Punjab-Haryana High Court
Jaspal Kaur And Others vs State Of Punjab Etc on 24 May, 2011
Author: Rakesh Kumar Garg
Bench: Jasbir Singh, Rakesh Kumar Garg
CWP No.11533 of 2010 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.11533 of 2010 (O&M)
Date of decision: 24.5.2011
Jaspal Kaur and others ......Petitioner(s)
Versus
State of Punjab etc. ......Respondent(s)
CWP No.15492 of 2010 (O&M)
Nirmal Singh & others ......Petitioner(s)
Versus
State of Punjab and others ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Mr. G.S. Grewal, Sr. Advocate with Mr. H.S. Grewal,
Advocate for the petitioners in CWP No.11533 of 2010.
Mr. A.K. Chopra, Sr. Advocate with Mr. Aashish Chopra,
Advocate for the petitioners in CWP No.15492 of 2010.
Mr. Manohar Lall, Additional Advocate General, Punjab.
Mr. Sanjeev Sharma, Sr. Advocate with Mr. Shekhar Verma,
Advocate for the GMADA.
Mr. B.S. Mangat, Advocate for respondent No.2.
Rakesh Kumar Garg, J.
Challenge in these two writ petitions i.e CWP No.15492 and 11533 of 2010 is to the notifications dated 10.11.2009 and 10.5.2010 issued under Sections 4 and 6 respectively, of the Land Acquisition Act, 1894 (hereinafter referred to as the "1894 Act"). A further challenge has been laid to a notification dated 24.11.2006 issued under Section 56 of the Punjab Regional and Town Planning and Development Act, 1995 CWP No.11533 of 2010 (O&M) 2 (hereinafter called the '1995 Act'). A further prayer has been made in CWP No.15492 of 2010 prohibiting the State of Punjab for acquiring the land in dispute and also for a direction to implement the National Rehabilitation and Resettlement Policy, 2007. In CWP No.11533 of 2010, a declaration has also been sought that Punjab Urban Planning and Development Authority/Greater Mohali Area Development Authority, has no jurisdiction to do any development work, assigned to the District Planning Committees according to Article 243ZD and Article 243ZF and Punjab Act No.22 of 2005.
As per the averments made in CWP No.11533 of 2010, the petitioners are residents of village Mullanpur, Tehsil SAS Nagar, District Mohali where they own some property in the form of shops and residential houses and are doing various kinds of business for the last more than 25 to 30 years. The detail of their properties has been given in Annexure P-1 in a tabulated form, however, no documents have been attached with the aforesaid details to give the further details regarding ownership, constructions, business etc. Similarly in CWP No.15492 of 2010, the petitioners alleged themselves to be the owners of the land measuring 1028 bighas 1 biswa as per Annexures P-1 and P-2.
It is the case of the petitioners that respondent No.1 issued notification dated 10.11.2009 under Section 4 of the 1894 Act seeking to acquire land measuring 447.34 acres situated in village Mullanpur, Ratwara, Ferozepur, Bharonjian and Devinagar, Tehsil SAS Nagar, District Mohali for a public purpose, namely, for establishment of "Residential Urban Estate, Mullanpur" in the area of Tehsil SAS Nagar, District Mohali.
On coming to know about the notification under Section 4 of the 1894 Act, the petitioners filed objections under Section 5-A of the 1894 Act, however, no hearing was granted on the date fixed and without making any further CWP No.11533 of 2010 (O&M) 3 enquiry as envisaged under Section 5-A of the 1894 Act, the respondents issued notification dated 10.5.2010 under Section 6 of the 1894 Act declaring that land measuring 419.9519 acres is needed for the establishment of "Residential Urban Estates, Mullanpur' in the area of revenue Estate Tehsil Kharar, District SAS Nagar.
It is further case of the petitioners that declaration under Section 6 of the 1894 Act has been made without application of mind and their objections were not considered and had just been brushed aside. No report of the Collector after making an enquiry was sent to the Government and as such, the Government had no material to consider and issue the declaration. It has been further averred that the master plan of the area does not indicate if any part of it is to be acquired under the 1894 Act and after deletion of Section 71(3)(f) of 1995 Act by the amending Act of 2006 (i.e. Act No.33 of 2006), there is no provision to make 1894 Act applicable under the Punjab Act of 1995 and as such, no land can be acquired. It is the further case of the petitioners that to acquire land under the 1995 Act, "public purpose" has to be as per the provisions of the 1995 Act and not under the 1894 Act. According to the petitioners, the acquisition will benefit the higher classes of the Society and being purely a commercial transaction, no public purpose is even remotely connected with this and the petitioners shall be deprived of their property for the said so-called public purpose which is violative of Article 300-A of the Constitution of India.
The petitioners have further laid challenge to the notification dated 24.11.2006 issued under Section 56 of the 1995 Act. Vide this notification an area comprising of 14805 acres of land was declared to be a local planning area, Mullanpur. Challenge has been laid to the aforesaid declaration of local planning area on the various grounds as under:-
CWP No.11533 of 2010 (O&M) 4(i) The Notification under Section 56(1) of the 1995 Act was not published in the manner prescribed.
(ii) The Planning Board had no jurisdiction to select the planning area after 20.10.2006 i.e. the date on which the 1995 Act was amended vide Act No.33 of 2006 whereby selection of area for acquisition could only be done by the State Government and not by the Board.
The acquisition proceedings have been challenged further submitting that:
(I) After the approval of the master plan before making acquisition under 1894 Act, the Authorities were supposed to have made a scheme in accordance with the master plan and thereafter, such a scheme could have been executed by the Greater Mohali Area Development Authority after complying with the provisions of Chapter XII of the 1995 Act. The Punjab Government has enacted the Punjab District Planning Committees Act 2005 (Punjab Act 22 of 2005) with effect from 28.11.2005. However, no such Committees have been elected/nominated.
(II) The acquisition has been of "land" only. The shops/houses and other fixtures are not land and they do not come within the definition of the expression of "land" and thus, the same cannot be acquired.
(III) That according to the 73rd and 74th Amendment of the Constitution, the boundaries of the rural area have been identified/specified and the same are governed by the Local Gram Panchayat and thus, the boundaries of the Gram Panchayat cannot be reduced without prior notice to the concerned Gram Panchayat and its residents, as if the area is to be reduced, it will affect the civil CWP No.11533 of 2010 (O&M) 5 rights of the Gram Panchayat and its residents. Before issuing notification under Section 4 of the 1894 Act, the Gram Panchayat of the village which is strongly opposing the acquisition was not consulted at all.
An additional point has been raised in CWP No.15492 of 2010 to the effect that the Town and Country Planning Department, Punjab/Chief Town Planning, Punjab has been notified as Planning Agency for the Local Planning Area as declared vide notification dated 24.11.2006 by the Planning Board whereas it is the State Government which is authorized to designate the Planning Agency for the Local Planning Area and on that account, the process of notifying the Final Master Plan, Mullanpur is vitiated and moreover, the final master plan is based on the declaration of the Local Planning Area by the Board by issuing notification dated 24.11.2006 whereas as per the amended provisions it is required to be issued by the State Government and thus, the procedure adopted at the whims and fancies of the Authorities cannot be said to be legal and valid. It has been also averred in this writ petition that the petitioners have been deprived from developing their land as envisaged under Section 81 of the 1995 Act, as there is no competent Authority under the Act to whom such an application could be made. A further grievance has been raised in the said writ petition that no environmental clearance has been obtained from the Central Agency which was necessary. It has also been submitted that Section 11 and 23(1) of the 1894 Act are violative of the provisions of second proviso to Article 31-A of the Constitution of India as Section 11 provides for fixing amount of compensation on the date of publication of the notification under Section 4 of the 1894 Act and not on the date of taking possession of the land and further Section 23(1) does not provide for fixing compensation "at not less than market price", as on the date of the CWP No.11533 of 2010 (O&M) 6 acquisition and therefore, the aforesaid provisions of the 1894 Act are violative of the Constitution of India and land of the petitioners cannot be acquired. The petitioners have also claimed implementation of the National Rehabilitation and Resettlement Policy, 2007 and absence of the same according to them has vitiated the acquisition proceedings. A grievance has also been raised for not implementing the Land Pooling Scheme for the owners of the acquired land.
