1. Heard Sri V.K. Upadhyay, Senior Advocate assisted by Sri S.K. Tyagi, and Sri Shashi Nandan, Senior Advocate assisted by Sri Saurabh Raj Srivastava, learned counsel for petitioners. Sri Anoop Trivedi, Advocate on behalf of Allahabad Development Authority and learned Standing Counsel for State have submitted their arguments in defence.

2. This writ petition under Article 226 of Constitution of India has been filed questioning notification dated 19th August, 1987 issued, under Section 4(1) of Land Acquisition Act, 1894 (hereinafter referred to as Act, 1894), by State of U.P., proposing to acquire land being Gata No.TT 16, Edmonstone Road, (area 3 bighas 3 biswas 8 dhoors), situate at Civil Station, Pargana Chail, District Allahabad for the purpose of Planned Development Scheme of Allahabad Development Authority (hereinafter referred to as ADA) i.e. for construction of a residential colony. Government dispensed with the compliance of Section 5-A of Act, 1894 in exercise of power under Section 17(4) of Act, 1894. Reason assigned for dispensation is that land is urgently required for construction of residential colony and there is urgency, therefore to eliminate delay likely to be caused by an enquiry under Section 5-A of Act, 1894, the same is dispensed with. Subsequent notification under Section 6 (i) of Act, 1894 was published on 19th October, 1987 which is also under challenge.

3. It is said that aforesaid land i.e. site No.16 (old) (20 new) Edmonstone Road, Allahabad (area 3 bighas 3 biswas 8 dhoors i.e. 9612 sq. Yard) is a Nazul land. A lease was executed by State in the name of one Anwarul Ahsan. Sri Anwarul Ahsan, original lessee mortgaged disputed property to petitioner 1, Sita Ram Jaiswal and late Raja Ram Jaiswal (husband of petitioner 4 and father of petitioners 5, 6 and 7) with permission of Government, granted vide letter No. 4421 dated 24th August, 1958.

4. Sri Anwarul Ahsan fell in bad debts and wanted to sell his lease rights in disputed property in favour of Sita Ram Jaiswal and Raja Ram Jaiswal. Permission was sought from State Government which was granted by Collector, Allahabad vide letter dated 1/3 April, 1962 communicated on 02.06.1962. Lease rights, however, as such could not be transferred by execution of lease deed since one Sri J.C. Malik to whom also Anwarul Ahsan owe some debt, filed Original Suit No.22/26 of 1966 in the court of Civil Judge, Allahabad for recovery of Rs. 57758.36. The said Suit was pending when Anwarul Ahsan, Original Lessee, died on 2nd July, 1967 and his legal heirs substituted therein. Suit was decreed by Civil Judge, Allahabad vide judgment and decree dated 02.12.1968 for recovery of Rs. 97738.83.

5. In the meantime, lease term expired on 07.06.1968.

6. Petitioners Sita Ram Jaiswal and Raja Ram Jaiswal submitted an application on 27th May, 1968 before Collector, Allahabad requesting renewal of lease in their favour.

7. Lease rights of disputed property were put for execution by Civil Court which were purchased by Sri Sita Ram Jaiswal and Sri Raja Ram Jaiswal on 24.07.1972.

8. Thereafter, a letter dated 20.02.1974 was forwarded by aforesaid two purchasers requesting Government to grant lease of disputed site in their favour. Since nothing happened, a reminder sent on 18.05.1976.

9. Thereafter, impugned notifications under Sections 4(1) and 6(1) were issued. Challenging the same present writ petition has been filed.

10. Besides other, petitioners have challenged acquisition on the ground that there was no urgency, hence dispensation of inquiry under Section 5A of Act, 1894 was wholly illegal and a colourable exercise of power. There is no master plan and planned development under U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as Act, 1973) and that land being Nazul cannot be acquired since it is owned by State Government and notifications of acquisition are patently illegal.

11. There is amendment of writ petition, bringing on record some subsequent events which include reference to resolution dated 03.01.1989 of ADA that area of disputed land is too small and it is not possible to carry out project of residential colony thereupon, therefore, possession of disputed land may not be taken. Further, a letter dated 24th April, 1987, sent by Secretary, ADA communicating to one R.R. Kharbanda that a decision for dropping acquisition proceeding has already been conveyed vide Government order dated 5th March, 1990, is also brought on record.

12. Respondents 1 and 2 have filed counter affidavit, sworn by Sri Basant Agrawal, Special Land Acquisition Officer, Allahabad. It is stated therein that ADA vide letter dated 31.07.1986 requested Collector, Allahabad to acquire disputed land. It was urgently required by ADA to fulfil need of fast growing population of city and for Planned Development Scheme at Allahabad. Pursuant thereto, Collector, Allahabad sent a letter dated 14.01.1987 to State Government recommending acquisition proceedings of land in dispute. It was stated therein that land is Nazul, whereof period of lease has already expired. Land is already vested in State. However, superstructure standing thereon is owned by lessee and its acquisition is necessary so that land is made available to ADA.

13. State Government after considering letter sent by Collector, Allahabad, as also requested ADA, proceeded to make acquisition by publishing notifications dated 19.08.1987 and 19.10.1987 under Sections 4(1) and 6(1) of Act, 1894 respectively.

