Punjab-Haryana High Court
Mir Singh And Another vs State Of Haryana And Others on 1 October, 2010
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CWP No. 1620 of 2010
Date of Decision: October 1, 2010
Mir Singh and another
...Petitioners
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Lokesh Sinhal, Advocate,
for the petitioners.
Mr. Narender Hooda, Sr. Addl. AG, Haryana,
for respondent Nos. 1 to 3.
Mr. S. Ganesh, Senior Advocate, with
Mr. Ashish Chopra, Advocate,
Mr. Pritpal Nijjar, Advocate, and
Ms. Rupa Pathania, Advocate,
for respondent No. 4.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the
Digest?
M.M. KUMAR, J.
1. The petitioners have challenged the acquisition proceedings which have culminated in the award dated 09.02.2004 announced by the Land Acquisition Collector, Gurgaon (P-4) for a total amount of Rs. 3,91,13751.85 Paise. Earlier a notification dated 3.1.2003 (P-2) was issued under Section 4 of the Land Acquisition Act, 1894 (for brevity, 'the Act') and declaration dated 12.6.2003 (P-3) was made under Section 6 of the Act. Still further, the petitioners have also challenged the conveyance deed dated 4.8.2006 (P-5), CWP No. 1620 of 2010 2 executed between the State of Haryana and M/s DLF Universal Ltd.- respondent No. 4 regarding transfer of acquired land measuring 19 Acres, 4 Kanals and 5 Marlas, situated at village Nathupur, District Gurgaon, for establishment of a Cyber City, in favour of respondent No. 4 Company, for a consideration of Rs. 51,00,30,000/- (Rupees Fifty One Crores and Thirty Thousand only).
2. The undisputed facts of the present case are that the petitioners are residents of village Nathupur, Tehsil and District Gurgaon. They have filed the instant petition being residents of village Nathupur as a public interest litigation challenging the aforementioned acquisition proceedings acquiring land belonging to the Gram Panchayat of their village on the ground of fraud. It has been alleged that the State of Haryana has been acquiring the land under the garb of public purposes but for the benefit of private companies dealing in real estate. This act of the respondent State is fraudulent and inconsistent with the aims and objects of the Act.
3. It has been submitted that the land comprised in the revenue estate of village Nathupur in Tehsil and District Gurgaon, is very precious. The district Gurgaon in the State of Haryana is situated in close proximity of the National Capital and being a developing city has great potential so far as the real estate is concerned. Every company dealing in real estate keeps an eye on the valuable pieces of land in that village and other surrounding areas. Same is the position with M/s D.L.F. Universal Ltd.-respondent No. 4. Highlighting the modus operandi of the real estate companies, it has been stated that when they are not able to purchase the land from the land owners at the prevalent market value they join hands with the Government officials and get the same acquired for their own purpose.
4. Land measuring 19 Acres 4 Kanals and 5 Marlas was owned by CWP No. 1620 of 2010 3 the Gram Panchayat, Nathupur. Most part of the said land was being used as a gair mumkin Nullah (water course) and a part thereof as gair mumkin rasta for the benefit of the inhabitants, as is evident from the jamabandi for the year 1995-96 (P-1). It has been alleged that M/s DLF-respondent No. 4 approached the Gram Panchayat and offered to exchange their land with the aforementioned land. The market value of the land offered by the DLF- respondent No. 4 was low as also the same was of no use for the inhabitants of the village. When the Gram Panchayat refused to exchange their land, a novel method was devised by DLF-respondent No. 4. It approached the Government authorities for acquisition of the land in question. As a result of their connivance, on 3.1.2003 a notification under Section 4 of the Act was issued proposing to acquire total land measuring 19 Acres 4 Kanals and 5 Marlas for a public purpose, namely, for setting up Cyber City at Village Nathupur, Tehsil and District Gurgaon (P-2). Since the land belonged to the Gram Panchayat and no personal interest was involved, no objection under Section 5-A of the Act was filed before the Collector. On 12.6.2003, a declaration under Section 6 of the Act was made acquiring the land in question (P-3). On 9.2.2004, the Land Acquisition Collector, Gurgaon, announced the award and a total sum of Rs. 3,91,13,751.85 paise was assessed (P-4).
5. The petitioners have asserted that they came to know about the conveyance deed dated 4.8.2006, for a sum of Rs. 51,00,30,000/- had been executed between the State of Haryana and M/s DLF-respondent No. 4 in respect of the land in question whereby the land stood transferred in favour of respondent No. 4 for establishing a Cyber City when the DLF-respondent No. 4 started building the Cyber City. In this manner, the land which was acquired by the respondent State by paying a compensation of Rs. 3,91,13,751.85 paise CWP No. 1620 of 2010 4 for a public purpose, stands transferred in favour of respondent No. 4 by making huge profit of more than Rs. 47 crores. The petitioners have alleged that the respondents have played a fraud with public at large as also with the inhabitants of the village Nathupur because no objection was filed by the Gram Panchayat since it was assumed that the land was being acquired for a public purpose.
6. In the written statement filed on behalf of respondent Nos. 1 to 3 the allegation of connivance of private companies engaged in real estate business with the respondent authorities has been specifically denied. However, the factum of acquisition of the land in dispute has not been denied. It has been stated that the land in question has been acquired for a public purpose i.e. setting up of Cyber City and the same has been sold to D.L.F.- respondent No. 4 to achieve the said purpose. In para 3 of the preliminary objections, it has been pointed out that the State of Haryana formulated and published its Industrial Policy-1999 wherein special emphasis has been given for development of Information Technology and its extensive usage. Thereafter, Information Technology Policy-2000 was formulated and approved wherein the Development of I.T. Infrastructure including Cyber Cities was put in the high priority zone. On 29.9.2000, the Council of Ministers in the State approved the proposal of Town and Country Planning Department fixing the norms for Cyber Cities and other I.T. Units. Minimum area for setting up of a Cyber City was fixed as 100 acres.
7. In pursuance of the aforementioned policies M/s D.L.F Universal Ltd.-respondent No. 4 submitted an application for grant of licence for development of Cyber City Project in Sector 24, 24-A and 25 at Gurgaon, over an area of 72.823 acres out of their total area of 85.823 acres. It is claimed CWP No. 1620 of 2010 5 that the matter was considered at the highest level by a High Powered Committee in its meeting held on 4.4.2001 (R-1/1). The Director Panchayats suggested that the panchayat land could be given to the DLF-respondent No. 4 for the purpose of setting up of Cyber City at the prevalent market rate. The High Powered Committee approved the location of Cyber City in residential zone of Sector 25 and 25-A, Gurgaon. To meet the minimum area requirement of 100 acres for Cyber City, it was decided to get allotment of 19.5 acres of land from Panchayats Department at the prevalent market rate. It has been asserted that 19.5 acres of panchayat land of village Nathupur was lying in the shape of a long strip, which was totally unutilised because of its shape and deep ditches. It has been clarified that though the said land has been described to be a Nullah in the revenue record but after the construction of National Highway-8, it was not in use for want of any connectivity of flow of storm water.
8. On 2.9.2002, a notification was issued reducing the requirement of minimum size of plot for Cyber City from 100 acres to 50 acres. In this way, M/s D.L.F.-respondent No. 4 became eligible for grant of licence for Cyber City even without the said Panchayat land. However, considering the fact that a small patch of land in the shape of a strip could not be left un- utilised in between the Cyber City, thus, it was decided to acquire the land for public purpose of Cyber City. Accordingly, notifications under Section 4 and 6 were issued and land was acquired.
9. On 4.1.2006, a meeting was held under the Chairmanship of the Principal Secretary to the Chief Minister Haryana, and the matter of utilisation of 19.5 acres of acquired land in village Nathupur was discussed. Eventually it was decided to auction the land through Swiss Challenging Route fixing the CWP No. 1620 of 2010 6 reserve price to be Rs. 40.00 crores. The minutes of the said meeting have been placed on record as Annexure R-1/3. On 28.2.2006, the Council of Ministers approved the proposal for auction of land in question with the modification that the reserve price would be Rs. 50.00 crores instead of Rs. 40.00 crores.
10. On 7.3.2006, an advertisement was issued in various newspapers including 'The Hindustan Times', 'Economic Times' and the 'Business Standard', inviting technical and commercial bids from interested companies who wish to set up Cyber City/Technology/I.T. Park. In response to the said advertisement, respondent No. 4 as well as one Unitech Ltd. gave their technical and commercial bids and ultimately respondent No. 4 was found to be the highest bidder and consequently land in question was sold to it for a sum of Rs. 51,00,30,000/-. Thus, respondent Nos. 1 to 3 have sought to justify their action emphasising that there is no illegality committed at any stage and there has been complete transparency.
11. It has also been denied that the respondent State has earned huge profit by selling the acquired land at a high price because the sale proceeds became part of the consolidated fund of the State, which would be utilised for the larger public interest and development programmes. It has further been pointed out that the Gram Panchayat, Nathupur has also filed C.W.P. No. 17948 of 2006 in this Court seeking enhancement of the compensation, which is pending consideration.
12. In the separate written statement filed on behalf of M/s D.L.F.- respondent No. 4 other than the factual position enumerated above, it has been asserted that the instant petition is not maintainable because the same has been filed after a huge delay of six years after the announcement of the award dated CWP No. 1620 of 2010 7 9.2.2004 (P-4) by the Land Acquisition Collector. It has been pointed out that the Director, Town and Country Planning, Haryana, Chandigarh, had granted a licence in favour of respondent No. 4 under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 (for brevity, 'the 1975 Act') and the Rules framed thereunder in respect of land measuring 72.825 acres in village Nathupur for setting up/developing Cyber City in pursuance to the Information Technology Policy-2001. Since the land in question was in pockets and could not be properly utilised for development and integration of services, therefore, respondent No. 4 approached the respondent authorities for taking over the said land. Eventually, respondent No. 4 has purchased the land in question after paying huge bid of Rs. 51,00,30,000/-. One of the terms and conditions arrived at between the respondent State and respondent No. 4 is that the land shall be used exclusively for setting up of Cyber City Project and for no other purpose, as is evident from letter dated 2.5.2006 (R-4/2).
13. It has been submitted that the petitioners have not disclosed complete facts before this Court. The Gram Panchayat, Nathupur, through its Sarpanch had filed C.W.P. No. 4905 of 2006 challenging the same notifications which are subject matter of challenge in the instant petition. Even the action of the respondent State seeking to auction the land of the Gram Panchayat was also challenged in the said writ petition. However, during the course of hearing before a Division Bench, the Gram Panchayat limited its claim with regard to receiving of compensation. Accordingly, the Division Bench disposed of the said petition vide order dated 6.4.2006 granting liberty to the Gram Panchayat to pursue its remedy regarding compensation in accordance with law before the Collector or any other forum (R-4/3).
CWP No. 1620 of 2010 8
14. It has further been stated that after execution of the conveyance deed dated 4.8.2006 (P-5) in respect of the land measuring 19.5 acres and accepting the bid of M/s D.L.F-respondent No. 4, even a notification under Section 4 of the Act, dated 3.10.2006, was issued seeking to acquire certain part of the land measuring 19.5 acres alongwith other land for a public purpose, namely, for development and utilisation of the land for residential, commercial and institutional Sector 24 and 25A at Gurgaon (R-4/4). In pursuance of the said notification, respondent No. 4 filed its objections under Section 5-A of the Act on 2.11.2006, highlighting all the factual position. Despite that, a declaration under Section 6 of the Act was made on 1.10.2007 acquiring part of the aforesaid land. In this manner, 6.58 acres of land forming part of 19.5 acres belonging to respondent No. 4 come under acquisition. Faced with this problem, M/s D.L.F.-respondent No. 4 also filed CWP No. 763 of 2008. On 1.2.2008, this Court passed an interim order staying dispossession of the petitioner (M/s D.L.F.) in respect of khasra nos. for which conveyance deed has been executed (R-4/5). Later on, consequent upon an affidavit filed by the Collector that the land belonging to the D.L.F. was not included in the declaration dated 1.10.2007, the said writ petition was disposed of vide order dated 25.9.2008. Respondent No. 4 has also raised the issue that since third party rights in favour of individuals/persons in the substantial portion of the land in dispute have been created, thus, the petitioners have no right to question the acquisition proceedings at such a belated stage and the writ petition is liable to be dismissed. It is alleged that no public interest is involved.
15. Mr. Lokesh Sinhal, learned counsel for the petitioners has argued that the basic purpose for acquisition of land under the Act was to set up Cyber CWP No. 1620 of 2010 9 City, which could obviously be in public sector alone and the Gram Panchayat was divested of the land for meagre sum of Rs. 3,91,13,751.85 paise fraudulently. The land has been sold by the respondent State to the DLF- respondent No. 4 after about a period of three years for a sum of Rs. 51,00,30,000/-. According to the learned counsel the power of compulsory acquisition could be exercised for a public purpose but it has been exercised for an oblique purpose of auctioning the land in favour of the DLF-respondent No. 4 which could not be a public purpose especially when DLF-respondent No. 4 has otherwise failed to purchase this land from Gram Panchayat. He has further submitted that the whole exercise has been done to circumvent law because the land for a Private Company like DLF-respondent No. 4 could be acquired only by following the procedure contemplated by Part-VII of the Act, which comprises of Section 38 to Section 44B. Accordingly, the land could be acquired under the aforesaid Chapter under Section 40(1) for the purposes of building houses for the workmen employed in the office or for some connected purposes. Mr. Sinhal has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Devinder Singh v. State of Punjab, (2008) 1 SCC 727, to argue that the procedure laid down in Part-VII of the Act is exhaustive and there are various modes and manner prescribed in which the State vis-à-vis the Company is required to proceed in accordance with the statutory rules. It involves previous consent of the appropriate Government, execution of agreement, previous inquiry before consent is accorded, publication of the agreement and significant of all is imposition of restriction on transfer. There is an injunction imposed under clause (a) of sub-section (1) of Section 40 of the Act that no land could be acquired except for the purpose of building houses for the workmen employed in the office or some other CWP No. 1620 of 2010 10 connected purposes. Therefore, it has been submitted that the unique procedure followed by the respondent State is totally extraneous to the law of acquisition which sustains its existence from the public purpose and not from private purpose.
16. Mr. Sinhal has further argued that the DLF-respondent No. 4 had deposited a sum of Rs. 4 Crores on 22.1.2004, which showed that the land was sought to be acquired for it as the amount was deposited around the time when the award was announced on 9.2.2004 (P-4). The total amount of award is also close to the amount deposited by the DLF-respondent No. 4, namely, Rs. 3,91,13,751.85 paise.
17. Mr. Sinhal has further argued that being the residents of village Nathupur, the petitioners have interest in the land of the Gram Panchayat and a fraud has been played with the Gram Panchayat as the land had been purchased for about Rs. 4 crores which has been sold at more than Rs. 50 crores. In support of his submission, learned counsel has placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of The Vyalikaval House Building Co-op. Society v. V. Chandrappa, (2007) 9 SCC 304 and argued that the State cannot use the power of acquisition to benefit individuals and Companies who can otherwise bargain and purchase the same from the land owners. He has submitted that even negligible delay in challenging the acquisition made fraudulently would not defeat their cause and in that regard he has placed reliance on the last two paras of the judgment to argue that once the acquisition is found to be mala fide the ground of delay and acquiescence would have no substance. He has also pointed out that invoking of Swiss Challenging Route in land acquisition matter as distinguished from tenders is wholly illegal as it was not publicised in the CWP No. 1620 of 2010 11 advertisement given in the Economic Times, dated 7.3.2006 or other newspapers (R-4/1). According to the learned counsel, it further shows the pre-determined and biased mind of the authorities who have acted with a prejudiced mind in that that the land was bound to be given to the DLF- respondent No. 4.
18. Mr. Sinhal has further submitted that superfluous litigation at the instance of Gram Panchayat was filed being CWP No. 4905 of 2006. He has argued that the fraud of filing a writ petition at the instance of Gram Panchayat would come to the fore on a bare perusal of order dated 6.4.2006 (R-4/3), when on the same date a statement was made on behalf of the Gram Panchayat that being the owner of the land they have challenged the notifications issued under Sections 4 and 6 of the Act and since possession of the land had been taken and award has been passed, they would pursue the remedy of seeking compensation before the Land Acquisition Collector or any other forum. The writ petition was disposed of on the same date and even the counsel for the DLF-respondent No. 4 were present as a caveator. According to the learned counsel, the whole object of filing the aforesaid petition was to prevent any effort on the part of the residents of the village to challenge the acquisition proceedings as well as to facilitate execution of the conveyance deed on 4.8.2006 (P-5).
19. Mr. Narender Hooda, learned State counsel appearing for respondent Nos. 1 to 3 has rebutted the argument of the counsel for the petitioners. He has submitted that the respondent State has been very keen to establish a Cyber City. In that regard the Council of Ministers in its meeting held on 29.9.2000 had taken a policy decision that a Cyber City/Technology/IT Park may be permitted to be established and the minimum CWP No. 1620 of 2010 12 area fixed was 100 acres. According to the learned State counsel the limit of 100 acres was revised to 50 acres vide notification dated 2.9.2002 and it made the DLF-respondent No. 4 eligible because under the earlier policy they had proposed to earmark 72.823 acres out of their total area of 85.823 acres. According to the learned counsel, a notification and declaration under Sections 4 and 6 of the Act were issued on 3.1.2003 and 12.6.2003, which culminated in the announcement of award on 9.2.2004 (P-2 to P-4). In that regard he has made a reference to the meeting of the High Powered Committee held on 4.4.2001, under the Chairmanship of the Chief Minister, Haryana, for setting up of Cyber City at Gurgaon on 85.98 acres by the DLF-respondent No. 4, and has maintained that the Cyber City project would certainly enhance the prestige of the State and would open new opportunities for the people. Therefore, the Government welcomed such a project. He has also referred to the site plan (R-1/2) showing the proposed site of Cyber City in Sector 24, 25 and 25A, Gurgaon. He has then submitted that various efforts were made to utilise the land measuring 19.5 acres, which was acquired, in the best possible way available. In that regard he has referred to the minutes of the proceedings of a meeting held by the High Powered Committee on 4.4.2001 (R-1/1), which shows that the only way left with the State Government was to take the land measuring 19.5 acres from the Panchayat Department by way of allotment. He has maintained that it was in the aforesaid circumstances that the land was eventually acquired in 2003 and vide meeting held on 4.1.2006 (R-1/3) it was decided that the interested parties would be asked to bid for this land through Swiss Challenge Route. The award was announced on 9.2.2004 (P-4). He has further submitted that after the land vested in the State, all the three State agencies, namely, Haryana Urban Development Authority (HUDA), Haryana CWP No. 1620 of 2010 13 State Infrastructure and Industrial Development Corporation (HSIIDC) and Haryana State Electronics Development Corporation Limited (HARTRON) were consulted to ascertain whether any one of the three State agencies was interested in development of this land for residential, industrial or for establishing an IT Park. All the three agencies expressed the view that major portion of this land is in the shape of a strip and was not suitable for development of a project of worthwhile size. Accordingly, after discussion the reserve price of Rs. 40 crores was fixed, which was lateron increased to Rs. 50 crores and interested parties were asked to bid for this land through Swiss Challenging Route. Learned counsel has further submitted that in the Economic Times, Hindustan Times and Business Standard, dated 7.3.2006, an advertisement was published giving wide publicity for auction of this land. He has also submitted that despite a petition having been filed by the Gram Panchayat challenging the acquisition, no relief was granted by this Court and the present petition in the shape of Public Interest Litigation, would not be maintainable. According to Mr. Hooda, the whole transaction is bona fide and there is nothing in the petition to substantiate the allegation of mala fide. In that regard he has placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of Netai Bag v. State of West Bengal, (2000) 8 SCC 262.
20. Mr. S. Ganesh, learned Senior counsel for the DLF-respondent No. 4 has, however, submitted that the Gram Panchayat, Nathupur, is a necessary and proper party and in the absence of the Gram Panchayat, this petition could not be adjudicated by this Court. He has further argued that the writ petition has been filed long after the announcement of award, which itself is a ground for dismissal of the petition, especially when third party rights CWP No. 1620 of 2010 14 have been created due to development of land. According to the learned counsel, in any case there is a huge delay and the writ petition suffers from laches. In that regard he has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Sawaran Lata v. State of Haryana, (2010) 4 SCC 532, and argued that when discretion has been conferred on the Court then in appropriate cases the Court may decline to grant relief even if it finds that the order was void. He has submitted that the extra ordinary jurisdiction of this Court may not be exercised in such circumstances. Learned counsel has also drawn our attention to the averments made in para 15 of the written statement filed by respondent No. 4 and argued that integrated development has taken place in the entire Cyber City Project and third party rights have been created in favour of individuals/persons in substantial portion of the Cyber City. He has alleged that the petitioners are not oblivious of the aforesaid development and under the garb of Public Interest Litigation the instant petition has been filed maliciously in order to blackmail respondent No.
4. He has referred to the list of various IT Companies operating from the Cyber City, which include IBM, Tata Consultancy Services, Infosys etc. (R- 1/5). However, he banks upon the judgment of Hon'ble the Supreme Court in the case of Pratibha Nema v. State of M.P., AIR 2003 SC 3140. For invoking Swiss Challenging Route, he has placed reliance on the judgment of Hon'ble the Supreme Court in the case of Ravi Development v. Shree Krishna Prathisthan, (2009) 7 SCC 462.
21. It would first be necessary to notice a few glaring facts which have emerged from the pleadings and record of this case. It has come on record that DLF-respondent No. 4 had deposited with the Land Acquisition Collector, Gurgaon, a sum of Rs. 4.00 crores (R-1/4). The amount was CWP No. 1620 of 2010 15 obviously deposited with the 'Collector' on 22.1.2004 to make payment of the awarded amount in lieu of acquisition of the land in question. It is evident that the award was announced on 9.2.2004 (P-4) and that amount was not utilized. The respondent State has paid compensation from public exchequer in lieu of the acquired land amounting to Rs. 3,91,13,751.85 paise on 9.2.2004 but they sold the same land for a sum of Rs. 51,00,30,000/- to DLF-respondent No. 4 as is evident from the conveyance deed dated 4.8.2006 (P-5). The auction of the land in favour of DLF-respondent No. 4 was made by invoking Swiss Challenging Route but there was no indication of any such procedure in the advertisement given in various news papers dated 7.3.2006. The norm of total area for establishing Cyber City was reduced to 50 acres vide notification dated 02.09.2002. The DLF-respondent No. 4 had offered to set up a Cyber City in an area of 72.823 acres out of their total area of 85.823 acres some where in March/April 2001, as is evident from the proceedings of the High Powered Committee held on 4.4.2001 (R-1/1). At that time norm fixed for Cyber City was 100 acres.
22. The Director Panchayat had suggested that the matter be taken up with Gram Panchayat, Nathupur, for sale of their land under Rule 12 of the Punjab Village Common Land (Regulation) Rules, 1964 (P-1 with CWP No. 4905 of 2006). It further reveals that on 27.5.2002, a letter was addressed by DLF-respondent No. 4 for allotment of land. The letter is self-explanatory and makes an interesting reading:
"DLF Universal Limited DLF Centre, Sansad Marg, New Delhi-110001 Tel: 3719300, 3719320 Fax: 91-1-3719344, 3719212 May 27, 2002 CWP No. 1620 of 2010 16 The Commissioner (IT), Haryana, Chandigarh.
Subject:- Allotment of Panchayat land measuring 19.5 acres for cyber city to M/s DLF Universal Limited.
Sir, As you are kindly aware that a meeting was held on 21st May, 2002 under the Chairmanship of Hon'ble Chief Minister, Haryana wherein one of the issues deliberated in the meeting was regarding allotment of Panchayat land of Village Nathupur situated within and adjacent to the cyber city admeasuring 19.5 acres (approx.) which is imperative for the proper development and integration of services and could not be obtained by us through private negotiations. It was, therefore, decided in this meeting that such pockets be acquired by the Information Technology Department, Govt. of Haryana at negotiated/agreed price and allotted to us. In this regard, attention is also drawn to the earlier decision of the High Power Committee in the meeting held on 04.04.2001 under the Chairmanship of Hon'ble Chief Minister, Haryana, that:
"efforts should be made to get the allotment of 19.5 acres of land from Panchayat Deptt. The land will be allotted at the prevailing market rate."
2. The Khasra details of panchayat land of Village Nathupur to be acquired are enclosed alongwith a plan marking the said area in yellow colour.
3. For speeding up the establishment of cyber city, it is CWP No. 1620 of 2010 17 requested that the notification of acquisition should be made U/s 4 (1) and 17 of the Land Acquisition Act. In this connection, your kind attention is also invited to the recent judgment of the Supreme Court in the case of - Honeyrex Products Pvt. Ltd. Versus State of Karnataka and others (1996) 7 Supreme Court Cases 302 wherein it was held that the acquisition land u/s 4(1) and Section 17 of the Land Acquisition Act is for the public purpose for setting up of Information Technology Park. In view of the urgency and the need to speed up the project, it was held that it can not be said that the acquisition was for a private company and not for a public purpose on account of which special power of urgency could not be invoked. Copy of the Supreme Court judgment is also enclosed.
4. It is, therefore, requested that the matter may kindly be taken up with the Panchayat Deptt. for acquiring 19.5 acres (marked yellow in the enclosed plan) and notifying the area for acquisition.
Thanking you, Yours faithfully, For DLF-Universal Limited.
Sd/- Vinay Mittal Authorised Signatory Encl: As above Shri Vidya Dhar, Officer, on Special Duty to Chief Minister, Govt. of Haryana, Chandigarh."
CWP No. 1620 of 2010 18
23. The Gram Panchayat, Nathupur, filed CWP No. 4905 of 2006 on 27.3.2006. The caveat application by DLF-respondent No. 4 under Section 148A CPC had also been filed on 27.3.2006. We have noticed these facts from the original record of CWP No. 4905 of 2006, requisitioned by us. The record of CWP No. 4905 of 2006 also reveals that the land of Gram Panchayat was required to meet the norm of 100 acres because in 2001 the DLF- respondent No. 4 had 85.841 acres of land and acquisition of 19.50 acres of land would have met that norm. The petition came up for hearing before a Division Bench of this Court on 31.3.2006, when it was adjourned to 6.4.2006 on the prayer made by counsel. On that date of hearing the petition was disposed of and the following order was passed:-
" C.W.P. No. 4905 of 2006
Gram Panchayat, Nathupur v. State of Haryana and others Present: Mr. Harsh Bunger, Advocate, for the petitioner.
Mr. A.K. Chopra, Sr. Advocate with Mr. Aashish Chopra, Advocate, for the Caveator.
Learned counsel contends that the only relief that the petitioner is seeking in the present writ petition is that as the petitioner is the owner of the land which was acquired vide notifications dated 3.1.2003 and 12.6.2003 issued under Sections 4 and 6 of the Land Acquisition Act, therefore, the petitioner is entitled to receive the compensation. Counsel for the petitioner states that the acquisition proceedings are complete and the possession of the land has been taken by the State Government and award has also been passed.CWP No. 1620 of 2010 19
In view of the aforementioned factual position, the petitioner may pursue his remedy in accordance with law before the Land Acquisition Collector or any other forum regarding compensation.
Petition disposed of."
24. It has already come on record that provisions of Part-VII of the Act have never been resorted to. It is, thus, evident that DLF-respondent No. 4 was keen to grab this land. The letter dated 27.05.2004 addressed by DLF- respondent No. 4 makes it clear that they have failed to purchase this land by private negotiations. Earlier efforts were made to get the land allotted from Panchayat Department. The DLF-respondent No. 4 then requested the respondent-State to acquire the land. From the aforesaid, another conclusion can also be arrived at that DLF-respondent No. 4 did not need the land to fulfill the changed norm of 50 acres for establishing a Cyber City, as per notification dated 2.9.2002 because it has already shown to have ownership of land measuring 72.823 acres for establishing a Cyber City. Therefore, it is a case of greed and not of need because the land is situated appurtenant to National Highway No. 8.
25. In the light of the aforesaid facts the following obvious questions come on surface and there is no answer available:
a) Why the respondent State should go for acquisition of land in the year 2003/2004 putting forward the excuse of 'public purpose of Cyber City' once the DLF-respondent No. 4 has adequate land of over 70 acres, which answers the changed norm of 50 acres, vide notification dated 2.9.2002.
b) Why the respondent State has adopted an impermissible CWP No. 1620 of 2010 20 totalitarian approach of depriving the Gram Panchayat a valuable piece of land at a throw away price and sell the same to DLF-
respondent No. 4 for a whopping profit. The defence of the respondent State that the amount of auction would go into consolidated funds has failed to answer the question why the Gram Panchayat was deprived of the land. The whole procedure of acquisition followed in this case on the face of it lacks bonafide and is patently fraudulent. It appears to be a ruse for handing over the land to DLF-respondent No. 4.
26. The aforesaid events, facts and circumstances do not leave much to imagination. It is patent that the land in question has been acquired on the pretext of a public purpose of setting up a Cyber City with the real object of handing it over to DLF-respondent No. 4 on account of their wish and desire. Such an action of the respondent State amounts to colourable exercise of power and is fraudulent. It is evident from the record that DLF-respondent No. 4 had applied for setting up Cyber City on a piece of land measuring over 70 acres. The aforesaid piece of land was sufficient to meet the modified norms of 50 acres as against the earlier norms of 100 acres. The norm was re- fixed vide notification dated 2.9.2002 and the DLF-respondent No. 4 could have easily been granted licence for establishing Cyber City. The process of acquisition of land in the year 2003, which culminated in the announcement of award dated 9.2.2004 (P-4), is nothing else but an act of arbitrary exercise of power and distribution of State largesse to please a private company in total negation of law. The reason for acquisition of land and then handing it over to DLF-respondent No. 4 appears to be that the land is appurtenant to national highway and extremely valuable. The DLF-respondent No. 4 wanted to grab it CWP No. 1620 of 2010 21 and having failed to purchase it from the Gram Panchayat by private negotiation, it had suggested to the Government vide letter dated 27.5.2004 that the land be acquired as they required the land for services. From the communication dated 27.5.2004 (which has been reproduced in para 20), another mode of grabbing the land was also suggested, namely, obtaining allotment from the Gram Panchayat probably by way of a gift. Therefore, acquisition of land in question is mala fide and an act of fraud on the public.
27. The defence of the State that the amount of auction collected from the DLF-respondent No. 4 would become part of the consolidated fund is also wholly unjustified. Profit making by the State cannot be resorted to by adopting a totalitarian approach, firstly by depriving the Gram Panchayat a valuable piece of land at a throw-away price and then handing it over to the DLF-respondent No. 4 for a whopping profit of more than Rs. 47 crores. This is no answer to the right of the Gram Panchayat or the individual that the fund which in law belongs to them is being utilised for a public purpose. Such an approach is neither approved by the provisions of the Act nor by the principles that compulsory acquisition of land sustains its justification from a public purpose for which it is acquired. Again, the power of acquisition, from the aforesaid point of view, has been used for a collateral purpose as against the public purpose. This conclusion is fortified by another fact, namely, that a part of the land was sought to be acquired vide notification dated 3.10.2006, issued under Section 4 of the Act, for a public purpose of development and utilisation of the land for residential, commercial and institutional Sectors 24 and 25A at Gurgaon (R-4/4). Despite objections filed by the DLF-respondent No. 4 under Section 5-A of the Act, a declaration under Section 6 has been made on 1.10.2007 acquiring the land measuring 6.58 acres out of 19.5 acres. The CWP No. 1620 of 2010 22 aforesaid notification seeking acquisition of the land would be sufficient to show the false stand taken by the respondent State that after acquisition and vesting of the land in the State, the State agencies like HUDA, HSIIDC and HARTRON were asked to ascertain whether anyone of them was interested in development of this land for residential, industrial or for establishing IT Park and all of them have refused. The aforesaid false stand taken by the respondent State further strengthens the view that the land could have been utilised for a public purpose rather than handing it over to a private company. The oblique motive of acquisition is completely exposed by the imaginary stand taken by the respondent State.
28. We have also failed to understand why the provisions of Part-VII of the Act were not invoked. Indisputably, the Land Acquisition Act, 1894 is an exproprietory legislation and the State ordinarily can acquire a piece of land in exercise of its power of eminent domain, which is subject to existence of a public purpose and on payment of reasonable compensation in accordance with the provisions of the Act. The State has also been empowered to acquire land for companies and for purposes other than public purpose. Where an application is filed for acquisition of land at the instance of a company, the procedure to be adopted is laid down in Part-VII of the Act. To achieve the object of acquisition for a company, rules have been framed prescribing the mode and manner in which the State vis-à-vis the company should proceed. According to para 16 of the judgment of Hon'ble the Supreme Court in the case of Devinder Singh (supra), the rules provide for previous consent of the appropriate Government, execution of the agreement, previous inquiry before a consent is accorded, publication of the agreement, restriction on transfer etc. It also provides for statutory injunction that no land shall be acquired except CWP No. 1620 of 2010 23 for the purpose contained in Clause (a) of sub-section (1) of Section 40 of the Act. The Land Acquisition (Companies) Rules, 1963 (for brevity, 'the 1963 Rules'), for acquisition of land for the companies have been framed by the Central Government in exercise of its power under Section 55 of the Act. The guidelines provided therein are also followed by the State Government. A bare perusal of sub-rule (1) of Rule 4 of the 1963 Rules would show that the same is to apply where acquisition of land is to be made for a company envisaged in Part-VII. Rule 4 of the 1963 Rules must be read in extenso, which is as under:-
"4. Appropriate Government to be satisfied with regard to cer- tain matters before initiating acquisition proceedings. - (1) Whenever a company makes an application to the Appropriate Government for acquisition of any land, that Government shall di- rect the Collector to submit a report to it on the following matters, namely -
(i) that the company has made its best endeavour to find out lands in the locality suitable for the purpose of acquisition;
(ii) that the company has made all reasonable ef- forts to get such lands by negotiation with the persons inter- ested therein on payment of reasonable price and such ef- forts have failed;
(iii) that the land proposed to be acquired is suitable for the purpose;
(iv) that the area of land proposed to be acquired is
not excessive;
CWP No. 1620 of 2010 24
(v) that the company is in a position to utilise the
land expeditiously; and
(vi) where the land proposed to be acquired is good
agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land. (2) The Collector shall, after giving the company a rea-
sonable opportunity, to make any representation in this behalf, hold an inquiry into the matters referred to in Sub-rule (1) and while holding such enquiry he shall-
(i) in any case where the land proposed to be ac-
quired is agricultural land consult the Senior Agricultural Officer of the district whether or not such land is good agri- cultural land;
(ii) determine, having regard to the provisions of Sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land, which, in the opinion of the Collector, should be acquired for the company; and
(iii) ascertain whether the company offered a rea-
sonable price (not being less than the compensation so de- termined), to the persons interested in the land proposed to be acquired.
Explanation. - For the purpose of this rule "good agricul- tural land" means any land which, considering the level of agricul- tural production and the crop pattern of the area in which it is situ- ated, is of average or above average productivity and includes a garden or grove land.
CWP No. 1620 of 2010 25
(3) As soon as may be after holding the enquiry under Sub-rule (2), the Collector shall submit a report to the Appropriate Government and a copy of the same shall be forwarded by the Government to the Committee.
(4) No declaration shall be made by the Appropriate Government under Section 6 of the Act unless-
(i) the Appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if any, submitted under Section 5A of the Act; and
(ii) the agreement under Section 41 of the Act has been executed by the company."
29. The provisions of Part-VII of the Act and Rule 4 of the 1963 Rules have been completely abrogated and the acquisition has been made under the general provisions of Sections 4 and 6 read with Section 17 of the Act and by announcement of award. Various safeguards provided by Part-VII of the Act and the 1963 Rules have been completely shelved. Therefore, exercise of power of acquisition is for extraneous consideration. It is not understandable as to why the State and its officers are tilted in showering favour on the DLF-respondent No. 4. In any case, it is proved that the power of acquisition has been used for a colourable purpose on the pretext of serving a public purpose.
30. The filing of CWP No. 4905 of 2006 by the Gram Panchayat, Nathupur, on the same date when caveat application was filed by the DLF- respondent No. 4, also raises doubts about the bonafide of the Gram Panchayat to challenge the acquisition proceedings. It is appropriate to notice that the Gram Panchayat has been resisting the efforts of the DLF-respondent No. 4 to CWP No. 1620 of 2010 26 grab this piece of land since the year 2001. Firstly, the DLF-respondent No. 4 failed in its efforts to purchase the land by negotiation from the Gram Panchayat and then the Gram Panchayat also resisted the efforts of the State to hand over the aforesaid land under Rule 12 of the Punjab Village Common Lands (Regulation) Rules, 1964. The aforesaid fact is clear from the communication dated 5.4.2001 sent by the Director, Panchayat and Special Secretary to Government Haryana, Development and Panchayat Department (P-1 appended with CWP No. 4905 of 2006). The aforesaid communication is self-explanatory and reads thus:-
" M/s DLF Universal Ltd. And its associate companies have applied to the Town & Country Planning Deptt. for grant of Licence to develop a Cyber City in Gurgaon. The matter was examined in the High Powered Committee meeting headed by Hon'ble Chief Minister, Haryana, on 04.04.2001. The applicants have requested that besides 85.841 acres of land available with them they would require to acquire 19.50 acres of Shamlat Land belonging to Village Nathupur for which they are ready to pay adequate Compensation. It was decided in the above meeting that Gram Panchayat may be asked to pass resolution for sale of above mentioned 19.50 acres Panchayat land in favour of M/s DLF Universal Ltd. and its associate companies at Market rate for the purpose of establishment of Cyber City. You are requested to take up the matter with the Gram Panchayat immediately and send the proposal for sale of Gram Panchayat land under Rule 12 of the Punjab Common Land (Regulation) Rules 1964 expeditiously."
31. From the aforesaid conclusion it is evident that the power of CWP No. 1620 of 2010 27 compulsory acquisition has been used fraudulently and, therefore, all actions taken fraudulently are vitiated in law. Hon'ble the Supreme Court in the case of S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1, quoted the following words of Chief Justice Edward Coke of England, which reads thus:
"Fraud avoids all judicial acts, ecclesiastical or temporal"
observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."
32. In the light of the aforesaid principle, all objections concerning delay in challenging acquisition and locus standi are hereby overruled because fraudulent actions are vitiated by operation of law.
33. The auction procedure followed by the respondent State would further show the element of colourable exercise of power. The Swiss Challenging Route, which is ordinarily applicable to tender, was not even mentioned in the advertisement issued in the newspapers on 7.3.2006, like in the 'Hindustan Times, 'Economic Times' and 'Business Standard'. The judgment of Hon'ble the Supreme Court in the case of Ravi Development (supra) on which reliance has been placed by Mr. S. Ganesh, does not lay down any proposition of law that the Swiss Challenging Route could be adopted without giving wide publicity in the advertisement before adopting such a principle. On the contrary the judgment expressly lays down that wide publicity is required to be given in the advertisement, if such principle is to be CWP No. 1620 of 2010 28 followed and applied, which has not been done in the present case. Therefore, in this respect also, the respondent State has acted with bias and malice to show favour to the DLF-respondent No.4.
34. We are also constrained to observe that in matter of acquisition, State of Haryana has already earned severe strictures from Hon'ble the Supreme Court. In the case of Hari Ram v. State of Haryana, (2010) 3 SCC 621, Hon'ble the Supreme Court has severally indicted the respondent State. In paras 26, 40 and 43 of the judgment, following observations have been made:
"26. ......The policy articulated in the letter dated 26.6.1991, thus, hardly helps the respondents. Rather it is seen that neither the aforesaid policy nor any other policy has been followed by the State Government while releasing land of various landowners whose lands have been acquired in the same acquisition proceedings. As a matter of fact, the only policy that seems to have been followed is: "you show me the face and I'll show you the rule"."
"40. It is true that any action or order contrary to law does not confer any right upon any person for similar treatment. It is equally true that a landowner whose land has been acquired for public purpose by following the prescribed procedure cannot claim as a matter of right for release of his/her land from acquisition but where the State Government exercises its power under Section 48 of the Act for withdrawal from acquisition in respect of a particular land, the landowners who are similarly situated have right of similar treatment by the State Government. Equality of citizens' rights is one of the fundamental pillars on CWP No. 1620 of 2010 29 which edifice of rule of law rests. All actions of the State have to be fair and for legitimate reasons."
"43. It is unfair on the part of the State Government in not considering representations of the appellants by applying the same standards which were applied to other landowners while withdrawing from acquisition of their land under the same acquisition proceedings. If this Court does not correct the wrong action of the State Government, it may leave citizens with the belief that what counts for the citizens is right contacts with right persons in the State Government and that judicial proceedings are not efficacious. The action of State Government in treating the present appellants differently although they are situated similar to the landowners whose lands have been released can not be countenanced and has to be declared bad in law." (emphasis added)
35. It is also well settled that rule of law forms part of basic structure of the Constitution. In I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, a Nine-Judge Bench of Hon'ble the Supreme Court has observed in paras 129 and 130 of the judgment, which reads thus:
"129. Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed CWP No. 1620 of 2010 30 on the judiciary.
130. Realising that it is necessary to secure the enforcement of the Fundamental Rights, power for such enforcement has been vested by the Constitution in the Supreme Court and the High Courts. Judicial Review is an essential feature of the Constitution. It gives practical content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. It may be noted that the mere fact that equality which is a part of the basic structure can be excluded for a limited purpose, to protect certain kinds of laws, does not prevent it from being part of the basic structure. Therefore, it follows that in considering whether any particular feature of the Constitution is part of the basic structure - rule of law, separation of power - the fact that limited exceptions are made for limited purposes, to protect certain kind of laws, does not mean that it is not part of the basic structure."
36. There has been an interim order dated 23.4.2010 restraining the DLF-respondent No. 4 from creating third party(s) right on the land in question without specific permission of this Court. Thereafter an affidavit dated 28.5.2010 has been filed by Shri K.V.N. Sharma, Authorized Signatory, DLF Limited, on behalf of the DLF-respondent No. 4. There are vague averments stating that integrated development has taken place in the entire Cyber City project, which include the land in question. It also states that third party rights have been created. However, neither any date of creation of any such right nor the names of persons have been disclosed. On the contrary, the land was sought to be acquired at the instance of HUDA by issuance of notifications under Sections 4 and 6 on 3.10.2006 and 1.10.2007 (Annexures CWP No. 1620 of 2010 31 P-10 and P-12 respectively appended with CWP No. 763 of 2008). Therefore, it cannot be concluded that the land stands utilised either for development as a Cyber City and that thereafter third party rights have been created. In any case, once the whole transaction has been found to be the result of fraudulent exercise of power then all actions are deemed to be vitiated in law. Accordingly, we hold that the land shall revert back to the Gram Panchayat, Nathupur, and if any construction has been raised, the same may be removed by the DLF-respondent No. 4.
37. For the reasons aforementioned this petition succeeds. Notification under Section 4 of the Act, dated 3.1.2003 (P-2) and declaration under Section 6 of the Act, dated 12.6.2003 (P-3) are hereby quashed along with all consequential proceedings. We also quash the conveyance deed dated 4.8.2006 (P-5). The result would be that the respondent State may recover the amount of award i.e. Rs. 3,91,13751.85 Paise from the Gram Panchayat, Nathupur (now, Municipal Corportion, Gurgaon) and refund the amount of Rs. 51,00,30,000/- to the DLF-respondent No. 4. Accordingly, the land shall revert back to the Gram Panchayat and construction, if any, raised by the DLF- respondent No. 4 may be removed at their discretion. The petitioners shall be entitled to their cost, which is quantified at Rs. 50,000/-, which shall be borne by the respondent State and DLF-respondent No. 4 equally.
(M.M. KUMAR)
JUDGE
(JITENDRA CHAUHAN)
October 1, 2010 JUDGE
Pkapoor