On the basis of the averments made as above, the following law points have been raised in CWP No.11533 of 2010:
"i) Whether the notifications u/s 4 & 6 are void and illegal, due to the fact that in the name of land, constructed area having shops, small industries and residential houses are being acquired which is not a part of the notification?
ii) Whether the acquisition proceedings are void in toto in view of the amendment of the 1995 Act which came into force on 20.10.2006 and the notification u/s 56(1) dated 24.11.2006 where local area is selected by the Board and not by the State?
iii) Whether the acquisition is bad in view of no publicity given to the notification u/s 56(1) as it was not published in any daily or local newspaper neither it was pasted in any conspicuous place in the village?
iv) Whether, in view of 73rd and 74th Amendment Act, any authority other than the District Planning Committees can do any work of development up to the District level?
v) Whether entry 18 list II of 7th Schedule of the Constitution word LAND include the constructed area also?
vi) Whether the Special Act No.22 of 2005
supersedes the General Act of 1995 to the extent it
deals with the development of Panchayat area?CWP No.11533 of 2010 (O&M) 7
vii) Whether running business can be acquired under the 1894 Act?
viii) Whether any property can be acquired under 1894 Act without framing the necessary rules for the same?
ix) Whether notification u/s 4 can be issued without doing proper survey of the proposed area?
x) Whether without proper legislation or prior consent of the Panchayats, the boundaries of the village can be reduced?
xi) Whether non agricultural assets can be included in the definition of word "LAND" as used in Entry 18, List II Schedule VII?
Xii) Whether the respondents can acquire the land belonging to the petitioner without any talks and prior approval of the Gram Panchayat of the village?
Similarly, the following law points have been raised in CWP No.15492 of 2010:
"A) Whether the impugned notifications, Annexures P/3 and P/5, being not in consonance with each other, are liable to be quashed on this short ground alone? B) Whether the provisions of the 1995 Act were mandatorily required to be followed for defining the public purpose before proceeding to issue the notification under Section 4 of the 1894 Act? C) Whether in light of the fact that the acquisition of the land in question for setting up a new town having been quashed by this Hon'ble Court and the judgment having been upheld by the Hon'ble Supreme Court for non compliance of the mandatory provisions of the 1995 Act and for not obtaining the environmental clearance and clearance of the Defence Ministry, the present acquisition which suffers from the same defect can be allowed to be sustained?
D) Whether non compliance of the mandatory provisions of Section 4, 5-A and 6 of the 1894 Act CWP No.11533 of 2010 (O&M) 8 renders the impugned notifications and the consequent proceedings are illegal, null and void? E) Whether the impugned notifications as also the impugned action of the respondents in proceeding to acquire the property in question is hit by the provisions of Constitution of India more specifically by the provisions contained under Article 14, 19(1)(g), 21, 31A and 300A?
F) Whether the impugned notifications can be legally sustained in light of the fact that the public purpose mentioned in the impugned notifications is vague? G) Whether in view of 73rd and 74th Amendment of the Constitution of India, the urban planning of the area falling within a District can be carried out without adopting the method and the manner envisaged under the said provisions?
H) Whether Section 11 and Section 23 of the 1894 Act are violative/ultra vires of Second proviso of Article 31A of the Constitution of India?
I) Whether the respondents are under legal obligation to follow the policy framed by the Government of India, Annexure P/10?
J) Whether in absence of Constitution of the Committees as per the provisions of The Punjab District Development Committee Act, 2005, the respondent authorities could proceed to acquire the land for the alleged public purpose?
K) Whether in light of the submissions made in the writ petition and the documents annexed with the writ petition, the respondent authorities are required to be prohibited from acquiring the land of the petitioners for the alleged public purpose?
L) Whether the impugned notifications as also Section 11 and 23(1) of the 1894 Act are liable to be quashed being illegal, arbitrary and ultra vires in light of the detailed facts and the grounds mentioned in the writ petition?CWP No.11533 of 2010 (O&M) 9
M) Whether the Final Master Plan purported to have been notified under the provisions of the Amending Act, 2006, being in contravention of the provisions of the 1995 Act, is opposed to the principles of natural justice and suffering from material irregularities, can be legally sustained?
N) Whether the respondent authorities having deprived the petitioners of their right envisaged under Section 81 of the 1995 Act, can be legally allowed to proceed with the acquisition?
O) Whether the non approval of the plan of Mullanpur Urban Estates renders the scheme, as envisaged under Chapter XII of the 1995 Act, as illegal and void? P) Whether the respondent authorities are under legal obligation to associate the petitioners and other land owners with the modalities of the Land Pooling Scheme and to afford them an opportunity to file objections/suggestions so as to enable them to understand the scheme and thereby exercise their right to get proportionate share in the developed residential, commercial as also institutional area?"
It may also be relevant to mention at this stage that the petitioners in CWP No.11533 of 2010 have relied upon CWP No.13601 of 2009 in support of their case. Para No.19 of the aforesaid writ petition reads thus:-
"That the similar notifications u/s 4 & 6 for acquiring land in this village for broadening a road which acquires shops etc. have been challenged in CWP No.13601 of 2009 on these very grounds in which Notice of Motion has been issued and dispossession of the petitioners has been stayed."
It is also a matter of record that on various dates, the present writ petition was ordered to be listed along with CWP No.13601 of 2009.
CWP No.11533 of 2010 (O&M) 10Upon notice issued in both these petitions, the respondents have filed their respective written statements.
In the written statements filed on behalf of the respondent-
State in CWP No.11533 of 2010, the averments made in the writ petition have been denied by raising preliminary submissions which read as follows:
"1. The contention sought to be raised by the petitioners that after 73rd and 74th amendment of the Constitution of India, the task of planning and development of an area no longer vests with the specialized State Development Agencies and vests only with the District Planning Committee, is misconceived as this proposition has been rejected by the Hon'ble Supreme in Bondu Ramaswamy Vs. Bangalore Development Authority SCC (2010) 7 page 164. The Hon'ble Supreme Court has specifically held that the development authorities do not become inoperative on coming into force of Parts IX and IX-A of the Constitution after 73rd and 74th amendment of the Constitution of India.
2. That the petitioners did not raise an objection against the declaration of Local Planning Area Mullanpur and its Master Plan under Punjab Regional Town Planning and Development Act, 1995. The competent authority invited objections at two different stages before finalization of the Master Plan, but the petitioners chose not to raise objection. Therefore, at this stage, they are estopped in law from challenging notification under section 4 and declaration under section 6 of the Land Acquisition Act, 1894 on the ground that initial planning under Punjab Regional Town Planning and Development Act was not in accordance with law.
3. That if the petitioners are found to be eligible under the prevalent rehabilitation policy applicable in the State of Punjab, they shall be given benefit of "Land CWP No.11533 of 2010 (O&M) 11 Pooling Scheme" and all such other benefits as are available to oustees.
4. That the construction raised by the petitioners is in violation of Punjab New Capital (Periphery) Control Act, 1952."
It has been further submitted in para No.7 of the written statement filed in CWP No.11533 of 2010 which reads as under:
"I. The objections were invited vide notification dated 14.8.2006 and not 24.11.2006 and it is relevant to mention here that process of finalizing local planning area Mullanpur had already been initiated under the un- amended PRTPD Act, 1995 and objections were invited. The petitioners never raised any objection and therefore, at this stage they are estopped from challenging the declaration of the Local Planning Area, Mullanpur and subsequent notification for development of the Mullanpur area. Copy of the notification dated 14.8.2006 is annexed herewith as Annexure R-1.
II. The petitioners have laid challenge to the proposed acquisition for Urban Estate Mullanpur situated in District SAS Nagar, Mohali, inter-alia on the ground that the PRTPD Act, 1995 was amended on 20th October, 2006 and by virtue of this amendment, the Punjab Regional and Town Planning Board could not have issued impugned notification dated 24.11.2006 at Annexure P-6 as after amendment, it was only the State Government which could have issued notification under section 56 of the PRTPD Act, 1995.
III. It is respectfully submitted that on 14.8.2006, i.e. even before amendment of the PRTPD Act, 1995, the process of identifying and declaring "Local Planning Area" of Mullanpur had already been initiated under the un-amended Act and objections were invited from the affected persons. Since the filing of objections was a vested and substantive right of the affected persons, the amendment of the PRTPD Act, 1995 carried out on 20th CWP No.11533 of 2010 (O&M) 12 October, 2006 was given prospective effect. The objection of one Gram Panchayat Raihmanpur (Hadbast No.172) was accepted and as requested by it, this Gram Panchayat was included in the planning area.
IV. As per the Amended PRTPD Act, 1995, the affected persons do not have any right to file objections against proposed planning area therefore, the petitioners have not suffered any prejudice with the issuance of the impugned notification at Annexure P-6 by the Punjab Regional and Town Planning Board and rather they were given benefit of filing their objections. V. After issuance of impugned notification at Annexure P-6, the State Government continued the process initiated by the Board and issued notification under Section 70 of the amended PRTPD Act, (2006), and once again invited objections from General Public and all other interested persons but no objection was received.
VI. Thereafter, it also sanctioned master plan of the Mullanpur Planning Area in accordance with law. Therefore, with the State Government accepting the impugned notifications dated 14.8.2006 at Annexure R-8 and 24.11.2006 at Annexure P-6, it ratified all the actions taken by the Board. The petitioners have failed to establish any prejudice being suffered by them and in absence thereof the allegations of alleged non- compliance of procedure under PRTPD Act, 1995 are merely academic and that too wrong. Copy of the Mullanpur Planning Area is annexed herewith as Annexure R-2.