14. Petitioner has challenged both these notifications in the present case and same were stayed vide interim order dated 13.11.1987. On 21st February, 1998, this writ petition was dismissed as infructuous on a statement made by counsel for petitioners. Thereafter the said order was recalled on 26.03.1999.

15. In paragraph 24 of counter affidavit, it is said that Raj Kumar Singh, Deputy Secretary, U.P. Government sent a letter dated 13/17th March, 1999 stating therein that Department of Law has treated Sita Ram Jaiswal, as ex-lessee, in view of sale certificate dated 27.09.1972 issued by Civil Judge, Allahabad. The aforesaid ex-lessee if pays lease rent from the date of expiry of lease till date, further proceeding for free hold may be initiated as per Nazul policy. It is said that acquisition proceedings are different and that would not effect the proceedings of free hold.

16. Thereafter, another letter was issued on 2nd June, 2006 by Sri K.L. Meena, Secretary, U.P. Govt., directing Collector, Allahabad to proceed to take step for free hold of disputed land since Government finds no reason to review its earlier order dated 30th March, 1999.

17. Thereafter vide registered deed of free hold, dated 29th December, 2007, a part of land being 2442 sq. mtr, has been made free hold. Details of land which has been made free hold, mentioned at the bottom of deed of free hold reads as under;

LANGUAGE

Nazul plot no. TT/2, Civil Stations sub-part no. TT/2/C, Allahabad having area of 2442 square metres, which is shown in red in the enclosed map and has boundaries as under:

East-Nazul plot no. TT/1, Civil Station

West-Cooper Road

North-Nazul plot with another number

South-Remaining part of Nazul plot no. TT/2, Civil Station

(English translation by Court)

18. It is said that ADA, vide letter dated 01.08.2011, informed Principal Secretary, Urban Planning, U.P. Govt. that acquisition would not be viable for proposed project but subsequently vide letters dated 06.06.2013, 13.03.2014 and 14/15.07.2014, it has requested that land in question be not denotified. It is stated that since acquisition notifications were stayed by Court, therefore, no further proceedings under Act, 1894 could be taken.

19. On behalf of ADA, counter affidavit has been filed, sworn by Sri Pushkar Srivastava, Tehsildar, ADA. It is said that site falls in the area marked Residential as per master plan of Allahabad which is in force since October, 1971. The disputed site consists of mostly barren land, dilapidated, uninhabited bungalow, therefore, suitable for construction of housing units by ADA. Government approved master plan for Allahabad vide notification dated 9th October, 1973 under U.P. (Regulation of Building Operations) Act, 1958 (hereinafter referred to as Act, 1958). Dispensation of inquiry under Section 5-A of Act was justified since housing requirement was urgent. Petitioners are not lease holders of disputed land and in any case would be entitled for due compensation. Notification dated 10.03.1987 issued under Section 4 was published in two daily newspapers Prayagraj Times and Dainik Jagran, on 11.09.1987, preceded by beating of drums and affixation of notice in the locality on 10.09.1987. Notification under Section 6 was also published in daily newspapers Amrit Prabhat on 17.10.1987 and Aaj on 28.10.1987.

20. There is a supplementary counter affidavit on behalf of ADA, sworn by Sri. D.S. Upadhyay, Joint Secretary, ADA on 13th August, 2012, stating therein that new acquisition policy is not applicable to acquisition in dispute which was initiated in 1987.

21. There is an affidavit of Sri Sheo Janam Chowdhary, Joint Secretary, Department of Housing and Urban Planning, U.P. Govt. sworn on 22.05.2014, stating that ADA vide letter dated 01.08.2011 informed Government that land in question is not viable for its proposed project. However a different stand was conveyed vide subsequent letter dated 06.06.2013. Then again vide letter dated 13.03.2014, ADA communicated to Government that in view of provisions of new Act, if compensation is paid thereunder then project would not be viable. In view of variance in stand, Government issued a general letter dated 24.03.2014 directing all Vice-Chairmen of Development Authorities etc. to give complete information of all pending matters and also take steps for expeditious disposal of pending cases.

22. There is rejoinder affidavit and supplementary rejoinder affidavit wherein we do not find anything of much substance and wherever necessary we may refer the same hereinafter.

23. Substantial question for consideration in writ petition is "whether impugned notifications under Sections 4 and 6 are valid in law" and "whether dispensation of inquiry under Section 5-A of Act, 1897 is justified".

24. Before proceeding further we have no hesitation in observing that here is a case where a prime property situated in the midst of city and most prominent place i.e. Civil Line of Allahabad City has been dealt with by State Government and ADA and its officers in a most indiscreet manner, some times giving a clear indication to the court that action on part of authority at different level is not bona fide but for other reason.

25. The status of land as Nazul is not disputed. Initially disputed plot was numbered as Nazul Plot No.TT/1 having an area of 3 acre. Vide lease dated 08.06.1868, Secretary of State for India in Council granted lease deed in favour of Sri Lal Gaya Prasad for a period of 50 years. Subsequently, another lease was executed on 21.07.1920 by Secretary of State of India in Council in favour of Musmat Mariam Begum which was registered in the office of Sub-Registrar, Chail, Allahabad on 19th November 1920 whereby Nazul plot No. TT-16, Civil Station at 14 and 16, Edmonstan Road, Allahabad area 2 acres 4738 sq. yard was let out to Smt. Mariam Begum for a period of 50 years. This lease was given effect from 08.06.1918, and therefore, period of lease was to expire on 07.06.1968.

