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PETITIONER: OM PRAKASH & ANR.

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       15/07/1998

BENCH: S.B. MAJMUDAR, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                             WITH       CIVIL APPEAL NOS. 3264- 3268, 3262-3263 OF 1998 (Arising out of SLP (C) Nos. 21680-82, 21689, 21699 of 1995,                     164 & 1874 of 1996)                             AND   [ I.A. No. --------------- in S.L.P. (C) No. 164 of 1996                     (for substitution)]                       J U D G M E N T S.B. MAJMUDAR, J:      Leave granted in all these special leave petitions.      I.A. filed  in Civil  Appeal arising  out of S.L.P. (C) No. 164 of 1996 for bringing on record legal representatives of respondent no. 37 Mahipal is granted.      The title  of  the  Civil  Appeal  concerned  Shall  be corrected accordingly.      By consent  learned senior  advocates appearing for the contesting parties,  the appeals  were finally heard and are being disposed  of by this judgment. These appeals arise out of a  common judgment  rendered by  a Division  Bench of the High Court  of Judicature  at Allahabad on 24th August 1995. The High  Court dismissed  the writ  petitions filed  by the appellants  who  were  petitioners  before  the  High  Court appellants who  were petitioners  before the  High Court who challenged the  notification issued  by the  State of  Uttar Pradesh on  5th January  1991 under  Section 4  (1) of  Land Acquisition Act,  1894 [  hereinafter referred  to  as  ’the Act’] and  also the  notification under Section 6 of the Act whereby the  writ petitioners’  lands  situated  at  village Chhalera banger  then situated  in District Ghaziabad in the State of  Utter Pradesh  were sought  to  be  acquired.  The impugned  acquisition   was  for   the  planned   industrial development  of   District  Ghaziabad   through  New   Okhla Industrial  Development   Authority  (’NOIDA’   in   short), Ghaziabad. As  the writ  petitions raised a common challenge on diverse  grounds, they  were all  heard together and were disposed of  by the  impugned common  judgment of  the  High Court. The  High Court  after  considering  the  submissions raised by  the learned  counsel for the writ petitioners for challenging  the   acquisition  proceedings,   came  to  the conclusion that  the land  acquisition proceedings  were not

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vitiated in  law and  consequently the  writ petitions  were dismissed. That  is how  the original  writ petitioners  are before us in these proceedings. They are now confined to the appellants in  these 8  Civil Appeals  arising from  Special Leave Petitions  filed  by  the  original  writ  petitioners concerned.      Before we  deal with  the main contentions canvassed by learned senior  counsel, Shri  Shanti Bhushan, appearing for appellants in  some of  the appeals,  and  Shri  Uma  Dutta, learned counsel  for appellants in other appeals, it will be necessary to  note a  few background  facts leading to these proceedings. Introductory Facts.      NOIDA is  an  authority  entrusted  with  the  task  of developing lands in the district of Ghaziabad in the Stat of Uttar Pradesh.  In the  year 1976,  NOIDA had acquired large tracts of lands in the Ghaziabad district including lands of village  Chhalera   Banger  for   the   planned   industrial development of Ghaziabad district including lands of village Chhalera Banger  for the  planned industrial  development of Ghaziabad. At that stage, the State of Uttar Pradesh, at the instance of NOIDA had invoked the provisions of sub-sections (1) and (4) of Section 17 of the Act as acquisitions for the purposes of  NOIDA was considered to be of an urgent nature. Thereafter, again  in the  year  1987,  further  lands  were acquired from  the same  village for the purpose of NOIDA by the  State  of  Uttar  Pradesh  issuing  notification  under Section 4  of the  Act  on  30th  October,  1987.  The  said notification was  issued without  invoking Section  17(4) of the Act.  After hearing  the objections  put forward against the acquisition  by the  objectors concerned, ultimately the State of  Uttar Pradesh  issued notification under Section 6 of the  Act on  14th December,  1989. On  that occasion, 353 acres of  lands consisting  of diverse  survey numbers  were acquired from the occupants of the lands in village Chhalera Banger. It was thereafter that NOIDA submitted a proposal to acquire the  lands under  the present  acquisition  on  14th June,  1988.   It  also  made  a  written  request  in  this connection on  14th December, 1989 to the State authorities. By a communication dated 14th December 1989 addressed by the personnel officer,  Noida to  the Special  Land  Acquisition officer, NOIDA,  Ghaziabad, it  was  submitted  that  494.26 acres of  land of  village  chhalera  Banger  were  urgently required for  the development  of Sector  No. 43  and  other sectors of NOIDA. Therefore, it was requested that necessary notification under Section 4 read with Section 17 of the Act may be got issued immediately. It was thereafter that on 5th January, 1991,  the impugned  notification was issued by the Government of Uttar Pradesh in exercise of powers under sub- section (1)  of Section  4 of the Act. It was stated therein that the lands mentioned in the Schedule to the notification were required  for public interest, that is, for the planned industrial development  of district Ghaziabad through NOIDA. It was  recited in  the said  notification that the Governor was of  the opinion  that sub-clauses  of sub-section (1) of Section 17 of the Act shall apply to the aforementioned land because the  said land was essentially urgently required for the planned  industrial development  in  District  Ghaziabad through NOIDA  and in  view of  this urgency;  and essential requirement, it  was also  necessary that possible delay for inspection under  Section 5-  A may be condoned . Therefore, in exercise of powers under sub-section (4) of section 17 of the Act,  Governor also  directed that provisions of Section 5-A of  the said  Act  shall  not  be  applicable  and  were dispensed with.  This notification  was followed  by another

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notification dated  7th January, 1992 under Section 6 of the Act. It was declared  therein that the land mentioned in the notification was  required in public interest, i.e., for the planned development  of District Ghaziabad through NOIDA. It was also  stated that  the Governor  was satisfied that this matter  was  to  be  disposed  of  urgently,  therefore,  in exercise of  power sunder  sub-section (1)  of Section 17 of the Act  he was  also  pleased  to  direct  that  though  no decision had  been given  under Section 11, the Collector of Ghaziabad  could  take  possession  of  the  aforesaid  land mentioned in  Schedule for  public interest after 15 days of the publication  of the  notice  under  sub-section  (1)  of Section 9.      The  aforesaid   two  notifications   were  brought  in challenge by  the appellants  herein, amongst  others before the High Court of Allahabad, as noted earlier. In these writ petitions, the  High Court  by its  order dated  31st march, 1992 directed  that status  quo may  be  maintained  by  the parties to the writ petitions. The State of Uttar Pradesh as well as  NOIDA were  the contesting  respondents in the writ petitions and  in the present appeals also they are the main contesting respondents. Rival Contentions      Shri Shanti  Bhushan, learned  senior counsel  for  the appellants in  some of  the  appeals  and  Shri  Uma  Dutta, learned counsel  for the other appellants contended that the impugned notification  are  null  and  void  mainly  on  two grounds - (i) that there was no relevant material before the State authorities  to enable them to invoke Section 17(4) of the Act  and to  dispense with the inquiry under Section 5-A of the  Act; and  that the  grounds sought to be made out by the  State  authorities  in  this  connection  were  legally unsustainable and, therefore, the direction contained in the impugned notification  under Section  4 invoking  Section 17 sub-section (4)  of the  Act and  in dispensing with inquiry under  Section   5-A  was   liable  to   be  set  aside  and consequently notification  under Section 6 also was required to be  quashed. (ii)  It was also contended that in any case the lands occupied by the appellants which were sought to be acquired in  the present  proceedings were  having  Abadi  - constructions  occupied   for  residential   and  industrial purposes by  the appellants  concerned  and  that  a  policy decision was  taken by  the contesting  respondents  not  to acquire  land   covered  by   such  Abadi.  The  acquisition proceedings were,  therefore, required  to be set aside even on that  ground. Shri Shanti Bhushan, learned senior counsel appearing for  appellants in  appeal  arising  from  Special leave Petition  (c) No.  20905 of  1995 submitted that these appellants had  already  filed  a  suit  against  NOIDA  for permanently restraining NOIDA from acquiring the appellants’ land which is covered by the present acquisition proceedings on the  ground that  it was  having Abadi  thereon. That the judgment of  the Civil  Court was rendered on 14th December, 1989  much   prior  to   the  issuance   of  the  Section  4 notification in the present case wherein a clear finding was reached by  the Civil  Court  on  evidence  that  there  was existing Abadi on the land dispute and the said decision was confirmed by  the District  Court in  Civil Appeal No. 46 of 1990 on  17th November,  1990. We  are informed  by  learned senior counsel,  Shri Mohta,  for respondent  NOIDA that the decision of  the District  Court has not become final and is pending scrutiny  in second  Appeal before the High Court of Allahabad. Shri  Shanti Bhushan,  learned senior counsel for the appellants,  in support of his submission that there was an existing Abadi on the land sought to be acquired, invited

