Punjab-Haryana High Court
Darshan Singh And Others vs State Of Punjab And Others on 4 February, 2010
Equivalent citations: 2010 A I H C 2457
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 1512 of 2010
Date of Decision: February 4, 2010
Darshan Singh and others
...Petitioners
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Rahul Sharma, Advocate,
for the petitioners.
Mr. Suvir Sehgal, Additional Advocate General, Punjab,
for the respondents-caveator
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in Yes
the Digest?
M.M. KUMAR, J.
This petition filed under Article 226 of the Constitution challenges notification dated 22.5.2008 (P-2), issued under Section 4 read with Section 17(1) of the Land Acquisition Act, 1894 (for brevity, 'the Act') and declaration dated 11.1.2010 (P-8), issued under Section 6 of the Act.
2. Brief facts of the case are that initially on 30.1.2008, the State of Punjab had issued a notification under Section 4 read with Section 17 of the Act showing its intention to acquire 90 acres, 3 Kanals and 11 Marals of Land for a public purpose, namely, for construction of Ring Road Phase-II, Development of junctions and road site amenities, connecting Malout Road C.W.P. No. 1512 of 2010 2 to Badal Road, Tehsil and District Bathinda. The aforementioned notification was published in the daily newspaper 'The Tribune on 15.2.2008. Despite invoking the urgency provisions, no steps were taken by the State of Punjab for about four months and thereafter another notification under Section 4 read with Section 17(1) of the Act was issued on 22.5.2008, seeking to acquire 90 Acres 7 Kanals and 16 Marlas of land for the same public purpose (P-2). Thereafter, declaration under Section 6 of the Act was issued on 6.6.2008, which was published in the daily newspaper 'The Tribune' on 8.6.2008.
3. The aforementioned notifications were challenged in this High Court by filing C.W.P. Nos. 10879, 11612, 11777 and 12469 of 2008. On 9.3.2009, a Division Bench of this Court allowed the aforementioned writ petitions and quashed the notifications dated 30.1.2008, 22.5.2008 and 6.6.2008 (P-3). Thereafter, the respondent State of Punjab filed review applications bearing RA No. 273 of 2009 in CWP No. 10879 of 2008 (Seema Rani and others v. State of Punjab and others) and RA No. 269 of 2009 in CWP No. 11612 of 2008 (Bhushan Kumar and another v. State of Punjab and others), seeking review of the order dated 9.3.2009. On 18.9.2009, the review applications finally came up for hearing before a Division Bench of this Court, which were allowed and the order dated 9.3.2009 was modified to the extent that the notification under Section 4 of the Act, will not be treated to have been set aside (P-4). However, in the order dated 18.9.2009 it has been specifically mentioned that the benefit of judgment would be applicable to the petitioners only.
4. On 29.9.2009, the Land Acquisition Collector-respondent No. 3 issued notices to the petitioners inviting objections under Section 5-A of the C.W.P. No. 1512 of 2010 3 Act, which were filed by the petitioners. A copy of one such objection filed by Darshan Singh-petitioner No. 1 has been placed on record (P-5). It has been claimed that other petitioners have also filed similar objections. The Land Acquisition Collector-respondent No. 3 considered the said objections and sent his report/recommendations to the State Government for taking final decision in the matter, vide letter dated 12.11.2009 (P-6 & P-7). It has been alleged that thereafter no independent decision was taken and the objections filed by the petitioners were rejected in a mechanical manner. On 11.1.2010, declaration under Section 6 of the Act has been issued acquiring the land in question including the land belonging to the petitioners (P-8).
5. Feeling aggrieved, the petitioners have challenged the impugned notifications on various grounds. It has been pleaded that there exists no 'public purpose' in providing 20 Commercial Pockets within a distance of 8 Kms. for providing roadside amenities, especially, when the respondent State has itself stated that 'the ring road is required just to divert the traffic from the city area of Bathinda. The city of Bathinda is situated near two National Highways. Therefore, it is apparent that the proposed ring road alone would not bear the major traffic load. The acquisition of about 42 acres of land, out of a total of about 90 acres sought to be acquired, for roadside amenities, is highly disproportionate. The land of the petitioners is only being acquired for being utilised for commercial purposes, such as setting up Malls, Restaurants and not for any 'public purpose'.