26. Smt. Maria Begum died in 1944 and after her death 2/3 part of Nazul land comprising of one acre 4172 sq. yard came in share of her son, Anwarul Ahsan, numbered as Nazul plot No. TT/2 and was registered in Nazul Register accordingly. The remaining part comprising of 4806 sq. yard came to the share of Nazima Begum, daughter of Mariam Begum and was numbered as TT/1. Mr. Anwarul Ahsan sought permission to transfer Nazul rights in favour of Sita Ram Jaiswal and Raja Ram Jaiswal vide application dated 16.06.1961 which permission was granted vide order dated 1/3.04.1962 but such transfer was not actually given effect to. Anwarul Ahsan died on 02.07.1967 leaving his legal heirs namely widow Smt. Akhtar Begum and son Mohd. Zaiul Hasan whose names were entered in Nazul State Register

27. Pursuant to a decree passed in Original Suit No. 22/26 of 1966, sale certificate in respect to Nazul plot No.TT/2 was issued by Civil Judge, Allahabad on 27.09.1972 in favour of Sita Ram Jaiswal and Raja Ram Jaiswal. They became purchaser lessee of aforesaid land. Raja Ram Jaiswal died on 23.02.1975 leaving his legal heirs namely Smt. Sushil Devi Jaiswal (widow), Jai Krishna Jaiswal and Shree Krishna Jaiswal, (sons) and Smt. Prabha Kumari Jaiswal (daughter). They submitted an application for making free hold a part of Nazul Land No. TT/2, Civil Station, Allahabad area 2442 sq. yard and that was allowed. A deed of free hold was executed on 29th December, 2007.

28. However, acquisition notification which has been issued, covers entire area of the total plot i.e. 3 bighas 10 biswas 8 dhoors (10590.05 sq. yard).

29. First flaw in acquisition notifications is that land in question being a Nazul land, already vested in State, and therefore State Government could not have acquired the same. Only lease rights of any occupier/occupant and if there existed any superstructure, the same could have been acquired but land being in ownership of State already, could not have been acquired by State itself.

30. There appears to be some confusion with respect to meaning of term Nazul and it appears that authorities are not very clear as to what Nazul is. It could be convenient for us to refer from a judgement of Special Bench (in which one of us Sudhir Agarwal, J. was member) rendered in Sunni Central Board of Waqfs v. Sri Gopal Singh Visharad and others, 2010 ADJ (1) SFB) (LB) wherein "what a Nazul land is" has been considered in detail and this Court in majority judgment (of Sudhir Agarwal, J.) has observed as under:

"4430. In the Legal Glossary 1992, fifth edition, published by the Legal Department of the Government of India at page 589, the meaning of the word "Nazul" has been given as "Rajbhoomi i.e. Government land". It is an Arabic word and it refers to a land annexed to Crown. During the British Regime, immoveable property of individuals, Zamindars, Nawabs and Rajas when confiscated for one or the other reason, it was termed as "Nazul property". The reason being that neither it was acquired nor purchased after making payment. In the old record, we are told when they used to be written in Urdu, this kind of land was shown as "Jaidad Munzabta".

4431. For dealing with such property under the authority of the Lt. Governor of North Western provinces, two orders were issued in October, 1846 and October, 1848 wherein after the words "Nazul property" its english meaning was given as "Escheats to the Government". Sadar Board of Revenue on 20th May, 1845 issued a circular order in reference to Nazul land and in para 2 thereof it mentioned "The Government is the proprietor of those land and no valid title to them can be derived but from the Government." The Nazul land was also termed as confiscated estate. Under circular dated 13th July, 1859, issued by the Government of North Western Provinces, every Commissioner was obliged to keep a final confiscation statement of each district and lay it before the Government for orders. The kingdom of Oudh was annexed by East India Company in 1856. It declared the entire land as vested in the Government and thereafter settled the land to various individuals Zamindars, Nawabs etc.

4432. At Lucknow revolt against the British Company broke up in May, 1857 which is known as the first war of independence which very quickly angle a substantial part of north western provinces. After failure of the above revolution, the then Governor General Lord Canning on 15th May, 1858 issued a proclamation confiscating propriety rights in the soil with the exception of five or six persons who had given support and assistance to British Officers. This land was resettled first for a period of three years and then permanent propriety rights were given to certain Talukdars and Zamindars by grant of Sanad under Crown Grants Act. In the meantime we all know that under the Government of India Act, 1858 the entire Indian Territory under the Control of East India Company was placed under Crown w.e.f. First November, 1858. A kind of first settlement in summary we undergone in Oudh in 1861 wherein it appears that the land in dispute was shown as Nazul and since then in the records, the nature of land is continuously being mentioned as Nazul.