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out attention  to the  relevant evidence  on the  record and contended that  in any  view of  the matter appellants’ land having  Abadi  in  the  light  of  the  policy  consistently followed by  the contesting  respondents could not have been acquired. Learned  counsel appearing  in the  other appeals, Shri Uma  Dutta  also  adopted  these  very  contentions  in support of  his appeals  and submitted  in addition that the High Court  had erred in taking the view that the subjective satisfaction for invoking the provisions of Section 17(4) of the Act  was not  independent of  satisfaction for  invoking Section 17 sub-section (1) and that both these satisfactions were really  independent of each other and had to be arrived at as such.      In support  of the aforesaid contentions learned senior counsel  for   the  appellants   placed  before  us  certain decisions of  this Court  to  which  we  will  refer  at  an appropriate stage  in the  latter part  of this judgment. It was contended by learned counsel for the appellants that the High Court  had erred  in taking the view that the State was justified in  involving the  provisions of  Section 17(4) of the Act  on the  facts and  circumstances of  the cases. He, however, fairly  stated that  if it  is held  that the State authorities  could  not  have  dispensed  with  Section  5-A inquiry and if the appellants are to be given an opportunity to put forward their written objections before the acquiring authority under  Section 5-A  of the  Act  then  the  second question regarding  Abadi lands immunity from being acquired may not  be decided  at this  stage. Hence this question may also be  permitted to  be raised by the objectors in section 5-A proceedings.      Repelling these contentions, Shri Mohta, learned senior counsel for  NOIDA and  Dr.  N.M.  Ghatate,  learned  senior counsel appearing  for the  state of Uttar Pradesh contended that no  error was  committed by the High Court in upholding the applicability  of Section  17  sub-section  (4)  to  the present proceedings  as there was sufficient material before the authorities  to come  to that  decision. That  the  High Court rightly  held that for acquisition of the present type wherein large  acreage of  lands had  to be acquired for the purpose of  the planned  industrial development  of the area undertaken by  NOIDA, urgency  clause could  be legitimately invoked. Urgent situation was implicitly in such acquisition proceedings and  if Section  5-A inquiry  was not  dispensed with, years  would have passed before Section 6 notification could have  been issued.  It was also submitted by them that the material  relied  upon  by  the  State  authorities  for dispensing with  inquiry under  Section 5-A  of the  Act was quite relevant  and this  Court would not sit in appeal over the subjective  satisfaction  of  the  authorities  in  this connection as  it is  well settled  that if  such subjective satisfaction for  invoking section 17(4) of the Act is found to be  based on relevant material it cannot be challenged in a court of law by requesting the court to re-appreciate such evidence especially  when there  was  no  challenge  to  the acquisition proceedings on the ground of mala ides. The High Court’s decision  in this connection, therefore, requires to be upheld.  It was  also submitted  that possession  of  the lands in  question was already taken by NOIDA on 30th March, 1992 prior  to the  date on  which the  High  Court  granted status quo order. It was next contended that the appellants’ lands cannot  be said  to be  having  Abadi  as  mere  stray construction on  agricultural lands  cannot be termed Abadi. That ’Abadi’  is a  term of  art which connotes construction for residential  purposes on  village-site lands  and it has nothing to do with agricultural lands situate beyond village

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sites. It  was also  submitted by Shri Mohta, learned senior counsel for  NOIDA, that the Civil Court’s judgment which is not  final  till  date  had  loosely  treated  lands  having construction as  Abadi lands  and consequently, it could not be urged  by the  appellants that  their lands  having  some stray construction  thereon could  not  have  been  acquired under the  Act in  the light  of the  policy decision of the State authorities  of  the  contesting  respondents  not  to acquire lands  having Abadi.  In this connection, Shri Mohta also  submitted  that  the  documentary  material  which  is furnished  in   the  present  proceedings  by  some  of  the appellants to  show  that  their  lands  were  having  Abadi appears to  be interpolated and such forged documents cannot be permitted  to be  relied  upon  by  the  appellants.  Dr. Ghatate, learned  senior counsel for State of U.P. submitted that the state was not a party to the civil Court litigation and hence  was in  no way bound by the finding arrived at by the Civil  Court regarding  the abadi  nature of  the  lands under acquisition.      It was lastly contended placing reliance on some of the judgments of  this Court,  to which we will make a reference hereinafter, that acquisition for the planned development of a township on a large scale would entitle the authorities to invoke urgency  provisions of  Section 17(4)  of the Act and that the High Court has not erred in relying upon this legal position. It  was ultimately  submitted that  as almost  494 acres of  lands were  sought to  be acquired by the impugned notifications and  only some of the persons whose lands were being acquired  had challenged the notifications in the High Court and  that challenge  in the  present proceedings  gets confined to  about 40  acres in  all,  and  as  the  planned development of  the sector is already underway and pipelines and other infrastructure facilities are being made available on spot,  this court in exercise of its discretionary powers under Article  136 of  the Constitution  of  India  may  not interfere in  the peculiar  facts of the case at such a late stage. Learned senior counsel Shri Shanti Bhushan, repelling these contentions,  submitted that  the  material  on  which contesting respondents  relied upon  for supporting  such an exercise  and  that  there  is  no  universal  formula  that acquisition  for   planned   development   of   a   township necessarily has  to be  treated to  be of  an urgent  nature without anything  more. The  applicability of section 17 (4) of the  Act in the peculiar facts of the present case should be treated  to be  uncalled for.  It was  submitted that the appellants, given  an  opportunity  to  have  their  written objections under  section 5-A  of the  Act, will  fully  co- operate in the proceedings and will abide by the appropriate directions regarding  maintenance of  time schedule for such an inquiry  as may  be fixed  by  this  Court.  Shri  Shanti Bhushan further  submitted that  once it  is shown  that the impugned notifications  were liable to be set aside, on non- compliance with  Section 5-A  of the  Act, which was wrongly excluded by  the authorities,  then this Court being a final Constitution Court  may not refuse appropriate relief to the appellants by  not interfering  under  Article  136  of  the Constitution of  India. Shri  Shanti Bhushan  also sought to distinguish judgments of this Court on which strong reliance was  placed   by  learned   senior  counsel  for  contesting respondents. In the  light of  the above rival contentions, the following points arise for out determination : 1.   Whether  the   State  authorities   were  justified  in      invoking Section  17(4)  of the Act for dispensing with      inquiry under Section 5-A of the Act.

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2.   In any  case, whether  the appellants’ lands have to be      treated as  immune from  acquisition proceedings on the      ground that  they were  having Abadi  thereon and were,      therefore, governed by the policy decision of the State      of U.P. not to acquire such lands. 3.   Whether  this  Court  should  refuse  to  exercise  its      discretionary jurisdiction  under Article  136  of  the      Constitution of India in the facts and circumstances of      the case. 4.   What final orders ?      What shall deal with these points seriatim. Point No. 1      So far as the question of dispensing with inquiry under Section 5-A is concerned, the scheme of the Land Acquisition Act has  to be kept in view. Sub-section (1) of Section 4 of the  Act   lays  down   that  whenever  it  appears  to  the appropriate Government that land in locality is needed or is likely to be needed for any public purpose or for a company, a notification  to that  effect has  to be  published in the official Gazette  and also  to proceed  further according to the mode  laid down  in the  said  provision.  Then  follows section 5-A,  Sub-section  (1)  thereof  provides  that  any persons interested in any land which has been notified under section 4,  sub-section (1), as being needed or is likely to be needed  for a public purpose may, within 30 days from the date of  publication of  the  notification,  object  to  the acquisition of  the land  or of any land in the locality, as the case  maybe. Sub-section  (2) of  Section 5-A of the Act lays down the procedure in connection with such inquiry. The objections under  Section 5-a  are to  be lodged  in writing with the Collector and the Collector is required to give the objector an  opportunity of  being heard in person or by any persons authorised  by him  in this behalf or by pleader and shall after  hearing all  such objections  and after  making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section  4 sub-section (1) , or make different reports to the  Government and  in the light of the said report, the appropriate government  has to  come to  its own decision on the objections  and such  decision is  made final  under the Act. Then  follows Section 6 sub-section (1) which lays down that subject  to the provisions of part vii of the 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 can be made by the appropriate Government  for  acquiring  such  lands.  It  is,  therefor, obvious that  under the  normal scheme  of land  acquisition proceedings under  the Act  before any land can be acquired, by issuing  notification  under  Section  6,  the  gamut  of hearing of  objections to  such proposed acquisition as laid down by  Section 5-A has to be followed. It is in this light that Section  17 of  the Act  which permits  dispensing with inquiry under  Section 5-A  in appropriate  cases has  to be appreciated. Sub-sections  (1) and (4) of Section 17 deserve to be noted in extenso. They read as under:      " 17.  Special powers  in cases  of      urgency. - (1) In cases of urgency,      whenever the appropriate Government      so directs,  the Collector,  though      no such  award has  been made, may,      on the  expiration of  fifteen days      from the  publication of the notice      mentioned in Section 9, sub-section      (1), take  possession of  any  land

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    needed  for  public  purpose.  such      land    shall     thereupon    vest      absolutely in  the Government, free      from all encumbrances.      (2) ............... ...... .....      (3) ............... ...... .....      (3-A) ............... ...... .....      (3-B) ............... ...... .....      (4) In  the case  of  any  land  to      which,  in   the  opinion   of  the      appropriate   Government    ,   the      provisions of  sub-section  (1)  or      sub-section (2) are applicable, the      appropriate Government  may  direct      that the  provisions of Section 5-A      shall not apply, and, if it does so      direct, a  declaration may  be made      under Section  6 in  respect of the      land at  any time after the date of      the publication of the notification      under Section 4, sub-section (1). "      It may  be noted that prior to 1984, sub-section (1) of section 17  could be  invoked only  in cases  of lands which were waste  and arable and qua acquisition of such lands, if there was  any urgency  Section 17  Sub-section (1)  could b invoked and  accordingly even after issuance of notification of Section  6 and  before award is passed possession of such lands could be taken on expiry of 15 days of the publication of notice  under Section 9 sub-section (1). But if the lands were not waste or arable, neither section 17 sub-section (1) nor section 17 sub-section (4) could have been invoked prior to 1984  qua them  as sub-section  (4) of  Section 17  has a clear linkage  with the  lands to  which provisions  of sub- section (1) are applicable. Consequently, prior to 1984, the parent Act  did not  permit dispensing  with  inquiry  under Section 5-A  or for  taking possession prior to the award of the acquired  lands if  the lands  were not  waste or arable even though  there might be any urgency centering round such acquisition.   The words  ’Waste or  arable’, however,  were deleted from  the parent Act by Amending Act 68 of 1984 with the result  that now under the main Central Act for any type of lands  even if they may be waste or arable, or may not be so, in  cases of  urgency, provisions  of  section  17  sub- section (1) can be invoked and equally for any type of lands sought to  be acquired,  in cases of urgency, the provisions of section  17  sub-section  (4)  can  be  invoked,  meaning thereby,  the   intermediate  procedure  under  Section  5-A sandwiched between  sections 4  and 6  can  be  legitimately dispensed with  and notification  under Section 6 can follow almost on  the heels  of section  4 notification in cases of urgency ,  when appropriate  direction under Section 17 sub- section (4)  is issued  by the  appropriate Government being subjectively satisfied  about the  requisite  requirement  s about  invoking  these  provision.  Even  though  under  the Central Act,  no such power could have been invoked prior to 1984 for  lands which  were not  waste or  arable so  far as State of  Uttar Pradesh  was concerned,  a special provision was made  by amending  Section 17  of the Central Act by the Land Acquisition  (UP Amendment  Act) XXII of 1954. Pursuant to the  said State  amendment, a  new sub-section  (1-A) was added to  Section 17 of the parent Act in its application to Uttar Pradesh to the following effect:      "The power to take possession under      sub-section   (1)   may   also   be      exercised in the case of other than

