Section 4(1) and Section 17 notifications. A meeting for
selection of a suitable site for construction was held on 27- C
6-2008, and the proposal for such acquisition and
construcfion was sent to the Director, Land Acquisition on
2-7-2008 . .This was in turn forwarded to the State
Government by the Director on 22-7-2008. After due
consideration of the forwarded proposal and documents,
the State Government issued Section 4 notification, along D
with Section 17 notification on 21-8-2008. These
notifications were published in local newspapers on 24-
9-2008.
36. Thereafter, over a period of 9 months, the State E
Government deposited 10% of compensation payable to
the landowners, along with 10% of acquisition expenses
and 70% of cost of acquisition was deposited, and the
proposal for issuance of Section 6 declaration was sent
to the Director, Land Acquisition on 19-6-2009. The F
Director in tum forwarded all these to the State Government
on 17-7-2009, and the State Government finally issued the
Section 6 declaration on 10-8-2009. This declaration was
published in the local dailies on 17-8-2009.
37. Thus the time which elapsed between publication of G
Section 4(1) and Section 17 notifications, and Section 6
declaration in the local newspapers is 11 months and 23
days i.e. almost one year. This slow pace at which the
government machinery had functioned in processing the
acquisition, clearly evinces that there was no urgency for H
668 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C:R.
A acquiring the land so as to warrant invoking Section 17(4)
of the LA Act.
38. In Para 15 of the writ petition, it has been clearly stated
that there was a time gap of more than 11 months between
B Section 4 and Section 6 notifications, which demonstrates
that there was no urgency in the State action ~,·hich could
deny the petitioners their right under Section 5-A. In the
counter which was filed in this case by the State before the
High Court, it was not disputed that the time gap between
Section 4 notification read with Section 17, and Section 6
c notification was about 11 months.
17. In the facts and circumstances of the present case, it
is clear that this Court, vide its Order dated 17.08.2004, has
issued a direction to the respondents to relocate the bone mills
D and allied industries causing environment pollution and health
hazards as per the recommendations of the CPCB and, inter
a/ia, respondents were also directed to identify the area for
relocation. Pursuant to this, respondents have filed an affidavit
in the month of December, 2004 specifying the construction of
E the Leather City Project at Hapur in Ghaziabad. Subsequently,
ii was only after the lapse of two years, I.he State Government
had issued a Notification under Section 4 on 03.07.2006 and
the same was published on 04. 7.2006. Thereafter, the State
Government took more than 17 months in order to make a
F declaration of the Notification under Section 6 fror.1 the date of
publication of the Notification under Section 4 of the LA Act. In
view of the above circumstances, it is crystal clear that the
government functionary has proceeded at very slow pace at two
levels, that is, prior to the issuance of the Notification under
Section 4 and post the issuance of the Notification under
G Section 4, for acquisition of the land for construction of the
Leather City Project, which undoubtedly is a public purpose.
Therefore, the above series of the events amply exhibit the
lethargical and lackadaisical attitude of the State Government.
In the light of the above circumstances, the respondents are not
H justified in invoking the urgency provisions under Section 17 of
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 669
U.P. AND ORS. [H.L. DATIU, J.]
the LA Act, thereby, depriving the appellants of their valuable A
right to raise objections and dpportunity of hearing before the
authorities in order to persuade them that their property may
not be acquired.
18. Shri. Pallav Sisodia, learned senior counsel for
respondents, heavily relied on Jai Narain and Ors. v. Union of 8
India (Supra) in support of his contention that the acquisition
proceedings were initiated under the directions of this Court
which itself recognized the existence of urgent situation to
relocate polluting industries. We are afraid that this decision will
not come to the rescue of the respondents. In that case, this C
Court had monitored the setting up of sewage treatment plant
and also directed the Delhi Administration to acquire land on
war footing mentioning urgent situation of supply of pure water
and avoiding any health hazards. The said urgency pointed out
by this Court was duly reciprocated by the Delhi Administration D
by issuing a Notification under Section 4 and subsequently, a
Notification under Section 6 of the LA Act within a time period
of 2 months.
19. The directions or orders issued by this Court must be
abided by within the four corners of the legal framework and E
statutory provisions. The State Government is not allowed to
transgress the express legal provisions and procedure
thereunder in the garb or guise of implementing our guidelines
or directions. The directions of this Court are issued with a
purpose and the said purpose is supposed to be followed in F
the realm of legal structure and principles. Therefore, the
respondents are not justified in invoking the urgency provisions
of the LA Act in an arbitrary manner by referring to our earlier
directions as a defense for their illegal and arbitrary act of
acquiring land without giving an opportunity of raising G
objections and hearing to the petitioners in terms of Section 5-
A of the LA Act.