4435. The claim of the muslim parties is that the entire territory which came in the control of Babar after defeating Ibrahim Lodhi and others became his land since king was the owner of the land and no system of private ownership was recognised and therefore, he was at liberty to direct for any kind of construction on such land and the land could not have been treated to be owned by any private individual or anyone else.

4436. Let us consider this aspect also in the context of the theory of Nazul. Such kind of land cannot be a Nazul land. If the entire territory during Mughal regime would that of a king, as soon as the territory annexation or otherwise changed its hand with the East India Company, they would have entered into the shoes of the Mughal king and got the same rights, obligations, privileges etc. on the land. The status of the land would not have changed in such a manner. Such a land could not be confiscated since it was already the land of the king but when a proclamation was issued for confiscating the land, meaning thereby the East India Company or the British Government did not follow the same principle. In our view, in such a matter, even the doctrine of "escheat" or "bona vacantia" may not be applicable.

4437. The question as to who could have been owner of the land in 1528 AD when alleged that the disputed building was constructed by Babar through his Commander Mir Baqi, the concept sought to be canvassed is that law, whether Islam or Hindu Shastras, do not recognise any personal right of ownership upon immoveable property. The entire property within the suzerainty of the king belong to him, who had right to tax its subject in the form of tax or otherwise by realising share in the agricultural or other income in the immoveable property. The percentage of share may differ and that may not be relevant for our purpose.

4438. The second aspect of the matter is that since ancient time the right of ownership proceeded with possession and is recognised by the well known principle "possession follows title". The individual right of ownership therefore was well recognised in the various personal laws and the only right the king had to acquire the land in known valid means, namely by purchase or gift etc. The obligation upon the king is to protect the subject and his property from enemies and for that purpose he used to raise revenue from the subject in the form of tax and/ or share from the income of the property etc. It is said that the King, by virtue of its authority, was not the sole owner of the entire immoveable property within his suzerainty but though the immoveable property was subject to his suzerainty, the individual right of the owner on the property continued to be recognised. Besides, the fact that the land could have been acquired by the king by valid means like purchase, gift etc., meaning thereby other modes of acquisition of immoveable property by King existed otherwise no private owner of the land in question would have been there within his suzerainty.

4439. The learned counsel for the parties in this aspect referred to the doctrine of Escheat/bona vacantia. We find that the right of the King to take property by escheat or as bona vacantia was recognised by common law of England. Escheat property was the lords right of re-entry on real property held by a tenant dying intestate without lawful heirs. It was an incident, of feudal tenure and based on the want of a tenant to perform the feudal services. On the tenant dying intestate without leaving any lawful heirs, his estate came to an end and the lord was in by his own right and not by way of succession or inheritance from the tenant to re-enter the real property as owner. In most of the cases the land escheated to the Crown as the lord paramount, in view of the gradual elimination of intermediate or mesne lords since 1290 AD. The Crown takes as bona vacantia goods in which no one else can claim property. In Dyke v. Walford 5 Moore PC 434 : 496-13 ER 557 (580) it was said "it is the right of the Crown to bona vacantia to property which has no other owner." The right of the Crown to take as bona vacantia extends to personal property of every kind. Giving a notice at this stage that the escheat of real property of an intestate dying without heirs was abolished in 1925 and the Crown cannot take its property as bona vacantia. The principle of acquisition of property by escheat i.e right of the Government to take on property by escheat or bona vacantia for want of a rightful owner was enforced in the Indian territory during the period of East India Company by virtue of statute 16 and 17 Victoriae, C. 95, Section 27.

4440. We may recollect having gone through the history that several estates were taken over by British Company by applying the doctrine of lapse like Jhansi which was another kind of the above two principles. The above provisions had continued by virtue of Section 54 of Government of India Act, 1858, Section 20(3)(iii) of Government of India Act, 1915 and Section 174 of the Government of India Act, 1935. After the enactment of the Constitution of independent India, Article 296 now provides :

"Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union."

4441. The Apex Court in Pierce Leslie and Co. Ltd. (supra) has considered the above principles in the context of sovereign India as it stands under its constitution after independence and has observed that "in this country the Government takes by escheat immoveable as well as moveable property for want of an heir or successor. In this country escheat is not based on artificial rules of common law and is not an incident of feudal tenure. It is an incident of sovereignty and rests on the principle of ultimate ownership by the State of all property within its jurisdiction."

4442. The Apex Court placed reliance on Collector of Masulipatam v. C. Vencata Narainapah , 8 MIA 500, 525; Ranee Sonet Kowar v. Mirza Himmut Bahadoor, (2) LR 3 IA 92, 101, Bombay Dyeing & Manufacturing Co. v. State of Bombay, (1958) SCR 1122 [LQ/SC/1957/141] , 1146, Legal Remembrancer v. Corporation of Calcutta, (1967) 2 SCR 170 [LQ/SC/1966/303] , 204.

4443. The Judicial Committee in Cook v. Sprigg, 1899 AC 572 discussing what is an act of state, observed :

"The taking possession by Her Majesty, whether by cession or by any other means by which sovereignty can be acquired, was an act of State."

4444. This decision has been followed in Raja Rajinder Chand v. Mst. Sukhi and others, AIR 1957 S.C. 286.

4445. In Vajesingji Joravarsingji v. Secretary of State, AIR 1924 PC 216 [LQ/PC/1924/50] , Lord Dunedin said :

"When a territory is acquired by a sovereign State for the first time, that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing."