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    waste or  arable  land,  where  the      land  is   acquired   for   or   in      connection      with       sanitary      improvements of any kind or planned      development "      Therefore, so  far as  the State  of Uttar  Pradesh  in concerned, any  type of  land after 19th November, 1954 even though, not  being waste or arable could be subjected to the provisions of Section 17 sub-section (1). However, so far as sub-section (4)  of section  17 was  concerned, no amendment was made  in the  State of  Uttar Pradesh  till 26th  April, 1974, when  by the  Land  Acquisition  (U.P.  Amendment  and Validation) Act VIII of 1974, Section 17 sub-section (4) was also amended  by subsisting  the words, brackets and figures "sub-section (1),  sub-section 1(A)  or sub-section  (2)" as applicable to  the State of Uttar Pradesh. The net result of these two  State amendments  is that after 26th April, 1974, if lands of any type, apart from being waste or arable, were sought to  be acquired  under the  Land Acquisition  Act  as applicable to the State of Uttar Pradesh in case of urgency, provisions of  Section 5-A  could be dispensed with provided such lands  were acquired for or in connection with sanitary improvements of  any kind or planned development. Thus, this enabling  provision   was  available   to  the   appropriate Government functioning  in the State of Uttar Pradesh, If it was satisfied  that the situation was so urgent that Section 5-A inquiry  was to  be dispensed  with in  connection  with acquisitions  of   any  type   of  lands   for  the  planned development of any are. However, still one basic requirement remained for  being satisfied  before such  power  could  be exercised, namely,  that there  should be  case of  urgency. Even if  the acquisition  was for the planned development of any area  and there  was no  material before the appropriate Government for  dispensing with inquiry under Section 5-A on the touchstone  of any  urgency as  found by the appropriate Government, the  provisions of Section 17 sub-section (4) as amended by the Amending Act VIII of 1974 could not have been invoked.  However,   the  parent  Act  itself  underwent  an amendment in 1984, as noted earlier, and the words ’waste or arable’ were  taken out  from the  sweep of  section 17 sub- section (1) read with sub-section (4) thereof The net result is that  after 1984, for acquisition of any type of lands if the appropriate  authority is  satisfied about the existence of urgency requiring acceleration of taking of possession as per section  17(1) before  award or acceleration of issuance of notification under section 6 as per section 17(4) whether such acquisition was for the planned development of any area or for  sanitary improvements  in the  area or for any other public purpose or for a company.      As we  are concerned  only with  the  applicability  of Section 17 sub-section (4), it will be necessary to find out whether there was any relevant material with the appropriate Government, namely,  respondent,  State  of  UP  herein,  to enable it  to arrive  at its  subjective satisfaction  about dispensing with  inquiry under  Section 5-A   in  connection with the  present  acquisition.  Before  we  deal  with  the judgments of  this Court  on the point, it will be necessary to quickly  glance through  the factual  backdrop leading to the present proceedings. As we have noted earlier, NOIDA was entrusted with  the  task  of  developing  areas  under  its jurisdication and  that development  could necessarily  be a planned development on a large scale. Such development could not be  confined only  to a few pockets of the land but must necessarily encompass  in its  fold  schemes  pertaining  to large tracts of lands which were lying undeveloped and which

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had to  be developed  on a  systematic basis.  It is  not in dispute between  the parties  that initially  in 1976  large tracts of  lands in Ghaziabad District in the State of Uttar Pradesh were  acquired from  the very village from which the present  lands   also  are  sought  to  be  acquired.  By  a notification dated  30th April,  1976, the  State  of  Uttar Pradesh exercising  powers under  sub-section 1 of section 4 issued a  notification in  the name of the Governor of Uttar Pradesh to  the effect that various plots of lands mentioned in the notification were needed for public purpose, that is, for the planned industrial development in the district which was then  known as Bullandshahr and the said acquisition was through the  NOIDA for  that purpose.  The said notification showed that  121 and  odd acres  of lands  were sought to be acquired  and   at  that  stage,  Section  5-A  inquiry  was dispensed with  by the  State authorities by invoking powers under Section  17 sub-section (4) thereof. This notification worked itself out and was followed by Section 6 notification and various  chunks of  land were acquired even from village chhalera Banger  amongst others.  It appears that thereafter necessary development  was carried out on the acquired lands by NOIDA and as a part and parcel of the comprehensive plant for industrial  development, further lands were sought to be acquired by  it by  stages as  development of  any  area  of township is  a long  drawn  process  spread  over  years.  A further notification  under section  4(1) was  issued by the State of  Uttar Pradesh  on  30th  October,  1987  acquiring further lands  for NOIDA from this very village. A number of plots of  land from  this village were sought to be acquired an they in all amounted to 353 acres of land. At this stage, the state  authorities did not think it fit to dispense with inquiry under  Section 5-A  of the  Act and  invited parties affected  by  the  proposed  acquisition  of  the  lands  by submitting  objections   in  writing   to   the   Collector, Ghaziabad. The  purpose of acquisition was the same, namely, for the planned industrial development in district Ghaziabad through Noida.  As by  the time,  district Bullandshahr  was renamed as  Ghaziabad. It  is, therefore,  obvious that  for further development in the area, no urgency wad felt at that stage for  dispensing with  the provisions of section 5-A of the Act.  It is  not in dispute between the parties that the further acquisition was for developing sector no. 42 in this very Scheme  run by  NOIDA. The aforesaid notification under Section 4   was  followed by  notification under  section  6 dated 14th  December, 1989, within two years of the issuance of section 4 notification dated 30th October, 1987 after the inquiry under  section 5-A  was  over  and  the  report  was submitted to  the appropriate  Government. It is interesting to note that on the very day on which section 6 notification was issued on 14th December 1989, acquiring these additional lands, NOIDA  proposed to  the State Government that further 494.26 acres  of land  out of  this  very  village  Chhalera Banger were urgently required for the development of Section 43 and  other sectors  of NOIDA.  It was also requested that necessary notification  under Section 4 read with Section 17 of the  Act with  regard to  the said  lands may  be  issued immediately. We  were informed by senior counsel, Shri Mohta for NOIDA  that even  though in  the earlier  acquisition of 1987, pursuant  to  section  4  notification  inquiry  under Section 5-A  was not  dispensed with,  by the time Section 6 notification came to be issued section 17(1) was resorted to as urgency  had developed  at least  by the end of December, 1989. If  that is  so, it  was expected that pursuant to the requisition of 14th December, 1989 by NOIDA invoking urgency powers of  the State  Government, consequential notification

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under Section  4(1) would  have seen light of the day at the earliest in  connection with  acquisition of proposed 494.26 acres of  land for  the development  of Section 43 and other sectors. But curiously enough, nothing happened urgently and Section 4 notification which is impugned in the present case was issued on 5th January, 1991. Thus despite the invocation of urgency  by NOIDA by its letter dated 14th December, 1989 it appears that the State did not think the said proposal to be  so  urgent  as  to  immediately  respond  and  to  issue notification under  Section 4  read with  Section  17,  sub- section (4)  till 5.1.91.  more than one year elapsed in the meantime. Why  this delay  took place  and why the State did not think it fit to urgency respond to the proposal of Noida has remained  a question  mark for  which there is no answer furnished by the respondent authorities in the present cases and nothing is brought on the record by them to explain this delay. It  has, therefore,  necessarily to  be presumed that despite the  emergency powers  of the State Government being invoked by  NOIDA, the State authorities in their wisdom did not think  the matter  to be  so urgent  as  to  immediately respond the  promptly issue section 4 notification read with Section 17(4).  The impugned  notification of 5.1.91 recites that for  public interest,  i.e., for the planned industrial development  through  NOIDA,  the  lands  mentioned  in  the schedule to  the notification  were required to be acquired. It was  further recited  in he notification that because the lands were  essentially required for the planned development in District  Ghaziabad through  NOIDA, in exercise of powers under sub-section  (4) of  Section 17, provisions of Section 5-A of  the Act  were dispensed  with.  The  learned  senior counsel for  the appellants vehemently submitted that in the background of the aforesaid fact situation, it appeared that when  the  State  authorities  invoked  sub-section  (4)  of section 17 on 5.1.91 in connection with present acquisition, in fact,  there was no urgency as even earlier in 1987, when from this  very village  for the  very  purpose  lands  were acquired, the  State authorities  in their  wisdom  did  not think it  fit to  apply urgency  clause and  to dispense the inquiry under  Section 5-A  and in fact heard the objectors. Even that  apart, despite  proposal to acquire this land was moved by  NOIDA, as  early as  on 14th  June, 1988, and even thereafter when  the request  was sent in this connection on 14th December, 1989, the State authorities did not think the situation to  be so  urgent as  to respond quickly and could wait for more than one year. When the appellants in the writ petitions before  the High  Court  raised  their  grievances regarding dispensing  with inquiry  under Section  5-A being not backed  up  by  relevant  evidence  and  the  subjective satisfaction of  the State in this connection was brought in challenge, all  that was  stated by  NOIDA in its counter in para 26  was to the effect that the contents of paras 25 and 26 of the writ petition were denied and that the petitioners were not  able to  point out  any lacunae in the proceedings under the  Land Acquisition  Act. Position  was no better so far as  the counter  of the State authorities was concerned. In paragraph  24 of  the counter  before the  High Court all that was  stated was  that paragraphs  25 and 26 of the writ petition were  denied. When  we turn to paragraphs 25 and 26 of the  writ petition,  we find averments to the effect that the urgency  of the  acquisition was only for the purpose of depriving the petitioners of their rights to file objections under Section  5-A and  their right  to hold  the possession till they  got compensation  for which  the respondents  had issued  notification   under  Section   17(1)  as   well  as notification under  Section 17(4)  of the Act. But so far as