20. Admittedly, the respondents had not obtained the
approval of the NCRPB for construction of the Leather City
Project as Sub-regional plan in terms of Section 19 (2) of the H
670 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A NCRPB Act. The purpose or aim of the NCRPB Act is to
provide for co-ordinated, harmonized and common plan
development of the National Capital Region at the central level
in order to avoid haphazard development of infrastructure and
land uses in the said region, which includes the district of
B Ghaziabad in the Uttar Pradesh. Under this Act, the NCRPB
has been constituted with the Union Minister for Urban
Development as the Chairperson and the Chief Ministers of
Haryana, Rajasthan and Uttar Pradesh and Lt. Governor of Delhi
as its members in order to undertake the task of development
c of the National Capital Region. The object of the NCR PB is to
prepare, modify, revise and review a regional and functional
plan for the development of said. region and, further, to co-
ordinate and monitor its implementation. Section 19(1)
mandates the State government or Union Territory to submit their
D sub-regional plan to the NCRPB for examination in order to
ensure that it is in conformity with the regional plan. Once the
NCRPB affirms the conformity of the said plan with regional
plan, only then the State government can finalize it Thereafter,
the State Government is entitled to implement the Sub-regional
plan by virtue of Section 20 of the NCRPB Act. In M.C. Mehta
E v. Union of India, (2004) 6 SCC 588, this Court has discussed
the purpose and overriding effect of the NRCPB Act thus:
"27. The National Capital Region Planning Board Act, 1985
. (for short "the NCR Act") was enacted l'o pr,:>vide for the
F constitution of a Planning Board for the preparation of a
plan for the development of the National Capital Region
and for coordinating and monitoring the implementation of
such plan and for evolving harmonised policies for the
control of land uses and development of infrastructure in
the National Capital Region so as to avoid any haphazard
G
development of that region and for matters connected
therewith or incidentaf thereto. The areas within the
National Capital Region are specified in the Schedule to
the NCR Act. The National Capital Region comprises the
area of entire Delhi, certain districts of Haryana, Uttar
H
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 671
U.P. AND ORS. [H.L. DATTU, J.]
Pradesh and Rajasthan as provided in the Schedule. A
"Regional plan" as provided in Section 20) means the plan
prepared under the NCR Act for development of the
National Capital Region and for the control of land uses
and the development of infrastructure in the National
Capital Region. What the regional plan shall contain is B
provided in Section 10. Section 10(2) provides that the
regional plan shall indicate the manner in which the land
in the National Capital Region shall be used, whether by
carrying out development thereon or by conservation or
otherwise, and such other matters as are likely to have any c
important influence on the development of the National
Capital Region .. ."
28. Section 27 provides that the provisions of the NCR Act
shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in D
force or in any instrument having effect by virtue of any law
other than the NCR Act; or in any decree or order of any
court, tribunal or other authority."
21. In Ghaziabad Development Authority v: Delhi Auto &
General Finance (P) Ltd., (1994) 4 SCC 42, this Court has E
considered the overriding effect of the NCRPB Act over the UP
Urban Planning and Development Act, 1973, in relation to the
conversion of land user by State of UP which was not in
consonance with the Regional Plan approved by the NCRPB
for the National Capital Region, by virtue of Section 27 read F
with Section 29 of the NCRPB Act. This Court, after referring
to various provisions and analysing the scheme of the NCRPB
Act, has observed thus:
"16. The four villages in question in which the lands of Delhi G
Auto and Maha Maya are situate form part of the U.P. Sub-
Region of the National Capital Region. In the master plan
of 1986 operative till 2001 A.D. (Annexure I) the lands of
Delhi Auto and Maha Maya are included in the area set
apart for 'recreational' use only. On this basis the Regional
Plan was prepared and approved under the NCR Act on H
672 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A 3-11-1988 and finally published thereunder on 23-1-1989
according to which the area in question was set apart for
'recreational' use only. Admittedly no change in this
Regional Plan to alter the land use of that area to
'residential' purpose was made any time thereafter in
B accordance with the provisions of NCR Act. The overriding
effect of the NCR Act by virtue of Section 27 therein and
the prohibition against violation of Regional Plan contained
in Section 29 of the Act, totally excludes the land use of
that area for any purpose inconsistent with that shown in
c the published Regional Plan. Obviously, the permissible
land use according to the published Regional Plan in
operation throughout, of the area in question, was only
'recreational' and not residential since no change was ever
made in the published Regional Plan of the original land
use shown therein as 'recreational'. This being the
D
situation by virtue of the overriding effect of the provisions
of NCR Act, the amendment of land use in the master plan
under U.P. Act from 'recreational' to 'residential' at an
intermediate stage, which is the main foundation of the
respondents' claim, cannot confer any enforceable right in
E them. However, if the first amendment in the master plan
under the U.P. Act altering the land use for the area from
'recreational' to 'residential' be valid, so also is the next
amendment reverting to the original land use, i.e.,
'recreational'. Intervening facts relating to the private
F colonisers described as planning commitments,
investments, and legitimate expectations do not have the
effect of inhibiting the exercise of statutory power under the
U.P. Act which is in consonance with the provisions of the
NCR Act, which also has overriding effect and lays down
G the obligation of each participating State to prepare a Sub-
Regional Plan to elaborate the Regional Plan at the Sub-
Regional level and holds the concerned Stalti responsible
for the implementation of the Sub-Regional Plan. The
original land use of the area shown as 'recreational' at the
H time of approval and publication of the Regional Plan under
DEVENDER KUMAR TYAGI AND ORS. v. STATE OF 673
U.P. AND ORS. [H.L. DATIU, J.]
