Punjab-Haryana High Court
Gulshan Malik & Others vs State Of Haryana & Others on 3 February, 2012
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No. 15546 of 1995 -1-
IN THE PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
CWP No. 15546 of 1995 (O&M)
and other connected petitions
Date of Decision: 03.02.2012
Gulshan Malik & others
......... Petitioners
Versus
State of Haryana & others
............ Respondents
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CORAM : Hon'ble Mr. Justice M.M. Kumar
Hon'ble Mr. Justice Rajiv Narain Raina
Present: Mr. Adarsh Jain, Advocate,
Mr. Amit Jain, Advoctate
for the petitioners.
Mr. Kamal Sehgal, Addl. A.G., Haryana.
Mr.Gitish Bhardwaj, Advocate for
Mr. Arun Walia, Advocate
Ms. Deepali Puri, Advocate
for the respondent(s).
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1. To be referred to the reporters or not?
2. Whether the judgment should be reported in the digest.
RAJIV NARAIN RAINA, J.
1. The present petition and connected cases* are being disposed of by a common judgment as all the matters impugn the notification dated 23.11.1992 under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') and the declaration dated 19.11.1993 under Section 6 of the Act.
2. For the sake of convenience facts are being taken from CWP No. 15546 of 1995 and CWP No. 16364 of 1995.
CWP No. 15546 of 1995 -2-
3. The public purpose for the acquisition was for the development and utilization of land as residential and commercial Sector 2 Faridabad under the HUDA Act, 1977. The acquired land falls in villages Sihi and Unchagaon, which are said to be situated in close proximity of Ballabhgarh town.
4. In connected CWP No. 16364 of 1995 with respect to the same land sought to be acquired it has been stated that the first land acquisition notice under Section 4 of the Act was issued in the erstwhile State of Punjab on 24.7.1963 proposing to acquire a large chunk of land including the land of the petitioners for planned development of the area. That notification was allowed to lapse. After re-organization of the State of Punjab, the State of Haryana issued a Section 4 notification in 1972, which was also allowed to lapse as no notification under Section 6 of the Act was issued. The petitioners submit that their land was sought to be again acquired by notification dated 11.8.1980 under Section 4 of the Act which was also allowed to lapse as no notification under Section 6 of the Act was issued. Another notification under Section 4 of the Act was issued for which a declaration was also issued on 18.6.1982 under Section 6 of the Act for land falling in village Sihi. Aggrieved by the initiation of acquisition proceedings many land owners filed CWP No. 2614 of 1985 and connected writ petitions in which the learned counsel for the State made statement that the State Government was withdrawing the said notifications. Consequently, the writ petitions were dismissed as having become infructuous. It has been averred that issuance of successive notifications have had the deleterious effect of pegging down of the prices of the petitioners' land and for the last 30 years the landowners have been CWP No. 15546 of 1995 -3- unable to deal freely with their property because of the shadow cast by successive abortive attempts at acquisition.
5. Sanguine that the land would not suffer another attempt at acquisition the petitioners aver that during the period 1990-91 they purchased small plots of land from different land owners, whose writ petitions had been disposed of and in time built their small residential houses and by the time the present litigation started it is averred that their habitation had developed into a full-fledged colony. However, fresh acquisition proceedings were initiated by the notifications impugned in these petitions. Some of the petitioners filed objections under Section 5-A of the Act. Notices were issued by the LAC to the petitioners and other interested persons to appear before it on 8.10.1993 for hearing but it is averred that the objections were not heard as the LAC was not available on the date and venue of the meeting. No other date was fixed. In the meanwhile the Section 6 notification was issued on 19.11.1993 acquiring 162.91 acres of land situated in the revenue estate of village Sihi including the land of the petitioners. In these circumstances, the petitioners have approached this Court challenging the impugned notifications.