4446. In Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income-tax, AIR 1958 SC 816 [LQ/SC/1958/66] , the Court said :

"The expression act of State is, it is scarcely necessary to say, not limited to hostile action between rulers resulting in the occupation of territories. It includes all acquisitions of territory by a sovereign State for the first time, whether it be by conquest or cession."

4447. In Promod Chandra Deb v. State of Orissa, AIR 1962 SC 1288 [LQ/SC/1961/340] , the Court said, " Act of State is the taking over of sovereign powers by a State in respect of territory which was not till then a part of its territory, either by conquest, treaty or cession, or otherwise."

4448. To the same effect was the view taken by the Constitution Bench in Amarsarjit Singh v. State of Punjab, AIR 1962 SC 1305 [LQ/SC/1962/80] in para 12 as under :

"It is settled law that conquest is not the only mode by which one State can acquire sovereignty over the territories belonging to another State, and that the same result can be achieved in any other mode which has the effect of establishing its sovereignty."

4449. In Thakur Amar Singhji v. State of Rajasthan, AIR 1955 SC 504 [LQ/SC/1955/39] , in para 40, the Court said :

"The status of a person must be either that of a sovereign or a subject. There is no tertium quid. The law does not recognise an intermediate status of a person being partly a sovereign and partly a subject and when once it is admitted that the Bhomicharas had acknowledged the sovereignty of Jodhpur their status can only be that of a subject. A subject might occupy an exalted position and enjoy special privileges, but he is none the less a subject ..."

4450. In State of Rajasthan and Others v. Sajjanlal Panjawat and Others, AIR 1975 SC 706 [LQ/SC/1973/404] it was held that the Rules of the erstwhile Indian States exercised sovereign powers, legislative, executive and judicial. Their firmans were laws which could not be challenged prior to the Constitution. The Court relied on its earlier two decisions in Director of Endowments, Govt. of Hyderabad v. Akram Ali, AIR 1956 SC 60 [LQ/SC/1955/48] , and Sarwarlal v. State of Hyderabad, AIR 1960 SC 862 [LQ/SC/1960/80] .

4451. In Promod Chandra Deb v. State of Orissa, A.I.R. 1962 S.C. 1288 "act of the State" was explained in the following words:

"an "act of State" may be the taking over of sovereign powers either by conquest or by treaty or by cession or otherwise. It may have happened on a particular date by a public declaration or proclamation, or it may have been the result of a historical process spread over many years, and sovereign powers including the right to legislate in that territory and to administer it may be acquired without the territory itself merging in the new State."

4452. This decision has been followed later on in Biswambhar Singh & Anr. v. The State of Orissa & Ors., 1964(1) SCC 364.

31. This Court has also followed and reiterated above in Second Appeal No.970 of 1982, U.P. Gandhi Smarak Nidhi v. Aziz Mian along with other connected appeals, decided on 08.02.2013 reported in 2013 (4) ALJ 149.

32. Thus Nazul is a land vested in State for any reason whatsoever that is cession or escheat or bona vacantia, for want of rightful owner or for any other reasons and once land belong to State, it will be difficult to assume that State would acquire its own land.

33. Petitioners have also relied on certain authorities in support of above submissions and we find their submissions duly fortified by these authorities.

34. In Sharda Devi v. State of Bihar and another, 2003 (3) SCC 128 [LQ/SC/2003/11] , Court has said "the State does not acquire its own land for it is futile to exercise the power of eminent domain for acquiring rights in the land, which had already vests in the State. It would be absurdity to comprehend the provisions of Land Acquisition Act being applicable to such land wherein ownership or the entirety of rights already vests in State. In other words, land owned by State on which there are no private rights or encumbrances is beyond the preview of provisions of Land Acquisition Act."

(Emphasis added)

35. In Collector of Bombay v. Nusserwanji Rattanji Mistri, (1996) 10 SCC 150 [LQ/SC/1996/980] , it was held that "under the provision of Land Acquisition Act, Government acquires the sum total of all private interests subsisting in them. If Government has itself an interest in land, it has only to acquire other interest outstanding thereof so that it might be in a position to pass it on absolutely for public user." (emphasis added)

36. In Secretary of State v. Narain Khanna, AIR 1942 Privy Council 35, it was held "where Government acquires any property consisting of land and buildings, and where land was the subject matter of Government grant, subject to power of resumption by Government at any time on giving one months notice, then compensation was payable only in respect of such buildings as may have been authorised to be erected and not in respect of land."

(Emphasis added)

37. A Division Bench of Judicial Commissioner in Md. Wajeeh Mirza v. Secretary of State for India in Council AIR 1921 Oudh 31, said "when Government itself claims to be owner of the land, there can be no question of its acquisition and the provisions of the Land Acquisition Act cannot be applicable. This opinion expressed by Judicial Commissioner has been approved in Sharda Devi v. State of Bihar and another (supra). Court reiterate in Sharda Devi v. State of Bihar and another (supra) that land or an interest in land pre-owned by State cannot be subject-matter of acquisition by State. If the land in question is Government land, there is no question of initiating proceedings of acquisition at all. Government would not acquire the land, which already vests in it.