the NCR Act having remained unaltered thereafter, that A
alone is sufficient to negative· the claim of Delhi Auto and
Maha Maya for permission to make an inconsistent land
user within that area."
22. In Sheikhar Hotels Gulmohar Enclave v. State of Uttar
Pradesh, (2008) 14 SCC 716, this Court has allowed the B
invocation of the urgency clause by the State Government for
the widening of the National Highway in the National Gapital
Region in the light of completion of the procedural requirement
of approval of the master plan of the U.P. Government by the
NCRPB. This Court observed thus: C
"9. Traffic congestion is a common experience of one and
all and it is very difficult to negotiate the traffic congestion
in Delhi and National Capital Region. Therefore, in the
presenf situation, it cannot be said that the invocation of
Section 5-A was for ulterior purpose or was arbitrary D
exercise of the power. Since the master plan has already
been prepared and it has been approved by the Planning
Board and they have sanctioned a sum of Rs 20.65
crores for the development of this Transport Nagar and
widening of National Highway 91 into four lanes. E
Therefore, the proposal was approved by the Board and
it got the sanction from the National Capital Regional
Planning Board and ultimately the Goveniment invoked
the power under Section 17(4) read with Section 5-A of
the LA Act dispensing with the objections. In the light of F
these facts it cannot be said that invoking of power was
in any way an improper exercise. There is need for
decongestion of traffic and it is really the dire need of the
hour and earlier it is implemented, the better for the people
at large." G
23. In the facts and circumstances of the present case, the
respondents, vide its resolution dated 19.04.2005, had
authorized the NCRPB to prepare Sub-regional plan of
construction of the Leather City Project at Hapur in the district
of Ghaziabad for the HPDA. Subsequently, the NCRPB issued H
674 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A a draft Sub-regional plan, wherein the Leather City Project was
not mentioned. The respondents had made several requests
to NCRPB to include Leather City Project but no reply granting
approval has come in terms of Section 19(2) of the NCRPB
Act. Section 19 of the NCRPB Act contemplates the grant of
B approval by the NRCPB, and finalization by the State
Government of the Sub-Regional Plan if it is in consonance and
consistent with the Regional Plan for the National Capital
Region. Furthermore, Section 29 of the NCRPB Act
contemplates that the State Government shall not undertake any
c development activity, which is inconsistent with the Regional
Plan for the National Capital Regional. Also, Section 27 of t~e
NCRPB Act has overriding effect on any other inconsistent law
or instrument. The overall scheme of the NCRPB Act
contemplates common plan, coordination and harmony in the
formulation of policy of land uses and development of
0
infrastructure in the National Capital Region. Therefore, in our
opinion, the acquisition of land in the absence of express
approval in terms of Section 19 and operation of Section 27
of the LA Act renders the entire acquisition proceedings illegal
and hence vitiated.
E
24. In view of above discussion, we hold that the
declaration of Notification dated 18.12.2006 under Section 6
of the LA Act is beyond the period of limitation as envisaged
by proviso to Section 6(1) of the LA Act. We also hold that the
F State Government was not justified, in the facts and
circumstances of this case, to invoke the urgency provision of
Section 17(4) of the LA Act. Therefore, the appellants cannot
be denied of their valuable right under Section 5-A of the LA
Act.
G 25. In the result, the Writ Petitions are allowed. The
impugned Notification dated 03.7.2006 under Section 4 and
Notification dated 18.12.2006 under Section 6 ~f the LA Act
are hereby quashed. Costs are made easy.
H D.G. Writ Petitions allowed.
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