6. It has further been submitted that there exists no public purpose in having 20 commercial pockets for providing road side amenities like C.W.P. No. 1512 of 2010 4 toilets, petrol pumps, restaurants etc. in close proximity to each other. In fact, the distance between one of the junctions/commercial pockets is only about 440 meters. The declaration under Section 6 of the Act, dated 11.1.2010 (P-8) has been issued beyond the period of limitation prescribed under Section 6 of the Act and, hence, the same is void. The objections filed by the petitioners under Section 5-A of the Act have not been properly considered and there has been violation of the principles of natural justice. It has also been pointed out that a master plan of Bathinda, bearing Drawing No. DTP(B) 1147/96, dated 21.8.1996, was prepared by the respondent State of Punjab, wherein the ring road connecting Malout Road to Badal Lambi Road was to pass through different khasra numbers. However, the alignment of the proposed ring road has now been changed without there being any amendment in the master plan or the approval of the Department of Town and Country Planning.
7. Mr. Rahul Sharma, learned counsel for the petitioners has argued that notification dated 11.1.2010, issued under Section 6 of the Act (P-8), is beyond the period of limitation of one year prescribed by proviso to Section 6 of the Act and the same is liable to be set aside. According to the learned counsel, the action or proceedings in pursuance of notification issued under Section 4 of the Act have never been stayed by this Court during the pendency of CWP No. 10879 of 2008, which was earlier filed by the petitioners and as an interim measure only dispossession of the petitioners was stayed. The notification under Section 4 of the Act having been issued on 23.5.2008, would constitute a basis for counting one year, which lapsed on 22.5.2009. Mr. Sharma further submits that at best the period staying dispossession of the petitioners could be excluded and, thus, C.W.P. No. 1512 of 2010 5 issuance of notification under Section 6 would still be beyond one year. He has drawn our attention to interim orders issued by this Court on 9.7.2008 in CWP No. 10879 of 2008 till 30.9.2008 (P-12). The substance of the argument is that interim order cannot be deemed to have operated for the whole aforesaid period because interim orders were 'in the meanwhile' or till the next date of hearing, which was not continued. Applying the aforesaid principle, Mr. Sharma has argued that the interim orders from 9.7.2008 to 26.8.2008 were made to continue and then from 24.9.2008 to 30.9.2008 the interim order remained in operation. Therefore, aforesaid period alone could be excluded for reckoning the period of one year and the same would work out beyond one year. In support of his submission, Mr. Sharma has placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of Ashok Kumar v. State of Haryana, (2007) 3 SCC 470, and argued that if interim order has not been continued then such order could not be deemed to be in operation. According to the learned counsel, the view taken by this Court to the contrary did not find favour with Hon'ble the Supreme Court.
8. Mr. Sharma has then submitted that out of 90 acres of land, about 42 acres of it is to be utilised for roadside facilities and services which is highly disproportionate. Moreover, setting up of Malls and Restaurants is purely a commercial purpose and it could not be regarded as 'public purpose'. Elaborating his submission, learned counsel has submitted that total length of the Ring Road is about 8 kilometers and six junctions have been carved out. Those out of six are at distance of about 2½ Kms., one is at a distance of about 1650 Mtrs. and other are 960 Mtrs. and 440 Mtrs. Therefore, it is arbitrary and irrational. There could be only one unit C.W.P. No. 1512 of 2010 6 providing wayside amenities.
9. Mr. Suvir Sehgal, learned Additional Advocate General, Punjab, however, has argued that no reply is required to be filed because facts have not been disputed. He has produced record before us. He has submitted that once interim order has been granted even in one case, it was to apply to the others. Referring to the interim orders passed in CWP Nos. 10879, 11612, 11777 and 12469 of 2008, Mr. Sehgal has submitted that interim orders have been continued, which eventually resulted in quashing of notifications issued under Sections 4 and 6 of the Act initially but on review, Section 6 notification was kept intact. Therefore, to say that the orders were not operating is highly improbable proposition. Moreover, once the notifications are quashed where is the possibility to include the period of interim stay. Once the notification is quashed then it is wiped out from its initiation. In support of his submission, learned counsel has placed reliance on the judgments of Hon'ble the Supreme Court rendered in the cases of State of Kerala v. Antony Fernandez, (1998) 3 SCC 556; N. Narasimhaiah v. State of Karnataka, (1996) 3 SCC 88 and Abhey Ram v. Union of India, (1997) 5 SCC 421.
10. We have bestowed our thoughtful consideration on the rival contentions and are of the view that the instant petition lacks merit and is, thus, liable to be dismissed. The land in question has been acquired for a public purpose of construction of Ring Road Phase-II, development of junctions and road side amenities. The purpose of construction of road has to be regarded as 'public purpose', which may attract the application of urgency clause envisaged by Section 17(1) of the Act. The Punjab Legislature has amended the Act by Amendment Acts II/1954, XVII/6 and C.W.P. No. 1512 of 2010 7 XLVIII/1956 by adding an explanation to sub-section (1) of Section 17 of the Act. Sub-section (2) was also added in which Clause (b) provides as under:-
"(b) whenever in the opinion of the Collector it becomes necessary to acquire the immediate possession of any land for the purpose of any library or educational institution or for the construction, extension or improvement of any building or other structure in any village for the common use of inhabitants of such village, or any godown for any society registered under Co-operative Societies Act, 1912, or any dwelling house for the poor, or the construction of labour colonies or houses for any other class of people under a Government sponsored housing scheme, or any irrigation tank, irrigation or drainage channel, or any well, or any public road;"
11. Once the aforesaid legislative provision is clear then construction of ring road has to be regarded as a public purpose, which may provide legislative sanction to invoke urgency clause. The other purpose of developing junctions and road side amenities are necessarily ancillary to the main purpose of constructing ring road.
12. Even otherwise, public purpose in common parlance has to be regarded something which is for the benefit and use of public in general as against conferring benefit on an individual. The provision of developing junctions and providing road side amenities is of course for the use and benefit of public at large and not for any individual or group of individuals. The public purpose varies with the times and the prevailing conditions in localities. What may be considered as a public purpose in a Metropolitan C.W.P. No. 1512 of 2010 8 City may not be so in a small Mufsil Town. In that regard reliance may be placed on the view expressed by a Constitution Bench of Hon'ble the Supreme Court in the case of Arnold Rodricks v. State of Maharashtra, AIR 1966 SC 1788. The aforesaid view has been followed and applied recently in the case of Sooraram Pratap Reddy v. District Collector, Ranga Reddy District, (2008) 9 SCC 552. It has been held that public purpose must be decided in each case examining closely all the facts and circumstances of the case. The concept is not static but changes with the passage of time. It is because of the aforesaid reason that the legislature has left it to the Government to say what is a public purpose and also to declare the need of giving a public purpose. If the acquisition of land in question is considered in the light of the aforesaid observation then even the ancillary purpose of providing road side amenities and developing junctions would be covered by the expression 'public purpose'.
13. In the instant case, the land was initially acquired by issuance of a notification under Section 4 read with Section 17 of the Act on 30.1.2008. However, on account of inadvertent mistake some portion of a Gurdwara and its compound along with residential house constructed in the compound of Gurdwara was also included in the acquisition for construction of ring road. The mistake had occurred because there was no Nishan Sahib in existence in the compound of the Gurdwara, which was pointed out by the residents later on. In order to avoid any resentment amongst the people attached to the Gurdwara, an amendment was proposed and a revised notification under Section 4 read with Section 17 of the Act was issued on 22.5.2008 (P-2). Thereafter, a declaration was made under Section 6 of the Act on 6.6.2008. Various land owners including the C.W.P. No. 1512 of 2010 9 petitioners approached this Court and challenged the acquisition proceedings by filing four writ petitions, namely, CWP Nos. 10879, 11612, 11777 and 12469 of 2008. The Division Bench of this Court issued interim orders staying dispossession of the petitioners in those cases. It is appropriate to mention that dispossession of the petitioners was stayed in CWP No. 10879 of 2008 on 9.7.2008 in the meanwhile. The interim order granted on that date reads "In the meanwhile dispossession of the petitioners shall remain stayed till the next date of hearing. It is also clarified that the petitioners shall not raise any construction till further orders". On 21.7.2008, 26.8.2008 and 24.9.2008 the interim directions were ordered to be continued. On 30.9.2008 there was no order of continuation of the interim direction. Similarly, in CWP No. 11612 of 2008, interim directions were granted on 9.7.2008, staying dispossession of the petitioners till the next date of hearing. The interim direction was ordered to be continued on 21.7.2008. On 26.8.2008 and 24.9.2008 the said writ petition was ordered to be listed along with C.W.P. No. 10879 of 2008 and there was no interim direction. On 30.9.2008, it was simply adjourned and on 3.10.2008 arguments were heard and order was reserved. In CWP No. 11777 of 2008, the interim directions were issued on 14.7.2008 and the order stated "In the meantime, status quo re: possession be maintained". On 21.7.2008, this petition was ordered to be listed along with CWP No. 10879 of 2008 and in the meanwhile, interim directions were to continue. On 26.8.2008, no order continuing the interim directions was passed, however, again on 24.9.2008 it was ordered that interim directions to continue. On 30.9.2008, this petition was ordered to be listed along with CWP No. 11612 of 2008 and no order continuing interim directions was C.W.P. No. 1512 of 2010 10 passed. Eventually on 3.10.2008 arguments were heard and orders were reserved. In CWP No. 12469 of 2008, the interim direction was issued on 21.7.2008 and the order stated "Status quo in terms of the order passed in CWP No. 10879 of 2008 shall be maintained." On 26.8.2008 and 24.9.2008 the said writ petition was ordered to be listed along with CWP No. 10879 of 2009 and on 30.9.2008 it was directed to be listed along with CWP No. 11612 of 2008.
14. It is pertinent to mention that the order in the aforementioned writ petitions was pronounced on 9.3.2009 (P-3) and notifications dated 30.1.2008, 22.5.2008 and 6.6.2008 were quashed. However, on 18.9.2009 (P-4), the order dated 9.3.2009 was reviewed and by the direction issued by this Court, the notification dated 22.5.2008 (P-2), issued under Section 4 read with Section 17 was kept intact by following the view taken by Hon'ble the Supreme Court in the case of Kanpur Development Authority v. Mahavir Sahkari Awas Samiti Ltd., (2005) 10 SCC 320. The Division Bench held that if invoking urgency clause is found to be unjustified then the notification to that extent could have been struck down and not the notification under Section 4. Accordingly, notification under Section 4, dated 22.5.2008 (P-2) was kept intact with the observation that benefit of the judgment was to be available to the petitioners alone. On 29.9.2009, objections under Section 5-A of the Act were invited. After hearing the objectors, the report on objections was sent on 12.11.2009. The declaration under Section 6 of the Act was made on 11.1.2010 (P-8). It is, thus, clear that from 22.5.2008 to 9.3.2009 and then from 9.3.2008 to 18.9.2009, notification under Section 4 and declaration under Section 6 were not in operation as a Division Bench of this Court has quashed them on 9.3.2009. C.W.P. No. 1512 of 2010 11 However, on 18.9.2009, the judgment dated 9.3.2009 was reviewed and notification under Section 4, dated 22.5.2008, was kept intact. The whole period from 22.5.2008 to 9.3.2009 and 9.3.2009 to 18.9.2009 has to be excluded for the purposes of reckoning the period of one year. If viewed in that light then the declaration issued on 11.1.2010 under Section 6 would be well within a period of one year. Therefore, we do not find that the notification under Section 6, dated 11.1.2010 (P-8) has not been issued within a period of one year of the issuance of notification under Section 4 of the Act.
15. The argument of Mr. Sharma based on the judgment of Hon'ble the Supreme Court in Ashok Kumar's case (supra) looks attractive at the first blush but on a close scrutiny it lacks substance. In Ashok Kumar's case (supra) declaration under Section 6 was found to be beyond a period of one year by their Lordships' of Hon'ble the Supreme Court and the period of one year was counted by excluding the period when the interim order was not extended as the interim order was only till the next date of hearing or in the meanwhile. The suit in that case was eventually dismissed for non-prosecution. However, in the present case once the notifications under Sections 4 and 6 have been quashed, the whole complex of proposition would undergo change. The notifications would be deemed to be wiped out. However, the notification dated 22.5.2008 (P-2), under Section 4 of the Act, was revived when the judgment dated 9.3.2009 (P-3) rendered by a Division Bench of this Court was reviewed on 18.9.2009 (P-
4). Therefore, the whole period from 22.5.2008 to 9.3.2009 and 9.3.2009 to 18.9.2009 has to be excluded for the purposes of counting the period of one year. Therefore, we do not find merit in the argument raised on behalf of C.W.P. No. 1512 of 2010 12 the petitioners. We also fail to find any substance in the argument that in the absence of stay of acquisition proceedings, the stay of dispossession would also not be covered by the provisions of Section 6 of the Act requiring issuance of notification within a period of one year. The other argument concerning 'public purpose' is also liable to be rejected in view of the discussion in the preceding paras.
16. For the reasons aforementioned, this petition fails and the same is dismissed.
(M.M. KUMAR)
JUDGE
(JITENDRA CHAUHAN)
February 4, 2010 JUDGE
Pkapoor