VII. It is worthwhile to mention here that on 29th January, 2008, the State Government, Punjab in order to meet challenges of the rapid growth of the S.A.S. Nagar, Mohali notified a "Regional Planning Area" under Section 56(1) of the PRTPD (Amended Act), 2006 and even the earlier notified area of the entire Local Planning Area of Mullanpur merged in it. Copy of the notification CWP No.11533 of 2010 (O&M) 13 dated 29.1.2008 is annexed herewith as Annexure R-3. VIII The petitioners chose not to raise any objection at the relevant stages and they cannot now challenge the process under the Land Acquisition Act, 1894 on the ground that there were allegedly certain discrepancies while declaration of Local Planning area Mullanpur and notification of Master Plan."
Para No.13 of the aforesaid written statement further reads as under:
"That the contents of paragraph No.13 are admitted as a matter of record. The contentions sought to be raised by the petitioners already stand answered against the proposition being championed by the petitioner in a recent judgment by the Hon'ble Supreme Court in Bondu Ramaswamy Vs. Banglore Development Authority SCC (2010) 7 page 164. The Hon'ble Supreme Court has specifically held that provision of development authority does not become inoperative on coming into force of Parts IX and IX-A of the Constitution coming into force.
It is submitted that the District Planning Committee for District SAS Nagar was duly notified on 22.9.2009. Contrary to the contentions sought to be promoted by the petitioners, once an area has been declared as a planning area, it is only the provisions contained in the PRTPD Act, 1995 which are applicable. Therefore, it is GMADA and other agencies under the PRTPD Act, 1995 as well as the State Government in its concerned department which are to carry out development within the planning area. Once a particular area has been declared as a planning area in accordance with section 56, the land use is to be fixed accordingly. Development is to be done as per the planning proposed under the 1995 Act. No Gram Panchayat is a party in the present case. Only one objection was received by Gram Panchayat Raihmanpur (Hadbast 172) in response to notification dated 14.8.2006 under section 56(1) of the CWP No.11533 of 2010 (O&M) 14 PRTPD Act, 1995 and it was duly considered and accepted and village Raihmanpur was also included in the Mullanpur Planning Area. The District Level Planning Committees have a limited role to play and the present matter relating to planned development of the planning area is outside the scope of District Planning Committees."
Similar defence has taken up in CWP No.15492 of 2010.
Sh. G.S. Grewal, learned Senior Advocate appearing on behalf of the writ petitioners in CWP No.11533 of 2010 has vehemently argued that the provisions of Section 56 of the PUDA Act, being mandatory, have not been complied with in the present case, as on the date of notification i.e 24.11.2006, issued by the Punjab Regional & Town Planning and Development Board, the Board was not competent to issue such a notification as per the provisions of the 1995 Act, since the said Act stood amended w.e.f. 20.10.2006. According to the amended provisions, it was only the State Government which could declare a Local Planning Area and thus, the instant notification dated 24.11.2006 declaring the Local Planning Area of Mullanpur which has been issued by the Development Board is without the authority of law and thus, non-existent/non est. Therefore, in the absence of any Local Planning area, the respondent-Authorities were not competent to initiate acquisition proceedings.
Learned counsel has further contended that in the absence of a valid notification under Section 56 of the 1995 Act, acquisition for development cannot be made. It has been argued by Sh. G.S. Grewal, Senior Advocate that under Section 42 of the 1995 Act, the land can be acquired only under the provisions of the 1995 Act and under Section 42 of the said Act, the acquisition of land can be made only for an Authority as defined under Section 2(d). Since in the notifications, it has not been mentioned that land is needed for an Authority, the acquisition proceedings CWP No.11533 of 2010 (O&M) 15 are liable to be set aside. Learned Senior Advocate has further argued that in furtherance of the declaration of Local Planning Area, no scheme has been prepared by the Planning Authority under the provisions of Chapter XII of the 1995 Act specifying that such and such area needs to be acquired for a specific purpose and thus, the provisions of Chapter XII have not been complied with and the acquisition proceedings are liable to fail on this ground also. Sh. Grewal has lastly argued that as per the 73rd and 74th amendment in the Constitution of India and as per the provisions of Article 243ZD and 243ZF, the Local Panchayat was to be consulted in the planning of the area and the respondent-Authorities have totally failed in this regard as the Panchayat has been ignored. Thus, for non-compliance of the aforesaid Constitutional provisions, the acquisition is set aside.
Lastly, Mr. Grewal, has also argued that site for development has not been selected by a competent Authority. Learned counsel appearing on behalf of the petitioners has placed strong reliance on the judgment of the Hon'ble Supreme Court in the case of State of Punjab and others v.
Sanjeet Singh Grewal and others (2007)(6) Supreme Court Cases 292.
In addition to the aforesaid argument as raised by Sh.
G.S.Grewal, Senior Advocate, Sh. Ashwani Chopra, Senior counsel representing the petitioners in CWP No.15492 of 2010 has further argued that in view of the amendment of the Constitution of India, the planning in the country to some extent has been delegated to the Municipalities and the Panchayat and a planning Agency, namely, the District Planning Committees are to be constituted under Article 243ZD of the Constitution which is missing in the present case. Sh. Chopra has further referred to the aims and objects of the 1995 Act, according to which the aforesaid Act has been enacted for development and better planning and without complying with the provisions of Chapter XII. The purpose of the Act CWP No.11533 of 2010 (O&M) 16 cannot be achieved as no environmental clearance was obtained from the competent Authority for the land in question before acquisition Sh. Chopra has further argued that the land in question is sought to be acquired for a public purpose, namely, for establishing a Residential Urban Estate, as defined under the provisions of 1995 Act, which was framed to make provision for planning, regulating the development and use of land in planning areas delineated for that purpose and for undertaking urban development and housing programmes whereas the notifications for acquisition of land has been issued without due compliance of the mandatory provisions which exposed the hidden intention of the Authorities and established that the acquisition in question is resorted to provide benefit, directly or indirectly to the big real estate companies and thus, the acquisition proceedings were liable to be quashed.
On the other hand, Sh. Sanjeev Sharma, learned Senior Advocate representing the respondents has vehemently argued that no arguable points survives in the present writ petition in view of the judgments of the Hon'ble Supreme Court in the case of Amarjit Singh and others v. State of Punjab and others 2010(10) SCC 43 and a Division Bench of this Court in CWP No.13601 of 2009 (Dr. Gurdeep Singh and others Versus State of Punjab etc.) decided on 18.2.2011 wherein the notification dated 24.11.2006 issued under Section 56 of the 1995 Act for the Local Planning area of Mullanpur has already been upheld. Learned counsel has also relied upon a judgment of the Hon'ble Supreme Court in Bondu Ramaswamy v. Bangalore Development Authority (2010) 7 SCC 129 wherein it has been held that provision of Development Authority does not become inoperative on coming into force of Part IX and IX-A of the Constitution. It was brought to the notice of this Court that in spite of opportunities granted, the petitioners have failed to CWP No.11533 of 2010 (O&M) 17 submit any objection to the declaration of Local Planning Area. It was also submitted that only one objection was received by the Gram Panchayat, Raihmanpur and it was duly considered and accepted and village Raihmanpur was also included in the Mullanpur Planning Area. Learned counsel also referred to the written statement wherein it was submitted that District Planning Committee for District SAS Nagar, Mohali was duly notified on 22.9.2009. Learned counsel has vehemently argued that once an area has been declared as a planning area, the land use is to be fixed accordingly and the development is to be done as per the planning proposed under the 1995 Act. The District Level Planning Committees have a limited role to play and the present matter relating to planned development of the planning area is outside the scope of District Planning Committees. It has been further submitted that the Government can give the work of execution of scheme/planning to any of the Authorities as mentioned in the 1995 Act and therefore, the respondent i.e. GMADA which has been designated as the planning agency, is rightly executing the same. In the end, Sh. Sharma has vehemently argued that there is no challenge to the acquisition on any of the grounds available to the petitioners under the provisions of the Land Acquisition Act and the challenge laid to the acquisition proceedings on the basis of the provisions of 1995 Act, as raised, is liable to be rejected in view of the submissions made and has prayed that the writ petition be dismissed.
At this stage, it may also be relevant to mention that CWP No.13601 of 2009 on which reliance was placed by the petitioners specifically submitting that similar grounds have been raised in the aforesaid writ petitions, was decided by this Court vide judgment dated 8.2.2011 wherein the notification dated 24.11.2006 issued under Section CWP No.11533 of 2010 (O&M) 18 56 of the 1995 Act, (which has been annexed as P-6 and challenged in the present writ petitions), was under challenge and the same was upheld. The relevant paragraphs read as under:
"From the perusal of the aforesaid provisions, it is crystal clear that under the unamended Section 56(1) of the 1995 Act, the Planning Board, Punjab, was the competent Authority to issue a declaration with regard to the local planning area.
