“Reportable”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   7468   OF 2010 (Arising out of SLP (C) No. 33194 of 2009)

Nand Kishore Gupta & Ors. … Appellants

Versus

State of U.P. & Ors. …Respondents

WITH

CIVIL APPEAL NO.  7469    OF 2010 (Arising out of SLP (C) No. 33958 of 2009)

J.S. Horticulture Pvt. Ltd. …Appellant

Versus State of U.P. & Ors.     …Respondents

WITH

CIVIL APPEAL NO.   7470    OF 2010 (Arising out of SLP (C) No. 35336 of 2009)

Balbir Singh & Anr. …Appellants

Versus State of U.P. & Ors. …Respondents

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J U D G M E N T

V.S. SIRPURKAR, J.

1. This  judgment  will  govern  Special  Leave  Petition  

(Civil) Nos. 33194 of 2009, 33958 of 2009 and 35336 of  

2009.   

2. Leave granted in all the Special Leave Petitions.

3. In the first two Special Leave Petitions, judgment  

passed  by  the  High  Court  of  Judicature  at  Allahabad  

dated  30.11.2009,  is  in  challenge  while  in  the  third  

Special Leave Petition, judgment dated 5.10.2009 on the  

same subject is impugned.  By the impugned judgments,  

the Writ Petitions filed by the land owners challenging  

the  notification  under  Sections  4  and  6  of  the  Land  

Acquisition Act, 1894 (hereinafter called ‘the Act’ for  

short)  relating  to  Yamuna  Expressway  Project,  were  

dismissed by the High Court.  In the Writ Petitions,  

directions were sought, firstly not to give effect to  

the notifications issued and further not to dispossess  

the  landholders/  petitioners  after  demolishing  their  

constructions  on  the  lands  which  were  proposed  to  be  

acquired.  All the challenges were repelled by the High  

Court.  The High Court, in the judgment dated 30.11.2009  

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passed  in  Civil  Misc.  Writ  Petition  No.31314  of  2009  

(Nand Kishore Gupta & Ors. Vs. State of U.P. & Ors.),  

basically pointed out that out of 12,282 land owners,  

11,397 had already received their compensation under the  

agreement  and  the  challenge  related  only  to  21.03  

hectares out of 1,604 hectares of land.  The High Court  

also took the view that the scales of justice must tilt  

towards  the  right  to  development  of  the  millions  who  

will be benefited from the road and the development of  

the area, as against the human rights of 35 petitioners  

therein,  whose  main  complaint  was  that  they  were  not  

heard before the declaration under Section 6 of the Act.  

The High Court also declined to give any direction to  

the  State  Government  to  consider  to  exempt  21.03  

hectares of land relating to the 35 petitioners therein  

on account of the fact that the construction of the road  

had to be made in an alignment and that alignment could  

not be changed.  Identical view was taken in another  

Writ Petition filed by one Balbir Singh.  The High Court  

also expressed its concerns that any direction to exempt  

the  land  covered  by  the  construction  might  seriously  

jeopardize the Project.  The High Court also reiterated  

that the acquisition of the land for interchange of the  

road was the essential part of the Project, as also the  

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construction  of  bridges,  culverts  and  interchanges,  

which  were  essential  for  the  fast  moving  six  lane  

Expressway.

4. Before  we  approach  the  arguments,  it  would  be  

interesting to see some facts of this litigation.

5.  A notification dated 20.2.2009 was issued by the  

Government of Uttar Pradesh under Section 4(1) read with  

Sections 17(1) and 17(4) of the Act.  Thereunder, the  

lands  described  in  the  schedules  appended  thereto  in  

District  Agra,  Pargana  Etmadpur,  Tehsil  Etmadpur,  

Village  Kuberpur  were  covered  for  a  public  purpose,  

namely, the construction of the interchange under the  

Yamuna  Expressway  Project  in  District  Agra  through  

Yamuna  Expressway  Industrial  Development  Authority  

(hereinafter called ‘YEIDA’ for short).  In fact, in the  

year  2001  itself,  the  State  Government  had  taken  a  

decision for the construction of Yamuna Expressway which  

sometimes earlier was named as Taj Expressway, which was  

to proceed from Greater Noida to Agra.  This was to be  

done on Build, Operate and Transfer (BOT) basis and the  

builder was to get the rights to collect the tolls for a  

period  of  36  years  from  the  date  of  commencement  of  

commercial operations.  On account of the public outcry,  

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the State Government appointed a Commission of Enquiry  

under the Chairmanship of Mr. Justice Siddheshwar Narain  

(Retd.).  A Public Interest Litigation was also filed.  

The Project was cleared in the enquiry and the Public  

Interest  Litigation  also  ended  in  favour  of  the  

Government of U.P.  It is on the backdrop of this that  

the State Government came up with a notification dated  

20.2.2009, i.e. only after its way was cleared, which  

itself took about 8 years.  This was the reason given  

for making applicable the urgency clause under Sections  

17(1) and 17(4) of the Act.  Legal notices were served  

by  those  who  were  affected,  but  ultimately  the  State  

came  out  with  a  notification  dated  15.6.2009  under  

Section 6(1) read with Sections 17(1) and 17(4) of the  

Act.  It is mainly the complaint of the appellants that  

they had purchased the land long time back and their  

names were duly mutated in the Revenue records and they  

had  thereafter  raised  constructions  over  the  land  in  

question, and in those constructions, they were running  

their  business  like  shops,  cold-storage  etc.   The  

appellants  also  complained  that  the  area  which  was  

proposed to be cleared for the interchange, if acquired,  

the appellants would suffer immensely.  The appellants  

very  seriously  challenged  the  application  of  urgency  

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under  Sections  17(1)  and  17(4)  of  the  Act  to  these  

acquisitions,  thereby  depriving  the  appellants  of  an  

opportunity to be heard under Section 5A of the Act.  

Even before us, that is the main thrust of the arguments  

on behalf of the appellants.

6. The other major challenge opposing the acquisition  

related  to  the  concept  of  ‘public  purpose’.   It  was  

tried  to  be  suggested  that  this  was  in  fact  an  

acquisition without any public purpose for the Company-

J.P. Infratech Ltd.-respondent No.5 and would be covered  

under Part VII of the Act.  In that, the learned Counsel  

appearing on behalf of the appellants urged that there  

could be no dispensation with enquiry under Section 5A  

of the Act.  It was pointed out that the compensation  

was payable by the private party under the scheme and,  

therefore also, this could not be viewed as a public  

purpose.  It was also suggested that this was virtually  

a  perpetual  lease  in  favour  of  the  Company  and,  

therefore,  the  Company  was  getting  deemed  proprietary  

rights.

7. In the two impugned judgments, the Allahabad High  

Court has repelled all the challenges.  In fact in the  

earlier  round  of  litigation  that  is  in  the  Public  

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Interest  Litigation  itself  the  Division  Bench  of  the  

Allahabad  High  Court  repelled  the  challenges  to  this  

Project which was then known as Taj Expressway Project  

and the land acquisition made therefor.   

8. Before we approach the questions argued, it will be  

better to refer to the judgment of the Allahabad High  

Court  in  the  Public  Interest  Litigation,  which,  in  

itself,  refers  the  enquiry  held  by  Mr.  Justice  

Sidheshwar Narain (Retd.).  In fact one of the prayers  

in the Public Interest Litigation was for production of  

the Report dated 12.10.2006 of the Commission headed by  

Mr. Justice Narain.  The other prayers were to initiate  

de novo judicial enquiry by a sitting High Court Judge  

and further to issue a Writ of Mandamus declaring the  

alleged  Enquiry  Report  as  illegal,  invalid  and  

ineffective and not enforceable in the eyes of law and  

lastly to pass any other Writ, order or direction.  This  

Writ  Petition  was  then  amended  and  the  Concession  

Agreement  dated  7.2.2003  entered  between  the  Taj  

Expressway  Authority  and  the  Jaiprakash  Industries  

(hereinafter called ‘the Company’ for short) also came  

to  be  challenged.   This  Taj  Expressway  Authority  was  

constituted under Section 3 of the U.P. Industrial Area  

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Development Act, 1996 which later on was named as Yamuna  

Expressway  Industrial  Development  Authority  (YEIDA).  

The  petitioners  prayed  for  a  declaration  that  this  

agreement was null and void.

9. Another prayer added by way of an amendment was for  

investigation by the special investigation team into the  

entire deal of Taj Expressway Project.  The High Court  

in its well considered judgment, took note of the three  

challenges by the petitioners to the said Commission of  

Enquiry Report.  The said challenges were:  

(1) that  the  award  of  contract  to  the  Company  was  activated by mala fides;

2) that the tender process itself was faulty; and

3) that the terms of contract were unconscionable and  against the public interest.

10. All  the  three  challenges  were  refuted  by  the  

Division Bench of the High Court by referring to the  

Report itself which was filed before it at the instance  

of the State Government.  It recorded a finding that  

there was no  mala fide on the part of anybody.  The  

Commission  had  also  come  to  the  conclusion  that  the  

Agreement with the Company was arrived at after proper  

scrutiny  on  the  part  of  the  Government  Officers  and  

there was no mala fide on the alleged connection of one  

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Shri Anup Mishra or his father with the Company.  The  

Division  Bench  affirmed  this  finding.   The  Division  

Bench  also  recorded  a  finding  that  the  petitioner  

therein  was  not  able  to  place  any  other  material  on  

record to show that the process itself was faulty or  

that  the  terms  of  contract  were  unconscionable  and  

against  the  public  interest.   While  considering  the  

amendment made by the petitioner to the Writ Petition by  

which fresh challenges were thrown against the Agreement  

dated  7.2.2003,  the  Division  Bench  came  to  the  

conclusion that there was no procedural infirmity in the  

contract  having  been  awarded  to  the  Company.   The  

Division  Bench  then  considered  the  other  challenges  

namely:

1) huge chunks of lands had been given to respondent  No.2 on lease for 90 years at a very nominal lease  rent.