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the  process   of  the   acquisition  was   concerned,   the respondents were  taking their  own  time,  which  would  be evident from  the fact that the notification under Section 4 read with  Section 17(4) was issued on 5th January, 1991 but was published  in the  newspaper on 30th March 1991, whereas the declaration  under Section  6 of the Act was made on 7th January 1992  and that  on  the  one  hand  respondents  had deprived the  petitioners of  filing their  objections under Section  5-A  of  the  Act  on  the  ground  of  urgency  of acquisition, but  on the  other hand,  they  themselves  had taken more than nine months in issuing the declaration under section 6  of the  said Act. This conduct of the respondents falsified their  claim  of  urgency  of  acquisition.  These averments in  the writ  petitions, to  say the least, almost went unchallenged  and nothing concrete could be pointed out by the  respondents before  the High  Court to support their stand as  noticed from  their counters  referred to earlier. thereafter, an  additional model counter affidavit was filed by the  State authorities  in the  High Court for explaining the reasons  why section  5-A inquiry was dispensed with. In paragraph 9 of the additional model counter affidavit it was averred that  it was  necessary to bring material before the date of  notification under  Section 4 for showing as to why sub-section (4)  of Section  17 was  invoked. The additional material which was produced before the High Court was by way of Annexures  - CA3,  CA4 and  CA 5.  When we  turn to these annexures, we  find that  Annexure -  CA 3 is a letter dated 21st  April,   1990  written  by  the  District  Magistrate, Ghaziabad, to the Joint Secretary, Industries, Government of Uttar Pradesh.  It recites that on examination, it was found that the land was immediately required in public interest so that the  development work in the said land could be carried out  smoothly.  What  was  the  nature  of  urgency  is  not mentioned  in  the  said  letter.  Therefore,  the  position remains as vague as it was earlier. When we turn to Annexure - CA  4 which  is dated  12th June,  1990, we  find that the District Magistrate, Ghaziabad wrote to the Joint Secretary, Industries, State  of U.P., that as to how many farmers were going to  be affected  by the  proposed acquisition. It does not even  whisper about  the urgency  of the situation which requires dispensing  with  Section  5-A  inquiry.  The  last Annexure -  CA 5  is the  letter dated  14th December;  1989 written by  NOIDA to  the Land Acquisition Officer proposing urgent acquisition of the lands in question. We have already made a  reference to  the said  letter. It  recites that  if immediate action  for acquisition  of  the  aforesaid  lands adjacent  to   Sector  43   for  development  of  which  the acquisition was  to be  resorted to was not taken them there was possibility  of encroachment  over this area. That other land adjacent  to this sector was already being proposed for the botanical  garden. To  say  the  least,  possibility  of encroachment over  t  he  area  cannot  by  any  stretch  of imagination  be  considered  to  be  a  germane  ground  for invoking urgency  powers for  dispensing  with  Section  5-A inquiry.  Even   if  acquisition  taken  place  urgently  by dispensing with inquiry under Section 5-A and the possession is taken  urgently after  Section 6  notification within  15 days of  issuance of notice under Section 9 sub-section (1), even then there is no guarantee that the acquired land would not be  encroached upon  by unruly  persons. It is a law and order problem  which has  nothing to do with the acquisition and urgency  for taking  possession. Even  that apart, it is easy to  visualise that if objectors are heard in connection with Section 5-A inquiry and in the meantime, they remain in possession of  land sought  to be acquired they would be the

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best   persons   to   protect   their   properties   against encroachers. Consequently,  the ground  put forward by NOIDA in its  written  requested  dated  14-12-1989  for  invoking urgency powers  must be  held to be totally irrelevant. Even that apart,  if that  was the  urgency suggested by Noida on 14-12-1989, we  fail to  appreciate  as  to  how  the  State authorities  did   not  respond  to  that  proposal  equally urgently and  why they  issued notification  under Section 4 read with  Section 1794) after one year in January, 1991. On this aspect  no explanation  whatsoever was furnished by the respondent State  authorities before  the High  Court. It is also interesting  to note  that even  after dispensing  with inquiry under Section 5-A pursuant to the exercise of powers under  Section   17(4)  on  5th  January,  1991,  Section  6 notification saw  the light  of the day only on 7.1.1992. If the urgency was of such a nature that it could not brook the delay on account of Section 5-A proceedings, it is difficult to appreciates  as to  why section  6  notification  in  the present case  could be  issued only  after one year from the issuance of  Section 4 notification. No explanation for this delay  is  forthcoming  on  record.  This  also  shows  that according to  the  State  authorities,  there  was  no  real urgency  underlying  dispensing  with  Section  5-A  inquiry despite NOIDA  suggesting at  the top of its voice about the need for urgently acquiring the lands for the development of sector no. 43 and other sectors.      So far  as the  present proceedings  are concerned, the situation was  tried to  be salvaged further in the counter- affidavit filed  on behalf  of NOIDA.  Its working secretary Ram Shankar  has filed  a counter-affidavit  in the  present proceedings explaining  the  necessity  to  apply  emergency provisions. It  has been averred in para 9 of the counter to the effect  that what  necessitated application of emergency provisions  was   imminent   possibility   of   unauthorised construction and/or  encroachment upon  the suit  land which would  have  hammered  the  speedy  and  planned  industrial development of the area which was the purpose of acquisition proceedings. This stand is in line with the earlier stand of NOIDA in  its written requisition dated 14th December, 1989. We have  already seen  that the said stand reflects a ground which is  patently irrelevant for the purpose of arriving at the  relevant   subjective   satisfaction   by   the   State authorities about  dispensing with  Section 5-A  inquiry. We could have  appreciated the  stand of  the State authorities for invoking  urgency clause  under Section 17(4) of the Act on the  ground that  when about 500 acres of land were to be acquired for  further planned  development of  Sector 43 and other  sectors  of  Noida,  as  mentioned  in  the  impugned notification, hearing  of objectors  who  might  have  filed written objections  when there are large number of occupants of these lands and who possess about 438 plots of land under acquisition, would have indefinitely delayed the acquisition proceedings and  years would have rolled by before Section 6 notification   could   have   been   issued.   Under   these circumstances, the  entire further  development of  the area would have, on the peculiar facts and circumstances of these cases, come  to a  grinding halt.  Such a  stand would  have justified the subjective satisfaction of the authorities for invoking Section  17 (4)  of the Act. Such satisfaction then could not  have been  gone  behind  by  court  of  law.  But unfortunately for  the respondents  such was  not their case nor did  they even whisper in these cases that these aspects were kept in view while dispensing with Section 5-A inquiry. The court  cannot obviously,  therefore, make out a new case for them  which is  not  pleaded  in  these  proceedings  to

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justify their action.      In the light of the aforesaid factual position emerging on the record of the case it becomes clear that there was no relevant material  before  the  State  authorities  when  it invoked powers  under sub-section  (4)  of  section  17  for dispensing  with  Section  5-A  inquiry  while  issuing  the impugned notifications under Section 4 followed by Section 6 notification of 7.1.92.      It is in the background of the aforesaid fact situation that we  now turn to consider the relevant decisions of this Court on  which strong  reliance was  placed by  either side before us.  We may  note that the High Court while repelling the contention  centering round  the question  of dispensing with inquiry  under Section 5-A of the Act has placed strong reliance on  the two  decisions of  this Court  having noted that as  large acres  of lands  were to  be acquired, it was necessary for  the State  to  dispense  with  inquiry  under Section 5-A. In the case of State of U.P. etc. v. Smt. Pista Devi and  others [ (1986) 4 SCC 251], a Bench of two learned Judges of  this Court speaking through  E. S. Venkataramiah, J.,   (as he  then was)  had to  consider the fact situation existing in  Meerut city which was densely populated part of the State  of Uttar  Pradesh and  was growing  very fast.  A Development Authority  was constituted  under the provisions of U.P.  Urban Planning  and Development  Act, 1973  for the purpose of  tackling the  problem of  town planing and urban development. 662  bighas 10  biswas and  2 biswanis  of land situate din  the surrounding  villages in  the periphery  of Meerut  town   were  sought   to  be  acquired  urgently  by dispensing with  inquiry under  Section 5-A.  The High Court before which  the acquisition  proceedings  were  challenged took the  view that  because there  was delay  of  one  year between Section   4 and Section 6 notifications, the urgency clause under  Section 17(4)  was wrongly  invoked. Upturning the said  decision of  the High  Court, this Court held that the delay  of one year was clearly explained on the facts of the case  as there was a corrigendum to be issued to Section 4 notification  and when  it was  pointed out  to the  State authorities by  the Collector,  the authorities  issued  the corrigendum   and    simultaneously   issued    section    6 notification. Thus  the delay  of one year between Section 4 and Section  6 notifications was satisfactorily explained by the authorities  in that  case. But  even  that  apart,  the nature of the population pressure in the Meerut town and the urgent need for providing for housing accommodation to those residents  in   view  of  this  Court’s  directions  in  the aforesaid decision,  authorities were  justified in invoking powers under Section 17 (4)  of the Act. it is no doubt true that in  the aforesaid  decision, this Court referred to the earlier three Judge Bench judgment of this Court in the case of Narayan  Govind  Gavate  and  others  etc.  v.  State  of Maharashtra and  others etc.  [(1977) 1  SCC 133]  on  which strong reliance  was placed  by Shri Shanti Bhushan, learned senior counsel  for the appellants and observed that perhaps at the  time to  which the  said decision  related situation might have  been that the schemes relating to development of residential areas  in the  urban centres  were not so urgent and it  was not  necessary to  eliminate the  inquiry  under Section 5-A  of the  Act. The  acquisition proceedings which had been  challenged in  that case related to the year 1963. During this  period  of  nearly  23  years  since  then  the population of  India has gone up by hundreds of millions and it is no longer possible for the Court to take the view that the schemes  of development  of  residential  areas  do  not appear to  demand such  emergent action  as  to    eliminate

