Punjab-Haryana High Court
Karambir Rathi And Others vs State Of Haryana And Others on 12 July, 2013
Author: G.S. Sandhawalia
Bench: Ajay Kumar Mittal, G.S. Sandhawalia
CWP No. 7858 of 2011 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No. 7858 of 2011
Date of Decision:- July 12th, 2013
Karambir Rathi and others ..............PETITIONER(S)
vs.
State of Haryana and others ...........RESPONDENT(S)
AND
CWP No. 9962 of 2011
Nafe Singh Rathee and others ..............PETITIONER(S)
vs.
State of Haryana and others ...........RESPONDENT(S)
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL
HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present:- Mr. Chetan Mittal, Sr. Advocate,
with Mr. Deepak Balyan, Advocate
for the petitioners (in CWP No. 7858 of 2011).
Mr. M.L. Sharma, Advocate,
for the petitioners (in CWP No. 9962 of 2011).
Mr. Kamal Sehgal, Addl. A.G., Haryana.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
G.S. SANDHAWALIA, J.
1. This shall dispose of two civil writ petitions i.e. CWP No. 7858 and 9962 of 2011 since common issues are involved in both the petitions.
Facts of CWP No. 7858 of 2011 are as under:-
2. The present writ petition has been filed under Articles 226 and 227 of the Constitution of India praying for issuance of a writ in the nature of certiorari quashing notifications under Sections 4 and 6 of the Land Acquisition Act, 1894 (for short 'the Act') dated 25.03.2010 and 22.02.2011 respectively. The report of Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 2 the Deputy Commissioner dated 16/17.02.2011 whereby the earlier recommendation of the Land Acquisition Collector (for short 'LAC') for release of land had been reversed is also subject matter of challenge.
3. The pleaded case of the petitioners is that the petitioners' land measuring 3 bighas 9 biswas (10435 sq. yds.) which was being used for gaushala, dairy farming, mushroom farming and residence was sought to be acquired with mala fide intention. The petitioners pleaded that they had been in use, occupation and enjoyment of the said land in question for the purpose of running a Gaushala and looking after several unclaimed cattle and providing them with medical needs and attention. That part of land was also being used for running a dairy from which the petitioners were earning their livelihood. Apart from the said activities, the petitioners have various Samadhis and small temples on the said land which were also present and the petitioners were emotionally and sentimentally attached to the said Samadhis and temples as the same are in the remembrance of their forefathers and elders. The said area was bounded with boundary wall with a height of 10-15 feet and there were other pucca built up various structures existing for the purpose of carrying the aforesaid activities as well as for residence purpose of the petitioners themselves and their workers which were in existence since 2001 onwards. The State had declared the area around the land as a controlled area in the year 2003. As per the proposed draft development of 2021 which was prepared on 21.01.2003, the land was shown as dairy farm. In the final development plan of 2021, the land was shown as being used for industrial purpose including service and industry which also included dairy farms as per the plan prepared on 07.06.2004 (Annexure P-4). The respondents, however, issued notification under Section 4 of the Act for acquiring the land measuring 36 acres 3 kanals for the purpose of construction of a new bus stand of Bahadurgarh, District Jhajjar, Haryana on 25.03.2010. In pursuance to the said notification, the petitioners submitted detailed objections under Section 5A of the Act taking Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 3 various grounds apart from the fact that the petitioners were using the land for mushroom farming, dairy and Gaushala and it could be exempted and would not create any hurdle or inconvenience for the proposed project. In pursuance to the objections filed, the LAC had heard the objections and inspected the site and recommended release of the land of the petitioners (Annexure P-7). Thereafter, the State Government had constituted a Committee of three officers namely LAC, General Manager, Haryana Roadways, Rohtak and General Manager, Haryana Roadways, Jhajjar to evaluate and consider the actual viability of the ancestral land of the petitioners for the purpose of construction of new bus stand. The said Committee had recommended for exemption from acquisition on the ground that there would be no hurdle or inconvenience in construction of the new bus stand and workshop. The notification under Section 6 of the Act was thereafter issued on 22.02.2011 and the petitioners later on came to know in view of the information received under Right to Information Act, 2005 that in spite of the recommendation of the LAC, which was accepted till the Financial Commissioner, the same were reversed subsequently by taking a fresh report from the Deputy Commissioner. The said acquisition was mindless and with mala fide intention to harm the petitioners and the respondents had not applied their mind while choosing the particular land for construction of a new bus stand. The petitioners had received two development plans for 2021 in which the land in and around the petitioners were shown for different purposes. In one plan the area was shown for industrial purposes including the service industry and in the other, the area was divided in two parts, industry and transport. The area belonging to the petitioners had been shown as industrial. The area in question was under the National Capital Region (NCR) and as per the provisions of the National Capital Region Act, 1985 (hereinafter referred to as 'the NCR Act'), the State of Haryana being a participating State, was required to get the development plan approved from the competent authority. The petitioners have taken specific objections under Section Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 4 5A of the Act that no such approval had been taken and, therefore, the entire acquisition proceedings for the purpose of construction of bus stand and workshop were in violation of the said provisions. The petitioners had filed a separate petition before the Member Secretary, National Capital Region Planning Board, New Delhi for taking appropriate action for non-compliance of the provisions of the Act. The respondents were supposed to have taken the consent and concurrence of the acquisition from the Municipal Council, Bahadurgarh, which is a separate body under the Haryana Municipal Act, 1973 and was directly affected by the planning of the city and their consent and concurrence was mandatory in view of Article 243W of the Constitution of India and the Twelth Schedule. The acquisition of land which was earmarked for cattle grazing as per the Jamabandi and as per the wajab-ul-urz of Bahadurgarh revenue estate was included in the notifications under Sections 4 and 6 of the Act and it was not permissible in view of the judgment of the Hon'ble Apex Court in Jagpal Singh vs. State of Punjab and others, Civil Appeal No. 1132 of 2011 (SLP No. 3109 of 2011) and amounted to contempt of the order of the Hon'ble Apex Court. The LAC was the only quasi judicial authority and competent authority to hear the objections under Section 5A of the Act and thus, the petitioners were aggrieved on the ground that the acquisition was a mala fide act and a colourable exercise of statutory power in the name of the development and public purpose. Accordingly, the writ petition was filed challenging the said acquisition and also levelling allegation that since petitioner no. 1 remained as Chairman of the Municipal Council, Bahadurgarh from 2004 to 2009 and belonged to the opposition party (I.N.L.D.), the land of the petitioners was specifically included and was politically motivated so as to cause financial loss and embarrassment and to lower down the reputation of the petitioner no. 1 in his own constituency amongst his supporters.
4. In the written statement filed on behalf of respondents no. 1, 3 and 6, it was pleaded that the objections filed against the acquisition of land for Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 5 construction of bus stand of Bahadurgarh were taken into consideration and the site in question was got re-examined/re-inspected by the Committee comprising of Deputy Commissioner, Jhajjar, Sub Divisional Collector (Civil) Jhajjar, District Town Planner, Jhajjar and District Revenue Officer, Jhajjar. The Committee, in its report dated 17.02.2011, recommended the acquisition of land and the objections filed by the petitioners were duly considered and rejected by the Government vide letter dated 21.02.2011. The Government had not released an inch of land from the said acquisition and the land of the petitioners fell in the middle of the acquired land and could not be released. Moreover, some of the petitioners were using it as a dairy in which tin shed was constructed after issuance of notification under Section 4 of the Act and the Gaushala and school were not existing when the site was inspected on 16.02.2011 and, therefore, the land of the petitioners could not be released. As per report dated 17.02.2011, there was no evidence regarding the existence of school and Gaushala and the LAC, Jhajjar was one of the Members of the Committee who inspected the site on 16.02.2011 and, therefore, his earlier recommendations made were not relevant and the subsequent report made under the supervision of the Deputy Commissioner was relevant. The petitioners had made construction at the site which was under the Controlled Area Act, 1963 and notices had already been issued by the competent authority for removal of the same. The petitioners had constructed three Samadhis and two temples measuring 11' x 13' size just to avoid the acquisition of land and the constructions made fell within the green belt against the provisions of Controlled Area Act, 1963. The judgment of the Hon'ble Apex Court in Jagpal Singh's case (supra) was not applicable in the present case as the facts of the present case were different. Accordingly, it was prayed that the present writ petition may be dismissed since the acquisition was in accordance with the provisions of the Act.
5. In the written statement filed by respondents no. 4 and 5, it was pleaded that the gazette notification under Section 4 of the Act was issued on Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 6 24.02.2010 by the Transport Department which was published in the Hindi newspaper 'Hari Bhumi' on 02.04.2010 and in 'Indian Express, Chandigarh' in English on 04.03.2010 and munadi was done in village Bahadurgarh and Rapat No. 1107 was entered in the Rojnamcha Patwari Halqa on 05.03.2010. Similar plea was taken regarding the objections and the initial report dated 09.04.2010 sent to the Government. It was pleaded that the Committee was appointed to send a report comprising of the General Manager, Haryana Roadways, Rohtak, General Manager, Haryana Roadways, Jhajjar and the LAC, Jhajjar, which sent its report on 07.02.2011. This report, however, was not accepted by the Government and the Financial Commissioner and Principal Secretary, Haryana Transport Department, vide letter dated 14.02.2011, asked the Deputy Commissioner, Jhajjar as to whether he agreed with the report sent by the District Revenue Officer/LAC. Four senior officers' Committee was constituted who visited the spot and an exhaustive report was prepared which was submitted on 17.02.2011 and thereafter, the same was accepted and notification under Section 6 of the Act was issued. The petitioners had raised illegal construction by raising tin sheds at four places and a Gaushala and on the wall it was written Shree Krishan Dudh (Milk) Utpadan Farm House, Nihal Dudh Utpadan (Production) Farm House, Sunder Dairy Farm House which all revealed that the construction was for dairy purpose and not for Gaushala, as alleged in the petition. The petitioners had constructed rooms for schools but there was no school running. The land fell in the controlled area and Green Belt of HUDA Sector and the petitioners had not obtained No Objection Certificate and Change of Land Use from the competent authority and the construction in Khasra No. 1958/25Min was illegal and unauthorized. The petitioners had applied for recognition of Apex High School in Khasra Nos. 2630, 2631, 2632 at Bahadurgarh and not in Khasra No. 1958/25Min which was under
acquisition. The petitioners had raised the construction of three Samadhis and two temples of 11' x 13' size so as to avoid acquisition and the entire land of khasra Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 7 No. 1958/25Min fell in the middle of the bus stand to be constructed at Bahadurgarh. The land in question had been acquired in accordance with the provisions of the Act and as per the development plan of Bahadurgarh town finalized by Town & Country Planning Department independently. The development plan (Annexure P-15) was the final development plan of the Bahadurgarh town.
6. In the replication filed by the petitioners, it was alleged that the Government had intentionally and deliberately concealed the fact of the first report made by the LAC dated 01.04.2010 and had only made reference to report dated 17.02.2011 and failed to give reasons why the second report was sought. The Committee constituted by the Government vide letter dated 03.02.2011 had also recommended for release and, therefore, it was on the directions of the office of the Chief Minister that another report had been sought and acted upon within two days. Reference was made to the sequence of events and the dates to plead that on 16.02.2011, a direction was issued to the Deputy Commissioner to re-examine the report of the Committee which was constituted on 17.02.2011 after obtaining the report and the file was put up before the Chief Minister on 18.02.2011 and the proposal was approved on 21.02.2011 and accordingly, the notification was issued on 22.02.2011. The Government of Haryana on 12.07.2012, in exercise of the powers conferred by Section 5(7) of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 (for short 'the 1963 Act') published the final development plan 2031 for Bahadurgarh and as per the development plan, an area of 613 hectares had been proposed for transport and communication use and as per this plan, Sector 17-A was proposed for the purposes of transport and other services. It was alleged that the acquisition was mala fide and was done under the political pressure of the local Congress MLA. Facts of CWP No. 9962 of 2011
7. The challenge in this writ petition filed by 74 petitioners is also to Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 8 the notifications under Sections 4 and 6 of the Act mentioned in the connected writ petition. The plea taken is that the LAC had recommended the release of the land of the private respondents even though there was no Gaushala, school and Samadhi and thus, there was discrimination inter se the land owners. It was pleaded that in response to the notification issued under Section 4 of the Act, the petitioners had filed objections under Section 5A of the Act, but no opportunity of hearing was given to the petitioners and the declaration under Section 6 of the Act had been issued. The land of the petitioners was fertile land but was being acquired whereas the land belonging to influential persons and close relatives of Rajinder Singh Joon, Local MLA had been left out. Reference was made to the site plan showing the land which had been left out and it was alleged that by setting up of the bus stand in the land of the petitioners, the malafides of the political class was apparent. The petitioner no. 1 was an active politician of Indian National Lok Dal (INLD) party and had remained twice as Municipal Councilor of Municipal Council, Bahadurgarh and Chairman of Municipal Council, Bahadurgarh. He was also Ex-MLA in the years 1996 and 2000 but had lost in the election of 2005. Accordingly, allegation was made that firstly security had been given to him and then withdrawn and, therefore, the private respondents no. 9 and 10 were acting with mala fide intention and to acquire the land. The objections filed under Section 5-A had been dealt with in a selective and elective manner and the land of respondent no. 9 which was vacant and having no Gaushala, school on the said land neither any dairy farm, mushroom farm or temple or Samadhi had been wrongly exempted. The report dated 03.02.2011 was referred to, to show that the respondents were bent upon releasing the land of the private respondents for the reasons best known to them. There was no Gaushala being run at the spot and cows had been collected from Gaushala, Jhajjar in order to take photos to get the land released. The acquisition was not in accordance with the policy framed by the respondents regarding the agricultural land and thus sought to be challenged Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 9 on the ground of discrimination.
8. In the written statement filed by respondents no. 1, 3 and 4, it was pleaded that the objections under Section 5A of the Act were received and sent to the Government on 09.04.2010. A reference was made to the connected writ petition No. 7858 of 2011 to contend that the land fell in the area which was sought to be acquired for the bus stand and was thus, necessary for acquisition since the Government had reconsidered the issue by getting the land re-inspected.
9. In the written statement filed by respondents no. 6 to 7, it was pleaded that the land of the petitioners was lying vacant and petitioners no. 3 and 12 to 74 had not filed objections under Section 5A of the Act and, therefore, were not entitled to invoke the writ jurisdiction. Petitioners at Sr. No. 49, 50, 53, 54, 57 had taken compensation and surrendered possession and the petitioners land lay in the middle of the land and could not be released. Full opportunity of hearing was given and petitioners no. 1, 2, 4 to 9 had filed combined Section 5A objections and similarly petitioners no. 10 and 11 had also filed combined objections. Petitioner no. 5 had appeared for petitioners no. 1, 2, 4 to 9 whereas petitioner no. 11 had appeared for petitioner no. 10 before the LAC. The objections had been duly considered by the Government and rejected as the Section 6 notification was published and the award was announced on 31.05.2011.
10. In the affidavit of the District Town Planner, respondent no. 5, it was averred that as per the provisions of 1963 Act, the Draft Development Plan of 2021 was notified on 30.10.2003 and the Final Development Plan of Bahadurgarh for the controlled areas I, II, III - 2021 AD was published on 14.02.2006 (Annexure R-II). As per the Draft Development Plan, sector 17 was partly designated as sub-code 420 to be utilized for roads, road transport depots and parking areas under the main code 400 "Transport and Communication Zone".
However, the transport department did not find the site suitable as it was located at one extreme of the town towards Rohtak and, therefore, the Site Selection Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 10 Committee vide its recommendations dated 15.11.2006 proposed a site in Sector 22 along the bye-pass to the Deputy Commissioner/Transport Department. Accordingly, as per the request of the Transport Department, the site was shifted to sector 22 on the 75 metres wide bye pass road and located close to the industrial sector and developed residential sector 9 and 9A. The site was incorporated under the provisions of clause (xii) of Industrial Zone Appendix 'B' of the Development Plan notified on 14.02.2006 being "any other use permitted by the Director"
(Annexure R-III). The approval was also granted by the Government on 21.10.2008. The site of the proposed bus stand abuts 75 metres wide bye pass road along with 100 metres wide green belt on both sides and was located in sector
22. The traffic was currently using the existing national highway No. 10 which passes through the old city, which was to be diverted to the bye pass which would decongest traffic in old city. Hence, the location of the proposed bus stand was suitable from the point of smooth and uninterrupted movement of traffic. The decision relating to the incorporation of the above site in sector 22 was conveyed to the Senior Town Planner, Rohtak on 27.11.2008 with a copy endorsed to the DTP, Jhajjar informing that the Government has approved the site of the bus stand in Sector 22, Bahadurgarh. As per the proposals of the Final Development Plan of Bahadurgarh - 2021 AD, the site of the petitioners fell in Sector 22, Bahadurgarh for construction of the new bus stand, Bahadurgarh.
11. As per Section 5(4) of 1963 Act, objections on the proposals of the Draft Development Plan were invited and the last date for submission of such objections ended on 29.04.2012. Neither the petitioners nor general public raised any objection to the proposal of earmarking/reserving area under transport and communication zone in Sector 22, Bahadurgarh. The petitioners without availing the opportunity available under the provisions of the 1963 Act, had approached this Court without filing any objections. Section 27 of the National Capital Region Planning Board Act, 1985 (for short 'the NCRPB Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 11 Act') is a non-obstante clause which gives it over riding effect to the provisions of this Act over any other law in force. The 1985 Act envisages preparation of 3 tier plans i.e. (i) regional plan for the entire national capital region which was divided into regional plan, sub regional plan or functional plan. It was only the sub regional plan which was to be referred to the Board before it was finalized under Section 19 of the Act of 1985 and no prior approval was required. The present plan was a Development Plan within the meaning of Section 5 of the 1963 Act and could be equated with the project plan of the NCR Act and did not require prior approval of NCRPB.
12. Respondent no. 9, in its reply, denied the allegations and took the plea that his land was also being notified for acquisition and he has challenged the same by filing CWP No. 7858 of 2011. He was using the land for the purposes mentioned and pleaded that his land was fit for release from acquisition.
13. In the replication filed by the petitioners, it was pleaded that the respondents had discriminated between two individuals who stood on the same footing and the pleas taken in the writ petition were reiterated.
14. Counsel for the petitioners in CWP No. 7858 of 2011 thus, contended that there was a recommendation in their favour by the LAC (Annexure P-7) in view of the objections filed under Section 5A of the Act and thereafter the Committee had also submitted that the construction would not affect the planning of the bus depot on the basis of its report dated 03.02.2011. Accordingly, keeping in view the said report, the Director General, State Transport, Haryana had also recommended release of land. The subsequent inspection by the Deputy Commissioner on 16.02.2011 was thus challenged on the ground that the report of the Deputy Commissioner was without any basis and it could not over rule the recommendations made by the LAC which had been approved by the General Managers. The second submission made was that the acquisition was not as per the master plan and, therefore, was liable to be quashed since the draft plan which Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 12 had been shown was for the purpose of dairy farming and service industry. Reference was made to the judgment of the Hon'ble Apex Court in M/s. Kamal Trading Pvt. Ltd. vs. State of West Bengal and others, (2012) 2 SCC 25, M/s. Usha Stud and Agricultural Farms Pvt. Ltd. and others vs. State of Haryana and others, 2013 (2) RCR (Civil) 788 and Devinder Kumar Tyagi v. State of U.P. 2011 SCC (1) 464.
15. Counsel for the petitioners in CWP No. 9962 of 2011 submitted that the notification under Section 4 was not properly issued and the substance of the notification had not been published and proper hearing was not given under Section 5A and there was mala fide intention. The land of the petitioners in the connected case had been recommended for release by the LAC, frustrating the purpose of acquisition. Reference was made to the decision of the Hon'ble Apex Court in The Collector (District Magistrate), Allhabad and another vs. Raja Ram Jaiswal, AIR 1985 SCC 1622.
16. Counsel for the State, on the other hand, contended that the decision for release was to be taken by the State Government and since 2 acres 1 kanal 5 marlas of land was sought to be exempted out of 36 acres 3 kanals, the Deputy Commissioner was directed to visit the spot to give a report as to when the construction had been raised on the site and whether it was actually before the acquisition proceedings. A report was then received dated 16.02.2011 and the LAC was part of the inspection team wherein, it was found that there was no school functioning and an application had been given only for recognition in other khasra numbers which were not sought to be acquired. There was no construction of 'A' class category and most of the land was lying vacant and the land was situated in between the land to be acquired for bus stand and there would be difficulty for the planning of the bus stand. Videography of the site had also been got prepared. The construction had been raised which was violative of the provisions of the 1963 Act and keeping in view the said report, the notification Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 13 under Section 6 of the Act had been issued which was valid and liable to be upheld.
17. Regarding the second submission of the violation of the master plan, it was submitted that no prior approval was required since a Draft Development Plan dated 12.04.2012 had been forwarded to the NCRPB and no objections had been received on the said draft development plan. The decision to set up a bus stand in Sector 22 had been taken on 27.11.2008 and the Government had approved the same and the acquisition was for a larger public interest and the Government was entitled to acquire under the principle of eminent domain. The purpose was to decongest the town and the location of the bus stand was on the bye pass. No land had been released in favour of any person and acquisition was of 36 acres 5 kanals and thus there was no violation of the provisions of the Act. Five of the petitioners had taken compensation and petitioners no. 3, 12 to 74 had not even filed objections and, therefore, were estopped from challenging the acquisition. The objections were examined uptil the highest level and thereafter the decision was taken to notify the land under Section 6. Accordingly, it was contended that the acquisition was valid and liable to be upheld.
18. A perusal of the record goes on to show that firstly counsel for the petitioners in CWP No. 7858 of 2011 had got respondent no. 7-National Capital Region Planning Board (NCRPB) struck off from the memo of parties on 13.02.2012 on the ground that the said respondent was not necessary for the purpose of the present petition. Similarly in CWP No. 9962 of 2011, service upon respondent no. 8 (NCRPB) and respondent no. 11 being not complete, it was ordered that the presence of the said respondents was not necessary at this stage. Thereafter, no effort was made by the petitioners to serve the said respondents or to enforce their appearance.
19. After hearing counsel for the parties, we are of the opinion that the writ petitions are liable to be dismissed. The primary grouse of the petitioners in CWP Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 14 No. 9962 of 2011 is that the petitioners were being discriminated against and the land of the petitioners in CWP No. 7858 of 2011 was being exempted from acquisition on the ground of favourable report which had been wrongly procured. This grievance has now been rendered without any basis since the report of the Deputy Commissioner has come in where it has specifically been mentioned that there is no school functioning on the site and there are only tin sheds at various places and the objectors are using construction for the purpose of the dairy and not for the gaushala. The said construction was also found to be illegal and the videography of the site was also prepared and presented to the competent authority. The Act provides a mechanism whereby, objections have to be filed against the proposed acquisition by the person who is objecting to the acquisition who is to be given an opportunity of hearing and a report is to be submitted in respect of the land or different parcels of land to the appropriate Government. The decision of the appropriate Government shall be final which would be clear from a perusal of Section 5A which is reproduced below:-
"5A. Hearing of objections. - (1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.
(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorized 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 Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 15 respect of the land which has been notified under section 4, sub-
section (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final.
(3) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act."
20. In the present case, as noticed above, initially there was a report in favour of the petitioners (in CWP No. 7858 of 2011) regarding khasra no. 1958/25Min wherein, the District Revenue Officer/LAC, Jhajjar had opined that there was a dairy farm, a temple, Samadhi and a Gaushala on the said land and one Apex High School. However, the decision was left to the Government which would be clear from the report which reads as under:-
"The objection letter filed by the objectors has been perused thoroughly. The site has been inspected according to which, Nihal Milk Dairy Production Farm House, Temple, Samadhi and one Gaushala has been constructed in Khasra No. 1958 / 25 Min. Apart from this, one Apex High School has also been constructed on this land. Therefore, it will be justified that this land may be released, free from acquisition, however it will be justified to take the decision at the level of Government that either this area may be acquired or be released free, from the acquisition."
21. Thereafter, the Special Secretary to the Transport Department, vide Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 16 order dated 01.02.2011, directed that a site inspection be made showing the exact extent of construction alongwith the plan/map and whether the construction hampered the planning of the bus depot. The said order reads as under:-
"The Governor of Haryana is pleased to constitute a Committee of General Manager, Haryana Roadways, Rohtak, General Manager, Haryana Roadways, Jhajjar, Land Acquisition Officer, Jhajjar for on site inspection of land which is proposed to be released from the acquisition required for construction of Bus Stand Bahadurgarh. Haryana Roadways, Jhajjar and submit this site inspection report within a week i.e. 10.2.2011 positively on the following:
1. The exact extent of the construction along with plan/map made by a draftsman.
2. Does the above construction hamper/affect the planning of the bus depot and workshop and the location of the construction on the area proposed to be acquired by exactly marked on shajra/map.
A.K. Singh Special Secretary to Govt.
Haryana Transport Department Dated the 1st Feb 2011 Chandigarh"
22. In compliance with the said order, the LAC, Jhajjar and the General Managers of the Haryana State Roadways at Rohtak and Jhajjar inspected the site and gave the following report:-
"In compliance with the order No. 5/1/2010 - 5 T (II) dated 2.2.11 issued by Special Secretary to Government of Haryana, Department of Transport, a committee consisting of General Manager, Haryana State Transport, Rohtak, General Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 17 Manager, Haryana State Transport Jhajjar and Land Acquisition Officer, Jhajjar has been formed regarding the inspection of the new bus stand Bahadurgarh. The above said committee physically inspected the site on 3.02.2011 after noon. During the inspection, committee has seen that Khasra No. 1958/25 Min situated at Main Road, Sector - 9, Bahadurfarh, has area measuring 2 acre, 1 kanal and 5 Marla. A board of Apex High School has been affixed on the boundary wall of this land, one Mushroom Farm and building of Gaushala, (cow house) has been constructed in this land, which has its length of 552' - 9" with the main road. If this above said land has been released from the acquisition, then there is no possibility of causing any obstruction in the construction and operation of the newly created bus stand and workshop, Bahadurgarh.
Therefore the above said committee approves that the Apex High School, Mushroom Farm and Gaushala, which has been constructed in Khasra Number 1958 / 25 Min, if this land may not be acquired, even then also, there is no possibility of causing any obstruction in the construction and operation of the newly created bus stand and workshop at Bahadurgarh.
Report is submitted to you for further necessary action."
23. Perusal of the said report would show that the exact extent of construction which was required to be seen alongwith the plan/map was never specified and merely a board of Apex High School had been affixed on the boundary wall of this land and in the said report, it has been mentioned that there was a mushroom farm and building of a gaushala which had a length of 552 feet 9 inches with the main road without showing any location of the construction on the area proposed to be acquired by exactly marking it on map.
Gupta Shivani2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 18
24. It was in such circumstances that the State Government thereafter rightly directed that the site be inspected by the Deputy Commissioner who was to give a report regarding the proposal sent earlier. The Deputy Commissioner thereafter, alongwith the District Revenue Officer/LAC Jhajjar, SDO (Civil) and the District Town Planner, visited the spot and found that petitioners no. 1 and 2 were present on the spot being objectors. The Deputy Commissioner found that out of the tin sheds at four places, three tin sheds had not been put to use and had been constructed after issuance of Section 4 notification. One tin shed of 14 feet x 100 feet had about 40 cows and that the dairy farm work was being done on the said area and it was not being used for gaushala and school purposes. The school, as per the report of the District Education Officer, whereby recognition had been applied for, was to be situated on Khasra Nos. 2630, 2631 and 2632 and the Gaushala was not registered with any competent authority and the double storey construction of eight rooms on which Rathee Farm House had been written, was after erasing the Apex High School Board. In the objections under Section 5A of the Act, there has been no mention of any school name and it was observed in the report that three Samadhis and two mandirs had been constructed to save the land from acquisition which was in the middle of the land being used for construction of the bus stand. The report reads as under:-
"A meeting was held for site inspection regarding objections under 5A of Khasra No. 1958/25 min Bahadurgarh under the chairmanship of DC, Jhajjar with SDO (C ), Bahadurgarh, DTP Jhajjar (along with development plan of town Bahadurgarh) DRO cum LAC Jhajjar (along with objections under 5 A and report dated 16.2.2011. Sh. Karamvir & Sh. Prem Singh were also present on the spot being objectioner. On the spot, it was found that the objectioner Sh. Prem Singh, Randhir Singh, mam Chand and Bhateri etc. have Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 19 constructed tin sheds on four places, out of these three tin sheds are not in used and are constructed after issuing Section 4 Notification. Amongst these one Tin shed 14 Ft x 100 Ft have 40 cows and Bachde/ Bachdee. On the spot eight rooms with varandha have been constructed with garden - tukri. As per photographs provided with 5 A objections by the applicant Sh. KrishanDugdhUtpadan Farm House, NihalDugdhUtpadan Farm House and Sunder Dugdh Dairy Farm House has been written with paints on these rooms. After site inspection it seems the objectioner may used these constructions for Dairy purpose not for Gaushala and school purpose. School was not found in working as all the rooms were empty. As per report of DEO Jhajjar, the application for recognition of Apex High School on Khasra No. 2630, 2631, 2632 Bahadurgarh had been applied. Due to some shortcomings, recognition has not given by DEO. The application for reorganization on Khasra 1958/25 min Bahadurgarh has neither been applied nor given for any school. Sh. Karmvir Singh has been asked for recognition regarding Apex High School, how many classes is being conducted and how many students are admitted in the school. He did not provided any documents regarding school registration and gaushala registration and also no documents have been found attached with 5-A objections. It seems that school and gaushala have not been registered from any competent authority. Objectioner have provided photographs with 5 A objections have a two storey 13 x 59 room and 12 x 59 varandha on which Rathi Mushroom Farm has been written, now after erasing a Apex High School Board was placed and on Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 20 the boundary wall school name has been written. While at the time of objections under Section 5 A there was no school name. DTP stated that all the constructions are in Khasra No. 1958/25 min (3 Bhiga 9 Biswa). This construction is within the 100 mtr green belt along with Bypass as per Bahadurgarh Development Plan 2021 AD. For this construction no permission/approval has been taken from his department and all the construction are illegal. For this as per provision of Controlled Area Act, 1963, notice have been issued from his office. All the area of Khasra No. 1958/ 25 min falls within the Green Belt. To avoid land from acquisition the objectioner has constructed three Samadhi & two mandirs of size 11 ft x 13 ft. Toilets, one office room have been constructed. No construction is of 'A' class category and at the spot most of the land is without construction. All the constructions have been constructed within boundary wall. This Khasra No. 1958/25 is within the middle of the land being acquired for construction of bus stand and it put hurdle to plan the bus stand. Therefore, this committee is recommend to acquire this Khasra No. Spot videography has been carried out and on CD is enclosed.
Encl. As above
Sd Sd Sd DC
17.2.2011 DRO SDO (C ) Jhajjar
DTP Jhajjar Bahadurgarh
25. On the basis of the said report, decision was taken to reject the objections on 18.02.2011 and the Section 6 notification under the Act was issued on 22.02.2011 within limitation of one year otherwise the proceedings under Section 4 of the Act would have lapsed as notification under Section 4 had been Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 21 published in the gazette on 24.02.2010. The aforesaid facts are based on the record which was produced by the State counsel. This notification under Section 6 was thus conclusive evidence of the decision of the Government to finally acquire the land for the public purpose of setting up the bus stand. The submission of the counsel that the earlier report was in its favour and the report of the Deputy Commissioner was without any jurisdiction or the petitioners were not given a proper hearing as envisaged under Section 5A of the Act, is without any basis. The State Government was only verifying the factual aspect as to whether there was any construction at the spot and whether the land could be left out from acquisition since it was being acquired for setting up of bus stand as there could not be any construction in the center of the bus stand. No land could be released as it would hamper the purpose and the planned development for which the land was being acquired. The LAC was also part of the team deputed by the State Government to verify the earlier recommendations on which it had to take a final decision. The judgment in Usha Stud's case (supra) referred to by the petitioners is of no help since in that case, the issue was of similarly situated land owned by M/s. Rani Shaver Poultry Farm Ltd. which had been released whereas the land of the petitioners therein had been acquired. The observations in para no. 33 of the said judgment are against the petitioners which provides that it is for the State Government to apply its mind to the report of the Collector and take a final decision.
"33. The ratio of the aforesaid judgments is that Section 5- A(2), which represents statutory embodiment of the rule of audi alteram partem, gives an opportunity to the objector to make an endeavour to convince the Collector that his land is not required for the public purpose specified in the notification issued under Section 4(1) or that there are other valid reasons for not Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 22 acquiring the same. That section also makes it obligatory for the Collector to submit report(s) to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him so that the Government may take appropriate decision on the objections. Section 6(1) provides that if the appropriate Government is satisfied, after considering the report, if any, made by the Collector under Section 5-A (2) that particular land is needed for the specified public purpose then a declaration should be made. This necessarily implies that the State Government is required to apply mind to the report of the Collector and take final decision on the objections filed by the landowners and other interested persons. Then and then only, a declaration can be made under Section 6(1)."
26. Similarly, reference to M/s. Kamal Trading's case (supra) is also of no use since the said judgment refers to the right of the landowners under Section 5A of the Act since a finding was recorded that the second Land Acquisition Officer had refused to adjourn the hearing and not dealt with the objections carefully. In the present case, a perusal of the report of the Deputy Commissioner shows that the petitioners were present at the spot and the inspection was carried out in their presence and even a videography of the site was done. On the strength of the said inspection report, the State Government was not satisfied with the earlier report and recommendations and proposed the acquisition and rejected the objections. Record of the file also shows that on the conjoint reading of all the reports, it was directed that action should be taken against officials who had made wrong recommendations without checking the ground reality on the spot.
The notings read as under :-
"CM has approved as proposed. It is further directed Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 23 that the action may also be initiated against those officials who had made wrong recommendations without checking the ground reality on the spot."
27. Thus, from the above, it is clear that the earlier reports, on which, the petitioner is relying were not the correct reports on the spot and the State Government, thereafter, recorded its satisfaction for the land in question and came to the conclusion that it was required for a public purpose namely the setting up of a bus stand in larger public interest. No fault, thus, can be found in the action of the Government in acquiring the land for setting up of the bus stand on this account. Rather the case of the petitioner in Nafe Singh Rathee and others was solely that there was discrimination which now stands resolved by the Notification issued under Section 6 of the Act for whole of the land. The stand of the Government, in the present case, is very clear that there has been no release of land under Section 4 Notification and the land enblock which was proposed to be acquired has been acquired and, therefore, the petitioners in Nafe Singh Rathee's case cannot have any valid ground of discrimination which were earlier being urged.
28. The judgment of the Hon'ble Apex Court in SLP (Civil) No. 24916 of 2008, Lajju Ram and others vs. U.T. Chandigarh and others decided on 27.2.2013 would be of no avail since in that case, the same LAC had changed his recommendation and suggested that the land should not be exempted and in such circumstances, the Hon'ble Apex Court had observed that the land owners were entitled to be provided reasonable opportunity of being heard to represent their case. As noticed in the present case, it has come on record that the first two reports have been manoeuvred by the petitioners in their favour regarding the factual aspect on the site. In such circumstances, the State Government had to form another Committee headed by the Deputy Commissioner to be associated with Land Acquisition Collector (LAC). The site was got properly Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 24 videographed and after taking into consideration the ground reality, the State Government took its decision to acquire the said land. Thus, the said judgment has no applicability.
29. As it is very clear which has been noted above, the land in question is situated on the by-pass of the Bahadurgarh town and measures 2 acres 1 kanal and 5 marla in the case of the petitioners in CWP No.7858 of 2011 and is part of the larger area of 36 acres 3 kanal. The said land is being acquired to set up a bus stand for the town and is an effort to decongest the old town and provide new facilities to the general public and this acquisition is, thus, for a genuine public purpose and for the benefit of the public at large. The principle of eminent domain would prevail over the private rights of the petitioners and this would have to give way to larger public interest which has been noticed by the Hon'ble Apex Court in Jayabheri Properties Private Limited and others v. State of Andhra Pradesh and others, (2010) 5 SCC 590. In the said case, the petitioners were pleading that the Outer Ring Road Project be re-aligned in order to prevent the acquisition of their land and it had been pleaded that the alignment of the road had been made in serpentine manner to boost the land value held by the ruling party leaders. The contention was rejected by the Hon'ble Apex Court and it was held that the public interest has to outweigh the interest of the individual plot holders. In Girias Investment Vs. State of Karnataka 2008 (7) SCC 53, the Hon'ble Apex Court again noticed that the rights of the individuals have to give way for the larger public interest and the Courts were not to quash such acquisitions which were for the benefit of the public at large. The relevant observations read as under:
"27. The aforesaid paragraphs clearly reveal that the request for a personal hearing was conditional in that if a clarification or additional documents were required, time for that purpose be given. It is also significant that the objections filed by the Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 25 appellants form (almost exclusively) the basis for the present writ petition inasmuch the fact that there was no need for the change of the alignment of the trumpet interchange and the access road or that alternative land was available for that purpose, had been spelt out therein. The Collector in dealing with the objections had observed that several objections/documents had been filed by the appellants but were liable to rejection as the acquisition was necessary for the Bangalore Airport. We are also not mindful of the fact that though the rights of an individual whose property is sought to be acquired must be scrupulously respected, an acquisition for the benefit of the public at large is not to be lightly quashed and extraordinary reasons must exist for doing so."
30. Similarly, recently in Civil Appeal No. 4440 of 2013, G.Sundarrajan Vs. Union of India & others decided on 06.05.2013, the Hon'ble Apex Court held as under:-
"228. I have referred to the aforesaid pronouncements only to highlight that this Court has emphasized on striking a balance between the ecology and environment on one hand and the projects of public utility on the other. The trend of authorities is that a delicate balance has to be struck between the ecological impact and development. The other principle that has been ingrained is that if a project is beneficial for the larger public, inconvenience to smaller number of people is to be accepted. It has to be respectfully accepted as a proposition of law that individual interest or, for that matter, smaller public interest must yield to the larger public interest. Inconvenience of Gupta Shivani some should be bypassed for a larger interest or cause of the 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 26 society. But, a pregnant one, the present case really does not fall within the four corners of that principle. It is not a case of the land oustees. It is not a case of "some inconvenience". It is not comparable to the loss caused to property. I have already emphasized upon the concept of living with the borrowed time of the future generation which essentially means not to ignore the inter-generational interests. Needless to emphasize, the dire need of the present society has to be treated with urgency, but, the said urgency cannot be conferred with absolute supremacy over life. Ouster from land or deprivation of some benefit of different nature relatively would come within the compartment of smaller public interest or certain inconveniences. But when it touches the very atom of life, which is the dearest and noblest possession of every person, it becomes the obligation of the constitutional courts to see how the delicate balance has been struck and can remain in a continuum in a sustained position. To elaborate, unless adequate care, caution and monitoring at every stage is taken and there is constant vigil, life of "some" can be in danger. That will be totally shattering of the constitutional guarantee enshrined under Article 21 of the Constitution. It would be guillotining the human right, for when the candle of life gets extinguished, all rights of that person perish with it. Safety, security and life would constitute a pyramid within the sanctity of Article 21 and no jettisoning is permissible. Therefore, I am obliged to think that the delicate balance in other spheres may have some allowance but in the case of establishment of a nuclear plant, the safety measures would not tolerate any lapse. The grammar has to be totally different. I may hasten to clarify Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 27 that I have not discussed anything about the ecology and environment which has been propounded before us, but I may particularly put that the proportionality of risk may not be "zero" regard being had to the nature's unpredictability. All efforts are to be made to avoid any man-made disaster. Though the concept of delicate balance and the doctrine of proportionality of risk factor gets attracted, yet the same commands the highest degree of constant alertness, for it is disaster affecting the living. The life of some cannot be sacrificed for the purpose of the eventual larger good."
31. Regarding the second submission of the violation of the Master Plan and that the area in question fell under NCR, the 1985 Act would be applicable and prior permission was required before the acquisition for the land could have been initiated, is also without any basis. As noticed above, the NCRPB respondent No.7 in one case and respondent No.8 in the other case have been got struck off from the memo of parties on 13.2.2012 on the ground that they were not necessary for the purpose of present petition in CWP No.7858 of 2011. Similarly, in CWP No.9962 of 2012, service upon respondent No.8 had been dispensed with and, thereafter, the petitioners had never made any effort to file an application or to contend that the service of the said respondent was necessary. The official respondent had taken a categoric stand that the decision to relocate the bus stand in Sector 22, Bahadurgarh from Sector 17 had been conveyed to the Senior Town Planner on 27.11.2008 with a copy enclosed to the DTP, Jhajjar. As per the 1963 Act, the objections in the proposed draft development plan had been invited under Section 5(4) and the last date for submission of the objections was 29.4.2012. Neither, the petitioners nor any person from the general public had raised any objection to the ear marking of the area under Transport and Communication Zone of the draft development plan, Bahadurgarh. The Draft Development Plan for Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 28 Bahadurgarh for the controlled areas No.I to III and IV (Part)- 2031AD had been notified vide Government Gazettee Notification dated 30.3.2012. The said plan was a development plan within the meaning of Section 5 of the 1963 Act and it was not mandatory for the Department of Town and Country Planning to get the development plan approved from the respondent board. Thus, keeping in view the facts and circumstances as noticed and since the petitioners have chosen not to get any response from the Board and serve the Board to controvert the allegations raised by the Government, we are of the opinion that the observations made by the Hon'ble Apex Court in Bhagat Singh v. State of U.P. and others, AIR 1999 SCC 436 would be applicable. In the said case, the contention raised was that the acquisition was bad on the ground that the use of the land for market yard was not one of the permissible uses of the land as per the master plan and permission would have to be taken to have the master plan suitably amended as the land was for the use of the light industry and which was later changed as green belt. The said submission was repelled by the Hon'ble Apex Court by placing reliance upon the observations made in Aflatoon v. Lt. Governor of Delhi, (1975) 4 SCC 285. Accordingly, it was held that nothing precludes the Government from acquiring the land for planned development under the Act and the said action usually precedes development. The beneficiary could always move the competent authority and obtain the sanction for suitable modification of the master plan. The relevant observations read as under : -
"20. An analogous issue arose in the case Aflatoon v. Lt. Governor of Delhi (1975) 4 SCC 285 : (AIR 1974 SC 2077). In that case, a notification was issued under S. 4(1) of the Act for acquisition of a vast extent of land for the planned development of Delhi. The said acquisition was questioned. One of the contentions was that for such a purpose, development, action had to be taken only under the Delhi Development Act, 1957 and that too by the Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 29 Chief Commissioner of Delhi under that Act and not by the Central Government under the Land Acquisition Act. It was there argued that inasmuch as there was no Master Plan nor Zonal Plan in existence on the date of notification, the acquisition was bad. This Court rejected objection raised by the owners and observed, after referring to Ss. 12 and 15 of the Delhi Development Act, 1957, as follows (para 23 ) :
"The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of the Delhi Development Act after that Act came into force but there is no inhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready. (See the decision in Patna Improvement Trust v. Smt. Lakshmi Devi (1963 Suppl (2) SCR 812) : (AIR 1963 SC 1077). In other words, the fact that actual development is permissible in an area other than a development, area with the approval of sanction of the local authority did not preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development. It has nothing to do with acquisition of property; acquisition generally precedes development."
This Court observed (para 23) :
"For planned development in an area other than a development area it is only necessary to obtain the sanction or approval of the local authority as provided in S. 12 (3). The Central Government could acquire any property under the Act and develop Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 30 it after obtaining the approval of the local authority."
21. The above decision of this Court was followed by the Allahabad High Court in Kendriya Karamchari Exam Mitra Sahkari Avas Samithi Ltd. V. State of U.P. 1988 UPLBEC 645 : (1988 ALL LJ 1224). It was held in that case that the government could acquire any property under the Act and later develop the same after obtaining the necessary approval of the concerned local authority under the Development Act. It was stated (at page 651 of UPLBEC) : (at p. 1230 of All L J) :
"Amendment of Master Plan is permissible with the approval of the State Government under S. 13 of the U.P. Urban Planning and Development Act, 1973 and in the present case the Master Plan showing the area in question as green belt was modified with the approval of the State Government which approval no doubt was accorded subsequent to the issue of notification under Ss.4 and 6. However, as observed by their Lordships of the Supreme Court the mere fact that till the date of the issue of the notification under S. 4 the necessary approval of the Government had not been obtained cannot preclude the Government from acquiring the land for planned development under the Land Acquisition Act. Acquisition generally precedes development and consequently the land in question could be acquired in anticipation of the approval of the State Government for the change of the land use of the Master Plan prepared by the Development Authority."
22. As pointed out in the above judgments, there is no need that the land proposed to be acquired by the Government for a particular public purpose should be for the same purpose or use mentioned in the master plan or Zeal Plan for the said area. Nor Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 31 will the acquisition be invalid merely because the land proposed to be acquired is for a purpose other than the one permitted by the Master Plan or Zonal Plan applicable to that locality. Acquisition will be valid if it is for a public purpose even if it is not for the type of user permitted by the Master Plan or Zonal Plan in force at the time the acquisition is made. It will be for the beneficiary of the acquisition to move the competent authority under the Development Act and obtain the sanction of the said authority for suitable modification of the Master Plan so as to permit the use of the land for the public purpose for which the land is acquired. In fact, it may be difficult for the beneficiary of the acquisition to move the competent authority under the Development Act seeking permission to change of land use even before the land is acquired or before possession is givento the beneficiary. On the principle stated in Aflatoon's case (AIR 1974 SC 2077), it is clear that acquisition for a public purpose and obtaining permission from competent authority under the concerned Development Act for change of land use are different from one another and the former is not dependent upon the latter.
23. For the aforesaid reasons this contention of the appellants is rejected."
32. Learned counsel for the petitioners placed reliance upon the judgment of the Hon'ble Apex Court in Devinder Kumar Tyagi's case (supra) in which challenge had been raised to the acquisition of the land for development of Leather City Project for relocating the bone mills which had been done while invoking the urgency provisions under Sections 17(1) and 17(4) of the Act. The said argument was accepted by the Hon'ble Apex Court and it was held that even though directions have been issued for relocation of the polluting industries but the rights Gupta Shivani 2013.08.02 12:10 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 7858 of 2011 32 of the land owners under Section 5A to file objections were not taken away. It was also noticed that the approval of the development plan of the leather city project had not been acceded to by the NCRPB and in the absence of the approval, the acquisition was also held to be illegal. Thus, in the said case, a categorical finding had been recorded that a request has been made to include the leather city project to the NCRPB but no such permission had been granted and, therefore, it was held that there was no question of implied consent. In the present case, as noticed, the petitioners have chosen not to serve the Board and to get a response from it so as to place material before this Court to show that the prior consent under 1985 Act was necessary for acquisition of the land.
33. The argument of the learned counsel for the petitioners in CWP No.9962 of 2011 that, the substance of the Notification was not published and proper hearing was not given, is equally without any substance. Admittedly, petitioners No.49, 50, 53, 54, 57 have already taken compensation and surrendered possession whereas it has been pleaded that the petitioners No.3 and 12 to 74 had not filed objections under Section 5-A of the Act. The respondents have specifically stated that the publication was made in the Newspaper "Hari Bhumi"
in Hindi on 2.4.2010 and in "The Indian Express", Chandigarh in English on 4.3.2010 and even the Munadi was done in village Bahadurgarh and the report No.1107 was entered in the Patwari Roznamcha on 5.3.2010. As would be noticed, petitioners No.1, 2, 4 and 9 had filed combined objections under Section 5A and similarly, petitioners No.10 and 11 had also filed combined objections in pursuance of the said publication under Section 4 and, thereafter, petitioners No.5 and 11 had appeared for them before the LAC. Thus, it would not lie in the mouth of some of the petitioners now to contend that the substance of the Notification had not been published since the basic grievance was against the discrimination issue which as has been noticed, no longer survives as all the land has been acquired.Gupta Shivani
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34. The judgment in Raja Ram Jaiswal's case (supra) is not applicable to the facts of the present case. In the said case, the judgment of the High Court had been upheld by the Hon'ble Apex Court on the ground that there was no proper publication of the Corrigendum, vide which, the land was sought to be acquired since the description of the plot had been changed in the Corrigendum. In the present case, there is no such dispute regarding issue of any corrigendum or that the description of the land was not appropriate, vide which, the petitioners were prejudiced in not filing the objections under Section 5A. Accordingly, the submission of the learned counsel that the substance of the notification had not been published is without any basis and is rejected.
35. In view of the above, the present writ petitions are dismissed and the acquisition of the land for the public purpose of setting up of a bus stand in Bahadurgarh is upheld.
36. Records of the case be returned to Mr. Kamal Sehgal, Addl. A.G., Haryana against proper receipt.
(G.S. Sandhawalia)
Judge
12.07.2013 (Ajay Kumar Mittal)
shivani Judge
Gupta Shivani
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integrity of this document
High Court Chandigarh
CWP No. 7858 of 2011 34
Gupta Shivani
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integrity of this document
High Court Chandigarh