2) Exemption  of  stamp  duty  has  been  given  to  respondent  No.2  causing  loss  of  revenue  to  the  State exchequer.

11. The Division Bench in detail considered the nature  

of lease and the nature of the transaction.  For that it  

went on to analyze the whole Project which had the three  

objectives, namely:

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(1) provide a fast moving corridor to minimize travel  time

(2) to connect the main township/ commercial centres on  the Eastern side of Yamuna

(3) to  relieve  the  National  Highway  No.2  which  was  already congested and ran through the heart of cities  like Faridabad, Ballabhgarh and Palwal.”

12. The  High  Court  then  discussed  the  financial  

ramifications resulting out of the Agreement and then  

after referring various judgments of this Court, went on  

to  decide  the  question  whether  before  finalizing  the  

contract  in  favour  of  respondent  No.  2  Company,  the  

State  Government  or  the  Taj  Expressway  Authority  had  

undertaken the requisite research.  It went on to record  

a finding as found in the Commission of Enquiry that the  

authorities had examined all the aspects of the matter  

before issuing the bid document inviting offers. It also  

recorded that there was proper publication of the Notice  

Inviting Tender (NIT) in various national Dailies and  

that 19 parties had responded to the NITs.  The High  

Court,  therefore,  recorded  a  finding  that  there  was  

nothing shady and the entire process was transparent.  

The High Court also registered a finding that it could  

not be said that undue concessions were given to the  

Company in view of the fact that all such concessions  

had already been spelt out in the bid document.  Thus,  

1

the High Court approved of the findings reached in the  

Commission of Enquiry by Mr. Justice Siddheshwar Narain  

(Retd.).   Ultimately,  the  High  Court  dismissed  the  

Public Interest Litigation.

13. It  is  on  this  backdrop  that  number  of  Writ  

Petitions came to be filed again giving rise to the two  

impugned judgments.

Basically two questions emerge from the arguments  

made at the Bar before us.  They are:-

1. The acquisition itself cannot be said to be for the  

public purpose:

(a) as the object of this acquisition is not  

covered  by  the  definition  of  ‘public  

purpose’  in  Section  3  (f)  of  the  Land  

Acquisition Act.

(b) it cannot be said that this acquisition  

would  come  under  Part  II  of  the  Land  

Acquisition Act and in fact it must be  

considered to be under Part VII of the Act  

since it virtually amounts to acquisition  

of  land  for  J.P.  Infratech-a  

company(respondent No.5).

(c) the compensation for the land acquisition is coming  

wholly  from  the  Jaypee  Industries  and  not  from  the  

1

Government or from YEIDA and, therefore, it is not an  

acquisition for public purpose.

(d) the acquisition for so-called interchange is not at  

all necessary and it is actually a colourable exercise of  

powers.

2. The application of Sections 17 (1) and 17 (4) of the  

Land  Acquisition  Act  was  wholly  unnecessary  and,  

therefore, illegal,

(a) and,  therefore,  the  Government  could  not  have  

dispensed with the enquiry under Section 5 A of the Act.

14. Learned  Counsel  appearing  on  behalf  of  the  

appellants argued in support of the above two main and  

the ancillary questions.

15. As against this, learned Counsel appearing for the  

State as also for the Company and YEIDA supported the  

acquisition and contended that it was futile to oppose  

the acquisition, particularly, when the acquisition was  

virtually accepted by all except a few, inasmuch as the  

learned Counsel contended that majority of the landlords  

have  accepted  the  compensation  also  and  have  not  

challenged the acquisition in any manner.  It is only a  

few extremely insignificant pockets which are now caught  

in  this  litigation.   The  learned  Counsel  have  

specifically averred that the whole process was extremely  

1

transparent and that there was necessity of this land  

considering the public purpose involved and that all care  

was taken to safeguard the interests of the farmers and  

that the creation of this Expressway and creation of five  

townships  would  immensely  help  the  general  public  

residing on the Eastern Bank of Yamuna particularly, and  

the residents of UP generally.  It is on these rival  

contentions that we have to proceed now.

16. Since  the  land  acquisition  exercise  is  for  the  

Yamuna Expressway Project, it would be worthwhile to see  

some factual background thereof.  U.P. Industrial Area  

Development  Act,  1976  came  into  force  on  1.4.1976.  

Section 3 thereof provides for constituting an authority  

by a notification.  The object of this legislation is  

planned  development  of  certain  notified  areas  in  the  

State  by  building  up  integrated  industrial  townships.  

The State Government is empowered thereunder to declare  

the industrial development area and this Act empowers the  

authority  to  acquire  the  land  by  direct  purchase  or  

through  State  (under  the  provisions  of  the  Land  

Acquisition Act, 1894).  It also requires preparing a  

Master  Plan,  to  demarcate  the  sites  into  industrial,  

commercial, institutional, residential and other land use  

1

in accordance with the Master Plan.  Under Section 7 of  

the said Act, the authority is empowered to allot its  

properties, by way of lease or otherwise, on such terms  

and conditions as it may deem fit.  An authority called  

Taj Expressway Industrial Development Authority came to  

be constituted under this Act by a Notification dated  

24.4.2001.  This Authority changed its nomenclature and  

became Yamuna Expressway Industrial Development Authority  

(‘YEIDA’ for short) vide Notification dated 11.7.2008.  

This was with intent to develop the Eastern Side of the  

river  Yamuna  by  construction  of  a  6  lane  Expressway  

joining Noida to Agra and also for development of five  

regions  along  the  said  Expressway  into  a  planned  

industrial development area for residential, industrial,  

institutional or recreational purposes.  The industrial  

development area was also notified on 24.4.2001, which  

then  comprised  of  8  villages.   Later  on,  vide  

notification  dated  22.8.2001,  as  many  as  63  No.  of  

villages including the village of some of the appellants  

were also included.  By further notifications, some more  

villages  were  also  notified  as  part  of  industrial  

development area.  The area was in 4 districts, namely,  

Gautam Budh Nagar, Agra, Mathura and Aligarh.   

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17. After  the  constitution  of  the  Authority  (YEIDA),  

public notices for global tenders were issued in 2001  

inviting  bids  from  interested  parties  desirous  of  

implementing the Project of the said 6 lane Expressway  

and the building of the townships on Build, Operate and  

Transfer model.  This Project, however, did not proceed,  

as  there  was  no  eligible  bidder  and  ultimately,  the  

selection  process  was  dropped.   Subsequently,  in  

November,  2002,  fresh  bids  were  invited  on  the  same  

principles, but with an option either to enter into a  

joint venture (JV) with the YEIDA or to implement the  

said Project without any equity partition of the said  

Authority.  In the Bid Document, the necessity of the  

major highway connecting New Delhi with Mathura and Agra  

was reiterated with the objectives (i) to provide a fast  

moving  corridor  to  minimize  the  travel  time,  (ii)  to  

connect  the  main  townships/commercial  centres  on  the  

Eastern Side of Yamuna, and (iii) to relieve NH-2 which  

was already congested and ran through the heart of cities  

like Faridabad, Ballabhgarh and Palwal.  It was informed  

to the interested parties that the proposed Expressway  

was  to  be  about  160  Kms.  in  length  shortening  the  

distance between Noida and Agra with an estimated cost of  

US  $  350  million.   It  was  also  informed  that  the  

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Expressway  was  to  pass  through  virgin  area  along  the  

river Yamuna and that a band of 500 meters width of land  

at five or more locations, of which one location was to  

be in Noida or Greater Noida area along the Expressway,  

would be offered on acquisition cost along the corridor  

as  an integral  part of  the Project.   It  was further  

informed that in addition to the land for Expressway, 25  

million square meters land along the same would be given  

at  acquisition  cost  for  development  of  the  same  for  

commercial,  amusement,  industrial,  institutional  and  

residential  purpose.   Bids  were  invited  from  all  the  

interested  parties  having  experience  in  the  

construction/development  of  infrastructure  Projects  

including real estate development and it was informed  

that the selected developer would be offered 25 millions  

square meters of land for development on acquisition cost  

on lease for a period of 90 years.  It was also informed  

that the concession period would be for 7 years from the  

date of signing of the Concession Agreement and all the  

assets  related  to  the  Expressway  were  to  stand  

transferred  on  the  date  of  signing  of  the  Concession  

Agreement in favour of such a successful bidder.  The Bid  

Document also provided that the successful bidder would  

have the right to levy, collect and retain toll from the  

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public using the Expressway during the concession period.  

Tender of Jaiprakash Industries Ltd. was accepted and  

thus  they  became  the  successful  bidder  as  they  had  

claimed the lowest concession period of 36 years.   

18. The Concession Agreement dated 7.2.2003 also came to  

be executed between the parties.  However, before the  

work could start, the whole Project got stuck up in the  

litigation,  upon  which  the  Enquiry  Commission  was  

appointed by the State Government under the Chairmanship  

of Mr. Justice Siddheshwar Narain (Retd.).  Before that,  

two Commissions of sub enquiries were constituted.  While  

the Report of the first Commission was quashed by the  

Allahabad High Court, the second Commission of Enquiry  

could not proceed at all, as the Members had resigned.  

Ultimately,  Mr.  Justice  Siddheshwar  Narain  (Retd.)  

completed  the  enquiry  and  submitted  his  Report  in  

October, 2006.  Thereafter, as has already been pointed  

out  earlier,  a  Public  Interest  Litigation  came  to  be  

filed by way of a Writ Petition before the Allahabad High  

Court, which was dismissed by the Allahabad High Court.  