38. In State of U.P. and another v. Lalji Tandon (dead) through Legal Representatives, (2004 (1) SCC 1 [LQ/SC/2003/1096 ;] ">(2004 (1) SCC 1 [LQ/SC/2003/1096 ;] [LQ/SC/2003/1096 ;] ) referring to the decision in Sharda Devi v. State of Bihar (supra), court said "the notification and declaration under Sections 4 and 6 of the Land Acquisition Act for acquisition of the land i.e. the site below the bungalow are meaningless. It would have been different if the State would have proposed the acquisition of lease hold rights and/or the superstructure standing thereon, as the case may. But that has not been done."

39. In Ahmad Borthers v. State of M.P. and another, 2005 (1) SCC 545 [LQ/SC/2004/1312 ;] ">2005 (1) SCC 545 [LQ/SC/2004/1312 ;] [LQ/SC/2004/1312 ;] , Court said " if the state was owner of the land in question, there was no reason to acquire its own land".

Harish Tandon v. State of U.P. and another reported in 2006 (4) ADJ 415(All)(DB)this Court has referred to definition and meaning of Nazul as contained in Nazul manual which is a compilation of Executive Orders dealing with Nazul and said as under:

"Nazul means any land or building which, being the property of Government is not administered as a State property under the control of the Land Reforms Commissioner, or the forest, or the Irrigation Department, or is not under the control of the Military, Postal, Telegraph, Railway or other purely Central Government Department."

40. Court has relied on Sharda Devi v. State of Bihar and another (supra) to observe that Government cannot acquire its own land or the land which already vests in it.

41. Examining acquisition notifications assailed in this writ petition, we find that though Collector made recommendation that land being Nazul, the lease rights and other existing rights thereon of private parties need be acquired but notifications issued under Sections 4 and 6 show that the same proposed to acquire land itself, details whereof are given in said notifications. In view of law laid down in the State of U.P. v. Lalji Tandon (supra) the aforesaid acquisition notifications, therefore, cannot be held valid hence are bad in law.

42. Now we come to second question, whether there existed circumstances so as to dispense with inquiry under Section 5A by invoking provision of Section 17 of Act, 1894. The only reason given is that land was required for housing scheme which was in public interest and construction of house was an urgent need. In this regard, we may refer to a few dates which we have already discussed in detail above.

43. ADA made request to Collector, Allahabad for acquisition of land on 31.07.1986. Collector took about four months time in sending recommendation to Government for acquisition vide letter dated 14.01.1987. State Government then took 7 months and more time in publishing initial notification under Section 4 on 19.08.1987 and this exercise, therefore, had taken more than a year in its entirety. If a few weeks or one or two months would have been taken in making inquiry under Section 5A of Act, 1894, we do not find as to what prejudice it would have caused to respondents. When respondents could have availed luxury in completing process of request and initial notification extending to 13 months, we find it difficult to hold that there was such an urgency so as to invoke exceptional power under Section 17 and dispense with inquiry under Section 5A. Time and again, it has been held that inquiry under Section 5A should not be dispensed with lightly.

44. In the above factual background, we proceed to consider, "whether dispensation of enquiry under Section 5-A of Act, 1894 by invoking urgency clause under Section 17 of Act, 1894 is justified".

45. Section 5-A was inserted in Act, 1894 as long back as in 1923, by Act No. 38 of 1923. There are minor amendments made subsequently but substance of provision has remain the same.

46. Normal procedure of acquisition is that a proposal of acquisition is published in notification under Section 4 of Act, 1894. Land owners whose land is proposed to be acquired, are given an opportunity to make their objections. Collector is under an obligation to consider objections and also offer an opportunity of hearing to objectors and thereafter submit a report to Government containing his recommendations on the objections, for decision of Government. After considering the report and other material, Government makes declaration that land is proposed to be acquired for public purpose and this is done by publication of notification under Section 6. Therefore, there is possibility of some difference in details of land stated in the notification issued under Section 4 and finally declared land, as acquired for public purpose, detailed in notification under Section 6.

47. Collector is then authorised to take order for acquisition and under Section 8 is supposed to mark, measure and plan the acquired land. A notice thereafter is issued under Section 9 to Land Owners by Collector notifying his intention of taking possession of land and that the claim for compensation be submitted to him. Under Section 11, Collector makes enquiry for determining amount of compensation payable to land owners, whose land has been acquired, and make award. After payment of compensation, Collector takes possession of land.

48. There is an exception to normal procedure of taking possession which is contained in Section 17 of Act 1894. It says that in case of urgency, even though no award has been made, Government can direct Collector to take possession of any land, needed for public purpose, and on such possession being taken by Collector, land shall vest absolutely with the Government free from all encumbrances. Section 17(4) provides, where such urgency for the purpose of possession is to be acted upon, Government, shall declare that provision of Section 5-A shall not apply.

49. The circumstances, when Government would be justified to dispense with enquiry under Section 5-A while invoking urgency clause under Section 17, for the purpose of taking possession, have been considered in a catena of decisions in last several decades and it would be useful to refer some relevant authorities in this regard.