6. On 30.10.1995, the Division Bench of this Court issued notice of motion to the respondents and stayed further proceedings. In response to the notice, the State has filed a written statement controverting the stand of the petitioners. It is stated that due to changed circumstances and over load of works the earlier notifications were allowed to lapse, as well as on technical grounds. In response to para 10 of the petition in which the petitioners have alleged violation of Section 5-A of the Act, it is stated that no objections were filed by the petitioners No. 1 to 12, 22 to 37, 40 & 41 but CWP No. 15546 of 1995 -4- the remaining had done so. It is also submitted that the objectors were actually heard. That no construction was in existence over the land in question at the time of the notification under Section 4 of the Act and if there is such construction it has been raised after the Section 4 notification and would be in the nature of unauthorized constructions. It is stated that the notification under Section 6 of the Act was published in the Hindi newspaper 'Dainik Jagran' on 1.12.1993 and in English newspaper i.e. 'Patriot' in its issue dated 1.12.1993. Publicity was widely made through munadi and by beat of drums in the locality concerned. The substance of the said notification was placed at conspicuous places of the said locality.
7. The petitioners have filed a replication countering the submissions of the State and have categorically averred that no notice of hearing of objections filed by petitioner Nos. 13 to 19, 38, 39 and 42 were received and the matter was not listed for hearing on any date before issuing notification under Section 6 of the Act. It is further submitted that the Section 6 notification was not published in accordance with law inasmuch as the newspapers in which it was published did not have any circulation in villages Sihi and Unchagaon. There is no mention of the publication of the notifications in the newspapers in the report regarding publication in the locality and inter alia on these grounds the notifications are said to be bad and, therefore, liable to be quashed. There is also a vital admission in the written statement filed by the State in CWP No. 16364 of 1995 in para 6 that the name of village 'Sihi' did not figure in the newspaper 'Patriot' 'inadvertently'. Thus, the cumulative effect of the series of action and inactions and chain reaction is said to be highly arbitrary, unreasonable and discriminatory besides being violative of Article 14 of the Constitution of CWP No. 15546 of 1995 -5- India.
8. In the challenge to the impugned notifications learned counsel for the petitioners arguments have proceeded thus:
No hearing was given under Section 5-A of the Act on the objections filed. The right of hearing under Section 5-A of the Act is a valuable right and any infraction would result in making the further acquisition proceedings legally bad; such violation should normally result in quashing of the acquisition proceedings. The learned counsel has relied upon the decision of Hon'ble the Supreme Court in the case of Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chennai, 2005(7) SCC 627 in which the effect of non-
compliance of Section 5-A of the Act has been dealt with exhaustively and its scope discussed, as further explained in Devinder Singh and others v. State of Punjab and others, 2008 (1) SCC 728. We would quote the ratio of the judgment contained in paras 6, 8 & 9 of Hindustan Petroleum Corporation Limited's case as under :-
"6. It is not in dispute that Section 5-A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of "eminent domain" may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid. CWP No. 15546 of 1995 -6-
8. The conclusiveness contained in Section 6 of the Act indisputably is attached to a need as also the purpose and in this regard ordinarily, the jurisdiction of the court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. For the said purpose, Sections 4, 5-A and 6 of the Act must be read conjointly. The court in a case, where there has been total non-compliance or substantial non-compliance with the provisions of Section 5-A of the Act, cannot fold its hands and refuse to grant a relief to the writ petitioner. Sub-section (3) of Section 6 of the Act renders a declaration to be a conclusive evidence. But when the decision making process itself is in question, the power of judicial review can be exercised by the court in the event the order impugned suffers from well-known principles viz., illegality, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner.
9. It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regard the public purpose as also suitability thereof must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. The State in its decision making process must not commit any misdirection in law. It is CWP No. 15546 of 1995 -7- also not in dispute that Section 5-A of the Act confers a valuable important right and having regard to the provisions contained in Article 300A of the Constitution it has been held to be akin to a fundamental right. Learned counsel relies upon the judgment of Hon'ble the Supreme Court in the case of Munshi Singh v. Union of India (1973) 2 SCC 337, para 7 of which reads as follows :
"7. Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be made. ... The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5-A:"
Learned counsel also relies upon the recent judgment of the Hon'ble Supreme Court in the case of Hari Ram v. State of Haryana, 2010 (3) SCC 621.