It was thereafter that the process of land acquisition  

commenced in September, 2007.  In the first phase, land  

for  Expressway  was  acquired.   Subsequently,  the  

1

acquisition process started for the land for development.  

The first Writ Petition being Civil Misc. Writ Petition  

No. 48978 of 2008 came to be filed by one Balbir Singh,  

challenging  the  Notification  dated  15.10.2007  issued  

under Section 4 of the Act, as also the Notification  

dated  4.1.2008  issued  under  Section  6  of  the  Act.  

Status quo order was passed on the said Writ Petition.  

On its heels, other Writ Petitions were filed, the main  

Writ Petition being Civil Misc. Writ Petition No. 31314  

of 2009 filed by one Nand Kishore Gupta.  The status quo  

orders  were  passed  even  in  that  Writ  Petition.  

Ultimately,  the  Writ  Petition  of  Balbir  Singh  was  

dismissed  by  a  judgment  dated  5.10.2009  and  that  of  

others including Nand Kishore’s came to be dismissed on  

30.11.2009.  It is on this historical backdrop that we  

have  now  to  consider  the  correctness  or  otherwise  of  

these two judgments, which pertain to, more or the less,  

same subject, but with slight variation.

19. The Writ Petition filed by Balbir Singh proceeded,  

inter  alia,  on  the  grounds  that  acquisition  was  a  

colourable exercise of power and was one which should  

have been accomplished by complying with the provisions  

of Part VII of the Act as this was an acquisition for  

1

company.  By the judgment dated 5.10.2009, the High Court  

dismissed the Writ Petition holding that (a) the entire  

process  of  acquisition  was  in  accordance  with  the  

provisions  of  the  Act  and  this  was  not  a  colourable  

exercise of powers, (b) the land in instant case was  

indeed acquired for public purpose, namely, construction  

of  Yamuna  Expressway  Project,  (c)  the  land  was  not  

acquired  for  company  and  as  such  the  procedure  under  

Chapter VII was not applicable.  

It was also urged in that case that the entire cost of  

the acquisition was to be borne by the Company and the  

Company had to pay the entire dues towards acquisition  

cost and, therefore, there was no public purpose in this  

acquisition and the so-called public purpose appearing in  

the Notification was a camouflage.  It was further urged  

that since even a part of compensation was not coming  

from the Government out of the public revenue or some  

fund controlled by the local authority, this acquisition  

was not for the public purpose.  In Balbir Singh’s case,  

all these objections were dismissed.

20. More  or  the  less,  same  contentions  with  some  

difference were raised in Nand Kishore’s case also, the  

judgment  which  also  disposed  of  the  Civil  Misc.  Writ  

1

Petition No. 50474 of 2009 (Rajo Devi & Ors. Vs. State of  

U.P. & Ors.), Civil Misc. Writ Petition No. 35090 of 2009  

(J.S. Horticulture Pvt. Ltd. Vs. State of U.P. & Ors.),  

Civil Misc. Writ Petition No. 51537 of 2009 (Bhupendra  

Singh & Ors. Vs. State of U.P. & Ors.), Civil Misc. Writ  

Petition No. 51543 of 2009 (Mukesh Singh Vs. State of  

U.P. & Ors.), Civil Misc. Writ Petition No. 51546 of 2009  

(Vijay Singh & Anr. Vs. State of U.P. & Ors.), Civil  

Misc. Writ Petition No. 51551 of 2009 (Jagvir Singh &  

Ors. Vs. State of U.P. & Ors.), Civil Misc. Writ Petition  

No. 60587 of 2009 (Kadival Infrastructure Pvt. Ltd. &  

Anr. Vs. State of U.P. & Ors.) alongwith the main Writ  

Petition being Civil Misc. Writ Petition No.31314 of 2009  

(Nand Kishore Gupta & Ors. Vs. State of U.P. & Ors.).  

The  individual  grievances  raised  in  all  these  Writ  

Petitions  were  dealt  with  and  the  challenges  were  

rejected.  The two main points, as culled out by us, were  

dealt with as in Balbir Singh’s case.   

21. Insofar as the individual grievances are concerned,  

they were mostly in the nature of plea regarding the  

constructions having been there in this land required for  

interchange.  For example, in Nand Kishore Gupta’s case,  

it  was  claimed  that  there  was  cold  storage  of  the  

2

petitioner No. 1 therein and shops in cold storage, a  

temple in plot No. 139, a weigh bridge (Dharm Kanta) on  

plot No. 122 and some of the plots were owned by Trishul  

Awas Sahkari Awas Samiti.  It was stated in Civil Misc.  

Writ Petition No. 50474 of 2009 (Rajo Devi & Ors. Vs.  

State of U.P. & Ors.) that the petitioners had a house  

and  a  boundary  wall  on  some  Khasras  and  some  

constructions  on  the  others.   In  Civil  Misc.  Writ  

Petition No. 35090 of 2009 (J.S. Horticulture Pvt. Ltd.  

Vs. State of U.P. & Ors.), it was urged that there was a  

10’X11’ high boundary wall and constructed rooms inside a  

‘Goshala’ and 3 tube wells with several trees.  In Civil  

Misc. Writ Petition No. 51537 of 2009 (Bhupendra Singh &  

Ors. Vs. State of U.P. & Ors.), it was urged that this  

was  an  agricultural  land  and  the  petitioners  therein  

depended on the same for their livelihood.  In still  

other Writ Petitions being Civil Misc. Writ Petition No.  

51543 of 2009 (Mukesh Singh Vs. State of U.P. & Ors.),  

Civil Misc. Writ Petition No. 51546 of 2009 (Vijay Singh  

& Anr. Vs. State of U.P. & Ors.) and Civil Misc. Writ  

Petition No. 51551 of 2009 (Jagvir Singh & Ors. Vs. State  

of U.P. & Ors.), the same plea of cultivation was raised.  

In Civil Misc. Writ Petition No. 60587 of 2009 (Kadival  

Infrastructure  Pvt.  Ltd.  &  Anr.  Vs.  State  of  U.P.  &  

2

Ors.), the petitioners claimed that they had purchased 7  

plots with the total area of 24060 sq. meters and they  

were plots for industrial purposes and that the plot of  

Yashoda Devi was a fertile land.   

22. The High Court has refuted all these contentions by  

giving  good  reasons.   We  will  not  go  into  these  

individual cases once the High Court has decided not to  

entertain  these  plea  and,  in  our  opinion,  correctly.  

After all, this was an acquisition for building up a  

highway and the abovementioned Writ Petitions pertained  

to the land required for interchange.  It is obvious that  

the alignment of the highway cannot be changed, as its  

design has been prepared after consideration of so many  

factors  by  the  experts  in  building  the  road.   Its  

direction  or  alignment,  therefore,  cannot  be  changed,  

with  the  result,  the  area  which  is  required  for  

interchange, also cannot be changed.  This is a typical  

example of the individual having to sacrifice his land  

for the public good.  There can be no dispute that this  

road would add to the betterment of the citizens of the  

East  Yamuna  area  in  particular  and  Uttar  Pradesh  in  

general.  This is apart from the fact that the majority  

of  the  persons  whose  lands  have  been  acquired,  have  

2

either  not  objected  to  it  or  have  accepted  the  

compensation without any demur.  It will, therefore, not  

be  possible  for  us  to  go  into  these  individual  

grievances, which have been rightly rejected by the High  

Court.  In fact, in Balbir Singh’s case, it was pointed  

out  that  out  of  the  12,315  affected  farmers  in  133  

villages over the total area of 1,638 hectares of the  

Expressway, 11387 have already received compensation and  

only 142 farmers have raised the issues.  The High Court  

has  rightly  held  that  the  private  interest  is  always  

affected to some extent in such large schemes requiring  

the acquisition of land.  The High Court has rightly held  

that a holistic view had to be taken to look for an all  

round development without forgetting about our heritage,  

culture and traditions.  We also, therefore, would not  

entertain  the  objections,  feebly  raised  before  us,  

individually.

23. We have now to see as to whether the challenge posed  

by the appellants herein about this acquisition not being  

for  public  purpose  is  justified  or  not.  Shri  Ranjit  

Kumar, Shri Debol Banerjee, learned Senior Counsel and  

Ms. Meenakshi Arora, learned Counsel appearing on behalf  

of  the  appellants,  vehemently  urged  that  this  

2

acquisition, in the first place, is colourable exercise  

of power.  All the learned Counsel urged that the very  

nature the whole transaction showed was that the whole  

acquisition was tailor made for the respondent Company.  