Undisputedly, in the present case, notification under Section 56(1) of the 1995 Act was issued on 14.8.2006 rightly by the Board as per the unamended provisions. It is also not in dispute that before the objections could be finalized and notification under Section 56(5) could be issued by the Board, the amended provisions came into force with effect from 20.10.2006 authorizing the State Government to declare such a local planning area. It may be seen that in the present case, by granting an opportunity to the objectors (though it was not obligatory on the part of the respondents after the deletion of Section 56(3) and 56(4) of the unamended Act, vide Amendment Act of 1995), the only requirement of law is to issue a notification declaring a local planning area by the State Government) if hearing was provided it had not caused any prejudice to the petitioners. The respondents have taken a definite stand that all the acts done previously by the Planning Board have been rectified by the State, meaning thereby that the irregularity, if any, while issuing the notification under Section 56 of the 1995 Act (Annexure P-5) stands rectified. Moreover, the provisions of the amended Act are prospective in nature and could not have been applied retrospectively and not only this, there is no challenge to the prospective application of the aforesaid provisions by the petitioners CWP No.11533 of 2010 (O&M) 19 in the present case.
That apart, the State Government issued notification dated 29.1.2008 Annexure R-1/B under Section 56(1) of the amended 1995 Act declaring local planning area Mohali, including the area in question also. Admittedly, the aforesaid declaration under Section 56(1) of the 1995 Act is much prior to the issuance of Section 4 Notification (Annexure P-2) of the Land Acquisition Act, for acquiring the land for widening up of the road. Not only this, before undertaking any development work, a master plan of the area also stood notified as per the provisions of the 1995 Act vide notification dated 12.12.2008 (Annexure R-1/A). Admittedly, the area in question falls in the said master plan. Thus, the argument raised by the learned counsel for the petitioners that no development work can be undertaken in a local planning area under the 1995 Act without complying with the provisions of this Act, is untenable and is liable to be rejected outrightly."
The reliance placed on the judgment of the Hon'ble Supreme Court in State of Punjab and others v. Sanjeet Singh Grewal and others (2007) 6 Supreme Court Cases 292 is misplaced in the facts of the present case. In Sanjeet Singh Grewal's case (supra), the provisions of Section 56 were completely ignored and without declaring the planning area by issuing notification in the Official Gazette and without following the procedure laid down therein which included consideration of objections and suggestions from the public apart from Government Departments, Authority and institutions, the authority constituted under Section 31 selected a site for a new town though it had no authority of law to select such a site and later on requested the Government for acquisition of land under Section 42 of the Act of 1995. All these actions were in complete CWP No.11533 of 2010 (O&M) 20 breach of Section 56 of the Act and therefore, were rightly held void.
It may also be noticed that in Sanjeet Singh Grewal's case (supra), the site was selected for setting up a new township by a Planning Agency, namely, PUDA constituted under Section 31 of the Act of 1995 and the Government has taken a stand that having taken a decision to set up the new township Anandgarh and having appointed a Special Planning Authority under Section 31 of the Act, it was not necessary that the Board should have first selected a site and designated a Planning Agency before the Special Planning Authority could take any action for planning and development of the new township. After considering the provisions of the 1995 Act, the Hon'ble Supreme Court came to the conclusion that the power of declaring a planning area, site for a new town vested in the Board under Section 56 of the Act which power cannot be delegated to the Authority constituted under Sections 17, 29 or 31 of the Act of 1995 and none of the other Authorities constituted under Sections 28, 29 and 31 of the Act are vested with power to declare a planning area by notification in the Official Gazette and thus, the mandatory provisions of Section 56 having not been complied with, the acquisition in Sanjeet Singh Grewal's case (supra) was held to be invalid. The relevant observations of the Hon'ble Supreme Court read thus:
" 24. It is useful at this stage to notice the provisions of Sections 56 and 57, which are as under:-
"56. Declaration of planning areas. (1) The Board may, from time to time, by notification in the Official Gazette, declare its intention to specify any area in the State to be a regional planning area, a local planning area or the CWP No.11533 of 2010 (O&M) 21 site for a new town (hereinafter referred to as the planning area).
(2) Before making the declaration under sub-section (1) the Board may take into consideration such matters as may be prescribed.
(3) Every notification published under sub-section (1) shall define the limits of the area to which it relates. (4) Any person including representative of a Department of the State Government or the Central Government or a local authority or any other institution may, within sixty days from the date of the publication of the notification under sub-section (1), submit any objections or suggestions in writing relating to anything contained in that notification, to the Board and the Board shall consider all such objections and suggestions. (5) After the expiry of two months from the date of publication of the notification under sub-section (1) and after considering objections and suggestions, if any, received under sub-section (4), the Board may, by notification in the Official Gazette,-
(a) declare the area with or without any modification to be a regional planning area, a local planning area or a site for a new town, as the case may be ; and
(b) specify the name of the regional planning area or the local planning area or a site for the new town, as the case may be.
(6) Except in such class or category of cases which the Board may in its regulation exempt and except in the case of operational construction or construction in any area comprised in abadi-deh of any village falling inside its lal lakir or phirni, no person shall, on or after publication of public notice under sub-section (5) and till the date the Regional Plan or the Master Plan comes into operation under Section 64 or under Section 75, as the case may be, institute or change the use of land for any purpose or carry out any development in respect of any land without the previous permission of the CWP No.11533 of 2010 (O&M) 22 Competent Authority and the provisions of Sections 67 and 68 mutatis mutandis shall apply to the grant of such permission.
(7) The Board may, after following the procedure as laid down in this section, alter the limits of any regional planning area, local planning area or the site for a new town.
57. Designation of planning agencies.- As soon as may be after declaration of a regional planning area, a local planning area or a site for new town, the Board may for the purpose of the performance of the functions assigned to it, designate planning agency for that area :.
Provided that more than one planning agencies may be designated to perform different functions."
25. A mere perusal of these provisions amply clarifies that the Board has been authorized to declare its intention to specify any area in the State :-
(i) to be a regional planning area ;
(ii) a local planning area ; and
(ii) a site for a new town.
An area so specified is referred to as "the planning area". Thus what applies to a planning area such as a site for a new town, also applies to a regional planning area or a local planning area. The planning area undoubtedly has to be declared by the Board after following the procedure laid down in Section 56. Before making a declaration of its intention to specify a planning area under sub-section (1) the Board has to consider such matters as may be prescribed under the rules. The limits of the specified area have to be clearly defined and a Notification published in the Official Gazette declaring the intention of the Board to specify a planning area. Under sub-section (4) of Section 56 objections and/or suggestions may be made which have to be considered by the Board, whereafter the Board may by Notification in the Official Gazette declare the area with or without any modification to be a regional planning area, a local planning area or a site for a new town, as the case may be. It is further required to specify CWP No.11533 of 2010 (O&M) 23 the name of the planning area so declared. Having done so, the Board is required to designate the planning agency for that area for the purpose of performance of the functions assigned to it.
26. On a perusal of Sections 56 and 57 of the Act of 1995 we entertain no doubt that it is the Board which has to, by Notification in the Official Gazette, specify an area as a regional planning area, a local planning area or a site for a new town clearly defining the limits of the area. After considering the objections and suggestions that may be received by it the Board may with or without modifications declare the area to be a planning area by Notification in the Official Gazette, and thereafter appoint a planning agency for performance of the functions related thereto. No provision of the Act has been shown to us which authorizes any other agency or authority under the Act to declare a planning area which includes the site for a new town. This function has to be performed only by the Board and that too after entertaining objections and suggestions and considering them in accordance with the Act and the Rules. Not only individuals but even representatives of the departments of the State Government or the Central Government or a local authority or any other institution may submit its objections or suggestions relating to anything contained in the Notification. So construed, in the case of setting up of a new township, the first step to be taken by the Board is to declare a planning area viz. select a site for the new town after entertaining objections and considering the same. Thereafter the Board may designate the planning agency for the purposes of performance of the functions assigned to it. There is nothing in Sections 56 and 57 which can persuade us to hold that the planning agency itself may select the site for a new town. This would become apparent after we consider some of the other provisions of the Act.
27. Section 17 provides for the establishment and constitution of the Authority to be known as the Punjab Urban Planning and Development Authority (PUDA for short). The CWP No.11533 of 2010 (O&M) 24 authority is a body corporate as well as a local authority. The Minister-in-Charge of Housing and Urban Development is its Chairman. The functions of the authority are enumerated in Section 28 which reads as follows:-
"28. Objects and functions of the Authority - (1) The objects of the Authority shall be to promote and secure better planning and development of any area of the State and for that purpose the Authority shall have the powers to acquire by way of purchase, transfer, exchange or gift or to hold, manage, plan develop and mortgage or otherwise dispose of land or other property or to carry out itself or in collaboration with any other agency or through any other agency on its behalf, building, engineering, mining and other operations to execute works in connection with supply of water, disposal of sewerage, control of pollution and other services and amenities and generally to do anything with the prior approval or on direction of the State Government, for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing provisions, the Authority itself or in collaboration with any other agency or through any other agency on its behalf. -
(i) if so required by the State Government or the Board, take up the works in connection with the preparation and implementation of Regional Plans, Master Plans and New Township Plans, and town improvement schemes;
(ii) undertake the work relating to the amenities and services to be provided in the urban areas, urban estates, promotion of urban development as well as construction of houses.
(iii) promote research, development of new techniques of planning, land development and house construction and manufacture of building material;
(iv) promote companies, associations and other bodies for carrying out the purposes of the Act; and CWP No.11533 of 2010 (O&M) 25
(v) perform any other functions which are supplemental, incidental or consequential to any of the functions referred to in this sub-section or which may be prescribed".
28. Clause (i) of sub-section (2) of Section 28 is significant. It provides that the State Government or the Board may require the authority (PUDA) to take up the works in connection with the preparation and implementation of Regional Plans, Master Plans and New Township Plans, and town improvement schemes. It does not empower PUDA to declare the site for a new town as a planning area though it is authorized to prepare and implement new township plans. It can, therefore, be safely concluded that after a site for a new town is selected by the Board and declared as a planning area in exercise of its powers under Section 56 of the Act, the authority designated as the planning agency for that area, can take up the works in connection with the preparation and implementation of new township plans.
29. Section 29 provides for the constitution of Special Urban Planning and Development Authorities. The Special Authority is constituted if the State Government is of the opinion that the object of proper development of any area or group of areas together with such adjacent areas as may be considered necessary will be best served by entrusting the work of development or redevelopment thereto to a Special Authority, instead of PUDA. Where the State Government is so satisfied it may, by Notification, constitute such a Special Authority for that area and thereupon, all the powers and functions of PUDA relating to development and redevelopment of that area under the Act shall be exercised and performed by the Special Authority so constituted. Section 29, therefore, enables the State Government to constitute a Special Urban Planning and Development Authority for the proper development of an area or a group of areas. The Special Authority so constituted has all the powers of PUDA relating to development and redevelopment of that area.
30. Under Section 30 it is also open to the State CWP No.11533 of 2010 (O&M) 26 Government to designate a local authority as Special Urban Planning and Development Authority and confer upon it all the powers and functions of PUDA.
31. Apart from PUDA and Special Urban Planning and Development Authority, Section 31 provides for the constitution of a special authority described as the New Town Planning and Development Authority. Sections 31 reads as follows :-
31. "New Town Planning and Development Authority: (1) Where the State Government is of opinion that object of proper planning and development of a site of a new town will be best served by entrusting the work of development thereof to a Special Authority, instead to the Punjab Urban Planning Authority, it may, by notification, constitute a Special Authority for that site to be called the New Town Planning and Development Authority and thereupon, all the powers and the functions of the Punjab Urban Planning and Development Authority relating to the development of that site of the new town under this Act shall be exercised and performed by such New Town Planning and Development Authority.
(2) A New Town Planning and Development Authority constituted under sub-section (1), shall be a body corporate as well as local authority by the name aforesaid having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable and to contract, and by the said name sue and be sued.
(3) A New Town Planning and Development Authority will consist of the following members, namely :-
(i) a Chairman,
(ii) a Chief Administrator who shall be
appointed amongst the officers of the Government of Punjab having such qualifications and experience as may be prescribed; and
(iii) other members not exceeding ten to be CWP No.11533 of 2010 (O&M) 27 appointed by the State Government.
(4) The provisions of this shall mutatis mutandis apply to a New Town Planning and Development authority as they apply in relation to the Punjab Urban Planning and Development Authority, with the modification that references to the Punjab Urban Planning and Development Authority shall be construed as references to a New Town Planning and Development Authority". It is under this provision that the State Government proceeded to constitute the New Town Planning and Development Authority for Anandgarh on May 20, 1999. A reading of the provision clarifies that the New Town Planning and Development Authority is constituted with the object of proper planning and development of a site for new town. It is with this in view that Section 32 entrusts the New Town Planning and Development Authority with the duty to plan and develop the site of a new town. It is for this purpose that all the powers and functions of PUDA relating to the development of the site of a new town are to be exercised and performed by the said New Town Planning and Development Authority. The fact that it is entrusted with the task of proper planning and development of a site of a new town itself pre-supposes the existence of a selected site. Neither the PUDA nor the authority constituted under Section 17 nor the New Town Planning and Development Authority constituted under Section 31 is vested with the power to declare a planning area such as a site of a new town. On the other hand Section 56 clearly vests the power to declare a planning area in the Board, and the site of a new town is one such planning area, apart from regional planning area and local planning area. This has to be done, as we have earlier noticed, after considering the objections to the Notification declaring an intention to specify an area as a site for a new town defining its limits.
32. Sub-section (I) of Section 56 mandates that every Notification declaring the Board's intention to specify an area as the site for a new town must define the limits of the area to which it relates. Obviously, therefore, the Notification issued CWP No.11533 of 2010 (O&M) 28 under sub-section (1) of Section 56 declaring the intention of the Board to specify an area as the site for a new town must define the limits of the area to which it relates meaning thereby that the Board must while declaring its intention to specify an area as a planning area give all the necessary particulars as required under sub-section (1) of Section 56 and consider the objections thereto. From the very scheme of the Act of 1995, and having regard to the clear provisions of Section 56 thereof, there can be no doubt that the planning area has to be declared by the Board with specificity and only after considering the objections and suggestions made. One of the authorities may be entrusted with the task of planning and developing that area which may involve preparation of master plans, zonal plans etc. The role of a planning agency commences only after a planning area is declared by the Board.
33. Having considered some of the important provisions of the Act of 1995 we shall now consider the submission urged on behalf of the appellants that the provisions of the Act of 1995 were not at all applicable to the acquisition in question. This submission must be rejected. It is not disputed that the land was sought to be acquired for setting up a new town. Admittedly, the impugned Notifications were issued at the behest of the Special Planning Agency constituted under Section 31 of the Act of 1995 invoking Section 42 of the Act which provides for acquisition of land for the purposes of the authority under the Act. The State Government exercising its power under Section 31 of the Act of 1995 constituted the New Town Planning and Development Authority, Anandgarh. It was this authority which made its recommendation to the State Government which was approved by the State Government for the acquisition Section 42 of the Act of 1995 was invoked. In this factual background it is futile to contend that the provisions of Act of 1995 are not applicable to the acquisition in question. We agree with the High Court that the provisions of the Act of 1995 are clearly attracted to the acquisition in question, since the acquisition was for planning and CWP No.11533 of 2010 (O&M) 29 development of a planning area under the Act of 1955.
34. We may also consider the submissions urged by the learned Additional Solicitor General at this stage. He submitted that the acquisition was sought to be made under the provisions of the Land Acquisition Act. According to him Section 56 of the Act of 1995 does not contemplate compulsory acquisition of land. The submission overlooks the fact that the various schemes contemplated by the Act of 1995 may, for their implementation, involve acquisition of land. It may be that some of the schemes within the contemplation of the Act of 1995 may not involve acquisition of land. This, however, does not justify the very wide submission that no acquisition of land is at all contemplated in connection with schemes declared under Section 56 of the Act. Depending on the nature of scheme framed for implementation, the planning authority may require land for its purposes and may, therefore, request the Government to invoke Section 42 of the Act which provides for acquisition of land for the purposes of the authority under the Act applying the provisions of the Land Acquisition Act. In this case admittedly the Planning Authority constituted under Section 31 of the Act requested the Government to acquire the lands in question by invoking Section 42 of the Act, for the purpose of setting up a new town, Anandgarh. The Scheme with which we are concerned in the instant case, therefore did involve acquisition of land and the Government did in fact issue the impugned Notifications for acquisition of land for the purposes of the aforesaid New Town Scheme.
35. The learned Additional Solicitor General also submitted that the High Court proceeded on the erroneous basis that a Scheme should first be formulated in detail before acquisition of land. We do not find that the High Court has committed such error. The High Court did not hold the acquisition to be bad on the ground that a detailed scheme had not been prepared, but on the ground that there was no valid scheme at all, and consequently no valid public purpose justifying the acquisition.
CWP No.11533 of 2010 (O&M) 3036. It was then contended that the State in exercise of its power of eminent domain may acquire lands under Section 4 of the Land Acquisition Act and it is not denuded of its power to acquire land merely because under the Scheme of some other Act a certain procedure had been prescribed for acquisition of land. In the facts of this case we are not persuaded to accept this submission. In the instant case, the lands were sought to be acquired for the purpose of implementation of a New Town Scheme and, therefore, the procedure laid down in the Act of 1995 had to be followed. The learned Additional Solicitor General submitted that if this be the correct legal position the State may be powerless in case the Board under the Act of 1995 did not select a site for a new town. This submission also has no force because under sub-section (2) of Section 14 of the Act of 1995, if required by the State Government the Board is bound to select a site for a new town. In the instant case, the State never called upon the Board to select a site, and instead a New Town Planning and Development Authority was constituted under Section 31 of the Act which arrogated to itself the powers and functions of the Board to select a site and make a recommendation to the State Government.
