Punjab-Haryana High Court
Rohtash Chaudhary & Another vs State Of Haryana And Others on 28 May, 2010
Author: Ajay Tewari
Bench: Ajay Tewari
C.W.P. No.4702 of 2008 ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of decision : May 28, 2010
1. C.W.P No. 3845 of 2008
Rohtash Chaudhary & another vs State of Haryana and others
2. C.W.P No. 4608 of 2008
Dilbag Singh and others vs The State of Haryana and others
3. C.W.P No. 4702 of 2008
Dwarka Dass and others vs State of Haryana and others
4. C.W.P No.4711 of 2008
Shri Guru Granth Sahib Mission vs State of Haryana and others,
5. C.W.P No. 6323 of 2008
Manish Jain and others vs The State of Haryana and others
6. C.W.P No. 8023 of 2008
Sh. Mahavir Jain vs The State of Haryana and others
7. C.W.P No. 7911 of 2009
Didar Singh vs State of Haryana and others
8. C.W.P No. 8747 of 2009
Amar Singh & others vs State of Haryana and others
9. C.W.P No. 9937 of 2009
Shri Baldev Singh & others vs The State of Haryana and others
10. C.W.P No.9939 of 2009
Sham Sunder and others vs State of Haryana and others,
11. C.W.P No.9964 of 2009
Surinder Pal Kaur and others vs State of Haryana and others,
12. C.W.P No.10496 of 2009
C.W.P. No.4702 of 2008 ::2::
Vijay Kumar and others vs State of Haryana and others,
13. C.W.P No.923 of 2010
Sudesh Kanta and another vs The State of Haryana and others.
14. C.W.P No.1007 of 2010
Om Prakash and others vs State of Haryana and others.
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CORAM : HON'BLE MR. JUSTICE M.M.KUMAR
HON'BLE MR.JUSTICE AJAY TEWARI
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Present : Mr. G.S.Grewal, Sr. Advocate with Ms. Tanisha Peshawaria, Advocate for the petitioners in CWP Nos.3845 of 2008, 7911, 8747 of 2009.
Mr. O.P.Goyal, Sr. Advocate with Mr. Parmod Goyal, Advocate for the petitioners in CWP No.4608 of 2008. Mr. Anand Chhibbar, Advocate Mr. Bhag Singh, Advocate for the petitioener(s) in CWP No. 9937 of 2009. Mr.Ashok Gupta, Advocate for the petitioner(s) in CWP Nos. 6323, 8023 of 2008. Mr.P.N.Makani, Advocate Mr.Ashwani Talwar, Advocate for the petitioner(s) in CWP Nos. 9939, 9964, and 10496 of 2009.
Mr.Anshul Shahi, Advocate for the petitioner(s) in CWP No. 1007 of 2010. Mr.Nimanyu Gautam, Advocate for the petitioner(s) in CWP No.923 of 2010. Mr. Kamal Sehgal, Addl. A.G Haryana for the official respondents.
Mr. Sanjeev Kaushik, Advocate for the HSAMB.
Mr. Amit Kamboj, Advocate C.W.P. No.4702 of 2008 ::3::
for Mr. Arun Walia, Advocate Ms. Sheenu Sura, Advocate for the private respondents.
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1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
*** AJAY TEWARI, J This order shall dispose of CWP Nos. 3845, 4608, 4702, 4711, 6323, 8023 of 2008, 7911, 8747, 9937, 9939, 9964 and 10496 of 2009, 1007 and 923 of 2010, as common questions of law and facts are involved therein.
Civil Writ Petition No. 4702 of 2008 has been filed challenging the notification dated 3.4.2007 (Annexure P-14), issued under Section 4 of the Land Acquisition Act, 1894 (for short "the Act"), a subsequent notification dated 6.2.2008 (Annexure P-16), issued under Section 6 of the Act whereby the land of the petitioners is sought to be acquired for setting up of new Anaj Mandi and new Sabji Mandi in village Bahowa, Hadbast No.162, Tehsil and District Ambala.
The facts in brief are that the petitioners purchased 78 kanals and 10 marlas of land in equal shares at village Bahowa, vide registered sale deed dated 29.4.1980. A mutation was sanctioned in favour of the petitioners with respect to the said land. Out of this land, 19 kanals and 12 marlas of land has already been sold and now land measuring 58 kanals 18 marlas is left. It is further averred in the petition that the petitioners set up Rice Mill, Flour Mill and Oil Mill in one portion of the land, and in another portion a banquet hall with rooms, a kitchen etc. were constructed, as per site plan (Annexure P-1). Land measuring 15 kanals and 1 marla has been C.W.P. No.4702 of 2008 ::4::
left for parking area for banquet hall and for drying of paddy/oil seeds (which has been notified in the impugned notification). It is further averred that after the notification under Section 4 of the Act, the petitioners filed objections under Section 5A of the Act wherein all the details were mentioned. Even though hearing was afforded but the objections were recorded jointly and, thus, no proper hearing was given to the petitioners.
In Civil Writ Petition No.3845 of 2008, additionally the petitioners have averred that they owned land within the ceiling limit and are cultivating the same personally/through their servants.
In CWP No. 9937 of 2009, challenge has been made to acquisition of land for Sector 22, HUDA Ambala City. The petitioners allege that they had purchased lands adjacent to the abadi of the village (which had been carved out more than 50 years ago), and that acquisition which would result in depriving them of the roof over their heads cannot be permitted. Another fact mentioned is that land of one private colonizer viz Alaska Construction Pvt Ltd was released from acquisition.
The facts of the other writ petitions need not be recapitulated since the facts mentioned would cover all the arguments.
The first ground taken by the petitioners is that in view of earlier still-born attempts to acquire land for the mandi, the present acquisition suffers from non application of mind. The second ground is that under 73rd and 74th amendments of the Constitution, Panchayati Raj was enforced in 1993 wherein Part IX was added to the Constitution. It is argued that more than one year having lapsed and no district level committee having been constituted as mandated by Article 243ZD of the Constitution, the present acquisition could not go through. The third C.W.P. No.4702 of 2008 ::5::
ground taken is that the objections having been recorded jointly, right of hearing has not been granted to the affected persons. The next ground taken is that the land within ceiling limit which is personally cultivated by them is protected under second proviso to Article 31A of the Constitution. It has also been argued that the declaration under Section 6 of the Act is vague as no details as to how much area is required for the Sabji Mandi and Anaj Mandi have been given. Reliance has been placed on Madhya Pradesh Housing Board vs Mohd. Shafi and others, 1992(2) SCC 168 and L.Vinayagam & Ors vs State of Tamil Nadu, 1995 LACC 200. It has also been argued that land cannot be acquired for commercial purpose. Reliance has been placed on Daulat Singh Surana and others vs First Land Acquisition Collector and others, 2007(1) SCC 641. Last but not the least reliance has been again placed on the second proviso to Article 31-A of the Constitution to canvass that freezing of price at the date on which the notification under Section 4 of the Act is issued is clearly unconstitutional.
The respondents have filed their separate written statements. Respondents No.4 and 5 have defended the present acquisition by stating that the acquisition proceedings are for a public purpose. It is further stated that in 1995 a site was selected for setting up of a grain market but as the land was very low lying, the proposal was cancelled. Thereafter, in its meeting held on 28.1.1998, the Site Selection Committee proposed HUDA land along with Ghasitpur road leading to GT road for setting up of the grain market. Accordingly, the matter was taken up with the HUDA authorities who gave their nod for the entire HUDA land measuring 58 acres on payment of actual cost of the land. The Agricultural Marketing Board also sanctioned an amount of Rs.1,77,14,400/- to be paid to the HUDA C.W.P. No.4702 of 2008 ::6::
towards the price of the land, which was paid vide a cheque dated 5.5.1999 and thereafter proceedings for taking up possession of the land were initiated. It is further averred in the written statement that in the meantime the State of Haryana directed the Agricultural Marketing Board to allot 35 acres of land to the Public Health Department for setting up a water works, and as the remaining land of 25 acres was not sufficient for setting up of the grain market, therefore, the said land was surrendered to the HUDA. Thereafter, in another meeting held on 24.8.2000, the Site Selection Committee decided to acquire 75 acres of land falling on Delhi-Ambala GT road (NH-1) towards village Ghasitpur Link Road abutting village Ghasitpur. Accordingly, vide letter dated 1.12.2000, the Chief Administrator, HUDA was requested to acquire land measuring 80 acres for setting up of the new grain market. However, the HUDA issued a notification under Section 4 of the Act for setting up of a residential/commercial and industrial complex in Ambala Cantt. It is further averred in the written statement that in yet another meeting held on 19.11.2004, the Site Selection Committee identified some other land but as the HUDA developed a town park thereon, the said proposal could not be materialized. Ultimately, the Site Selection Committee in its meeting held on 24.4.2006, selected land which is under the instant acquisition. It is further averred that after considering the objections of the petitioners, the land which was built up and being utilized for the banquet hall and industry has been omitted in the impugned notification.
In the written statement filed to CWP No.9937 of 2009, it has been mentioned that the notification under Section 4 of the Act was issued on 20.7.2006, the notification under Section 6 of the Act was issued on C.W.P. No.4702 of 2008 ::7::
19.7.2007 and the award was announced on 17.7.2009. It is averred that the said writ petition (having been filed only on 6.7.2009) is barred by delay and laches. Reliance has been placed on Star Wire (India) Ltd v. State of Haryana, (1996)11 SCC 698; Municipal Council Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48; C.Padma v. Dy. Secretary to the Government of Tamil Nadu, (1997) 2 SCC 627; and M/S Swaika Properties Pvt Ltd v. State of Rajasthan, JT 2008 (2) SC 280.
The first ground, that the notification (for Anaj Mandi/Sabji Mandi) suffers from the vice of non application of mind on account of the earlier attempts to acquire land cannot be accepted. We find that detailed reasons (as mentioned above) have been given as to why on each previous occasion the proposed notifications could not fructify.
As regards reliance on Articles 243ZD and 243ZF of the Constitution of India, it would be appropriate to reproduce Articles 243ZD and 243ZF as under :-
" Article 243ZD. Committee for district planning.- (1) There shall be constituted in every State at the district level a District Planning Committee to consolidate the plans prepared by the panchayats and the Municipalities in the district and to prepare a draft development plan for the district as a whole.
(2) The Legislature of a State may, by law, make provision with respect to-
(a) the composition of the District Planning Committee;
(b) the manner in which the seats in such committees shall be filled;
Provided that not less than four-fifths of the total number of members of such Committee shall be elected by and from amongst the elected members of the C.W.P. No.4702 of 2008 ::8::
panchayat at the district level and of the Municipalities in the district in proportion to the ratio between the population of the rural areas and of the urban areas in the district.
(c) the function relating to district planning which may be assigned to such committees ;
(d) the manner in which the Chairpersons of such committees be chosen.
(3) Every District Planning Committee shall, in preparing the draft development plan-
(a) have regard to - (i) matters of common interest between the Panchayats and the Municipalities including spatial planning, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation;
(ii) the extent and type of available resources whether financial or otherwise;
(b) Consult such institutions and organizations as the Governor may, by order, specify.
(4) The Chairperson of every District Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State.
Article 243ZF. Continuance of existing laws and Municipalities.- Notwithstanding anything in this part, any provision of any law relating to Municipalities in force in a state immediately before the commencement of the Constitution (seventy-fourth amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier :
Provided that all the Municipalities existing immediately before such commencement shall continue C.W.P. No.4702 of 2008 ::9::
till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that state or, in the case of a state having a Legislative Council, by each house of the Legislature of that State."
Learned counsel for the petitioners have relied upon Md. Mustaque v. State of Bihar and others, AIR 2005 Patna 73, and particularly paras 21 and 22 thereof which read as under :-
" 21. The State will be free to reconstitute Section 3, aforesaid, as compatible with local self Government given in Parts IX and IXA of the Constitution of India. In a municipality area the local content of the body cannot be less than 4/5ths from amongst the elected representatives. In a Metropolitan area it will not be less than 2/3rd. The balance 1/5th or 1/3rd, as the case may be, the Legislature will be free to bring in ex-officio members. But, such members must have an interest connected with administration of the district and it must not be the caprice of the State Government to nominate members which may be a misplaced representation in the face of the Constitution. The State Government does not have that much freedom to avoid the Constitution of India but must fall in line with it.
22. But, as it has been shown in this order there is a total overlapping of functions. It is the suggestion of the Court that such of these functions, municipal and civic in nature, should be put in a slot or a drawer separately and each of these must be transferred into the Patna Municipal Corporation Act, 1951 or The Bihar and Orissa Municipal Act, 1922. This will leave the municipalities with all their functions in the correct pattern of local self Government and in total co-
ordination with the District Planning Committee so ordained by the Constitution. The conflict and confusion C.W.P. No.4702 of 2008 ::10::
is apparent on the face of the record. It is manifest. It will play havoc if all the authorities function with simultaneous functions. All three laws with parallel subjects cannot function equally so as to provide equal protection.........."
It is argued that the State of Haryana has not constituted the Regional Development Committee even though a period of one year has elapsed and, thus, the present acquisition is ex-facie illegal.
It must be kept in mind that Article 243ZD of the Constitution deals with a subject which essentially falls within the State list at entry No.6 and that is why it stipulates a discretion in the State to legislate for the purposes mentioned therein. In Shanti G. Patel and others vs State of Maharashtra and others, (2006) 2 SCC 505, the Hon'ble Supreme Court held as follows :-
" 9. Article 243-W whereupon great emphasis has been laid by the petitioners herein provides for an enabling clause so as to enable the State to endow by law the municipality with such powers and authority, as may be necessary, to enable the State to make, by law, by endowing the municipalities to function as institutions of self-government which may contain provisions for the devolution of powers and responsibilities subject to the conditions which may be specified in the Twelfth Schedule. The Twelfth Schedule of the Constitution referable to Article 243-W, inter alia, provides for urban planning including town planning, regulation of land-use and construction of buildings. Thus, Article 243-W contains merely an enabling provision, and it does not mean that the State is obligated to provide for such a statute. The Constitution (Seventy-fourth Amendment) Act, in any event, does not envisage that the existing laws would become non-operative or a vacuum would be C.W.P. No.4702 of 2008 ::11::
created in the matter of enforcement of existing laws relating to urban planning and/or regulation of land-use and construction of buildings, etc."
In yet another later decision in Bondu Ramaswamy v. Bangalore Development Authority and others, Civil Appeal No.4097 of 2010 decided on 5.5.2010, the Hon'ble Supreme Court was considering the question of acquisition of certain land on the ground that it was invalid with reference to Parts IX and IXA of the Constitution. The Hon'ble Supreme Court held as follows :-
" 12. Part IX and IX-A of the Constitution, relating to Panchayats and Municipalities were inserted by the Constitution (Seventy-third Amendment) Act, 1992 and Constitution (Seventy-fourth Amendment) Act, 1992. Part IX and IX-A came into force on 24.4.1993 and 1.6.1993 respectively. The object of Part-IX was to introduce the Panchayat system at grass root revel. As Panchayat systems were based on state legislations and their functioning was unsatisfactory, the amendment to the Constitution sought to strengthen the Panchayat system by giving a uniform constitutional base so that the Panchayats become vibrant units of administration in the rural area by establishing strong, effective and democractic local administration so that there can be rapid implementation of rural development programmes. The object of Part-IX as stated in the Statement of Objects and Reasons is extracted below :-
` In many States, local bodies have become weak C.W.P. No.4702 of 2008 ::12::
and ineffective on account of variety of reasons, including the failure to hold regular elections, prolonged supersessions and inadequate devolution of powers and functions. As a result, urban local bodies are not able to perform effectively as vibrant democratic units of self- Government.
Having regard to these inadequacies, it is considered necessary that provisions relating to urban local bodies are incorporated in the Constitution, particularly for-
(i) putting on a firmer footing the relationship between the State Government and the Urban Local Bodies with respect to :-
(a) the functions and taxation powers, and
(b) arrangements for revenue sharing.
(ii) ensuring regular conduct of elections.
(iii) ensuring timely elections in the case of supersession; and
(iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women.' xx xx xx xx
22. To enable the municipalities (that is municipal corporations, municipal councils and Nagar Panchayats) to function as institutions of self-government, Article C.W.P. No.4702 of 2008 ::13::
243W authorizes the legislature of a state to endow to the municipalities, such powers and authority as may be necessary, by law. Such law made by the state legislature may contain provision for the devolution of powers and responsibilities upon municipalities, with respect to the following :
(i) The preparation of plans for economic
development and social justice; and
(ii) The performance of functions and
implementation of schemes as may be entrusted to them including those in relation to the following matters (earmarked in the twelfth schedule) :
1. Urban planning including town planning.
2. Regulation of land-use and construction of buildings.
3. Planning for economic and social development.
4. Roads and bridges.
5. Water supply for domestic, industrial and commercial purposes.
6. Public health, sanitation conservancy and solid waste management.
7. Fire services.
8. Urban forestry, protection of the environment and promotion of ecological aspects.
9. Safeguarding the interests of weaker C.W.P. No.4702 of 2008 ::14::
sections of society, including the handicapped and mentally retarded.
10. Slum improvement and upgradation.
11. Urban poverty alleviation.
12. Provision of urban amenities and facilities such as parks, gardens, playgrounds.
13. Promotion of cultural, educational and aesthetic aspects.
14. Burials and burial grounds; cremations, cremation grounds; and electric crematoriums.
15. Cattle pounds; prevention of cruelty to animals.
16. Vital statistics including registration of births and deaths.
17. Public amenities including street lighting, parking lots, bus stops and public conveniences.
18. Regulation of slaughter houses and tanneries.
The aforesaid powers and authority (enumerated in the twelfth Schedule) may also be endowed to the Ward Committees which are required to be constituted, by Article 243S xx xx xx xx xx.
23. On the other hand, the purpose and object of the BDA is to act as a development authority for the development of the city of Bangalore and areas adjacent thereto. The Preamble of BDA Act describes it as `an C.W.P. No.4702 of 2008 ::15::
Act to provide for the establishment of a Development Authority for the development of the city of Bangalore and areas adjacent thereto and for matters connected therewith. The development contemplated by the BDA Act is "carrying out of building, engineering or other operations in or over or under land or the making of any material change in any building or land and includes redevelopment" (vide Section 2(j) of BDA Act. Therefore, the purpose is to make lay outs, construct buildings or carry out other operations in regard to land. Municipalities are not concerned with nor entrusted with functions similar to those entrusted to BDA under the BDA Act, that is building, engineering or other operations by forming layout of plots with all amenities, construction of houses and apartments, as a part of any scheme to develop a city. Municipalities are concerned with the overall economic development providing social justice (urban poverty alleviation and slum improvement) regulating land use and constructions, providing amenities (roads, bridges, water supply, fire services, street lighting, parking, bus stops, public conveniences), promoting education and culture etc. Neither urban town planning nor regulation of land use and construction, is similar to the `development' as contemplated in BDA Act, that is carrying out building, engineering operations in or over or under land. It would thus be seen that the C.W.P. No.4702 of 2008 ::16::
object and functions of a Municipal Corporation are completely different from the object and purpose of a development authority like BDA, BDA is not a municipality. Therefore, it cannot be said that mere existence of Municipal Corporations Act, duly amended to bring it in conformity with Part IX-A of the Constitution, will nullify or render redundant, the BDA Act.
Xx xx xx xx
26. The appellants submitted that the powers, authority and responsibilities to be endowed by the State Legislature upon the Municipalities are enumerated in Article 243W read with Twelfth Schedule; that Articles 243ZD and 243ZE require the state government to constitute a District Planning Committee at District Level and a Metropolitan Planning Committee for every Metropolitan Area; that such Metropolitan Planning Committee is required to prepare a draft development plan for the Metropolitan Area as a whole. It was contended that the BDA Act was a Legislation which related to some of the responsibilities and functions of Municipalities, enumerated in the Twelfth Schedule to the Constitution read with Article 243W and that its provisions, in particular, sections 15 to 19 were inconsistent with the provisions of Part IXA of the Constitution; that no law can entrust powers and C.W.P. No.4702 of 2008 ::17::
responsibilities referred to in Article 243W including those relating to matters listed in Twelfth Schedule to an authority other than an authority having popular mandate; and that therefore the BDA Act entrusting such powers and responsibilities to a non-elected authority ceases to be in force.
27. While it is true that BDA is not an elected body like the municipality, it has several elected representatives as members. Section 3 relates to the Constitution of the Authority and provides that the Authority shall consist of 22 members and made up as follows :-
` Six officers of the BDA viz, The Chairman, The Finance Member, The Engineering Member, The Town Planning Member, The Commissioner and Secretary of the Authority. (All of them are full-time employees, three of them are specialists in finance, engineering and town planning.
- Four elected representatives, that is, two members of state legislature assembly and two counsellors of Bangalore Municipal Corporation.
- One representative of the state
government and four representatives of
statutory corporations, that is, the
C.W.P. No.4702 of 2008 ::18::
Commissioner of Bangalore Municipal
Corporation and representatives of Bangaore Water Supply Sewerage Board, Karnataka Electricity Board, and Karnataka State Road Transport Corporation.
- Six members of the public (with
minimum of one woman, one person
belonging to SC/ST, and one representing
labour).
- One Architect.'
It would thus be seen that members of the BDA represent different interests and groups, technical persons and elected representatives. Further, no development scheme can be finalised or put into effect without the sanction of the State Government which in turn has to take note of any representation by the Bangalore Municipal Corporation in regard to the development scheme. Therefore, the mere fact that BDA is not wholly elected body as in the case of a municipal corporation will make no difference. The membership pattern is more suited to fulfil the requirements of a specialist agency executing development schemes. We therefore find no merit in the contention that provisions of BDA Act become inoperative, on Parts IX and IX-A of the C.W.P. No.4702 of 2008 ::19::
Constitution coming into force."
In the present case also, it must be held that the existing laws would not become non-operative or vacuum would be created in the matter regarding acquisition of land for a public purpose. Similarly, it is also held that the functions of the Agricultural Marketing Board as well as of the Haryana Urban Development Authority would not fall within the strict purview of the District Level Planning Committee. It cannot be gainsaid that the purposes for which the present acquisition has been initiated viz. to develop Sabji Mandi/Anaj Mandi/to develop Sector 22 of Ambala City are essential matters of public interest. In the circumstances, relying upon the two judgments of the Hon'ble Supreme Court, it has to be held that the acquisition in question is not bad for any alleged inconsistency with Part-IX of the Constitution. However, the constitutional imperative mandated by Article 243ZD of the Constitution cannot be ignored. It is beyond any dispute that power of Court cannot extend to direct the Legislature to make a law in a particular manner. In Shanti G.Patel and others' case (supra), the Hon'ble Supreme Court recognized that in appropriate cases, a direction can be issued to the State to make a law on a particular subject. In the circumstances, we deem it appropriate to direct the State of Haryana to frame suitable legislation as it deem fit to comply with the provisions of Article 243ZD of the Constitution.
As regards the argument based on Article 31-A of the Constitution, it would be appropriate to reproduce Article 31-A as under :-
"31A. Saving of laws providing for acquisition of estates, etc.- (1) Notwithstanding anything contained in article 13, no law providing for -
(a) the acquisition by the State of any estate or of any
C.W.P. No.4702 of 2008 ::20::
rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent :
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, C.W.P. No.4702 of 2008 ::21::
provides for payment of compensation at a rate which shall not be less than the market value thereof. (2) In this article,-
(a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include-
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
(ii) any land held under ryotwari settlement;
(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
(b) the expression "rights", in relation to an estate, shall include any rights vesting in a proprietor, sub-
proprietor, under-proprietor, tenure-holder, raiyat, under-riayat or other intermediary and any rights or privileges in respect of land revenue."
Counsel for the petitioners have argued that the said Article mandates that the land within ceiling limit used for personal cultivation cannot be acquired without payment of compensation `at a rate which shall not be less than the market value thereof.' Thus, Section 11 of the Act which fixes market value with reference to the date of notification under Section 4 of the Act and not from the date when possession is taken is violative of the above mentioned proviso. Reliance has been placed upon Jai Singh vs State of Haryana, 1995(1) PLR 614. In that case what was challenged was the divesting of ownership rights of the proprietors and the vesting thereof into the Gram Panchayat without any compensation at all.
C.W.P. No.4702 of 2008 ::22::
Another case relied upon, namely, Mathura Dass and others vs State of Punjab and others, PLR 2002 (3) 160 related to the abolition of octroi by the State of Punjab. It was provided that the State would compensate the municipal bodies for the loss suffered by them but it was found on fact that the said compensation was not being paid regularly. It was further provided that the existing employees would continue without having to do any work.
In Murari vs Union of India, (1997)1 SCC 15, it was held as follows :-
" 12. It is thus clear from these decisions that Article 31- A has got nothing to do with acquisition of land for building of a capital of a State. In the present case before us also the land is not said to be acquired for purposes of any agrarian reforms and development but for the planned development of Delhi and that being so the argument advanced by the learned counsel in this behalf that the land belonging to a small agriculturist within ceiling limit cannot be acquired or the value of the land of the agriculturists sought to be acquired should be determined on the price/value prevailing on the date of award or taking of possession and not on the value prevailing on the date of notification under Section 4(1) cannot be accepted. In the case of Ram Chand also in para 4 of the report this Court while dealing with Article 31-A took the view that the Constitution ensures under the second proviso to Article 31-A that where any law makes provision for the acquisition by the State of land held by a person, under his personal cultivation, within the ceiling limit, it shall not be lawful for the State to acquire any portion of such land "unless the law relating to the acquisition of such land, building or structure provides for payment of compensation at a rate which C.W.P. No.4702 of 2008 ::23::
shall not be less than the market value thereof". It has been further observed in the same para that by Constitution (Forty-forth Amendment) Act, 1978, clause
(f) of Article 19 and Article 31 have been deleted and, as such, to hold property is no more a fundamental right.
But still the mandate under second proviso to Article 31- A continues regarding payment of market value in respect of the land, the subject-matter of acquisition and that the Act provides for payment of compensation in respect of the acquisition made at the market value of the land, as such it is consistent with the second proviso to Article 31-A. But in view of sub-section (1) of Section 11 and sub-section (1) of Section 23 the market value of such land is to be fixed with reference to the date of the publication of notification under Section 4, sub-section (1), irrespective of the dates on which declaration under Section 6 or award under Section 11 are made or possession is taken under Section 16 of the Act. In this view of the matter the contentions raised with regard to Article 31-A could not be accepted and are accordingly rejected. The acquisition proceedings, therefore, could not be quashed on that account also."
Apart from this, it cannot be lost sight of that the State of Haryana has notified a scheme where an increasing annuity is also payable to the land owners whose lands are acquired.
In Sucha Singh Bajwa v. The State of Punjab, AIR 1974 P&H 162, the provisions of the Punjab Land Reforms Act, 1973 were challenged but what was ultimately held ultra-vires was only the artificial meaning given to the words `family and person.' Reliance is also placed in the case of State of West Bengal v. Mrs. Bella Banerjee and others, AIR 1954 SC 170 wherein a Constitution Bench of the Hon'ble Supreme Court considered the West Bengal Land C.W.P. No.4702 of 2008 ::24::
Development and Planning Act wherein, to fix the market value of the acquired property, one date viz 31.12.1946 had been notified. The Hon'ble Supreme Court had held as follows :-
"8............. Considering that the impugned Act is a permanent enactment and lands may be acquired under it many years after it came into force, the fixing of the market value on December 31, 1946 as the ceiling on the compensation without reference to the value of the land at the time of the acquisition is arbitrary and cannot be regarded as due compliance in letter and spirit with, the requirement of Article 31(2). The fixing of an anterior date for the ascertainment of value may not, in certain circumstances, be a violation of the constitutional requirement as, for instance, when the proposed scheme of acquisition becomes known before it is launched and prices rise sharply in anticipation of the benefits to be derived under it, but the fixing of an anterior date, which might have no relation to the value of the land when it is acquired, may be many years later cannot but be regarded as arbitrary. The learned Judges below observed that it is common knowledge that since the end of the war, land particularly around Calcutta has increased enormously in value and might still further increase very considerably in value when the pace of industrialization increases. Any principle for determining compensation which denies to the owner this increment in value cannot result in the ascertainment of the true equivalent of the land appropriated."
It would be seen that the above cases dealt with extreme situations. Further-more, under the new policy, apart from the market value, land owners are also entitled to an increasing annuity. In our considered opinion, the dictum of the Hon'ble Supreme Court in the case of Murari C.W.P. No.4702 of 2008 ::25::
(supra) would be applicable to the present case and it would have to be held that the compensation proposed is in consonance with the parameters laid down in the second proviso to Article 31-A of the Constitution. In these circumstances, the argument that the petitioners own land within the ceiling limit or that the acquisition would result in depriving them of the roof over their heads has to be rejected in view of the finding that commensurate compensation would be provided to the petitioners coupled with the public interest involved in the proposed acquisitions.
The next argument of the petitioners is that the declaration under Section 6 of the Act is vague, as no details as to how much area is required for the Sabji Mandi and Anaj Mandi have been given. The judgments relied upon by counsel for the petitioners, namely, L.Vinayagam & others vs State of Tamil Nadu, rep. By the Secretary to Govt. Housing and Urban Development, Dept. Madras & others (supra) and Madhya Pradesh Housing Board vs Mohd. Shafi and others (supra), are not relevant to the facts of the present case. In L.Vinayagam & others' case (supra), the public purpose mentioned was `Kalaignar Karunanidhi Nagar Part II Scheme'. Similarly in Madhya Pradesh Housing Board's case (supra), even though the recommendation was `absolutely suitable for the construction of buildings and shops.........' yet in the notification the word only `residential' was mentioned. The Hon'ble Supreme Court in Madhya Pradesh Housing Board's case (supra) held as follows :-
" 14. Apart from the defect in the impugned notification, as noticed above, we find that even the "public purpose"
which has been mentioned in the schedule to the notification as "residential" is hopelessly vague and C.W.P. No.4702 of 2008 ::26::
conveys no idea about the purpose of acquisition rendering the notification as invalid in law. There is no indication as to what type of residential accommodation was proposed or for whom or any other details. The State cannot acquire the land of a citizen for building some residence for another, unless the same is in "public interest" or for the benefit of the "public" or an identifiable section thereof. In the absence of the details about the alleged "public purpose" for which the land was sought to be acquired, no one could comprehend as to why the land was being acquired and therefore was prevented from taking any further steps in the matter." In our considered opinion, the public purposes mentioned in the two impugned notifications cannot be said to be so vague as to prevent the land owners from filing effective objections.
Another argument of the petitioners is that land cannot be acquired for commercial purpose. The case relied upon viz Daulat Singh Surana and others vs First Land Acquisition Collector and others (supra) is also not relevant to the present case. In the said case, the Hon'ble Supreme Court in paragraph 62 quoted from the judgment reported as Satya Narain Singh v. District Engineer, PWD, AIR 1962 SC 1161 as under :-
".......... Similarly a pure business undertaking though run by the Government cannot be classified as public service. But where a particular activity concerns a public utility a question may arise whether it falls in the first or the second category. The mere fact that that activity may be C.W.P. No.4702 of 2008 ::27::
useful to the public would not necessarily render it a public service. An activity however beneficial to the people and however useful cannot, in our opinion, be reasonably regarded as public service if it is of a type which may be carried on by private individuals and is carried on by Government with a distinct profit motive. It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public."
In the present case setting up of Sector 22 of Urban Estate, Ambala City cannot be called purely business enterprise since under the HUDA Act the authorities work on non profit basis.
In view of what has been discussed above, these writ petitions are dismissed with a direction to the State of Haryana as given above.
There shall be no order as to costs.
( AJAY TEWARI )
JUDGE
May 28, 2010 ( M. M. KUMAR )
`kk' JUDGE