50. Right to file objection against proposal of acquisition of land published under Section 4 is a substantial right, consistent with principle of natural justice, since forcibly acquisition of land, without consent of land owners, is a serious matter.

51. In Nandeshwar Prasad v. U.P. Government, AIR 1964 SC 1217 [LQ/SC/1963/132] , Court said "the right to file objection under Section 5-A is a substantial right when a persons property is being threatened with acquisition and we cannot accept that right can be taken away as if by a side wind".

52. In Munshi Singh and others v. Union of India, (1973) 2 SCC 337 [LQ/SC/1972/384] , which is a decision of three judges bench, Court stressed upon and emphasised upon an inbuilt legislative recognition of principal of natural justice in Section 5-A and said "Sub-section (2) of Section 5-A makes it obligatory on the Collector to give an objector an opportunity of being heard. After hearing all objections and making further inquiry he is to make a report to the appropriate Government containing his recommendation on the objections. ..... The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5-A".

53. In State of Punjab v. Gurnail Singh and others, 1980 (1) SCC 471, it was held that it is fundamental that compulsory taking of a mans property is a serious matter and smaller the man, more serious the matter. Hearing him before depriving him is both reasonable and preemptive of arbitrariness. Denial of this administrative fairness is constitutional anathema except for good reasons. Save in real urgency where public interest does not brook even the minimum time needed to give a hearing, land acquisition authorities should not, having regard to Articles 14, burke an enquiry under Section 17 of Act, 1894. A slumbering process, pending for years and suddenly exciting itself into immediate forcible taking, makes travesty of emergency power.

54. In Shyam Nandan Prasad and others v. State of Bihar and others, (1993) 4 SCC 255 [LQ/SC/1993/614] reiterating that section 5-A is mandatory, Court said "the proceeding before the Collector is a blend of public and individual enquiry".

55. In Union of India and others v. Mukesh Hans (2004) 8 SCC 14 [LQ/SC/2004/1060] , Court held that Section 17(4) is an exception to normal mode of acquisition. Mere existence of urgency or unforeseen emergency by itself is not sufficient to direct for dispensation of Section 5-A. Court reiterated that there must be real existing emergency for which an opinion must be formed by the Government, objectively. Court said "It requires an opinion to be formed by concerned Government that along with existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A enquiry, which indicates that the legislature intended that the appropriate Government to apply its mind before dispensing with Section 5-A enquiry. It also indicates the mere existence of an urgency under Section 17 (1) or unforeseen emergency under Section 17 (2) would not by itself be sufficient for dispensing with Section 5-A enquiry. If that was not the intention of the legislature then the latter part of subsection (4) of Section 17 would not have been necessary and the legislature in Section 17 (1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A enquiry will be dispensed with, but then that is not language of the Section which, in our opinion, requires the appropriate Government to further consider the need for dispensing with Section 5-A enquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does not mean that in every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5-A enquiry. .... There is need for application of mind by appropriate Government that such an urgency for dispensing of Section 5-A enquiry is inherent ........ ."

56. In Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai & Ors., (2005) 7 SCC 627 [LQ/SC/2005/944] it was held that the provisions of Section 5-A of Act, 1894 must be read consistent with Article 300-A of the Constitution and it is akin to fundamental right of procedure before depriving a persons of his land, and must be strictly complied with.

57. In Essco Fabs Pvt. Ltd. & Anr. v. State of Haryana & Anr., (2009) 2 SCC 377 [LQ/SC/2008/2254] it was held that enquiry should not be dispensed with lightly.

58. In Anand Singh and another v. State of U.P. and others, (2010) 11 SCC 242 [LQ/SC/2010/745] Court considered as to when State would be justified in invoking power under Section 17(4) for acquisition of land and dispensing with enquiry under Section 5-A so as to take possession immediately. It is said that power under Section 17 is not to be exercised in a routine manner. It would be justified only when circumstances warrant immediate possession. It should not be lightly invoked. It is an exceptional power enabling land acquiring body to dispense with enquiry under Section 5-A. Government must apply its mind before dispensing with enquiry under Section 5-A whether urgency is of such a nature that justifies elimination of summary enquiry under Section 5-A. The mere mention of words in acquisition notification that Government is satisfied about urgency and dispensing with enquiry under Section 5-A may raise a presumption in favour of Government with per-requisite conditions for exercise of such power are satisfied but when challenged, Government has to produce relevant material before Court to show existence of such circumstances, which justify dispensation of inquiry and avail an exceptional power under Section 17. Court further said "upon challenge being made to the use of power under Section 17 the Government must produce appropriate material before the Court that the opinion for dispensing with enquiry under Section 5-A has been formed by the Government after due application of mind on the material placed before it".

59. With regard to judicial review of exercise of power, Court in Anand Singh and another (Supra) further said in paras 45, 46, 47 and 48 as under :

"45. It is true that power conferred upon the Government under Section 17 is administrative and its opinion is entitled to due weight, but in a case where the opinion is formed regarding the urgency based on considerations not germane to the purpose, the judicial review of such administrative decision may become necessary."

"46. As to in what circumstances the power of emergency can be invoked are specified in Section 17 (2) but circumstances necessitating invocation of urgency under Section 17(1) are not stated in the provision itself. Generally speaking, the development of an area (for residential purposes) or a planned development of city, takes many years if not decades and, therefore, there is no reason why summary enquiry as contemplated under Section 5-A may not be held and objections of land owners/persons interested may not be considered. In many cases on general assumption, likely delay in completion of enquiry under Section 5-A is set up as a reason for invocation of extraordinary power in dispensing with the enquiry little realising that an important and valuable right of the person interested in the land is being taken away and with some effort enquiry could always be completed expeditiously."

47. The special provision has been made in Section 17 to eliminate enquiry under Section 5-A in deserving and cases of real urgency. The Government has to apply its mind on the aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5-A. We have already noticed few decisions of this Court. There is conflict of view in the two decisions of this Court viz.; Narayan Govind Gavate and Pista Devi. In Om Prakash this Court held that decision in Pista Devi must be confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate. We agree."

"48. As regards the issue whether pre-notification and post-notification delay would render the invocation of urgency power void, again the case law is not consistent. The view of this Court has differed on this aspect due to different fact-situation prevailing in those cases. In our opinion such delay will have material bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the appropriate Government before the court justifying that urgency was of such nature that necessitated elimination of enquiry under Section 5-A." (emphasis added)

60. In Radhe Shyam (Dead) through Lrs. and others v. State of U.P. and others, 2011(5) SCC 553 it was reiterated that property of a citizen cannot be acquired by State without complying with the mandate of Sections 4, 5-A and 6 of Act, 1894. A public purpose however, loudable would not entitle Government to invoke urgency provisions, since the same have the effect of depriving owner of his right to property and that too without being heard. Only in a case of real urgency, Government would be justified in invoking urgency provisions. Section 17 must have been invoked only when purpose of acquisition cannot brook the delay of even few weeks or months. The authority must be fully satisfied that time of few weeks or months likely to be taken in conducting enquiry under Section 5-A shall, in all probability, frustrate the public purpose for which land is proposed to be acquired. Satisfaction of Government on issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and can be challenged on the ground that authority did not apply its mind to relevant factors, and on record, there is no material justifying existence of alleged urgency. It also held that exercise of power under Section 17(1) necessarily does not result in exclusion of Section 5-A, inasmuch as, the person concerned can file objection and is entitled to be heard in support of his objection. The use of word "may" in sub-Section (4) of Section 17 shows that it merely enables Government to direct that Section 5-A would not apply to the cases covered under Sections (1) or (2) of Section 17. Therefore, mere fact that certain purposes may be treated as public purpose for purpose of acquisition but that by itself would not mean that their exists urgency to dispense with inquiry unless the circumstances actually and really are in existence to show that delay in taking possession would be adverse to public interest. It also held that Court can take judicial notice of the fact that planning, execution and implementation of scheme relating to development of residential, commercial and industrial or institutional areas, Government takes few years, therefore, in such cases private property should not be acquired by invoking urgency clause as denial of Rule of audi alteram partem embodied in Section 5-A is not at all warranted in such cases.

61. In Darshan Lal Nagpal (Dead) By Lrs. v. Govt. of NCT of Delhi and others, (2012) 2 SCC 327 [LQ/SC/2012/7] after having retrospection of some of authorities on the subject, Court in para 28 of the judgment, stated as under :

"What needs to be emphasised is that although in exercise of the power of eminent domain, the State can acquire the private property for public purpose, it must be remembered that compulsory acquisition of the property belonging to a private individual is a serious matter and has grave repercussions on his Constitutional right of not being deprived of his property without the sanction of law Article 300-A and the legal rights.Therefore, the State must exercise this power with great care and circumspection. At times, compulsory acquisition of land is likely to make the owner landless. The degree of care required to be taken by the State is greater when the power of compulsory acquisition of private land is exercised by invoking the provisions like the one contained in Section 17 of the Act because that results in depriving the owner of his property without being afforded an opportunity of hearing."

(emphasis added)

62. In Union of India and others v. Shiv Raj and others, 2014 (6) SCC 564 [LQ/SC/2014/546] , Court in para 15 said that Section 5-A confers a valuable right on the owner of land and it is not an empty formality. It is a substantive right, which can be taken away only for good and valid reasons and within the limitations prescribed under Section 17(4) of Act, 1894.

63. Considering the facts of this case as discussed above and also exposition of law, we are satisfied that there existed no such urgency so as to justify exercise of power under Section 17 for dispensation with inquiry under Section 5A of Act, 1894 and impugned notifications, therefore, in so far as inquiry under Section 5A has been dispensed with, are vitiated in law.

64. Though in written submissions already filed by petitioners, they have raised three more grounds namely discrimination, non-publishing of notices in newspapers having wide circulation and that purpose would not be achieved by acquisition of impugned land in dispute but during course of oral arguments advanced in Court, only these two issues have been framed, hence it is not necessary to look into other ground taken in written arguments.

65. In the result, writ petition is allowed. Notifications dated 19th August, 1987 and 19th October, 1987 are set aside, so far as the same pertain to petitioners land. Petitioners shall be entitled to cost, which we quantify to Rs. 25,000/-.