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summary inquiry  under Section  5-A of  the Act. But even on this basis it has to be shown by the authority invoking such emergent action  to satisfy  the  Court  when  challenge  is raised that  the particular development of residential areas concerning the  acquired lands  in the  then  existing  fact situation required  dispensing with  Section 5-A inquiry. In the present  case no  such data  was even whispered about by the respondents  either before  the High Court or before us, as we  have seen  earlier. Apart  from that, as noted in the said judgment,  the delay  between Section  4 and  Section 6 notifications was  adequately explained  and that is how the acquisition was upheld by this Court. With respect, the High Court seems to have read much more in the said decision than what was  contemplated by  this Court  when it delivered the said decision.  In the  case of  Rajasthan Housing Board and ors. vs.  Shri Kisan  and ors.  [ (1993)  2 SCC 84], another Bench of  two learned  Judges of  this Court  consisting  of Kuldip Singh and B.P. Jeevan Reddy, JJ., had to consider the question of  urgency requiring  dispensing with  Section 5-A inquiry in  connection with  a housing scheme promulgated by the Rajasthan  Housing Board  for settling Harijans who were the weaker  Sections of the Society. The Court in para 14 of the  Report   noted  that  there  was  material  before  the Government in  the case  upon which it could have acted when it formed  the requisite  opinion that it was a case calling for exercise  of power under Section 17 sub-Section (4). The material  placed   before  the   Court  disclosed  that  the Government found on due verification that there was an acute scarcity of  the land  and  there  was  heavy  pressure  for construction of houses for weaker sections and middle income group people;  that Housing Board had obtained a loan of Rs. 16 Crores  under a  time bound  programme to  construct  and utilise the  said amount  by 31st  march 1983;  that in  the circumstances  the   Government  was  satisfied  hat  unless possession was  taken  immediately  and  the  Housing  Board permitted to  proceed with the construction, the Board would not be  able to  adhere to the time-bound programmed. It was also noted  that there  was material  on record to show that the Housing  Board had  already appointed  a large number of engineers and  other subordinate  staff for carrying out the said work  and that  holding an  inquiry under  Section  5-A would have  resulted in  uncalled for  delay endangering the entire scheme and time schedule of the Housing Board. It was also noted  that satisfaction  under Section  17 sub-section (4) was  a subjective  one and  that so  long as  there  was material upon  which the  Government could  have formed  the said satisfaction  fairly, the Court would not interfere nor would it  examine the material as an appellate authority. We fail to  appreciate as  to how the said decision rendered in the peculiar  facts of the case before this Court could ever be pressed  in the  service in  the peculiar  facts  of  the present cases  to which  we have  made a  detailed reference earlier. No  such urgency  based on any time bound scheme is found in  the present  cases as was in the case of Rajasthan Housing Board  (supra). It is, of course, true that the High Court has noted that large areas of lands are being acquired for NOIDA  and the  activity carried out by it in the region is very  laudable and  that NOIDA  not only  is an authority constituted under  the Act of 1976 but also caters to a well developed locality  which is  situated in  near proximity to Delhi and  the entire  concentration of  the State  of Uttar Pradesh is  to develop it in such a fashion so as to attract the biggest  entrepreneurs from  India and  abroad. NOIDA is the only  jewel in  the industrial  crown of the State of UP and,  therefore,   acquisition  of   land  for  the  planned

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industrial development  in NOIDA is nothing but emergent. We fail to  appreciate as  to how the High Court could persuade itself to  come to  the aforesaid conclusion about emergency when such was not the case pleaded either by the State or by NOIDA before it. The only justification with which they came forward was  about the  possibility of  encroachers usurping the land if it was not acquired urgently. That ground, as we have noted  earlier, to say the least, is totally irrelevant one for  basing any  subjective satisfaction  of  the  State authorities for  invoking powers  under sub-section  (4)  of Section 17.      It is time for us now to refer to a few other judgments to which our attention was invited by learned senior counsel for the respective parties.      In the  case of  Narayan Govind  Gavate others  etc. v. State of  Maharashtra &  Ors. etc.  [ (1977)  1 SCC  133], a three-Judge Bench of this Court speaking through Beg, J. had to consider  the question whether invocation of powers under Section 17  sub-section (4)  of the Land Acquisition Act for dispensing with  the inquiry under Section 5-A in connection with acquisition of land for development of industrial areas and residential tenements could be justified on the facts of that  case.   The  following   pertinent   observations   in paragraphs 40,  41 &  42  of  the  Report  were  pressed  in service:      " 40.  In the  case before  us, the      public  purpose  indicated  is  the      development   of    an   area   for      industrial     and      residential      purposes. This,  in itself,  on the      fact of  it,  does not call for any      such  action,  barring  exceptional      circumstances, as to make immediate      possession, without  holding even a      summary enquiry under Section 5A of      the Act,  imperative. On  the other      hand, such  schemes generally  take      sufficient period of time to enable      at least  summary  inquiries  under      Section  5A   of  the   Act  to  be      completed without  any the  scheme.      Therefore, the  very  statement  of      the public  purpose for  which  the      land was  to be  acquired indicated      the absence of such urgency, on the      apparent facts  of the  case, as to      require  the   elimination  of   an      enquiry under  Section  5A  of  the      Act.      41.  Again,  the  uniform  and  set      recital of a formula, like a ritual      of   mantra,   apparently   applied      mechanically to  every case, itself      indicated  that  the  mind  of  the      Commissioner  concerned   was  only      applied to the question whether the      land  was   waste  or   arable  and      whether its acquisition is urgently      needed. Nothing  beyond that  seems      to  have   been   considered.   The      recital itself  shows that the mind      of the Commissioner was not applied      at all  to the question whether the      urgency is  of such  a nature as to      require elimination  of the enquiry

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    under Section  5A of the Act. If it      was,  at  least  the  notifications      gave no  inkling of  it at  all. on      the other hand, its literal meaning      was  that  nothing  beyond  matters      stated there were considered.      42.   All   schemes   relating   to      development   of   industrial   and      residential areas must be urgent in      the context  of the  country’s need      for increased  production and  more      residential accommodation. yet, the      very  nature  of  such  schemes  of      development  does   not  appear  to      demand such  emergent action  as to      eliminate summary  enquiries  under      Section 5A  of the Act. There is no      indication   whatsoever    in   the      affidavit filed  on behalf  of  the      State  that   the   mind   of   the      Commissioner was  applied at all to      the question  whether it was a case      necessitating  the  elimination  of      the enquiry under Section 5A of the      Act.   The    recitals    in    the      notifications, on  the other  hand,      indicate that  elimination  of  the      enquiry under Section 5A of the Act      was   treated   as   an   automatic      consequence of  the opinion  formed      on other  matters. The recital does      not say at all that any opinion was      formed on the need to dispense with      the enquiry under Section 5A of the      Act. It  is  certainly  a  case  in      which  the  recital  was  at  least      defective. The  burden,  therefore,      rested upon the State to remove the      defect, if possible, by evidence to      show    that    some    exceptional      circumstances  which   necessitated      the elimination of an enquiry under      Section 5A  of the Act and that the      mind  of   the   Commissioner   was      applied to this essential question.      It seems  to us that the High court      correctly applied the provisions of      Section 106  of the Evidence Act to      place the  burden upon the State to      prove those  special circumstances,      although it also appears to us that      the  High   Court  was   not  quite      correct in stating its view in such      a manner  as to make it appear that      some part  of the initial burden of      the petitioners  under Sections 101      and 102  of the  Evidence  Act  had      been displaced  by the  failure  of      the State  to  discharge  its  duty      under Section  106 of  the Act. The      correct way  of  putting  it  would      have been  to say  that the failure      of  the   State  to   produce   the      evidence of facts especially within      the  knowledge  of  its  officials,

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    which rested  upon it under section      101  of  the  Evidence  Act,  taken      together with  the attendant  facts      and  circumstances,  including  the      contents of  recitals, had  enabled      the petitioners  to discharge their      burden under  Sections 101  and 102      of the Evidence Act."      It is  no doubt  true that  the aforesaid  decision  of three Judge  Bench of  this Court was explained by latter to Judge Bench  decision of this Court in State of U.P. v. Smt. Pista Devi  (supra) as  being confined to the fact situation in those  days when  it was rendered However, it is trite to note that  the latter  Bench of  two learned  judges of this court could  not have laid down any legal proposition by way of a  ratio which  was contrary  to the  earlier decision of three Judge Bench in Narayan govind Gavate (supra). In fact, both these  decisions referred to the fact situations in the light of which they were rendered.      Our attention  was also invited by shri Shanti Bhushan, learned senior  counsel for the appellants to a decisions of a two  Judge Bench  of this  Court in  the case  of State of Punjab and  Anr. vs.  Gurdial Singh  and Ors.  [(1980) 2 SCC 471] wherein  Krishna Iyer,  J. dealing with the question of exercise of  emergency powers  under section  17 of  the Act observed in  para 16 of the Report that save in real urgency where public  interest did  not brook  even the minimum time needed to give a hearing land acquisition authorities should not, having  regard to  Articles 14  and 19 burke an inquiry under  Section  17  of  the  Act.  Thus,  according  to  the aforesaid decision  of this Court, inquiry under Section 5-A is  not   merely  statutory   but  also  has  a  flavour  of fundamental  rights   under  Articles   14  and  19  of  the Constitution though  right to  property has  now  no  longer remained a fundamental right, at least observation regarding Article 14,  vis-a-vis, Section  5-A of the Land Acquisition Act would remain apposite.      We may  now refer to decision of a three judge Bench of this Court in the case of Nandeshwar Prasad and Anr. vs. The State of  U.P. and  Ors. [  (1964) 3  SCR 425]  to which our attention  was   invited  by  learned  counsel,  Shri  Dutta appearing for  appellants in  some of  the appeals.  Therein Wanchoo J.  speaking for  the Court  observed to  the effect that just as section 17(1) and 17(4) are independent of each other, section  17(1A) and  section 17(4) are independent of each other  and an  order under  section  17(1A)  would  not necessarily mean  that an  order under section 17(4) must be passed. There  cannot be any dispute on this legal position. however,  the  question  with  which  we  are  concerned  is entirely different. It is to the effect whether on the facts of these  cases, there  was any relevant material before the State authorities  to invoke  powers under  Section 17  sub- section (4).      It is  now time  for us  to  refer  to  certain  latter decisions of  this Court to which strong reliance was placed by Shri Mohta, learned senior counsel for NOIDA. In the case of A.P.  Sareen and  Others Vs.  State of  U.P. and Others [ (1997) 9  SCC 359],    a  two  Judge  Bench  of  this  Court consisting of  Ramaswamy J.  and G.  T. Nanavati  J, had  to consider the question whether the need for urgent possession underlying acquisition proceedings could cease to exist only because of  bureaucratic inadvertence.  It was  held on  the facts of  that case  that urgency  continued so  long as the scheme  was   not  initiated,   action  taken   and  process completed. It  is, of  course, true that while deciding this