9. In order to lay stress on the next point that there was no effective publication of the notifications in the locality in question learned counsel appearing in CWP No. 16415 of 1995 has drawn our attention to two letters dated 20.12.1993 (P-7) and 4.1.1994 (P-6) issued by Madan Lal Arora CWP No. 15546 of 1995 -8- Newspaper agent and M/s Bansal News Agency both of Ballabhgarh (Faridabad) who have certified that 'Vir Arjun' and the 'English daily 'National Herald' have not been sold or circulated in Ballabhgarh and Faridabad for the last four years and 'Vir Arjun' had stopped publication altogether during the relevant time. There is no effective rebuttal of this by the respondent State and learned counsel for the petitioners would be justified in arguing that there was serious violation of the law regarding publication, besides the admission of defect in the publication of the Section 6 Notification. The petitioners have asserted, inter alia, that they had no notice of the proposed acquisition. No concrete evidence has been placed on record by the respondents that those who have asserted that there had no notice had in fact notice. It is also doubtful that due publicity was given by beat of drum or by munadi. We have also reasonable doubt whether pasting was done in the locality in question. The learned counsel would submit that the law postulates that there must be reasonably wide circulation of newspapers so that interested persons / landowners gain knowledge and can object to the acquisition. The publication of the notifications in obscure newspapers or newspapers having no circulation amounts to a fraud upon the statute. Learned counsel relies on Special Deputy Collector, Land Acquisition C.M.D.A. v. J. Sivaprakasam and others (2011) 1 SCC 330 for this contention. Mr. Amit Jain, learned counsel has further relied upon a Division Bench decision of this Court in Master Sahaj Ram & others vs. State of Haryana and others; CWP No. 2924 of 2010 decided on 9.11.2010 to contend that where mandatory provisions of the Land Acquisition Act are not observed by the State with special reference to publication and hearing under Section 5-A of the Act CWP No. 15546 of 1995 -9- the entire acquisition proceedings must be set aside.
10. We have heard learned counsel for the parties at length and have given our thoughtful consideration to the matter. It is trite to say that a right under Section 5-A of the Act has been considered by sufficient judicial precedent to be akin to a fundamental right stemming from Article 300-A of the Constitution. There must be an objective and action oriented hearing granted followed by due consideration of objections on all relevant facts presented. Violation of Section 5-A of the Act would cripple the land acquisition beyond repair. Learned counsel for the petitioners have on this aspect relied on a Division Bench decision of this Court in Eros City Developers Private Ltd. vs. State of Haryana & others 2008(2) RCR (Civil) 291: 2008(2) PLR 492 to buttress the argument and that the function of hearing of objections is not purely an administrative function but a quasi judicial function. The learned counsel has relied upon the decision of Hon'ble the Supreme Court in the case of Shyam Nandan Prasad and others vs. State of Bihar and others (1993) 4 Supreme Court Cases
255. We would quote the ratio of the judgment contained in paras 10 & 11:-
"10. At the pre-Section 6 stage, besides the mode of publications at various places where the land is situated, personal service of the copy of the notification is prominently required to be made on the person interested so that he can make objections in writing to the Collector, and on objections being made, the Collector is obliged to give to the objector opportunity of being heard either in person or by pleader. The Collector is further obliged to hear all such individual objections, make such further enquiries as necessary and then required to make an appropriate decision reporting the same to the Government. The decision of the Collector is supposedly final unless the appropriate Government chooses CWP No. 15546 of 1995 -10- to interfere therein and cause affectation, suo motu or on the application of any person interested in the land. These requirements obviously lead to the positive conclusion that the proceeding before the Collector is a blend of public and individual enquiry. The person interested, or known to be interested, in the land is to be served personally of the notification, giving him the opportunity of objecting to the acquisition and awakening him to such right. That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That at the time of the enquiry, for which prior notice shall be essential, the objector has the right to appear in person or through pleader and substantiate his objection by evidence and argument. And lastly, since the decision of the Collector may turn out to be final, unless interfered with by the Government, suo motu or on application, the Collector's decision is that of a quashi-judicial methods.
11. That the compliance of provisions of Section 5-A is mandatory,is beyond dispute. See in this connection, Shri Mandir Sita Ramji v. Lt. Governor off Delhi and Farid Ahmed Abdul Samad v. Municipal Corpn. of the City of Ahmedabad. Affording of opportunity of being heard to the objector is a must. The provision embodies a just and wholesome principle that a person whose property is being, or is intended to be, acquired should have the occasion to persuade the authorities concerned that his property be not touched for acquisition. This right is not absolute, however, if the appropriate Government, in its discretion, chooses to dispense with its applicability by invoking urgency provisions of Section 17 of the Act. But once Section 5-A is kept applicable, there is no cause to treat its provisions lightly or casually."
11. Mr. Kamal Sehgal learned counsel appearing for the State of Haryana has not been able to show us any reliable evidence to show that hearing under Section 5-A of the Act was in fact given and due CWP No. 15546 of 1995 -11- consideration accorded. We have also felt that successive notifications in this case which were allowed to lapse have had a direct negative effect on the market value of the land as a result of which there must have been resultant pegging down of prices. For this proposition we draw support from the Full Bench of this Court in Radhey Shyam v. State of Haryana, AIR 1982 (P&H) 519. But we need not dilate on this issue any further since we are convinced the impugned notifications must fall on other grounds. Learned counsel for the petitioners has also placed strong reliance on the issue of non-hearing and has relied upon an exhaustive judgment of a Division Bench of this Court in CWP No. 65 of 2009 titled Neera Rani and another vs. State of Haryana and another decided on 18.3.2011. This Court found that the procedure adopted for hearing objections under Section 5-A suffered from glaring illegality. The landowners were not given any personal notice of the date and place of hearing of objections. Secondly, the objections filed by the petitioners had not been heard. The hearing of objections under Section 5-A of the Act cannot be reduced to mere formality. Under the Act hearing under Section 5-A of the Act is one of the fundamental stages where a landowner can persuade the Collector for release of his land from acquisition. The right to property may no longer be a fundamental right but it remains a constitutional right under Article 300-A.
12. We are also of the considered view that a case in which objections have not been filed due to want of effective notice and cases where objections have been filed and no hearing granted should fall in the same category. If the State, in the present case states that some objections were filed under Section 5-A of the Act would be of no help since no hearing was CWP No. 15546 of 1995 -12- granted at the fixed date and venue. There is a categorical assertion in these petitions that a date was fixed for hearing but the Collector was not present. No further date was granted by the Collector. Meanwhile, the Section 6 Notification was issued. An ex-proprietary law deserves to be strictly construed. This chain of events confirms our view that the impugned notifications under Sections 4 & 6 deserve to be quashed for violation of mandatory provisions of Section 5-A of the Act. We hold accordingly.
13. We are also mindful of the fact that in the present cases this Court by interim orders had stayed further proceedings and dispossession of the petitioners. In view of the stay orders the award has not been passed. We are informed that the land in question is still lying substantially vacant.
14. Consequently, in view of the foregoing reasons these petitions are allowed. The impugned notifications in respect of the petitioners are quashed. The petitioners will be entitled to continue in possession of the land in dispute. In case, any entry exists in the rapat roznamcha with regard to possession they would be altered accordingly. Let the needful now be done within a period of three months from the date of receipt of certified copy of this order. No order as to costs.
15. A photocopy of this order be placed on the files of connected petitions.
(M.M. KUMAR) (RAJIV NARAIN RAINA)
JUDGE JUDGE
03.02.2012
'sp'
*
Sr. C.W.P. No. Title
No.
1 15591 of 1995 Har Bhagwan & another v. State of Haryana & others CWP No. 15546 of 1995 -13- Sr. C.W.P. No. Title No. 2 15984 of 1995 Nawal Singh & another v. State of Haryana & others 3 16364 of 1995 Nirmala Devi & others v. State of Haryana & others 4 16365 of 1995 Ram Pal & others v. State of Haryana & others 5 16366 of 1995 Ramesh Kumar & others v. State of Haryana & others 6 16367 of 1995 Radhey Sham & others v. State of Haryana & others 7 16368 of 1995 Bhisham Parkash & others v. State of Haryana & others 8 16413 of 1995 Jai Dev Sharma v. State of Haryana & another 9 16415 of 1995 Jai Dev Sharma & others v. State of Haryana & another 10 16540 of 1995 Shrimati Teji Bai v. State of Haryana & another 11 16760 of 1995 Shashi Manga & others v. State of Haryana & others 12 16761 of 1995 Pushpa Devi & another v. State of Haryana & others 13 16762 of 1995 Bhagwat Saroop Tayal v. State of Haryana & others 14 18434 of 1995 Lakhpat Singh and another v. State of Haryana & others 15 2303 of 1996 Pankaj Manga & others v. State of Haryana & others (M.M. KUMAR) (RAJIV NARAIN RAINA) JUDGE JUDGE 03.02.2012 'sp'