37. Reliance was placed on the decision of this Court in Gandhi Grah Nirman Sahkari Samiti Ltd. & Others Vs. State of Rajasthan and Others (1993) 2 SCC 662. In that case this Court considered Section 52 of the Rajasthan Urban Improvement Act, 1959 which provided for compulsory acquisition of land. The submission urged before this Court was that the framing of a scheme by the Trust under Chapter V of the Act was a sine qua non for invoking the provisions of Section 52 of the Act. The State Government had no authority to acquire land under Section 52 of the Act unless the same was required for the execution of a scheme framed and sanctioned under Chapter V of the Act. This Court noticed the crux of the argument that the improvement in the urban area could only be carried out by executing the scheme framed under the Act and in no other way. This Court repelled the CWP No.11533 of 2010 (O&M) 31 submission in the following words:-
"Under the scheme of the Act the improvement of the urban area can be undertaken by the Trust and also by any of the departments of the Government. The framing of the scheme becomes mandatory only when the work is undertaken by the Trust. The State Government, in any of its departments, may decide to develop the urban area under the Act and in that case it would not be necessary for the Government to have a scheme framed under Chapter V of the Act. The power of the State Government to acquire land under the Act has been designed to meet the scheme of the Act. Under Section 52 of the Act the land can be acquired by the State Government at the instance of the Trust, or a department of the Government or any prescribed authority. The plain language of Section 52(1) of the Act negates the contention raised by Mr. Shanti Bhushan. Where on a representation from the Trust or otherwise it appears to the State Government that any land is required for the purpose of improvement or for any other purpose under the Act it can acquire such land by issuing a notification under Section 52(1) of the Act. It is, thus, clear that the State Government has the power to acquire land either for the execution of the schemes framed by the Trust under Chapter V of the Act or for any other public purpose under the Act".
It will thus be seen that the decision rests on the interpretation of Section 52 of the Rajasthan Act which provided that the State Government may acquire land on a representation from the Trust, or even otherwise, if it appeared to the State Government that the land was required for the purpose of improvement or for any other purpose under the Act. So far as Section 42 of the Act of 1995 is concerned it provides as under:-
"42. Acquisition of land.- (1) When any land other than the land owned by the Central Government is required for the purposes of the Authority under this Act, the CWP No.11533 of 2010 (O&M) 32 State Government may, at the request of the Authority, proceed to acquire it under the provisions of Land Acquisition Act, 1894, and on payment by the Authority of the compensation awarded under that Act and of any other charges incurred in acquiring the land, the land shall vest in the Authority.
(2) For the purposes of the Land Acquisition Act, 1894, and any other law for the time being in force, the Authority shall be deemed to be a local authority."
The acquisition of land by invoking Section 42 is permitted only if a request is made by the authority to do so for purposes of the authority under this Act. The important words "or otherwise" found in the Rajasthan Act are missing in Section 42 of the Act of 1995. On a reading of the Section as a whole it appears that the State Government can proceed to acquire land under the provision of the Land Acquisition Act only at the request of the authority, that too for the purposes of the authority under the Act. There is nothing in the Section which may lead us to hold, as in the Rajasthan case, that the State on its own satisfaction could acquire land for the purposes of any other scheme under the Act. The powers conferred by Section 52 of the Rajasthan Act are wider than the powers conferred on the State Government under Section 42 of the Act of 1995. The same view was reiterated in Pratap and Another Etc. Vs. State of Rajasthan and Others Etc. (1996) 3 SCC 1 and Jaipur Development Authority Vs. Sita Ram and Others (1997) 3 SCC 522.
38. Reliance was also placed on the judgment of this Court in Ajay Krishan Shinghal and Others Vs. Union of India & Others (1996) 10 SCC 721 submitting that the acquisition for planned development is a public purpose. Once a public purpose has been specified by the Government, the Notification under Section 4(1) of the Land Acquisition Act is not vitiated on account of the fact that planned development was not specified with particularization of the land in question needed for the public purpose. In the instant case the issue is quite different. The land has been acquired on the request of CWP No.11533 of 2010 (O&M) 33 the New Town Planning Authority constituted under Section 31 of the Act for development of the new town of Anandgarh. The High Court has quashed the Notification not on the ground that the detailed scheme had not been specified in the Notification, but on the ground that they there did not exist any valid public purpose in the absence of a validly declared planning area, namely a site for a new town, by the competent authority by Notification in the Official Gazette under Section 56 of the Act of 1995.
39. The next important finding recorded by the High Court is that the provisions of the Act of 1995 were not followed in specifying and declaring the site for new town for which the land was sought to be acquired. We have earlier considered the various provisions of the Act of 1995 and we concur with the finding of the High Court that in specifying and declaring the planning area, namely the site for a new town, the various provisions of the Act were not complied with.
40. The power to declare a planning area, site for a new town being one of them, vests in the Board under Section 56 which power cannot be delegated by the Board to the authorities constituted under Sections 17, 29 or 31 of the Act of 1995. While notifying its intention to specify any area as a planning area, the Board must define the limits of the area to which it relates, meaning thereby that the area must be identifiable by reference to the definition of its limits. This is mandatory since objections and suggestions in relation thereto have to be considered by the Board. The submission of objections and suggestions in response to the Notification published under Section 56 (1) is not an empty formality and is mandatory in nature. The legislature advisedly incorporated such a provision since declaration of a planning area is a subject of public interest.
41. The Board, before notifying a planning area under Section 56(5) by Notification in the Official Gazette, must consider the objections and suggestions received by it in response to the Notification issued by it under Section 56(1) declaring its intention to specify any area as a planning area.
CWP No.11533 of 2010 (O&M) 3442. None of the other authorities constituted under Sections 28, 29 and 31 are vested with power to declare a planning area by Notification in the Official Gazette, but they may be authorized to function as a Planning Agency for the planning and development of the planning area by drawing up Schemes, Master Plans, Regional Plans and other documents.
43. In the instant case admittedly, the provisions of Section 56 were completely ignored and without declaring the planning area by Notification in the Official Gazette, and without following the procedure laid down therein, which included consideration of objections and suggestions from the public apart from Government departments, authorities and institutions, the authority constituted under Section 31 without authority of law selected a site for a new town and made its recommendation to the Government for its approval, and later moved the Government for acquisition of land under Section 42 of the Act of 1995. All these actions were in complete breach of the mandatory provisions of Section 56 of the Act, and therefore void.
44. The argument that the Government is the final authority and was not bound to consult the Board cannot be countenanced since that is in the teeth of the mandatory provisions of Section 56 of the Act. The Legislature having enacted a statute and expressly provided a procedure for declaration of a planning area, which involved consideration of objections and suggestions from the public and publication of the declaration in the Official Gazette, the State could not have adopted a different procedure in breach of express provisions, completely ignoring the existence of the Board, the apex authority under the Act, and obliterating the provision for public participation in the matter of declaring a planning area.
45. We have, therefore, no hesitation in holding that the declaration of the planning area, a site for a new town, was never validly made by the competent authority after following the prescribed procedure and, therefore, there was in law no validly selected site for a new town, nor a validly declared planning area. Consequently, there was no justification for CWP No.11533 of 2010 (O&M) 35 acquisition of land to set up a new town. The public purpose stated in the impugned Notifications was non-existent in view of the fact that there was no planning area validly declared by the competent authority for the development of which any land was required. Section 42 which provided for acquisition of land under the provisions of the Land Acquisition Act could not, therefore, be invoked, since Section 42 came into operation only when land was required for the purposes of the authority under the Act of 1995, and not for any other purpose."
However, in the instant case, as noticed in the earlier part of the judgment, initially notification was issued under Section 56(1) of the 1995 Act on 24.8.2006 inviting objections. It is also a matter of record that the petitioners did not file any objection and thereafter, notification under Section 56 of the 1995 Act was issued on 24.11.2006 that the planning area has been declared by the Government vide notification dated 29.1.2008 issued under Section 56 as amended vide Amendment Act dated 20.10.2006 (As noticed in CWP No.13601 of 2009) and the same has already been upheld thus, compliance of the mandatory provisions of Section 56 stood complied with. The grounds raised to challenge the impugned notification under Section 56 of the Act are the same as in the aforesaid writ petition. Nothing has been shown to us that the aforesaid judgment dated 8.2.2011 passed in CWP No.13601 of 2009 has been stayed or set aside by the Hon'ble Supreme Court. Therefore, in our view, no fault can be found in the notification issued under Section 56 of the 1995 Act and declaration of Local Planning Area Master Plan dated 12.12.2008.
Learned counsel appearing on behalf of the petitioners has further raised an argument that under Section 42 of the 1995 land can be acquired only for an Authority as defined under Section 2(d) i.e. Punjab CWP No.11533 of 2010 (O&M) 36 Urban Planning and Development Authority/any other special Urban Planning and Development Authority or a new Township Selection Committee. There is no request by any of these Authorities for acquisition of land and therefore, the present acquisition being without any public purpose, is bad in law. There is nothing on record to suggest that the land has been acquired by invoking provisions of Section 42 of the 1995 Act.
Admittedly, there is no factual foundation to raise such a question in the writ petition and in the absence of same, the question cannot be raised.
Otherwise also, the argument raised on behalf of the learned counsel for the petitioners is liable to be rejected as admittedly, the impugned notifications for acquisition of land have been issued by the State Government compulsorily acquiring the land. The provisions of Section 42 of the 1995 Act, comes into play if the acquisition of land is made on a request of the Authority under this Act. It may also be noticed that there is no provision in the 1995 Act which debars the State Govt. from acquiring the land without invoking the provisions of Section 42 of the said Act. This is not a case in the present writ petitions. It is well settled that State's power of eminent domain for acquisition of land could not be questioned.
In Sanjeet Singh Grewal's case (supra), admittedly, PUDA which had selected site for New Township made a request to the State Govt. for acquisition and provisions of Section 42 of 1995 Act were invoked and in these circumstances the Hon'ble Supreme Court held that the provisions of 1995 Act are attracted to the acquisition in question.
The argument raised by the learned counsel for the petitioners to the effect that only land can be acquired and the shops and superstructures of the petitioners does not fall in the definition of land and therefore, the same cannot be acquired is also liable to be rejected in view of the judgment passed by this Court in CWP No.13601 of 2009 decided CWP No.11533 of 2010 (O&M) 37 on 8.2.2011 wherein after distinguishing the judgment in Accountant and Secretarial Services Pvt. Ltd. and another v. Union of India and others (1988) 4 Supreme Court Cases 324 and the definition of 'land' as provided under the Land Acquisition Act, the similar argument was rejected.
It may also be relevant to mention that there is no challenge to the notifications issued under Sections 4 and 6 of the 1894 Act on the ground as provided under the Land Acquisition Law. Though an argument has been made that no proper hearing was granted, however, at the time of arguments, the aforesaid argument was not addressed. In fact, no argument was raised to challenge the validity of issuance of notifications.
The contention of the learned counsel for the petitioners to the effect that after 73rd and 74th amendment of the Constitution of India, the task of planning and development of an area no longer vests with the specialized State Development Agencies and it only vests with the District Planning Committee, stands rejected by the Hon'ble Supreme Court in Bondu Ramaswamy's case (supra) wherein it has been authoritatively laid down that the development authorities do not become inoperative on coming into force of Para IX and XI-A of the Constitution after 73rd and 74th of the Constitution of India.
It may also point out that despite opportunity, the petitioners never raised any objection vide declaration of planning area of Mullanpur and its Master Plan under the provisions of 1995 Act. Competent Authority invited objections at two different stages before finalization of Master Plan but the petitioners failed to raise any objection. In this view of the matter, now the petitioners cannot lay any challenge to the acquisition of land on the ground that initially, planning under 1995 Act was not in accordance with law. Though the petitioners have raised an objection to the effect that Gram Panchayat, Mullanpur was not associated and its area has been CWP No.11533 of 2010 (O&M) 38 reduced, there is no factual foundation in the writ petition to show as to in what manner, the area under the Gram Panchayat, Mullanpur has been reduced by the impugned acquisition. It is not the case of the petitioner that by making acquisition, the area has been taken out of village Gram Panchayat. Moreover, the village Gram Panchayat, despite opportunity granted, has not objected to the acquisition. Moreover, the Gram Panchayat, Village Mullanpur has not come forward to challenge the acquisition.
It may also be relevant to mention at this stage that this Court in CWP No.29 of 2004 (Jasmer Singh v. State of Punjab and another) decided on 26.9.2007 had already distinguished acquisition for a new township from those meant for extension of existing township of Mohali and was approved by the Hon'ble Supreme Court in Amarjit Singh's case (supra), after considering the judgment of the Hon'ble Supreme Court in Sanjeet Singh Grewal's case (supra), it was held as under:
"42. The facts in the present case are totally different. In the case at hand we are not dealing with the establishment of new city or township. We are also not dealing with a case where a request for acquisition of land is made by the Town Planning Authority under Section 42 of the Act. We are on the contrary dealing with a case where the acquisition is being made on the basis of an expansion plan formulated before the 1995 Act came into force. That apart, unlike the case of Sanjeet Singh's the land under acquisition in these cases is covered by a notification under Section 56(5) of the 1995 Act, which declares SAS Nagar (Mohali) as a local planning area.
43. The relevant part of the notification is in the following words:
"Punjab Government CWP No.11533 of 2010 (O&M) 39 Punjab Regional and Town Planning and Development Board NOTIFICATION Dated 06.03.2000 No.12/2/2000-4MU. 1/732 For the organized development of Sahibzada Ajit Singh Nagar (SAS Nagar) by formulation of a Master Plan, the Punjab Regional and Town Planning and Development Board had under Section 56(1) of Punjab Regional and Town Planning and Development Act, 1995 issued notification no. 6/21/95-4MU-1/3030 dated 01.07.1996 alongwith Drawing No. DTP (SAS Nagar)1148/96 dated 07.04.1996 for the proposed declaration of the dame as a notified planning area.
As per the above notice published under Section 56 (4) of the Punjab Regional and Town Planning and Development Act, 1995, objections and suggestions from any person, State government or any department of the Central Government or local authority, or any other representative of any other organization on the same, written objections or suggestions could be raised on any part of the notification for declaring local planning area, within 60 days from the date of publication of the Notification on any aspect of the matter to the Member/Secy. Punjab Regional and Town Planning and Development Board, SCO 63-64, Sector 17-C, Chandigarh.
In the meeting of Committee dated 16th October, 1998 which had been constituted for the scrutiny of objections and suggestions so received to the above notification, were analyzed and considered. It was felt by the Committee that all the objections and suggestions were frivolous and as such they should be rejected. Accordingly, the Committee recommend to the Regional Town Planning and Development Board that the Board may reject the suggestions and objections which had been raised and declare the same as a local planning area under Section 56(5) of Act.
The Punjab Regional and Town Planning and Development Board in its Meeting held on 15th November, 1999 at Chandigarh approved the recommendation Committee after considering the same. The Board also rejected the objections and suggestions received relating to the declaration of Local Planning Area, SAS Nagar. The Board under Section 56(5)(a) and (b) of the above Act also granted approval for the declaration of the same as a local planning area as also the name it local planning area SAS Nagar.
The Punjab Regional and Town Planning and Development Board in accordance with the above mentioned decision declares the local planning area CWP No.11533 of 2010 (O&M) 40 SAS Nagar under Section 56(a)&(b) in consonance with Punjab Regional and Town Planning and Development Act 1995. It shall be named as Local Planning Area SAS Nagar. The boundaries of the local planning are as under."
It is manifest that the above gave a sufficient basis for the Government to initiate proceedings for the acquisition of land needed for the proper expansion of the township.
44. A feeble attempt was made by learned counsel for the appellants to assail the validity of the notification. It was submitted that the same had been issued without notice to the landowners and others to file their objections. We, however, see no merit in that contention either.
45. It is noteworthy that the notification in question was not assailed before the High Court in the writ petitions filed by the appellants. It is not, therefore, open to the petitioner to argue that the notification suffered from any illegality. No factual foundation having been laid in the writ petition we have no hesitation in rejecting the contention that notification was issued without following the procedure prescribed for the purpose and without considering the objections received from different quarters. We may recall that in Jasmer Singh' case (supra) the High Court had distinguished acquisitions for a new town from those meant for the extension of the existing township of Mohali and held that Sanjeet Singh's case (supra) had no application to the later case. That view was affirmed by this Court in appeal and the acquisition for extension of Mohali upheld."
In view of the aforesaid observations of the Hon'ble Supreme Court and the fact that Local Planning Area stood declared validly vide notification dated 24.11.2006 (P-6), the argument of the learned counsel for the petitioners that the site selection was not proper and therefore, the CWP No.11533 of 2010 (O&M) 41 acquisition was bad is liable to be rejected.
Another question which arose before the Hon'ble Supreme Court in the aforesaid judgment in Amarjit Singh's case (supra) as under:
"Whether the absence of any rehabilitation measures renders the acquisition in question legally bad. If not, whether the "the Land Pooling Scheme" can be made applicable to the acquisition of the land acquired from the appellants."
The aforesaid question was answered by the Hon'ble Supreme Court as under:
"Article 300-A of the Constitution rests on the doctrine of eminent domain and guarantees a constitutional right against deprivation of property save by authority of law. It mandates that to be valid the deprivation of property must be by authority of law. That such deprivation in the present case is by the authority of law was not disputed, for it is common ground that the property owned by the appellants has been acquired in terms of the provisions of the Land Acquisition Act, 1894 which is a validly enacted piece of legislation.
48. It is also not in dispute that the provisions of Land Acquisition Act invoked by the State for the acquisition under challenge provide for payment of compensation equivalent to the market value of the property as on the date of the preliminary notification apart from other benefits like solatium for the compulsory nature of the acquisition, additional compensation and interest etc. The sum total of all these amounts undoubtedly constitutes a reasonable compensation for the land acquired from the expropriated owners. Neither Article 300-A of the Constitution nor the Land Acquisition Act make any measures for rehabilitation of the expropriated owners a condition precedent for compulsory acquisition of land. In the absence of any such obligation arising either under Article 300-A or CWP No.11533 of 2010 (O&M) 42 under any other statutory provision, rehabilitation of the owners cannot be treated as an essential requirement for a valid acquisition of property.
49. We must, in fairness to Mr. Gupta mention that he did not suggest that rehabilitation of the oustees was an essential part of any process of compulsory acquisition so as to render illegal any acquisition that is not accompanied by such measure. He did not pitch his case that high and in our opinion rightly so. The decisions of this Court in New Reviera Coop Housing Society and Anr. v. Special Land Acquisition Officer and Ors. 1996 (1) SCC 731 and Chameli Singh and Ors. v. State of U.P. and Anr. 1996 (2) SCC 549 have repelled the contention that rehabilitation of the property owners is a part of the right to life guaranteed under Article 21 of the Constitution so as to render any compulsory acquisition for public purpose bad for want of any such measures.
50 In New Reviera's case (supra) this Court held that if the State comes forward with a proposal to provide alternative sites to the owners, the Court can give effect to any such proposal by issuing appropriate directions in that behalf. But a provision for alternative sites cannot be made a condition precedent for every acquisition of land. In Chameli Singh's case (supra) also the Court held that acquisitions are made in exercise of power of eminent domain for public purpose, and that individual right of ownership over land must yield place to the larger public good. That acquisition in accordance with the procedure sanctioned by law is a valid exercise of power vested in the State hence cannot be taken to deprive the right to livelihood especially when compensation is paid for the acquired land at the rates prevailing on the date of publication of the preliminary notification.
51. There is thus no gainsaying that rehabilitation is not an essential requirement of law for any compulsory CWP No.11533 of 2010 (O&M) 43 acquisition nor can acquisition made for a public purpose and in accordance with the procedure established by law upon payment of compensation that is fair and reasonable be assailed on the ground that any such acquisition violates the right to livelihood of the owners who may be dependant on the land being acquired from them."
In view of the aforesaid authoritative law laid down by the Hon'ble Supreme Court, the acquisition in question cannot be held vitiated because of non implementation of any Rehabilitation Scheme. In any case, as submitted in the written statement, if the petitioners are entitled to the benefit of any prevalent Rehabilitation Policy/Land Pooling Scheme in the State, they will be entitled to the same.
With regard to the argument raised by Sh. Chopra, on the basis of Article 31-A of the Constitution of India, suffice it to say that such an argument was rejected by a Division Bench of this Court in CWP No.9060 of 2005 decided on 26.9.2006 titled as Amarjit Singh and others v. State of Punjab and others. The relevant paragraph reads as follows:-
"The contention of the counsel for the petitioners that after the 44th amendment to the Constitution, especially after the second proviso to Article 31-A stood inserted, it was not permissible to acquire land under personal cultivation of the owner so long as, his total holding was within the ceiling limit does not appear to be well founded. The alternate plea that the market value that is assessed under the Land Acquisition Act, 1894 is based on the value determined on the date of notification issued under section 4 whereas, according to the provisions contained in Article 31-A it would have to be on the day on which possession was taken away and thus, the acquisition is unlawful also seems difficult to agree to."CWP No.11533 of 2010 (O&M) 44
In the writ petition, an argument has been raised that before acquiring the land prior approval and sanction under the provisions of the Forest Act and Environmental laws has not been received and therefore, the acquisition is liable to be set aside, it is suffice to say that approval and sanction of the competent Authorities under the Forest and Environmental laws is not needed at the time of acquisition and the same is needed only at the time when the land is to be put to use. We are fortified in our view by Division Bench judgments of this Court in CWP No.4186 of 2009 (Diljit Singh and others v. Union of India and others) decided on 22.11.2010 and CWP No.18278 of 2008 (Ram Karan and others v. State of Haryana and others), decided on 25.1.2011.
In the end, it may also be relevant to point out that an argument was raised that no scheme has been prepared as per section 91 of the 1995 Act after declaration of the Planning Area, Mullanpur and therefore, acquisition was bad as it is not for a public purpose as envisaged under the provisions of the 1995 Act. Neither there is any specific mention in the Master Plan about the land to be acquired and therefore, the acquisition is liable to be quashed. The aforesaid argument is also liable to be rejected, in view of the fact that in furtherance of the declaration of Local Planning Area, final Master Plan of Local Planning Area, Mullanpur has already been notified wherein an area has been earmarked for specific land use and the development has to take place only as per the specified land use, therefore, it cannot be said that there is no public purpose for acquisition of the land as defined under the provisions of the 1995 Act. It was not necessary for the respondents to make a comprehensive plan for the total scheme at the stage of Section 4 and 6 Notification. It is useful to refer to the observations of the Hon'ble Supreme Court in Aflatoon and others v. Lt. Governor of Delhi and others (1975) 4 Supreme Court CWP No.11533 of 2010 (O&M) 45 Cases 285, which read as follows:
"The question whether the purpose specified in a notification under Section 4 is sufficient to enable an objection to be filed under Section 5-A would depend upon the facts and circumstances of each case. In the case of an acquisition of a large area of land comprising several plots belonging to different persons, the specification of the purpose can only be with reference to the acquisition of the whole area. Unlike in the case of an acquisition of a small area, it might be practically difficult to specify the particular public purpose for which each and every item of land comprised in the area is needed."
To the similar effect is the judgment of the Hon'ble Supreme Court in Gandhi Grah Nirman Sahkari Samiti v. State of Rajasthan and others 1993 (2) SCC 662 wherein it has been reiterated that it is not incumbent upon the authorities to prepare a scheme before acquisition of land.
The Hon'ble Supreme Court in Ajay Krishan Singhal v.
Union of India (1996) 10 SCC 721 has held that once the acquisition has been made for planned development and the public purpose has been specified, the notification under Section 4(1) of the Land Acquisition Act is not vitiated on account of fact that planned development was not specified with particularisation of the land in question needed for the public purpose.
Sh. G.S. Grewal, learned Senior Advocate appearing on behalf of the petitioners has further argued that the acquisition proceedings have been initiated without approval of the appropriate Government as the impugned notifications have been issued by the Secretary of the Housing and Urban Development Department whereas under the General Clauses Act, the State Government means the Governor and the notificartion for acquiring the land was to be issued in the name of the Governor but was CWP No.11533 of 2010 (O&M) 46 not so done and thus, the impugned notifications are liable to be quashed.
This very argument was raised by Sh. G.S. Grewal, Senior Advocate in CWP No.7050 of 2001 (Jarnail Singh v. State of Punjab) decided on 19.4.2011 wherein it was observed as under:-
"With regard to the second argument it is contended that under the General Clauses Act the State Government means the Governor and the order granting approval had to be passed in the name of the Governor but was not so done. However, as per the standing orders of the State Government and Rules 9 and 18 of the Conduct of Business Rules, we find that the Principal Secretary, Housing and Urban Development cannot be held to be incompetent to give the approval. Reliance is being placed on The State of Uttar Pradesh v. Mohammad Naim, reported as AIR 1964 SC 703."
No other point has been urged.
In view of the aforesaid, we find no merit in these petitions.
Dismissed.
(JASBIR SINGH) (RAKESH KUMAR GARG)
JUDGE JUDGE
May 24, 2011
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CWP No.11533 of 2010 (O&M) 47
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.15492 of 2010 (O&M) Date of decision: 24.5.2011 Nirmal Singh & others ......Petitioner(s) Versus State of Punjab and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. A.K. Chopra, Sr. Advocate with Mr. Aashish Chopra, Advocate for the petitioners.
Mr. Manohar Lall, Additional Advocate General, Punjab.
Mr. Sanjeev Sharma, Sr. Advocate with Mr. Shekhar Verma, Advocate for the GMADA.
Mr. B.S. Mangat, Advocate for respondent No.2.
Rakesh Kumar Garg, J.
For orders, see judgment of even date passed in CWP No.11533 of 2010 (Jaspal Kaur and others Versus State of Punjab etc.).
(JASBIR SINGH) (RAKESH KUMAR GARG)
JUDGE JUDGE
May 24, 2011
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