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question, it  is observed  that it  is  well  settled  legal position that  urgency  can  be  said  to  exist  when  land proposed to be acquired is needed for planned development of the city  or town,  etc. The  said observation clearly shows that in  appropriate cases  when acquisition  is needed  for planned development  of city  or town urgency provisions can be invoked.  This  aspect  is  legislatively  recognised  by enactment of  Section 17(1A)  by U.P.  legislature. But  the said observations  cannot be read to mean that in every case of planned  development of  city  or  town  necessarily  and almost automatically  urgency clause  has to  be invoked and inquiry under  Section 5-A  is to be dispensed with. It will all depend  upon the  facts and  circumstances of each case. The aforesaid  observations cannot be held to be laying down nay absolute proposition that whenever any acquisition is to take place  for planned development of city or town, section 5-A should  be treated  to be  almost otios  or inoperative. Such is  not the ratio of the aforesaid decision and nothing to that  effect can  even impliedly be read in the aforesaid observation which  is of  general nature.  It only  suggests that in  appropriate cases,  urgency clause  can be  invoked when the  land  is  proposed  to  be  acquired  for  planned development of city or town.      Another decision  to which our attention was invited by Shri Mohta,  learned senior counsel for NOIDA is reported in (1996) 2  SCC 365  [Ghaziabad Development  Authority Vs. Jan Kalyan Samiti,  Sheopuri, ghaziabad and Anr.]. In that case, a Bench of two learned Judges consisting of K. Ramaswamy and G.B. Pattanaik.  JJ examined  an entirely different question as to  whether notification  under Section 6 could be issued simultaneously with  the notification  under Section  4  (1) When Section  5-A was  dispensed with  under Section 17 sub- section (4). This decision therefore, cannot be of any avail to Shri  Mohta. In the case of Jai Narain and Ors. vs. Union of India  and Ors.  [(1996) 1  SCC 9 ], another bench of two learned Judges  consisting of  Kuldip Singh  and  S.  Saghir Ahmad, JJ. had to examine the question whether invocation of urgency provisions  under Section 17 (4) for acquiring lands for constructing a Sewage Treatment Plan (STP) in Okhla area of this  city could  be said to be well justified. Upholding the said  exercise  by  the  acquiring  authorities,  Kuldip Singh, J  in para 3 of the Report clearly noted the peculiar fact situation under which Section 5-A inquiry was dispensed with in  that case.  It was noted that this Court itself had issued earlier time bound directions for procurement of land for  STP  in  various  parts  of  Delhi.  In  the  aforesaid judgement, it was also observed in an earlier decision dated 24th march,  1995,  this  Court  had  observed  that  sewage problems were  of grave  nature and  so far  as discharge of effluent in  Yamuna was  concerned, the  industries wee  the prime contributors  apart from  MCD and NDMC which were also discharging  Sewage  directly  into  the  river  Yamuna  and thereafter on  21st April,  1995, this  Court regarding  the construction of  STP had  observed  that  the  treatment  of sewage was of utmost importance for health and for supply of pure water  to the  citizens of  Delhi. Any  delay  in  this respect was  a health  hazard and could not be tolerated. It was also  observed  therein  that  this  Court  had  earlier directed to  the authorities  to take  up the  work of  land acquisition and  sewage on  war  footing.  In  view  of  the directions of  this Court,  therefore, the  authorities were bound to  apply urgency clause and invoke urgency powers for dispensing with  Section 5-A  inquiry  so  that  the  sewage treatment plant  could be established at the earliest and on a war footing. We fail to appreciate as to how the aforesaid

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fact situation  and the  direction  to  the  State  to  move quickly and  urgently as  issued by  this  Court  which  was binding on  the  State  authorities  could  be  legitimately pressed in  service by  Shri Mohta in the facts of this case which stand  on an  entirely  different  footing,  as  noted earlier.      In the  light of  the aforesaid  discussion, therefore, the  conclusion   becomes  inevitable  that  the  action  of dispensing with  inquiry under Section 5-A of the Act in the present  cases  was  not  based  on  any  real  and  genuine subjective satisfaction  depending upon  any  relevant  data available to  the State  authorities at  the time  when they issued the  impugned notification  under section 4(1) of the Act and  dispensed with Section 5-A  inquiry by resorting to Section 17  sub-section (4)  thereof. The  first  point  is, therefore, answered  in  the  negative,  in  favour  of  the appellants and against the contesting respondents. Point No. 2      So far  as this point is concerned Shri Shanti Bhushan, learned senior  counsel for  the appellants  submitted  that much prior  to the  issuance of  Section 4  notification and after the  earlier acquisition of 15 bighas of land from the appellants’  own  Survey  No.  488,  as  the  appellant  was apprehending further  acquisition of  a portion  of land  on which his  construction stood  the appellant was constrained to file  a civil  suit against  NOIDA for a declaration that the appellant  was the  owner  and  in  possession  of  land measuring 4  bigha 10  biswas comprising  in Khasra  No. 488 situated in village Chhalera Banger, and abadi stood therein for about  5-6 years.  The said  suit was registered as Case No. 46  of 1989  in the  court of  Munsif, Ghaziabad.  After hearing the plaintiff and NOIDA, the Civil court came to the conclusion on  evidence that there was abadi in the disputed property. The Civil Court also noted the contention of NOIDA which was  defendant in  that case that if disputed land was abadi land  of the  plaintiff, then he could file objections under Section  5-A of  the Land  Acquisition Act against the proposed acquisition   proceedings  and  if  his  abadi  was proved on  the disputed  land, then  his abadi land could be left out. Our attention was also invited to the further fact that the  said  decision  of  the  Civil  Court  dated  14th December, 1989 was confirmed by the District Court dated 145 December, 1989 was confirmed by the District Court in appeal on 17th  November, 1990.  Thus final  court of facts came to the conclusion  that there was abadi of the appellant on the land in  question even  prior  to  the  date  of  Section  4 notification in  the present case. It is, of course, true as informed to  us by  Shri Mohta,  learned senior  counsel for NOIDA, that  the said  decision of the District Court is not final and second appeal against the said decision is pending in the  Allahabad  High  Court.  Be  that  as  it  may,  the contention of  Shri Shanti  Bhushan, learned  senior counsel for the  appellants, was  that there was sufficient evidence on the  record of  this case  to show that the disputed land under acquisition was having abadi since number of years and that was  prior to  the issuance  of section  4 notification dated 05th  January, 1991.  he also invited our attention to the further fact that pending the proceeding before the high Court a  site inspection  report was  prepared in connection with diverse  lands under  acquisition and  the  appellant’s Khasra No.  488 was  one of  them. This  report  dated  11th March, 1996  was submitted  by Officer on Special Duty, Land Acquisition Department,  Revenue Board,  U.P. which  clearly shows that  at the  time when  the inspection  was  made  of Khasra No.  488 belonging to the appellant, on the extend of

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4 acres  and 10  bighas of  land factory was located and the property was  being used also for residential purpose. There was telephone  number,  there  were  three  electric  meters installed, about  60  workers  were  found  working  in  the factory. Besides,  8 shops  and 5  residential  houses  were existing where  families were living. It was also noted that construction was very old and people were residing there for long time  and factory  was also  being run.  Learned senior counsel for  NOIDA submitted  that the  aforesaid inspection report was  one-sided and it did not indicated whether NOIDA authorities were  also present  at  the  time  of  the  said report. The  learned counsel appearing for the appellants in the remaining appeals also submitted that there was abadi on the lands occupied by these appellants also. It is submitted on behalf  of the  appellants by  their learned counsel that there is a policy followed by the State of Uttar Pradesh not to acquire  lands which are having abadi and consequently if Section 5-A  inquiry was  held, the  appellants  could  have requested the  appropriate authorities  not to acquire these lands.      Repelling  the  aforesaid  contention,  learned  senior counsel for NOIDA submitted that there is some misconception about the  concept of  abadi. That  abadi is  a  term  which refers to  village site  lands utilised  for the residential purposes. He, of course, stated tat it is true that there is a policy  adopted by  the State  of  Uttar  Pradesh  not  to acquire lands  on which there is abadi, namely, village site lands having residential construction thereon. But according to him,  the Civil Court’s decree which has not become final tries to  equate construction  with abadi  but in the strict sense of  the term  it would  not be  abadi which  would  be covered by  the State  policy of  not acquiring lands having such abadi  as any  stray construction  made on agricultural lands outside  the village  sites reserved  for  putting  up construction of  residential quarters  in villages would not be covered  by the  State policy of not acquiring such abadi lands. He stated that whatever stand NOIDA authorities might have taken  as defendant  in the  suit cannot bind the state authorities. Dr.  Ghatate, learned  senior counsel appearing for the  State of  Uttar Pradesh,  also submitted  that  the State was  not a party to the Civil Court litigation. He, of course, stated  that there is a State policy in existence as on date  under which  genuine abadi  lands on which abadi is situated within  the village  sites may  not be acquired but only  because   there  are   some  stray   construction   so agricultural lands  beyond the  village sites they would not be covered  by such  State policy.  It was also submitted by Shri  Mohta,  learned  senior  counsel  for  NOIDA  and  Dr. Ghatate, learned  senior counsel for State of U.P. that what is necessary  to be seen is whether there was any real abadi on the  lands under  acquisition on  the date  of Section  4 notification dated  05th January,  1991  as  any  subsequent construction put up thereafter by any of the occupants would not create  any equitable  rights in  their favour  and  any subsequent construction  and change  of  user  of  the  land covered by Section 4 notification cannot be of any avail.      In view  of the aforesaid rival contentions, therefore, it appears to us that in the present proceedings arising out of petitions  under Article 226 of the Constitution of India it is not possible to come to a definite conclusion on these highly disputed questions of fact, namely, whether the lands in dispute  were part  of village  site lands  reserved  for construction of  residential houses  and whether  they  were covered by  the term  ’abadi’   so as  to subjected  to  any policy decision  of the State for excluding such abadi lands