The learned Counsel further urged that it was meant only  

for the benefit of the Company, inasmuch as, though the  

acquisition should have been made under the provisions of  

Part VII of the Act, it was carried out in terms of the  

provisions of the Part II of the Act, citing this to be  

an  acquisition  for  public  purpose.   According  to  the  

learned Counsel, there already existed a road which was a  

functional road and Yamuna Expressway is only an excuse  

to develop the feeder road to connect the five proposed  

townships.  The learned Counsel urged that the huge land  

of 25 million square meters has virtually been handed  

over  to  the  respondent  Company  on  a  platter  and,  

therefore,  all  this  exercise  was  clearly  not  for  the  

public purpose.  It was further urged that the so-called  

Concession  Agreement  dated  7.2.2003  was  one-sided,  

inasmuch as, even if it was terminated, the land which  

was  given  to  the  Company  for  development,  would  have  

remained  unaffected.   It  was  further  urged  that  

considering the length of the lease period of 90 years,  

the land was virtually given to the Company for ever, and  

2

it was nothing but transferring the same in favour of the  

Company.  It was then pointed out that it was only the  

Expressway  which  would  revert  back  to  the  Government  

after  36  years,  but  not  the  land  measuring  about  25  

million square meters, which would be wholly managed by  

the Company.  In fact, the learned Counsel argued that  

this cannot be said to be an integrated Project, as the  

land for Expressway and the land for development have  

been  treated  on  an  entirely  different  and  unequal  

footing.   It  was  also  pointed  out  that  the  present  

purpose was not a public purpose as envisaged in Section  

3(f) of the Act.  The learned Counsel pointed out that  

from the Agreement itself, it is clear that the entire  

cost  of the  acquisition is  going to  be borne  by the  

Company and, therefore, there can be no doubt that the  

acquisition is for the Company and not for the public  

purpose.  The learned Counsel argued that merely because  

the  Company  has  paid  the  entire  cost  of  acquisition  

alongwith  Rs.100/-  per  hectare  per  year  by  way  of  

premium, it cannot be denied that it is only the private  

respondent  who  is  bearing  the  entire  cost  of  the  

acquisition  and  the  State  Government/YEIDA  has  not  

contributed anything.  Heavily relying on the decision in  

Pratibha Nema & Ors. Vs. State of M.P. & Ors. [2003 (10)  

2

SCC  626],  the  learned  Counsel  argued  that  this  issue  

needs to be addressed by this Court on the backdrop of  

this case.

24. As against this, the learned Counsel appearing on  

behalf of the State, as also for the Company and YEIDA,  

pointed out that this cannot be said to be a colourable  

exercise of power.  They also pointed out that there  

cannot be any dispute about the utility of this Project  

and its benefits to the public.  They further pointed out  

that the whole process has been extremely transparent.  

They also pointed out that this acquisition cannot, under  

any circumstances, come within Part VII of the Act.  The  

learned  Counsel  further  pointed  out  that  the  five  

developed parcels of the land were going to revert to the  

acquiring body after 90 years, and the period of 90 years  

cannot provide a permanency to the whole transaction.  

The learned Counsel urged that the State ultimately was  

going  to  receive  a  6  lane  Expressway  which  was  160  

Kilometers long alongwith five developed parcels of land  

on the Eastern Side of Yamuna river.  The learned Counsel  

also pointed out that all this was going to help the  

industrialization  and  the  overall  development  of  that  

area in particular and the State in general, apart from  

2

the  fact  that  this  highway  would  reduce  the  traffic  

congestion presently felt on N.H.-2.  The learned Counsel  

pointed out that it will also release the congestion, as  

it exists in the cities and would help smooth movement of  

people, goods and material.

25. The learned Counsel also urged that the creation of  

five  planned  parcels  of  land  under  the  Scheme  would  

immensely help the trading activities in the State and  

would be extremely useful for the citizens.  The learned  

Counsel further pointed out that the land would be put to  

the  industrial,  commercial,  residential,  amusement  or  

institutional purposes which would ultimately serve the  

public purpose.  Lastly, on this question, the learned  

Counsel urged that it was a misnomer to say that the  

compensation was coming only from the private coffers of  

the Company.  The learned Counsel also referred to the  

nature  of  the  agreement  i.e.  the  BOT  contract.   The  

contention raised was that a BOT contract, by its nature  

cannot  be  equated  to  or  with  an  acquisition  for  a  

Company.  According to the learned Counsel, all that the  

Government was doing was merely choosing a third party  

agency  to  implement  the  work  of  building,  designing,  

financing or running the Project, and that the Government  

2

was utilizing the expertise and enterprise of a third  

party.

26. Our attention was also invited to two decisions of  

this  Court  concerning  the  BOT  contracts  and  the  

allegations made relating to them.  The decisions were  

State of Karnataka & Anr. Vs. All India Manufacturers  

Organization  &  Ors.  [2006  (4)  SCC  683] and Sooraram  

Pratap Reddy & Ors. Vs. District Collector, Ranga Reddy  

District & Ors. etc. etc. [2008 (9) SCC 552].

27. The first and foremost thing which we must keep in  

mind while deciding these matters is that at least in the  

present  two  matters  (Balbir  Singh’s  case  decided  on  

5.10.2009 and Nand Kishore’s case decided on 30.11.2009),  

the  subject  related  only  to  the  acquisition  of  few  

hectares of land as compared to the acquisition of large  

chunk which has not been challenged.  Further, it is an  

admitted  position  that  majority  of  the  acquisition  

proceedings are over.  In Balbir Singh’s case also, the  

persons who challenged the Project, were 9 in number,  

owning about 7.09 hectares of land i.e. about 0.42% of  

the total land.  It has been strongly argued on behalf of  

the State, the Company and YEIDA that the major activity  

of land acquisition process is over.  It has been noted  

2

in Balbir Singh’s case that out of the 12,315 affected  

farmers in 133 villages over the total area of 1,638  

hectares of the Expressway, 11387 have already received  

compensation and only 142 farmers out of such a large  

number of villages have raised the issues, leaving 139  

farmers who had not taken the compensation.  This is  

apart from the fact that only 9 Writ Petitioners came in  

that Writ Petition.  The story in Nand Kishore’s Writ  

Petition  which  was  disposed  of  by  the  High  Court  

alongwith  other  Writ  Petitions  is  no  different.   The  

learned Counsel appearing on behalf of the appellants  

could  not  deny  the  fact  that  the  total  number  of  

petitioners concerned in these acquisition proceedings,  

coming  up  before  the  High  Court,  was  extremely  

insignificant as compared to those who had accepted the  

compensation.  Of course, that by itself may not be the  

only reason to hold against the appellants (petitioners),  

however, that fact will have to be kept in mind while  

deciding the issues which cover the whole acquisition  

process,  which  acquisition  is  for  the  purpose  of  

development of 25 million square meters of land.  The  

High  Court  has  also  noticed  this  aspect.   We  have  

mentioned this aspect only with a limited objective of  

showing that the criticism against the whole scheme which  

2

would invalidate the acquisition would be difficult to be  

accepted, particularly in this case, in view of the fact  

that  majority  of  the  land  owners  have  parted  with  

possession, taken the compensation and thus, the whole  

scheme has progressed to a substantial level, wherefrom  

it will be extremely difficult now to turn back to square  

one.

28. We must point out that at the time when the Project  

conceived  in  2001,  the  present  Company  was  not  in  

existence.  It came in existence only later on.  This is  

an admitted position also.  Therefore, it cannot be said  

that the whole Project was envisaged keeping this Company  

in view.  That would be the first reason to reject the  

argument that the whole scheme was a result of colourable  

exercise of power.  We also cannot ignore the fact that a  

full-fledged  enquiry  was  got  done  by  the  State  by  

constituting  a  Commission  of  Enquiry  under  the  

Chairmanship of Mr. Justice Sidheshwar Narain.  The said  

Commission of Enquiry submitted its Report in October,  

2006 and it was duly accepted by both the Houses of the  

Legislature of the State of Uttar Pradesh.  Again, we  

also cannot ignore that the aspects of the transparency  

have been examined by the Division Bench of the Allahabad  

3

High Court in a P.I.L., which was dismissed by a well-

considered  judgment,  which  remained  unchallenged.   We  

have already made reference to that judgment.  Nobody has  

so far argued that any specific partial treatment was  

offered to the Company nor has it been pointed out at any  

stage that there was anything amiss with the tendering  

process or that the tender of contract to the Company  

herein was a foregone conclusion.  We, therefore, cannot  

subscribe to the contention that this acquisition was a  

colourable exercise of power.  We must say that there was  

a full transparency in the whole process and the whole  

process was checked, rechecked and re-rechecked, leaving  

no scope to infer any bias in favour of the Company.

29. It  was  pointed  out  that  initially  the  award  was  

preceded by issuance of an advertisement in the leading  

newspapers throughout the country.  It was also pointed  

out that the offers were invited on the basis of a global  

tender and as many as 19 parties entered the fray, and  

that it is only thereafter that the present respondent  

Company was chosen for the award of the tender.  Again,  

the essential features of the transaction appear to be  

that  (i)  Project  was  to  be  implemented  on  the  Build  

Operate and Transfer model, (ii) Project conceived of the  

3

construction of the Expressway as well as development of  

land parcels at five different locations and (iii) the  

land for development was to be provided to the selected  

bidder on a lease of 90 years upon payment of acquisition  

cost and necessary lease rentals.  There was, thus, a  

complete transparency in the whole affair.  It is also to  

be seen that this was not a case where the exercise of  

power of eminent domain by the State was for any of the  

purposes set down in Section 40 of the Act.  Further, it  

is not as if the power of acquisition was exercised by  

the  State  Government  for  the  work  or  Project  of  the  

Company.  Lastly, it is not a case where the power of  

exercise was exercised by the State Government so that  

the acquired land was to belong or vest permanently in  

the Company for its own purpose.  It was pointed out that  

the lease is going to be for 90 years after which the  

whole  land  is  going  to  revert  back  to  the  State  

Government,  so  also  the  whole  land  acquired  and  used  

actually for the purpose of the highway would also go  

back to the State after the period of 36 years, during  

which  the  Company  would  have  the  right  to  levy  and  

collect the toll.  It is not as if a public purpose is  

relevant  in  Part  VII,  where  under  Section  39,  the  

previous consent of appropriate Government is required  

3

for execution of an agreement between the Government and  

the Company.  Section 40 of the Act then puts a specific  

rider  that  the  State  Government  shall  not  give  the  

consent  unless  it  is  satisfied  of  any  of  the  

contingencies described in sub-Sections (a), (aa) and (b)  

thereof, which are as under:-

40. Previous enquiry:- (1) Such consent shall not be  given  unless  the  appropriate  Government  be  satisfied,  either on the report of the Collector under Section 5A,  Sub-section (2), or by an enquiry held as hereinafter  provided,-

(a) that the purpose of the acquisition is to obtain  land  for  the  erection  of  dwelling  houses  for  workmen  employed by the Company or for the provision of amenities  directly connected therewith, or

(aa) that such acquisition is needed for the construction  of some building or work for a Company which is engaged  or is taking steps for engaging itself in any industry or  work which is for a public purpose, or

(b) that such acquisition is needed for the construction  of  some  work,  and  that  such  work  is  likely  to  prove  useful to the public.

This would suggest that even when the acquisition is  

meant for the Company, the concept of public purpose has  

to be at the back of mind of the acquiring body like  

Government.  Here, of course, there is no question of any  

agreement with the Company as the three eventualities  

described under Section 40 of the Act are not available  

for  the  simple  reason  that  the  basic  idea  for  the  

acquisition  under  Part  VII  of  the  Act  is  the  total  

3

transfer of the ownership of the acquiring land in favour  

of the Company.  That is obviously not present here.  We  

do not see any factual background for holding that any  

agreement  was  contemplated  in  between  the  State  

Government and the Company or for that matter, YEIDA and  

the Company, as envisaged in Sections 39, 40 and 41 of  

the Act.  It was tried to be canvassed before us that  

there  would  be  a  difference  in  concepts  of  a  public  

purpose and the work useful to the public.  We are not  

much impressed by this argument in view of the fact that  

there is absolutely no evidence to suggest that this is  

an acquisition for the Company, basically on account of  

the fact that the acquired land is not to vest with the  

Company.   This  was  clearly  a  Project  conceived  and  

justified  by  the  State  Government,  while  the  

concessionaire was to be chosen only to implement the  

Project.  The Project was going to be implemented on the  

basis  of  principles  of  BOT.   Therefore,  after  the  

operating period is over, the assets of the Project were  

to be transferred to the State Government.  There was  

going to be no vesting of land as in case that if the  

acquisition was being effected under Part VII of the Act.  

We, therefore, do not accept the argument that this was  

either a colourable exercise of power or was meant for  

3

the Company.  We are not impressed by the argument that  

this was an acquisition for the Company.  The High Court,  

in Balbir Singh’s judgment, has correctly come to the  

conclusion that this acquisition was not meant only for  

the Company and on that count, it could not be said that  

this is not for the public purpose.  The learned Counsel,  

however, vehemently argued that the whole compensation  

had  come  from  the  Company  and,  therefore,  this  

acquisition cannot be said to be for a public purpose.  

We shall tackle this point a little later.  However,  

before we proceed to do that, we must express on the  

utility of the Expressway, which was conceived, as also  

the development of five parcels of land.   

30. During  the  debate,  our  attention  was  invited  to  

Section 3(f) of the Act, which contains a definition for  

‘public purpose’.  It was pointed out that where the  

acquisition is for the Company, it cannot amount to a  

public  purpose.   There  can  be  no  dispute  about  this  

proposition that where the acquisition of land is for the  

companies, it cannot amount to a public purpose.  It was,  

therefore, our endeavour to find out whether this land  

was for the Company and we are quite satisfied with a  

finding recorded by the High Court that this acquisition  

3

was not for the Company but was for the public purpose.  

The Expressway is a work of immense public importance.  

The State gains advantages from the construction of an  

Expressway and so does the general public.  Creation of a  

corridor  for  fast  moving  traffic  resulting  into  

curtailing the traveling time, as also the transport of  

the goods, would be some factors which speak in favour of  

the  Project  being  for  the  public  purpose.   Much  was  

stated about the 25 million square meters of land being  

acquired for the five parcels of land.  In fact, in our  

opinion, as has rightly been commented upon by the High  

Court,  the  creation  of  the  five  zones  for  industry,  

residence, amusement etc., would be complimentary to the  

creation of the Expressway.  It cannot be forgotten that  

the creation of land parcels would give impetus to the  

industrial development of the State creating more jobs  

and helping the economy and thereby helping the general  

public.  There can be no doubt that the implementation of  

the Project would result in coming into existence of five  

developed parcels/centers in the State for the use of the  

citizens.  There shall, thus, be the planned development  

of  this  otherwise  industrially  backward  area.   The  

creation of these five parcels will certainly help the  

maximum utilization of the Expressway and the existence  

3

of an Expressway for the fast moving traffic would help  

the  industrial  culture  created  in  the  five  parcels.  

Thus, both will be complimentary to each other and can be  

viewed as parts of an integral scheme.  Therefore, it  

cannot be said that it is not a public purpose.

31. We  must,  at  this  stage,  take  into  account  the  

argument that the whole compensation is coming wholly  

from the Company and not from the Government or from  

YEIDA.  The appellants invited our attention to Clause  

4.1(d) of the Concession Agreement.  On that basis, it  

was argued that the Company has paid the compensation  

cost and, therefore, the acquisition is clearly covered  

under Part VII of the Act, and there may be no public  

purpose if the acquisition is made for the Company and it  

is  the  Company  who  has  to  shell  out  the  whole  

compensation.  Now, this argument is clearly incorrect.  

Even if we accept for the sake of argument that all this  

compensation is coming from the Company, we must firstly  

bear it in mind that the Company gets no proprietary or  

ownership rights over the Project assets.  Now, if it is  

presumed  that  the  compensation  is  coming  from  the  

Company, then it will have to be held that the whole  

assets  would  go  to  the  Company.   At  least  that  is  

3

envisaged in Part VII of the Act.  Here, that is not the  

case.  The assets are to revert back to the acquiring  

body or, as the case may be, the Government.  Even the  

lands  which  are  utilized  for  the  construction  of  the  

Expressway are to go back to the Government barely after  

36 years i.e. after the Company has utilized its rights  

to recover the toll on the Expressway.  Secondly, it must  

be borne in mind that the Concession Agreement has been  

executed  in  February,  2003,  whereas  the  acquisition  

process  started  somewhere  in  the  month  of  September,  

2007.  When the Concession Agreement was executed, the  

cost factor was not known.  The acquiring body was only  

to  make  available  the  land  to  the  concessionaire  to  

implement  the  Project.   There  would  be  number  of  

difficulties arising, as for example, it would be clearly  

not contemplated that the land would be made available  

without any value or that there would no scheme for the  

State  Government  for  recovering  the  expenses  that  it  

would incur in obtaining the land.  The learned Counsel  

appearing for the State as also for the Company and YEIDA  

argued  that  in  order  to  overcome  and  iron  out  such  

difficulties, the Agreement provides that the land would  

be  leased  on  a  premium  equivalent  to  the  acquisition  

cost.  This argument proceeds on the basis of Clause 4.3  

3

C of the Concession Agreement.  It is to be noted then  

that the premium of the land was not going to be just the  

acquisition cost, but also the lease rent of Rs.100/- per  

hectare.  Therefore, the State Government was to earn  

Rs.100/- per hectare for the total acquired land, which  

was about 25 million square meters over and above the  

compensation  to  be  decided.   The  mention  of  the  

compensation amount in addition to the lease money of  

Rs.100/- per hectare would clearly provide that the whole  

compensation was not going to be paid by the Company  

alone.  This is apart from the fact that through this  

agreement, only the extent of the compensation payable by  

the Company to YEIDA was decided.  However, once all the  

amounts went to the coffers of YEIDA, it would lose its  

independent character as a premium.  When it goes into  

the coffers of YEIDA, it is the YEIDA who would make the  

payments of the estimated compensation and thereby it  

would  be  as  if  the  compensation  is  paid  not  by  the  

Company, but by YEIDA.  The respondents have relied on  

the law laid down in Pratibha Nema’s Case [cited supra],  

more particularly, paragraphs 24 and 25 therein.  The  

respondents  also  argued  relying  upon  the  decision  in  

Naihati Municipality & Ors. Vs. Chinmoyee Mukherjee &  

Ors. [1996 (10) SCC 632].  The respondents argued that  

3

the law laid down in Pratibha Nema’s Case (cited supra)  

emanates from the judgment in Naihati Municipality & Ors.  

Vs. Chinmoyee Mukherjee & Ors. (cited supra).

32. Two judgments in State of Karnataka & Ors. Vs. All  

India Manufacturers Organization & Ors. [cited supra] and  

Sooraram  Pratap  Reddy  &  Ors.  Vs.  District  Collector,  

Ranga Reddy District & Ors. etc. etc. (cited supra) were  

pressed in service by the respondents.

33. The first judgment in State of Karnataka & Ors. Vs.  

All India Manufacturers Organization & Ors. (cited supra)  

pertain  to  Bangalore-Mysore  Infrastructure  Corridor  

Project).  While considering what the public purpose was,  

this Court in paragraphs 76, 77, 78 and 79 took stock of  

the contention, whereby it was suggested that land far  

away from the actual alignment of the road and periphery  

had  been  acquired  and,  therefore,  even  if  the  

implementation of the highway Project was assumed to be  

for the public purpose, the acquisition of the land far  

away therefrom would not amount to a public purpose nor  

would it be covered by the provisions of the Karnataka  

Industrial Areas Development Act, 1966 (KIAD Act).  In  

the present case also, it was argued that the lands which  

are being acquired for the interchange would not at all  

4

be  necessary.   Further,  it  was  argued  that  the  five  

parcels  of  land  which  is  being  acquired  for  the  

development of five industrial townships, could not be  

said for the public purpose nor could it be said to be a  

part of the present integrated scheme.  This Court had  

refuted  this  argument  holding  that  even  in  case  of  

Bangalore-Mysore highway Project, the lands even little  

away from the main alignment of the road, had to be a  

part of this Project and the Project was an integrated  

infrastructure  development  Project  and  not  merely  a  

highway  Project.   It  was  conceived  originally  as  the  

Bangalore-Mysore Infrastructure Corridor Project, which  

conceived of the development of roads between Bangalore  

and Mysore, for which there were several interchanges in  

and  around  the  periphery  of  the  city  of  Bangalore,  

together  with  numerous  developmental  infrastructure  

activities alongwith the highway at several points.  The  

situation  is  no  different  in  the  present  case.  

Therefore, the contention that this acquisition was not  

for public purpose, is rejected.   

34. In  Sooraram  Pratap  Reddy  &  Ors.  Vs.  District  

Collector, Ranga Reddy District & Ors. etc. etc. (cited  

supra), same question cropped up which has been mentioned  

4

in Paragraphs 9, 10 and 11 of the judgment suggesting  

that there was no public purpose and in fact, it was an  

acquisition for a private Company under Part VII of the  

Act and, therefore, the power of  eminent domain would  

have no application to such case.  The contentions raised  

in that judgment in paragraphs 16, 17 and 18 are almost  

similar to the contentions raised herein.  The Court has  

extensively dealt with the question of public purpose in  

paragraph 66 and has taken stock of practically all the  

cases  till  paragraph  109  therein.   It  will  not  be  

necessary  for  us  to  repeat  all  the  case  law  and  the  

questions raised and considered in these paragraphs, such  

as  industrial  policy  of  the  State,  acquisition  for  

Company etc.   In fact, while considering the contention  

regarding the industrial policy of the State, the Court  

has  taken  into  consideration  the  oft-quoted  case  of  

Dhampur Sugar (Kashipur) Ltd. Vs. State of Uttaranchal &  

Ors. [2007 (8) SCC 418], where this Court has come to the  

conclusion that in the absence of illegality or violation  

of law, a Court of law will not interfere in the policy  

matters.  Similar is the case here, where the development  

of the industrial infrastructure along the Expressway for  

the overall betterment of the region and further for the  

industrialization  of  the  otherwise  backward  region  of  

4

Uttar  Pradesh,  was  considered  as  a  policy.   In  this  

judgment again, the Court has extensively considered the  

question as to whether and under what circumstances, the  

acquisition could be said to be the acquisition for the  

Company.  In that, the Court has also considered the  

decision in Babu Barkya Thakur Vs. State of Bombay [AIR  

1960 SC 1203].  The Court quoted the observations in the  

aforementioned decision in Babu Barkya Thakur Vs. State  

of Bombay (cited supra) to the following effect:-

“These  requirements  indicate  that  the  acquisition for a Company also is in substance  for a public purpose inasmuch as it cannot be  seriously contended that constructing dwelling  houses, and providing amenities for the benefit  of the workmen employed by it and construction  of some work of public utility do not serve a  public purpose.”

We have already considered this question that in the  

present  case,  there  is  nothing  to  indicate  that  the  

acquisition  is  for  the  Company  i.e.  for  Jaiprakash  

Industries Ltd.  It is only, therefore, that we are at  

pains to point out that the Government was only using the  

Company for implementing its policy.   

35. In the aforementioned judgment of  Sooraram Pratap  

Reddy & Ors. Vs. District Collector, Ranga Reddy District  

& Ors. etc. etc. (cited supra), Hon’ble Thakker, J. has  

also referred to the decision in  Pandit Jhandu Lal Vs.  

4

State of Punjab [AIR 1961 SC 343], where the acquisition  

was  for  construction  of  houses  by  members  of  Thapar  

Industries  Cooperative  Housing  Society  Ltd.,  Yamuna  

Nagar.  The challenge was that there was non-compliance  

of the provisions of Part VII of the Act, though the  

acquisition was for the Company under Part VII of the  

Act.   The  High  Court,  in  that  case,  held  that  the  

acquisition was for a public purpose and there was no  

need to comply with the provisions of Part VII of the  

Act.   In  fact,  practically  all  the  decisions  on  the  

subject of acquisition for the Company and public purpose  

have been considered in this judgment of Sooraram Pratap  

Reddy & Ors. Vs. District Collector, Ranga Reddy District  

& Ors. etc. etc. (cited supra), which itself is a locus  

classicus.  Ultimately, this Court came to the conclusion  

that the acquisition made by the State of Andhra Pradesh  

could not be faulted, as it was in pursuance of policy  

decision for development of the city of Hyderabad and in  

pursuance of that policy, an integrated Project was taken  

up  for  development  of  the  city  of  Hyderabad  into  a  

business-cum-leisure  tourism  infrastructure  centre.  The  

Court also came to the conclusion that the Andhra Pradesh  

Infrastructure and Investment Corporation (APIIC) in the  

reported decision was a nodal agency like YEIDA in the  

4

present case which was to generate the revenue and help  

the development of infrastructure for industrialization  

of  the  area.   The  Court  also  recognized  that  such  

instrumentality of State would have the power of eminent  

domain.   Like  the  present  case,  the  Court  held  the  

Project to be an integrated and indivisible Project.  We  

have  no  doubt  that  in  the  present  case  also,  the  

Expressway as well as the five parcels which are to be  

developed  are  part  of  an  integrated  and  indivisible  

Project.  In the reported judgment of  Sooraram Pratap  

Reddy & Ors. Vs. District Collector, Ranga Reddy District  

& Ors. etc. etc. (cited supra), it has also been found  

that the entire amount of the compensation was to be paid  

by the State agency APIIC, just like in the present case,  

where the entire amount is to be paid by YEIDA, which  

agency is working as a nodal agency for the execution of  

the Project.  The Court has also found that where the  

power of  eminent domain is exercised  mala fide or for  

collateral  purposes  and  de  hors the  Act  or  in  an  

irrational or unreasonable manner or when the purpose is  

‘no public purpose’ and the fraud on statute is apparent,  

a  Writ  Court  can  undoubtedly  interfere.   It  has  been  

found very specifically here that the present matter is  

not suffering from the above defects.  In this judgment,  

4

the  subject  of  eminent  domain has  been  discussed  and  

considered with thoroughness and all the ramifications of  

the principle of eminent domain have been discussed.  We  

have  already  culled  out  the  principles  emanating  from  

this decision in the earlier part of this judgment and  

even at the cost of repetition, we may say that this  

judgment is practically, the law setter on the subject of  

eminent domain, as also on the other allied subjects of  

acquisition.  The judgment has also explained the concept  

of ‘public purpose’, which has been held to be wider than  

‘public necessity’.  The judgment proceeds on a basis  

that  merely  because  the  benefit  goes  to  a  particular  

section of the society, the acquisition does not cease to  

be for the public purpose.  It has been specifically held  

that where the State is satisfied about the existence of  

a public purpose, the acquisition would be governed by  

Part  II  of  the  Act,  as  has  happened  in  the  present  

matter.  The judgment in Sooraram Pratap Reddy & Ors. Vs.  

District Collector, Ranga Reddy District & Ors. etc. etc.  

(cited supra) is an authoritative pronouncement on the  

mode of payment, as also on the construction of Sections  

40  and  41  of  the  Act.   In  fact,  this  judgment  is  a  

complete answer to the argument of the appellants that  

this acquisition is not for public purpose.

4

36. The respondents then fall back upon the nature of  

the transaction, saying that since the whole transaction  

is on the BOT basis, the Government has merely chosen a  

third party agency to implement the Project instead of  

taking  up  itself  the  task  of  building,  designing,  

financing or running the Project.  It was pointed out  

that in such contracts, the assets did not go to the  

private enterprise which was chosen by the Government.  

On the other hand, the assets revert to the Government  

and, therefore, the BOT Project can never be akin to the  

acquisition of land for a Company under Part VII of the  

Act, where the land and the assets vest and belong to the  

Company.  The respondents argued that when a BOT contract  

is tested in the light of the provisions of Part VII of  

the Act, as also the Land Acquisition (Companies) Rules,  

1963, it would come out that there has to be an agreement  

between  the  State  and  the  Company,  which  necessarily  

provides for the payment of cost of acquisition to the  

Government.  It must entail the transfer of such land to  

the Company.  Similarly, under Rule 5 of the Rules of  

1963, the agreement must itself make provision that the  

land will be utilized only for the purposes for which it  

was acquired and if the Company commits breach of any  

condition  of  the  agreement,  the  Government  would  be  

4

entitled to declare the transfer of land to it to be null  

and void, so also if the Company fails to utilize the  

entire land acquired, the unutilized portion would revert  

to the Government.  The respondents argued that in a BOT  

contract, the land is only leased to a third party agency  

for the purposes of implementation of the Project.  There  

is no occasion for declaring the transfer of land to be  

null  and  void.   There  would  also  be  no  occasion  for  

reversion of the utilized land of the State Government.  

The respondents, therefore, argued that a BOT contract  

can never be contemplated as falling under Part VII of  

the Act.

37. Some other decisions which were pressed in service  

by the appellants are Smt. Somavanti & Ors. Vs. The State  

of Punjab & Ors. [AIR 1963 SC 151], more particularly,  

the  observations  in  paragraph  40  therein,  where  the  

Constitution Bench of this Court observed that if the  

purpose  of  acquisition  is  not  related  to  a  public  

purpose, then a question may well arise whether in making  

the  declaration  there  has  been  on  the  part  of  the  

Government, a fraud on the power conferred on it by the  

Act.  We have already discussed the factual situation  

here for pointing out that this acquisition was indeed  

4

for  the  public  purpose  and  cannot  be  held  to  be  for  

respondent Company.  In that view, the criticism is not  

justified.  The decision in Pandit Jhandu Lal Vs. State  

of Punjab (cited supra) was also referred to and, more  

particularly,  the  observations  in  Paragraph  8  therein.  

There can be no dispute about the principles laid down;  

however, as we have already pointed out, this case has  

been  thoroughly  considered  in  Sooraram  Pratap  Reddy  &  

Ors. Vs. District Collector, Ranga Reddy District & Ors.  

etc.  etc.  (cited  supra).   We  have  already  returned  a  

finding that the compensation in this case does not come  

from the respondent Company alone.  We approve of the  

finding  returned  by  the  High  Court  in  that  behalf.  

During the debate, the decision in Devinder Singh & Ors.  

Vs. State of Punjab & Ors. [2008(1) SCC 728] was also  

referred to.  It was urged that there was a conflict in  

this decision and the decision in  Pratibha Nema’s Case  

(cited supra).  This was a case where the petitioners who  

were the owner of the agricultural lands, had challenged  

the acquisition of lands for M/s. International Tractors  

Ltd.  It was claimed that the land was being acquired for  

public purpose i.e. setting up the Ganesha Project of  

M/s.  International  Tractors  Ltd.  at  various  villages.  

The High Court had held that the land acquisition was for  

4

public purpose.  This Court explained the public purpose  

as defined in Section 3(f) of the Act and noted that the  

aforementioned Ganesha Project was not a Project of the  

State,  but  the  one  undertaken  by  the  Company  M/s.  

International Tractors Ltd.  The Court then went on to  

consider Sections 40 and 41 of the Act alongwith Rule 4  

of the Land Acquisition (Companies) Rules, 1963 and came  

to the conclusion that the same could not be a public  

purpose as the whole compensation was coming from the  

coffers of the Company.  In that view, the Court further  

came to the conclusion that the State not having followed  

the provisions of Sections 40 and 41 of the Act, the  

whole process had suffered illegality.  The Court also  

considered the decision in  Pratibha Nema’s Case (cited  

supra) and distinguished the same by making a comment to  

the following effect:-

“But we must hasten to add that the Bench did  not have any occasion to consider the question  as to whether the State is entitled to take  recourse to the provisions of both Part II and  Part VII of the Act simultaneously.”

The Court, however, refused to go into the nicety of the  

question and observed that in a case of acquisition for a  

public Company, public purpose is not to be assumed and  

the  point  of  distinction  between  acquisition  of  lands  

5

under Part II and Part VII of the Act would be the source  

of funds to cover the cost of acquisition.  The Court  

also  considered  the  judgment  of  this  Court  in  Smt.  

Somavanti & Ors. Vs. The State of Punjab & Ors. (cited  

supra), Jage Ram & Ors. Vs. State of Haryana & Ors. [1971  

(1) SCC 671] and Shyam Behari & Ors. Vs. State of Madhya  

Pradesh & Ors. [AIR 1965 SC 427].  Ultimately, the Court  

came to the conclusion that the necessary provisions not  

having been found, the view of the High Court was not  

correct,  whereby  it  had  upheld  the  land  acquisition,  

holding it to be for the public purpose.  We have closely  

seen the judgment; however, the factual situation in the  

judgment  is  quite  different.   In  our  opinion,  the  

judgment will not help the appellants to contend that the  

present land acquisition is not for public purpose.  We  

also  do  not  think  that  there  is  any  serious  conflict  

between  the  decision  in  Pratibha  Nema’s  Case  (cited  

supra) and  the  decision  in  Devinder  Singh  &  Ors.  Vs.  

State of Punjab & Ors. (cited supra), so as to require a  

reference  to  the  larger  Bench.   In  our  opinion,  the  

decision in Pratibha Nema’s Case (cited supra) applies to  

the fact situation in this case.  Therefore, considering  

the overall factual situation, we are of the opinion that  

the High Court was right in holding that the acquisition  

5

was made for the public purpose.  We find from the order  

of the High Court that the High Court has considered the  

question of public purpose keeping in mind the correct  

principles of law.  We are, therefore, of the opinion  

that the contention raised by the learned Counsel for the  

appellants that this acquisition was not for the public  

purpose for various reasons which we have discussed, is  

not correct.

38. This takes us to the next point pertaining to the  

application of Sections 17(1) and 17(4) of the Act.  The  

learned  Counsel  for  the  appellants  have  vociferously  

urged that there was no necessity whatsoever to apply the  

urgency clause to these acquisitions and further to avoid  

the enquiry under Section 5A of the Act.  According to  

the  learned  Counsel,  this  dispensation  of  Section  5A  

enquiry was not only unjust, but added to the sufferings  

of the appellants who had lost their fertile land.  It  

was pointed out that this Project was slumbering since  

2001 and it was in order to infuse fictitious urgency  

that  a  reference  to  the  Commonwealth  Games  was  made.  

According to the appellants, Right to be heard was akin  

to the Fundamental Rights and its breach has rendered the  

whole  acquisition  exercise  illegal.   Numbers  of  

5

authorities  were  relied  upon  by  the  appellants.   The  

respondents, on the other hand, argued that there was  

material available before the Government justifying the  

invocation of the urgency clause.  The respondents argued  

that, in fact, the High Court has returned the finding  

that there was material before the State Government for  

dispensing with the enquiry under Section 5A of the Act  

and that finding was based on the examination by the High  

Court of the records of the State Government.  It was  

pointed out that going through the ordinary procedure for  

acquisition of land would have taken years for disposal  

of the objections while land was urgently required for  

public  purpose,  in  this  case,  the  construction  of  

interchange  under  the  Yamuna  Expressway  Project,  which  

was absolutely essential for the purposes of running the  

highway.  It was also pointed out by the respondents that  

because of the unnecessary litigation in the enquiries,  

the Project was hopelessly delayed and the cost had gone  

up from Rs.1,700 crores to whopping Rs.9,700 crores.  It  

was also further pointed out that any waste of time would  

have invited the encroachments on the land, which would  

have added to the further trouble.  The enormousness of  

the Project which required acquisition of 1,604 hectares  

of land involving 12,283 farmers, would have taken years  

5

if  the  enquiry  under  Section  5A  was  permitted  and  

thereby, the cost would have still further soared up.  

Numbers of authorities were relied upon by the parties.   

39. Before considering the issue, we must take stock of  

the finding returned by the High Court.  In the judgment  

in  Nand Kishore Gupta & Ors. Vs. State of U.P. & Ors.  

(Civil Misc. Writ Petition No.31314 of 2009), the High  

Court took stock of the allegations regarding malafides  

and dispensing with the enquiry under Section 5A of the  

Act by referring to Paragraph Nos. 20, 21, 28, 29, 30, 31  

and  32  of  the  Reply  filed  on  behalf  of  the  State  

Government through an affidavit of one Shri Vinod Kumar  

Singh,  ADM,  Land  Acquisition,  Agra,  wherein  it  was  

pointed out that the Project was on the mammoth scale and  

there was a great deal of possibility of encroachments if  

the Project was allowed to linger.  The High Court took  

note of the contention that YEIDA deposited 70% of the  

estimated compensation on 29.5.2009 itself, since 10% of  

the estimated compensation was already deposited by the  

acquiring body (YEIDA).  The High Court then referred to  

the  various  clauses  of  the  Concession  Agreement  like  

Clause Nos. 2.1, 2.2, 3.1, 3.2, 3.6 and 4.1 (a), (b), (c)  

& (d) to know about the exact nature of the job which was  

5

required to be done for building the Expressway.  It was  

after this that the High Court had recorded a finding  

that the integrated Project was to cover a large area of  

land and the requirement was of 25 million square meters  

of land to be acquired.  The High Court, therefore, noted  

the plea raised to the effect that the State Government  

took correct decision to invoke the urgency clause, as on  

an  enquiry  into  disposal  of  individual  objections  as  

contemplated under Section 5A of the Act, the Project  

itself would have lost all value and efficacy.  The High  

Court also noted the plea raised by YEIDA and the State  

Government  about  the  likelihood  of  encroachment.   The  

High Court then referred to the two decisions of this  

Court  in  Sheikhar  Hotels  Gulmohar  Enclave  &  Anr.  Vs.  

State  of  Uttar  Pradesh  &  Ors.  [2008(14)  SCC  716] and  

First  Land  Acquisition  Collector  &  Ors.  Vs.  Nirodhi  

Prakash Gangoli & Anr. [2002 (4) SCC 160].  The High  

Court also referred to the counter affidavit of one Shri  

V.C. Srivastava, Addl. General Manager, Jaypee Infratech  

Ltd. (owned by Jaiprakash Industries Ltd.).  The High  

Court then took stock of the plea raised on behalf of the  

respondents on the basis of more than 25 judgments of  

this Court.  The High Court then referred to the decision  

of this Court in State of Punjab & Anr. Vs. Gurdial Singh  

5

& Ors. [1980 (2) SCC 471] and Om Prakash & Anr. Vs. State  

of U.P. & Ors. [1998 (6) SCC 1], as also Babu Ram & Anr.  

Vs. State of Haryana & Anr. [2009 (10) SCC 115].  The  

High Court also referred to the decision in  Manju Lata  

Agrawal Vs. State of U.P. & Ors. [2007(9) ADJ 447 (DB)],  

Sudhir Chandra Agrawal Vs. State of U.P. [2008 (3) ADJ  

289 (DB)] and  Munshi Singh Vs. State of U.P. [2009 (8)  

ADJ  360  (DB)],  which  all  were  the  decisions  of  the  

Allahabad High Court itself.  The Court then referred to  

the delay on account of the litigations from 2001 till  

2008 and referred to the contention raised on behalf of  

the appellants relying on the judgment in Essco Fabs Pvt.  

Ltd. & Anr. Vs. State of Haryana & Anr. etc. etc. [2009  

(2) SCC 377], Mahender Pal & Ors. Vs. State of Haryana &  

Ors. [2009 (14) SCC 281] and Babu Ram & Anr. Vs. State of  

Haryana & Anr. (cited supra).  It then recorded a finding  

in the following words:-

“In order to verify whether there was any material with  the State Government to form an opinion and to exercise  its powers under Section 17(1) and Section 17(4) of the  Act, dispensing with enquiry under Section 5A of the Act,  and that the State Government had applied its mind on such  material, we summoned the records of the three concerned  notifications.  Shri  Satish  Chaturvedi,  Addl.  Advocate  General  assisted  by  Shri  M.C.  Tripathi,  Addl.  Chief  Standing Counsel has produced the records alongwith the  material collected by the Collectors/District Magistrate  and  placed  before  the  State  Government  for  forming  an  opinion. He has taken us through the various documents and  

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forms on which the Collectors have recommended on Forms X  alongwith justification of their recommendations as well  as its summary given in the office note placed before the  State  Government.  The  three  files  produced  before  us  relate to village Kuberpur, district Agra, village Malupur  Pargana  Atmadpur,  district  Agra  and  village  Tappal  district Aligarh for construction of interchange.

The  notification  under  Section  4(1)/17  of  the  Act  for  proposing acquisition of land of village Kuberpur was made  on 20.2.2009 and was published in two newspapers 'Amar  Ujala' and 'Dainik Jagran' on 27.7.2009. The munadi was  made on 7.3.2009. The notification under Section 6(1)/17  was  issued  on  15.6.2009  and  was  published  in  the  two  newspapers on 18.6.2009. The notice under Section 9 was  sent on 20.6.2009 and possession was taken on 8.7.2009. In  the  recommendation  sent  by  the  District  Magistrate,  considered by the State Government on 11.2.2009 before  publication of notification under Section 4, the District  Magistrate had after giving details of land proposed to be  acquired, had forwarded the Form-X alongwith justification  referred  to  in  para  3  of  the  noting  of  the  State  Government. The Collector, Agra recommended that in order  to acquire the land for Y.E.I.D.A. established under the  U.P. Industrial Area Development Act, 1976 the preparation  of plan, identification of land for units for industrial  development, infrastructural facilities, the lease or sale  of  the  land,  the  construction  of  building  and  for  industrial units. Y.E.I.D.A. has been given the regulating  powers. The village Kuberpur is in the notified area of  Y.E.I.D.A. and which urgently requires the proposed land  for construction of interchange' for Y.E.I.D.A. In case of  any delay there is a strong possibility of encroachment on  the land, which will affect the Project of Y.E.I.D.A. in  public interest. In para 4 it was stated that hearing of  oral  and  written  objections  will  take  several  years  causing indefinite delay in construction of interchange.  The proposal was forwarded with recommendation signed by  the Under Secretary, Industrial Development, Government of  U.P.,  Special  Secretary,  Industrial  Development  ;  Shri  Arun Kumar Sinha, Secretary, Rehabilitation and Industrial  Development  Department;  Government  of  U.P.;  Shri  V.N.  Garg, Principal Secretary, Rehabilitation and Development,  Government  of  U.P.  on  12.2.2009  and  by  Shri  Shailesh  Krishna,  the  Principal  Secretary  to  Chief  Minister  on  18.2.2009.

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As  regard  the  acquisition  of  land  for  Y.E.I.D.A.  for  interchange in village Malupur for construction of Yamuna  Expressway,  Pargana  Atmadpur,  district  Agra  for  acquisition of 4.5322 hects. of land the proposal with  recommendation of District Magistrate, Agra on Form-X and  the justification similar to and in the same language as  in the case of village Kuberpur, district Agra was placed  before the State Government alongwith the notings. The  proposal  bears  recommendations  and  signature  of  Under  Secretary, Industrial Development Department, Government  of  U.P.  on  23.10.2008  ;  Special  Secretary,  Industrial  Development, Government of U.P. on 24.10.2008; Principal  Secretary,  Industrial  Development  and  Commissioner  on  30.11.2008 ; Special Secretary, Industrial Development on  10.12.2008  and  the  Secretary  to  Chief  Minister  on  15.12.2008.

For  village  Tappal  in  Tehsil  Khair,  district  Aligarh  proposal  for  acquisition  of  48.572  hect.  of  land  for  Y.E.I.D.A. for construction of Yamuna Expressway with the  recommendation  of  the  District  Magistrate  and  justification  for  invoking  urgency  clause  was  placed  before the State Government and was recommended and signed  by the Under Secretary and Special Secretary, Industrial  Development  Department  on  16.1.2009  ;  Secretary,  Rehabilitation and Industrial Development, Department of  Government of U.P. on 16.1.2009 ; Principal Secretary,  Industrial Development on 16.1.2009 and by the Secretary  to the Chief Minister on the same day on 16.1.2009. The  proposals  were  accepted  by  the  State  Government  for  acquisition  and  for  invoking  urgency  clause  for  construction of Yamuna Expressway by Y.E.I.D.A.”

Ultimately, the High Court wrote a finding in the  

following words:-

“The record produced before us by the State Government  enclosing the material of invoking urgency clause and the  satisfaction of the State Government on the said material,  has satisfied us that the State Government had sufficient  material and had applied its mind to record its opinion  that there was urgency to acquire the land to dispense  with the enquiry under Section 5A of the Act.”

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We have deliberately quoted the above part of the  

High  Court  judgment  only  to  show  the  meticulous  care  

taken by the High Court in examining as to whether there  

was material before the State Government to dispense with  

the  enquiry  under  Section  5A  of  the  Act.   We  are  

completely  convinced  that  there  was  necessity  in  this  

Project considering the various reasons like enormousness  

of the Project, likelihood of the encroachments, number  

of appellants who would have required to be heard and the  

time  taken  for  that  purpose,  and  the  fact  that  the  

Project had lingered already from 2001 till 2008.  We do  

not see any reason why we should take a different view  

than what is taken by the High Court.  The law on this  

subject was thoroughly discussed in Tika Ram & Ors. etc.  

etc. Vs. State of U.P. & Ors. etc. etc. [2009 (10) SCC  

689], to which one of us (V.S. Sirpurkar) was a party.  

In  that  decision  also,  we  had  reiterated  that  the  

satisfaction  required  on  the  part  of  Executive  in  

dispensing with the enquiry under Section 5A is a matter  

subject to satisfaction and can be assailed only on the  

ground that there was no sufficient material to dispense  

with the enquiry or that the order suffered from malice.  

It was also found on facts in Tika Ram & Ors. etc. etc.  

Vs. State of U.P. & Ors. etc. etc. (cited supra) that  

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there  was  no  charge  of  malafide  levelled  against  the  

exercise of power and there was material available in  

support of the satisfaction on the part of the Executive  

justifying the invocation of the provisions of Section  

17.  The position is no different in the present case.  

The High Court in the present matter went a step ahead  

and examined the bulky original record itself to find  

that there was full material available.

40. We  are  not  impressed  by  the  argument  that  the  

encroachment  issue  was  not  a  relevant  factor.   This  

argument was based on the reported decision in Om Prakash  

& Anr. Vs. State of U.P. & Ors. (cited supra).  It must  

be  said  that  the  actual  scenario  in  that  case  was  

different.  In that case, the Court was considering the  

acquisition of area of about 500 acres comprising of 437  

plots,  whereas,  in  the  present  case,  the  area  to  be  

acquired for the Expressway alone was more than 1,600  

hectares.   This  is  apart  from  the  25  million  square  

meters of land which was liable to be acquired for the  

purposes of development of 5 land parcels.  There was  

interlinking  between  the  acquisition  of  land  for  the  

highway and the acquisition of land for establishing the  

5 townships.  In Om Prakash & Anr. Vs. State of U.P. &  

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Ors.  (cited  supra),  there  was  unexplained  delay  after  

issuance of Section 4 notification, which is not the case  

here.  Therefore, we do not think that what has been said  

in  Om Prakash & Anr. Vs. State of U.P. & Ors. (cited  

supra) would be apposite here.  Every case has to be  

decided on its own facts.  This is apart from the fact  

that it is not specifically laid down in  Om Prakash &  

Anr. Vs. State of U.P. & Ors. (cited supra) that the  

encroachment was never a relevant factor for dispensing  

with the enquiry under Section 5A.  Again we hasten to  

add that this was not the only factor considered by the  

State Government and even the High Court has not held the  

same  to  be  the  only  factor  for  dispensing  with  the  

enquiry.

41. In view of the law laid down in the last judgment on  

this issue i.e.  Tika Ram & Ors. etc. etc. Vs. State of  

U.P. & Ors. etc. etc. (cited supra), we are of the clear  

opinion  that  the  challenge  by  the  appellants  on  the  

ground  that  there  was  no  urgency  and,  therefore,  the  

enquiry under Section 5-A of the Act should not have been  

dispensed with, cannot be accepted.  We hold accordingly.

42. No other point was canvassed before us.

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43. There  is  no  merit  in  the  appeals.   They  are  

dismissed.  The two impugned judgments of the High Court  

i.e. Civil Misc. Writ Petition No. 48978 of 2008 (Balbir  

Singh  &  Anr.  Vs.  State  of  U.P.  &  Ors.)  decided  on  

5.10.2009 and Civil Misc. Writ Petition No. 31314 of 2009  

(Nand Kishore Gupta & Ors. Vs. State of U.P. & Ors.)  

decided on 30.11.2009 are confirmed.  There shall be no  

costs.

……………………….J.  [V.S. Sirpurkar]

 ...………………….….J.

    [Cyriac Joseph]

New Delhi; September 8, 2010

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