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from  acquisition   proceedings.  Even   the   Civil   Court litigation which  is still  subjudice before  the High Court would by  itself not  bind the State authorities as State of U.P. was  not  a  party  to  these  proceedings  as  rightly contended by  learned senior  counsel Dr.  Ghatate. Not only that but  the  High  Court  in  the  impugned  judgment  has referred to  the set of evidence on record and has held that there is  no evidence  showing the extent of construction on the lands. On the other hand, there is a 17- point report by the Tehsildar,  Dadri, which  is Annexure  - 7  to the model counter affidavit  filed by  the State  in which  he clearly pointed  out  that  the  land  sought  to  be  acquired  was agricultural  and   that  only   boundary  wall   had   been constructed in  11 plots.  The High  Court has also observed that in  exercise of the powers under clause (d)  of section 2  read   with  Section   3  of  the  U.P.  Industrial  Area Development Act,  1976 the  notification of 17th April, 1976 was published  to declare  the area  comprising the villages mentioned in the  schedule annexed thereto, to be called the New Okhla  Industrial Development Area. The village chhalera Banger, land  of which  is shown in Khasra entries is one of the villages  comprised in  the schedule.  The submission of the learned  standing Counsel  is that this area was already declared  as  industrial  development  area  and  after  the notification of  1976 was  issued, such  area could not have been converted  into Abadi.  Therefore, a  further  disputed question would  arise as  to whether  the so-called abadi on these lands  sought to  be acquired  out of the agricultural holdings of  the occupants  in village  Chhalera Banger were subjected  to   construction  of   abadi   prior   to   1976 notification  or   subsequent  thereto.   Consequently,   no direction  can   be  issued   to   the   State   authorities straightaway to  release these  lands  from  acquisition  by coming to  a firm finding that there were existing old abadi on these  lands and which were squarely covered by any State policy of not acquiring lands having abadi thereon.      We may  also mention  at this stage that apart from the appellants in  Civil Appeal  arising out  of S.L.P.  (C) No. 20905 of  1995 in  cases of  other appellants no civil suits were filed  and, therefore, in their cases the question even about construction,  if any,  is totally  at large. That the moot question  is whether the lands under acquisition in the present case  were having  abadi at  the time of issuance of Section 4(1)  notification and whether such construction, if any, could  be said  to be  abadi as  covered  by  a  policy decision of  the State of U.P. not to acquire such lands. in fairness to Shri Shanti Bhushan it was submitted by him that we may  not answer this question one way or the other if the appellants are  to be  relegated to  the  remedy  of  filing objections under  Section 5-A  of the  Act. It is, of course true as  found by  us on  point No.  1 that  Section 17 sub- section (4)  was not  rightly invoked  by the authorities in the present cases. However, as will be seen hereafter, while considering point  No.  3,  we  are  not  inclined  to  give opportunity under  Section  5A  to  the  appellants  on  the peculiar facts  of these  cases. All  that we can observe at this stage  is that  the question  whether  the  appellants’ lands are  covered by  any existing  policy decision  of the State of  U.P. for not acquiring lands having abadi thereon, is required  to be kept open for consideration of the proper State authorities,  as will  be indicated  by us hereinafter while considering  point Nos.  3  and  4.  Point  No.  2  is answered accordingly. Point NO. 3.      Now remains  the vital  question as  to whether  in the

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light of  our finding  on point No. 1 the notification under Section 4(1) so far as it dispenses with Section 5-A inquiry by invoking  powers under  Section 17 (4) of the Act and the consequential notification  under Section  6 are required to be set aside or not. We must keep in view that we are called upon to  exercise our  jurisdiction under Article 136 of the constitution of  India. Such  jurisdiction will  necessarily have to be exercised in the light of facts and circumstances of these  cases. Section 4 notification in the present cases is dated  5th January  1991. It  is followed  by  Section  6 notification  dated   7th  January   1992.  In  between  the appellants went  to the  High Court and got status quo order since 31st March 1992.. Result is that till today even after the expiry  of  6  years  and  more,  the  land  acquisition proceedings  qua   the  appellants’   lands  have   remained stagnant. It  is also  to be  kept in view that the impugned notification under  Section 6  of the Act was issued for the purpose of planned development of District Ghaziabad through NOIDA and by the said notification, 496 acres of land spread over hundreds  of plot  numbers have  ben acquired.  Out  of 494.26 acres  of land  under acquisition,  only the  present appellants owning  about 50  acres, making a grievance about acquisition of  their lands  have gone  to the  court. Thus, almost 9/10th  of the  acquired  lands  have  stood  validly acquired under  the land  acquisition proceedings  and  only dispute centers  round 1/10th  of these acquired lands owned by the present appellants. It is a comprehensive project for the further  planned development  in the  district.  We  are informed by  learned senior  counsel Shri  Mohta for  NOIDA, that a  lot  of  construction  work  has  ben  done  on  the undisputed land  under acquisition  and pipelines  and other infrastructure have  been put  up. That  the disputed  lands belonging to  the appellants may have stray complex of lands sought to  be acquired.  That if  notification under Section 4(1) read with Section 17 (4) is set aside qua these pockets of lands then the entire development activity in the complex will come  to a  grinding halt  and that would not be in the interest of  anyone. It was also contended by learned senior counsel for  the respondents that it was not the appellants’ contention that  the proposed acquisition was not for public purpose nor  any mala  fides were alleged to the behind such acquisition. learned  senior counsel,  Shri Shanti  Bhushan, fairly stated  that though the appellants might have mounted a challenge  on the ground of mala fides, they have not done so before  the High Court nor before this Court. Under these circumstances, we  find considerable force in the contention of learned  senior counsel  for the  respondent that  it  is neither  advisable   nor  feasible  to  interfere  with  the acquisition of such large tracts of lands when the occupants of 9/10th  of the  acquired lands have not thought it fit to challenge these acquisition proceedings and the occupants of only 1/10th  of lands  are agitating  there grievance  since more than  six years  firstly before the High court and then before this  Court. The  appellants’ main  grievance centers round the  question whether their lands having alleged abadi could be  acquired in  the light of the State policy for not acquiring such  lands. For  such a  contention,  of  course, grievance could  have been made under Section 5-A inquiry if it was  held. But  that could  have been  urged  years  back before Section  6 notification  saw the  light of the day in 1992. Now  after a  passage of more than six years, it would not be  feasible to  put  the  clock  back  and  permit  the appellants to  agitate this  contention which  appears to be the sole contention for opposing the acquisition proceedings in the facts of the present cases by permitting them to urge

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this grievance  in Section  5-A inquiry  which according  to them should  be held  at this  stage. We will show presently that this  solitary grievance  of the  appellants  could  be vindicated  before   the  State  authorities  themselves  by relegating  the  appellants  to  proper  remedy  by  way  of representation under  Section 48  of the  Act and  when that remedy is  available to  the appellants and when that is the sold grievance  of the  appellants, at  this stage no useful purpose would  be served  by striking  down the notification under Section  4(1) qua  the appellants so far as invocation of  Section   17  (4)   is  concerned   and  the  consequent notification  under   Section  6.   That  we  cannot  permit upsetting the  entire apple cart of acquisition of 500 acres only at  the behest of 1/10th of land owners whose lands are sought to  be acquired. We may also keep in view the further alien fact  that all the appellants have filed reference for additional compensation  under Section  18 of  the Act. Shri Shanti Bhushan,  learned senior  counsel, was  right when he contended that  the appellants could not have taken the risk of getting  their reference  applications time barred during the  pendency   of  these  proceedings.  Therefore,  without prejudice to  their contentions  in the  present proceedings they have  filed such  references. Be  that as it may., that shows that  an award is also made and reference are pending. Under these  circumstances for  enabling the  appellants  to have their  say regarding  release of  their  lands  on  the ground that  they are having abadi and that the State Policy helps  them   in  this  connection  the  appellants  can  be permitted to  have their  grievances voiced before the State authorities under  Section 48  rather than under Section 5-A of the  Act at  such a late stage. Consequently, despite our finding in  favour of  the appellants  on Point No. 1, we do not think  that  this  is  a  fit  case  to  set  aside  the acquisition proceedings  on the plea of the appellants about non-compliance with  Section 5-A  at this  late stage. it is also obvious  that if  on this  point the  notifications are quashed for non-compliance of Section 5-A, that would open a pandora’s box and those occupants who are uptill now sitting on the fence may also get a hint to file further proceedings on the  ground of  discriminatory  treatment  by  the  State authorities. All  these complications  are  required  to  be avoided and hence while considering the question of exercise of our  discretionary jurisdiction  under Article 136 of the Constitution of  India, we  do not  think that this is a fit case for  interference in  the present  proceedings with the impugned notifications.  Point No. 3, therefore, is answered in the  affirmative against  the appellants and in favour of the respondents. Point No. 4      Now remains  the moot question as to what proper orders can be passed in the present proceedings in the light of our findings on the aforesaid points. We have already noted that the real  and the  only contention  of  the  appellants  for effectively challenging  the acquisition proceedings is that because their lands are having abadi they are covered by the existing state  policy for  into acquiring  such lands under the Act.  Whether these  lands are  having abadi or not is a vexed  question   of  fact  which  we  have  kept  open  for consideration  of   appropriate   authorities   instead   of relegating the appellants to the remedy under Section 5-A of the Act.  We deem  it fit  to relegate the appellants to the remedy  by   way  of   suitable  representation  before  the appropriate state  authorities under  Section 48 of the Act. It reads as under:      " 48. Completion of acquisition not

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    compulsory, but  compensation to be      awarded when  not completed.  - (1)      Except in  the case provided for in      Section 36, the Government shall be      at liberty  to  withdraw  from  the      acquisition of  any land  of  which      possession has not been taken.      (2)   Whenever    the    Government      withdraws     from     any     such      acquisition,  the  collector  shall      determine     the     amount     of      compensation  due  for  the  damage      suffered   by    the    owner    in      consequence of the notice or of any      proceedings thereunder,  and  shall      pay  such   amount  to  the  person      interested, together with all costs      reasonably incurred  by him  in the      prosecution  of   the   proceedings      under this Act relating to the said      land.      (3) The  provisions of  Part III of      this Act shall apply, so far as may      be ,  to the  determination of  the      compensation  payable   under  this      section."      As laid  down by  sub-section (1)  of  section  48  the Government is at liberty to withdraw from the acquisition of any land  of which  possession has  not been  taken. Learned senior counsel  of the contesting respondents submitted that possession of  these  lands  has  already  been  taken.  Our attention was invited to a possession receipt annexed to the counter affidavit  filed on  behalf  of  Respondent  No.  4, Secretary, New Okhla Industrial Development Authority. It is stated in  the counter that NOIDA has been put in possession of the  acquired lands  from 30th  March 1992  and the lands under acquisition  now form  a part  of Sectors 43 and 44 of NOIDA.  Secretary   of  New   Okhla  Industrial  Development Authority, Shri  Rama Shankar has also earlier filed counter affidavit to that effect. In para 6 thereof it is averred as under:      " 6.  I further  say an submit that      the   Hon’ble    High   Court    of      Judicature    at    Allahabad    on      31.3.1992 passed  an interim  order      to the  effect that  there would be      status   quo    and/or   that   the      petitioners    would     not     be      dispossessed  from   the  land   in      dispute unless  he has already been      dispossessed. i say and submit that      a day  prior to  the date  on which      the interim  order was  passed, the      Petitioner   had    already    lost      possession and  the 4th  Respondent      was   put    in   actual   physical      possession of the land which is the      subject matter of this petition."      Our  attention   was   also   invited   to   possession certificate at  Page 202  which mentions that for the elands detailed in  the Certificate,  possession should be given to the Tehsildar/Administrative  officer, NOIDA  on 30th  March 1992. Number  of lands  are listed totalling to 492.91 acres wherein appellants’ khasra numbers are also mentioned. It is difficult to appreciate as to how the possession Certificate

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for all  these numbers  of lands  would necessarily  include actual taking  over of  number of  lands on which there were constructions on  the spot  at the relevant time. It is also pertinent to  note that  the possession Certificate is dated 30th March  1992 and  the High  Court of  Allahabad  granted status quo order on the next day, i.e., 31st March 1992. It, therefore, appears  to us  that so  far as  the  appellants’ lands are  concerned, only  an effort was made to take paper possession on  30th March,   1992 and actual possession does not seem to have been taken. No possession receipt signed by any of the appellants could be produced to substantiate that contention. Not only that, as noted earlier, the evidence on record showed  that even pending the writ petition, the Site Inspection Report of 11th March 1996 showed that some of the lands in  question were  actually occupied  by residents and the lands  were constructed  upon and factory was being run. Consequently,  it   is  not   possible  to  agree  with  the submission of  learned senior  counsel for  the  respondents that the  possession of  the acquired lands belonging to the appellants was  actually taken  on the  spot on  30th March, 1992. It  is not in dispute that status quo order granted by the High  Court continued  all throughout till the dismissal of the  writ petition.  It was  them contended  that, before this  Court  could  grant  any  interim  relief,  possession appeared to  have been taken of these lands at least on 18th November 1995.  Our attention  was invited  to the authority letter written  by one  Shri Chandra  Pal Singh,  Additional District Magistrate, Land Acquisition, NOIDA, Ghaziabad that possession should  be given  on 18th  November 1995.  it  is obviously after  the decision  of the  High Court dated 24th August, 1995.  However, it  must be noted that this Court by order dated  29th September,  1995 had  already  granted  ad interim  stay  limited  to  the  extent  that  any  existing construction should  not be  demolished without leave of the court and  that order  has continued all throughout till the hearing of  the present appeals. It is, therefore, difficult to appreciate  as to  how despite  the order  of this Court, possession of  the present appellants’ lands could have been taken on  18th November,  195. However,  Shri Mehta, learned senior counsel for NOIDA submitted that this Court order was only not  to demolish the construction and has nothing to do with taking  possession It  is difficult  to appreciate this submission. If the constructions on the disputed lands under acquisition were  not to  be distributed,  how it  could  be contended that still the possession of the constructions was with Noida and that they would not demolish the construction having  taken   their  possession.   Even  that  apart,  the authority letter  dated 18th November, 1995 itself shows the details lands possession of which was given to NOIDA and the land of  Survey No.  488 is  not one  of them. For all these reasons, therefore,  it must  be held that possession of the lands under  acquisition belonging to the present appellants has remained  with  the  appellants  till  date.  Once  that conclusion is  reached, Section  48 sub-section  (1) can  be legitimately invoked  by the appellants for consideration of the State  authorities. It is, of course, true that the said provision gives  liberty  to  the  State  to  withdraw  form acquisition of  any land  but if  the appellants  are in the position to  convince the State authorities that their lands were  having   abadi  on   the  date   on  which  section  4 notification was issued on 5th January, 1991 and it was that abadi   which   had   continued   without   any   additional construction thereon till the date of Section 6 notification and thereafter  and such  abadi was  squarely covered by the Sate policy  of not  acquiring lands  having abadi,  then it

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will be  open to  the State  authorities to pass appropriate orders for  withdrawing such lands from acquisition and give appropriate  relief   to  the   applicants  concerned.   We, therefore, grant  liberty to  the appellants, if so advised, to   file   written   representations   before   appropriate authorities of  the State  of Uttar  Pradesh invoking  State Government’s powers  under Section 48 Sub-section (1) of the Act. It  is made  clear that  we express  no opinion  on the question whether the appellants’ lands had such abadi on the date of section 4 notification which would attract the State policy of  not acquiring  such lands and whether such policy had  continued   thereafter  at   the  stage  of  Section  6 notification of 7th January, 1992 and whether such policy is still current and operative at the time when the appellants’ representations come  up for  consideration  of  appropriate authorities of the state Government. it will be for the Stat authorities  to   take  their   informed  decision  in  this connection. We  may not  be under  stood to  have stated any thing on  this aspect,  nor are  we suggesting that the Stat must release  these lands  from  acquisition  if  the  State authorities  ar  not  satisfied  about  the  merits  of  the representations. The  State  authorities  will  have  to  be satisfied on the following aspects in this connection: (i)  Whether there  was any  abadi on  the acquired lands at      the time of Section 4(1) notification; (ii) whether such abadi was a legally permissible abadi; (iii) Whether  such abadi  has continued  to exist  till the      date of representation; (iv) Whether such abadi was covered by any Government policy      in force  at the  time  of  issuance  of  Section  4(1)      notification and/or  section  6  notification  for  not      acquiring lands having such abadi; (v)  whether such  Government policy  has continued to be in      force till the date of representation.      In short,  the entire  matter is  left at large for the consideration of  the State  authorities in  the appellants’ representation. We also make it clear that if the appellants file their  written representation  the aforesaid  effect or before 31.8.1998  then the  appropriate authorities  of  the State  Government   shall  consider   their  representations regarding the  feasibility  of  releasing  such  lands  from acquisition under  Section 48(1)  of the  Act on  the ground that there were ’abadis’ on these lands at the relevant time and are  governed by any existing state policy for releasing such lands  from acquisition  on  that  score  as  indicated hereinabove and  for that  purpose they  may give hearing to the appellants,  either personally or through their counsel, and permit  them to lead whatever evidence they want to lead in this  connection. The  State authorities  shall  consider these written  representations within a period of two months from the date such representations are received, i.e. latest by 31.10.1998  and will  take appropriate decisions on these representations  and   will  inform  the  representationists concerned  in  writing  about  the  decision  of  the  State Government in this Connection.      Subject  to   the  aforesaid   liberty  given   to  the appellants, these  appeals will, therefore, stand dismissed. We  may,  however,  state  that  the  status  quo  regrading possession on  spot in connection with the appellants’ lands shall be maintained by all concerned till  30.11.1998 within that   time    the   consideration    of   the   appellants’ representation under  Section 48(1)  of the Act is completed by the  State authorities and result thereof is communicated to the representationists. We also make it clear that if the appellants do  not file  such representations  on or  before

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31.8.1998 the  State authorities  will not  be  required  to consider any  such representation  filed thereafter  and the status quo  order regarding possession as granted by us will stand recalled  after 31.8.1998 qua the concerned appellants who do not file such representations within the time granted by us for the purpose.      Before parting  with the  present  proceedings  we  may mention one  request made  by learned senior counsel Shri K. K.  Venugopal   appearing  for   respondent  No.   5   whose intervention application  was granted  in S.  L. P.  (C) No. 20905 of  1995. Learned  senior  counsel  stated  that  many serious objections are required to be considered against the acquisition of  the eland  of the  intervener and it was his contention that  lands were  acquired for  being allotted to persons closely  related to  the Chairman  and other  powers that be, but as these contentions raise disputed question of fact and as Respondent No. 5 had not filed any writ petition in the  High Court  he may  be given  liberty to  file  writ petition under  Article 226  of the  Constitution  of  India before the  High Court.  The said  request is reasonable. In the present  appeals arising  out of  judgment of  the  High Court in  writ petitions filed by the appellants, Respondent No. 5’s  independent grievance cannot be examined. It would, therefore, be  appropriate  to  relegate  Respondent  No.  5 intervener to  the  remedy  of  filing  a  substantive  writ petition under  Article 226  of the  Constitution  of  India before the  High Court.  The respondent-authorities  had  no objection  to   such  course  being  adopted.  Consequently, Respondent No.  5 -  intervener’s contentions  are not being examined by  us in these proceedings. It is trite to observe that as  and when  Respondent No. 5 files a substantive writ petition under  Article 226  of the  Constitution  of  India before the  High Court  it will  be for  the High  Court  to decide the  merits of  the said  writ petition including the question whether  the writ  petition  at  such  a  stage  is required to  be entertained  or not. In short, we express no opinion on  the merits  of such  writ petition  that may  be filed by  the intervener  - Respondent  No. 5  in  the  High Court. The  Said petition  will have  to be  decided on  its merits including  the question of its maintainability by the High Court after hearing the parties concerned.      In the  result, these  appeals fail  and are dismissed, subject to  eh aforesaid  liberty reserved to the appellants for filing  written representations  under Section  48  sub- section (1)  of the  Act. There will be no order as to costs in the facts an circumstances of the cases. IN THE MATTER OF: