Punjab-Haryana High Court
Singh Raj vs State Of Haryana And Others on 28 January, 2011
Bench: Jasbir Singh, Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.13839 of 2008
Date of decision: 28.01.2011
Singh Raj
.....Petitioner
versus
State of Haryana and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Augustine George Masih
Present: Mr.M.L.Sarin, Senior Advocate with
Mr.Avi Singh & Mr.Nitin Sarin, Advocates
Mr.Shailendra Jain, Advocate
Mr.D.S.Patwalia, Advocate
Mr.Sanjay vashisth, Advocate
for the petitioners
Mr.Kamal Sehgal, Addl.A.G.Haryana
Mr.Manish Bansal, Advocate for the respondents in
CWP Nos.13839 & 15087 of 2008
Mr.Sidharth Batra, Advocate for the respondents in
CWP Nos.18040 & 18259 of 2008
Mr.Amit Sharma, Advocate for
Mr.Arun Walia, Advocate for HUDA
Jasbir Singh, J.
This order will dispose of 13 writ petitions bearing CWP Nos.13839, 15087, 18040, 18259 of 2008, 6809, 11362, 11459, 11464, 11736, 14198 of 2009, 2255, 5365 of 2010 and also CWP No.1912 of 2010, involving similar questions of law and facts. For the purpose of dictating order, facts are being mentioned from CWP No.13839 of 2008.
The petitioner in this writ petition has laid challenge to notifications dated 24.6.2008 and 14.7.2008, issued under Sections 4 and 6 Civil Writ Petition No.13839 of 2008 2 of the Land Acquisition Act, 1894 (in short, the Act) read with Section 17 (1) and 17(4) of the Act, to acquire land measuring 305.25 acres for a public purpose, namely, for the development and utilization of land for sector roads for Sectors 58 to 67 at Gurgaon.
It is case of the petitioner that he is owner of land measuring 17 kanals 6 marlas, comprised in khewat / Khata No.140, 184, 216, Rect. No.21, Killa Nos.21/1(3-11), Rect. No.41, Killa No.5/2 (3-4), 6/1/1(1-9), 6/2/1 (1-9), Rect. No.42, Killa No.1/1(4-0), 10/3(3-13), situated at village Ghata, Tehsil Sohna, District Gurgaon. It is his further case that in land measuring about 3 kanal 2 marla falling in khasra No.21/1(3-11), he has constructed his residential house, a smadhi with a boundary wall. He has also installed a tubewell and planted an orchard in land measuring 3 kanal 13 marlas. The petitioner acquired ownership of the land by way of a release deed dated 3.12.2007. Part of the land is also used for agricultural pursuits. It is case of the petitioner that if acquisition under challenge is allowed to be concluded, it will result into demolition of his constructed house and will also ruin his orchard etc. In this case, initially 321.47 acres of land was proposed to be acquired under Section 4 of the Act, issued on 24.6.2008, declaration was issued on 14.7.2008 for that very land, however, award was passed on 12.8.2009 only qua land measuring 305.25 acres. Notice to take possession was issued on 15.7.2009. Compensation amount was deposited with the competent officer by the respondent-State on 8.7.2009. The petitioner filed this writ petition on 6.8.2008 and vide order dated 10.12.2008 his dispossession from the land under acquisition was stayed.
A reading of the paper book indicates that primary grievance of the petitioner is with regard to invocation of the provisions of Section 17 of Civil Writ Petition No.13839 of 2008 3 the Act, dispensing with filing of objections under Section 5-A of the Act, by the land owners, whose land was going to be acquired. It is further averred that as per Government Standing Order No.28, it was not open to the respondents to acquire land under smadhi. Regarding objection to the application of the provisions of Section 17 of the Act, it was stated in paragraph Nos.11 to 16 of the writ petition that there was non-application of mind to invoke the above said provisions and further that there was no emergency which could not have brooked a delay of 30 days only to provide an opportunity to the land owners to submit objections to the proposed acquisition. It was further alleged that before ordering acquisition of land, no survey was conducted.
Upon notice, reply was filed by the respondents, wherein an attempt was made to justify the acquisition of land by invoking the emergency provisions under Section 17 of the Act. It was stated that the proposal to acquire land for roads falling in Sectors 58 to 67 was forwarded to the respondents by the District Town Planner vide memo No.1434 on 12.3.2008, as per provisions of Draft Development Plan, Gurgaon Manesar Urban Complex, 2021, which was published on 22.6.2006. Final Development Plan 2021 was published on 5.2.2007. It is stated that from perusal of the said Plan, it becomes apparent that sector roads for the sectors falling towards southern part, in the immediate vicinity of the already developed sectors, was required for extending the road linkage for development of new sectors of Gurgaon. It was further stated that unless roads are constructed, the provisions of infrastructure services cannot be laid, without which development of the new sectors cannot be undertaken. It was further stated that most of the area was taken in possession and development work had already started thereon and dispute only remains Civil Writ Petition No.13839 of 2008 4 with regard to 23.86 acres, which is pending litigation in this Court. It was further stated that land of the petitioner falls within 60 meter right of way (ROW) of sector road of sector 58 which will serve as a vital link to connect two major 90 meter wide roads. Invocation of emergency provision was justified by stating as above.
Mr.Shailendra Jain, Advocate has vehemently contended that right given to the land owners under Section 5-A of the Act is akin to the fundamental rights, it cannot be taken away unless there exists real emergency/ urgency to acquire the land. To take away that right, conscious decision is required to be taken. By making reference to the provisions of Section 17 of the Act, he further argued that there is a need of application of mind at two stages i.e. firstly, to invoke the provisions of Section 17(1) of the Act and thereafter, to take away right conferred upon the land owner under Section 5-A of the Act, to invoke the provisions of Section 17(4) of the Act. It is his case that at no point, mind was applied by the authorities to invoke the above said provisions. It is his further case that before issuance of this notification, to develop sectors 58 to 67, not a single inch of land was acquired by the respondents and also there was no plan for sectoral development in that area.
Besides as above, Mr.M.L.Sarin, Senior Advocate, who has put in appearance in CWP No.6809 of 2009, on behalf of the petitioner, has argued that before start of acquisition, environmental clearance has not been taken from the competent authority and as such, acquisition is vitiated. It was his further case that acquisition has been made to favour a developer.
Mr.D.S.Patwalia, Advocate, who has put in appearance for the petitioner in CWP No.5635 of 2010, argued that there was non-application of mind by the Collector when ordering acquisition of the land, the Civil Writ Petition No.13839 of 2008 5 petitioner in that case had constructed building in the year 1994, after getting a change of land use certificate, occupation certificate was granted in the year 1995, however, in the alleged survey report, it is mentioned that land of the petitioner was lying vacant. By stating as above, a prayer has been made that the notifications under challenge be quashed.
In CWP No.1912 of 2010, Final Development Plan 2021 AD for Gurgaon Manesar Urban Complex is under challenge. Mr.Sareen, appearing for the petitioner has vehemently contended that the Master Plan has been prepared without conducting a proper survey. It was not khasra no. based. Detail of the land of each individual land owner was not given. It was specifically stated by Mr.Sareen, at the time of arguments, that he has no objection to the procedure adopted regarding publication etc. of the master plan, however, the petitioner failed to file objections because description of his land was not given when draft master plan was published in the year 2006, which led to the all confusion. The petitioner came to know about publication of the master plan when reply was filed by the respondents in CWP No.13939 of 2008 which was filed by the petitioner to assail acquisition of his land for the sector roads.
In reply, Mr.Sehgal has stated that invocation of emergency provisions, to acquire the land was real and it was done with a view to ensure fast development of sectors 58 to 67. Infrastructure was to be provided first, only then development of rest of the area was possible. He further stated that on most of the acquired land work to provide roads is near completion, the petitioners are owners of only fraction of the total land under acquisition, as such, at this stage no relief can be given to them. To oppose objections of the petitioner to the master plan, it was argued that as the petitioner has not filed any objection to the draft master plan. Challenge Civil Writ Petition No.13839 of 2008 6 at this stage is a delayed one, and appears to have been made, only with a view to support case of the petitioner for quashing of acquisition, it is prayed that the writ petition be dismissed.
Before proceeding further to decide points in issue, it is necessary to note down relevant provisions of Sections 5-A and 17 of the Act. The same reproduced as under:-
5A. Hearing of objections. - (1) Any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days form the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under subsection (1) shall be made to the Collector in writing and the Collector shall give the objector, an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, subsection (1), or make different reports in respect of different parcels of such land, to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him. for the decision of that Government. The decision of the Appropriate Government on the objections shall be final. (3)For the purposes of this section, a person shall he deemed to be interested in land who would be entitled to claim an Civil Writ Petition No.13839 of 2008 7 interest in compensation if the land were acquired under this Act.
17. Special powers in cases of urgency. - (1) In cases of urgency, whenever the Appropriate Government so directs, the Collector, through no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), 1[take possession of any land needed for a public purpose] Such land shall thereupon vest absolutely in the Government, free from all encumbrances.
(2) Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, 1[or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity,] the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances.
Civil Writ Petition No.13839 of 2008 8
Provided that the Collector shall not take possession on any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours' notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such bundling without unnecessary inconvenience.
(3) In every case under either of the proceeding subsections the Collector shall at the time of taking possession offer to the persons interested, compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in Section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage, shall be allowed for in awarding compensation for the land under the provisions herein contained, [(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3), -
(a) Tender payment of eight per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and
(b) Pay it to them, unless prevented by some one or more of the contingencies mentioned in Section 31, sub-section (2), and where the Collector is so prevented, the provisions of Section 31, subsection (2), (except the second proviso thereto), shall Civil Writ Petition No.13839 of 2008 9 apply as they apply to the payment of compensation under that section.
(3-B) The amount paid or deposited under sub-section (3A), shall be taken into account for determining the amount of compensation required to be tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under Section II, the excess may, unless refunded within three months from the date of the Collector's award, be recovered as an arrear of land revenue.] (4) In the cases of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1), or subsection (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time [after the date of the publication of the notification] under Section 4 subsection (1) Section 5-A provides that any person who is interested in land under acquisition, within a stipulated period can object to the same by filing written representation before the Land Acquisition Collector, who is under an obligation to provide an opportunity of hearing to the person concerned and if need be to make a further enquiry to submit a report to the competent government regarding feasibility of acquisition of land or otherwise. Decision of the government on the recommendation made is final. Provision of Section 17 is an exception to the right of a land owner provided under Section 5-A of the Act. It confers special power on the government to Civil Writ Petition No.13839 of 2008 10 acquire land in a case of an emergency. The cases, in which, the power can be exercised, are given in sub-section 2 of Section 17. Before taking possession, it is mandatory to offer compensation for the standing crop and payment of 80% of the compensation assessed for the land under acquisition. Sub-section 4 of Section 17 provides that in cases where emergency provision has been invoked, the government may direct that the provisions of Section 5-A shall not apply. By adopting that procedure, declaration under Section 6 of the Act to acquire the land can be issued at any time after the date of publication of the notification under Section 4 sub-section 1 of the Act.
As per established law, right given to a land owner under Section 5-A of the Act, is very important and it has been held to have the flavour of fundamental rights. We are of the opinion that unless there is a real emergency, this right can not be taken away on the basis of presumption alone.
Their Lordships of the Hon'ble Supreme Court in Essco Fabs Pvt. Ltd. & another v. State of Haryana and another, (2009) 2 Supreme Court Cases 377 were dealing with a similar situation and it was observed as under:-
"39. It is in exercise of power of eminent domain that a sovereign may acquire property which does not belong to him. In the circumstances, as a general rule, before exercise of power of eminent domain, law must provide an opportunity of hearing against the proposed acquisition. Even without a specific provision to that effect, general law requires raising of objections by and Civil Writ Petition No.13839 of 2008 11 affording opportunity of hearing to the owner of the property. The Land Acquisition (Amendment) Act, 1923 (Act 38 of 1923), however, expressly made such provision by inserting Section 5A in the Act.
40. It is, therefore, clear that after issuance of preliminary notification under Section 4 before and final notification under Section 6 of the Act, the Appropriate Government is enjoined to hear persons interested in the property before he is deprived of his ownership rights. But then there may be cases of `urgency' or `unforeseen emergency' which may brook no delay for acquisition of such property in larger public interest. The Legislature, therefore, thought it appropriate to deal with such cases of exceptional nature and in its wisdom enacted Section 17."
It was then observed that Section 17 deals with cases of urgency which covers the cases of sudden change in the channel of any navigable river or other unforeseen emergency. It was further held that even in such like cases of emergency or unforeseen emergency, enquiry contemplated under Section 5-A of the Act, cannot be dispensed with except otherwise on an application of mind to the facts of each case. In the case of Essco Fabs Pvt. Ltd. (supra), it was further observed as under:-
"42. Sub-section (4) of Section 17 is an enabling provision and it declares that if in the opinion of the appropriate Government, the provisions of sub-section (1) or (2) are applicable, it may direct that the provisions of Section 5-A would not apply. It is, therefore, clear Civil Writ Petition No.13839 of 2008 12 that the Legislature has contemplated that there may be `urgencies' or `unforeseen emergencies' and in such cases, private properties may be acquired. But, it was also of the view that normally even in such cases, i.e. cases of urgencies or unforeseen emergencies, the owner of property should not be deprived of his right to property and possession thereof without following proper procedure of law as contemplated by Section 5-A of the Act unless the urgency or emergency is of such a nature that the Government is convinced that holding of enquiry or hearing of objections may be detrimental to public interest."
The Hon'ble Supreme Court in Mahender Pal and others v. State of Haryana and others, AIR 2009 Supreme Court 3220, was also dealing with the invocation of the provisions of Section 17 of the Act i.e. when emergency clause can be invoked by the State authorities to acquire land of a citizen. After discussing the provisions of Section 5-A and Section 17 of the Act, it was observed as under:-
"14. As an extraordinary power has been conferred upon the Appropriate Government in terms whereof the normal procedure laid down under Section 5-A of the Act could be dispensed with, the High Court, in our opinion, should have entered into the merit of the matter. [See Mahadevappa Lachappa Kinagi and Others v. State of Karnataka and Others (2008) 12 SCC 418] In Union of India and Others v. Mukesh Hans [(2004) 8 SCC 14], this Court held:Civil Writ Petition No.13839 of 2008 13
"32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of the Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 5-A inquiry. If that was not the intention of the legislature then the latter part of sub-section (4) of Section 17 would not have been necessary and the legislature in Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. But then that is not the language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5-A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to Civil Writ Petition No.13839 of 2008 14 the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does not mean that in each and every case when there is an urgency contemplated under Section 17 (1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5-A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5-A inquiry is inherent in the two types of urgencies contemplated under Sections 17(1) and (2) of the Act."
15. In Union of India and Others v. Krishan Lal Arneja and Others [(2004) 8 SCC 453], this Court held:
"16. Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, Civil Writ Petition No.13839 of 2008 15 however, laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a land owner of his right in relation to immoveable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The Authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the land owners and the inquiry under Section 5A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen's property can be acquired in Civil Writ Petition No.13839 of 2008 16 accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility.
Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the State Administration."
16. It is a well-settled principle of law that an exception carved out from the main provision as a result whereof a citizen of India may be deprived of his property particularly having regard to the fact that if it is considered to be a human right, procedural safeguards laid down therefor must be scrupulously complied with. It being an expropriatory legislation deserves strict construction. {See Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai and Others [(2005) 7 SCC 627]; Devinder Singh and Others v. State of Punjab and Others [(2008) 1 SCC 728]; and City Montessori School v. State of Uttar Pradesh & Ors. [2009 (2) SCALE 740]"
In Mahender Pal's case (supra), it was observed that to know whether invocation of the provisions of Section 17 were justified or not, the facts of each case are to be noted.
In light of the ratio of the judgments of the Hon'ble Supreme Court, mentioned above, it is to be seen whether there was any necessity and Civil Writ Petition No.13839 of 2008 17 justification to apply the provisions of Section 17 of the Act and further whether there was emergency of a nature, which could not brook delay of even 30 days enabling the land owners to file objections to the proposed acquisition.
In this writ petition, in paragraph Nos.11 to 16, it has vehemently been contended that there was no emergency to acquire the land by invoking the provisions of Section 17 of the Act and further that there was non-application of mind to invoke this provision and then to take away right of the land owners available to them under Section 5-A of the Act. In the written statement filed by the District Town Planner (Headquarter) for respondent No.5, it is only stated that to develop the southern sectors, it was necessary to acquire the land for the sector roads. It is further stated that the land has been acquired as per Final Development Plan 2021 and more than 60% of the work is complete.
To the averments made in paragraph Nos.11 to 16 of the writ petition, no specific reply has been filed. It is also coming out from the record that proposal to acquire land in this case was initiated by the office of District Town Planner in the month of March 2008. We have seen the noting file. At no stage, there is any discussion/ application of mind as to why it is necessary to invoke the provisions of Section 17(1) and 17(4) of the Act. In the first note dated 15.3.2008, copy of which was supplied to us, at the time of arguments, it is only mentioned that the land measuring 325.43 acres be acquired by invoking the provisions of Section 17(1) of the Act. Matter thereafter went before various authorities. Nothing was discussed as to why it was not possible to provide 30 days to the land owners to file objections to proposed acquisition as provided under Section 5-A of the Act. Even in the written statement, no plausible explanation has Civil Writ Petition No.13839 of 2008 18 been given as to why it was not possible to give time to file objections under Section 5-A of the Act and further as to what was the emergency to acquire this land by invoking the emergency provisions.
It is not in dispute that proposal to acquire land was made in the month of March 2008, notification under Section 4 of the Act was issued on 24.6.2008, declaration under Section 6 was issued on 14.7.2008, award was passed on 15.7.2009 and notice under Section 9 of the Act was issued on 12.8.2009. It is not in dispute that the compensation amount as mandated by section 17 of the Act was also deposited with the competent authority on 18.7.2009.
Under the circumstances, we are convinced that firstly, there was no emergency to acquire this land and secondly, there was no justification to invoke the provisions of Section 17(4) of the Act, depriving the land owners to raise their objections under Section 5-A of the Act to the proposed acquisition. After issuance of declaration under Section 6 of the Act on 14.7.2008, more than one year was taken by the State government to pass an award. This clearly indicates that the time to file objections could have easily been granted to the land owners.
It is also an admitted fact that not even a single inch of land in sectors 58 to 67 has been acquired by the State authorities for the development purpose, namely, commercial, residential and institutional etc. Only licences have been granted to some developers to construct the colonies on small pieces of land. All these sectors may spread over thousands acres of land, how much was the land over which development was to be undertaken by the developers is not available on record. What was the extent of construction in those areas, because of which, it was necessary to provide infrastructural facilities, is not clear from the record. Civil Writ Petition No.13839 of 2008 19
In CWP No.5365 of 2010, it is specific case of the petitioner that he had raised construction after getting change of land use certificate in the year 1994, completion certificate was granted to him in the year 1995, whereas as per alleged survey conducted by the Land Acquisition Collector, his entire land is shown as lying vacant. Such like valid objections could have been entertained by the Land Acquisition Collector and buildings raised could have been saved.
In view of facts mentioned above, we are satisfied that there was no justification to invoke the provisions of Section 17 of the Act, to deprive the land owners of their right of hearing and filing objections under Section 5-A of the Act, to the proposed acquisition.
In the case of Essco Fabs Pvt. Ltd. (supra), their Lordships of the Supreme Court did not approve invocation of provisions of Section 17 of the Act to acquire land for construction of a road.
Similarly, in the case of Babu Ram and others v. State of Haryana and others, (2009) 10 SCC 115, the Hon'ble Supreme Court opined that the emergency provisions of Section 17 to acquire land can be invoked only in cases where the government cannot afford even delay of 30 days in executing the project for which land was to be acquired. It was further said that mere existence of emergency or unforeseen emergency was not sufficient in itself to deny the benefit of Section 5-A of the Act. This right can be denied only on proper application of mind and where delay of even 30 days to execute a project is not possible. After discussing facts of that case, acquisition of land for setting up of a sewerage treatment plant, by invoking the emergency powers, did not find favour with the Hon'ble Supreme Court.Civil Writ Petition No.13839 of 2008 20
Merely because infrastructural facilities are to be provided alongside the sector roads in the sectors yet to be developed, we feel is no ground to invoke the emergency clause.
It is an admitted fact that area under acquisition was declared controlled area as per the provisions of the Punjab Scheduled Roads and Controlled Areas Restrictions Unregulated Development, 1963 (in short, 1963 Act). It is case of the respondents that the construction was raised by the petitioner without getting any permission, as is necessary under the provisions of the above said Act. Had an opportunity been given to the land owners to file objections under Section 5-A of the Act, this fact also could have been thrashed by the Land Acquisition Collector the authority concerned and then it would have been possible to decide whether construction raised by the petitioner can be saved or not.
A similar acquisition for sector roads falling in sectors 81 to 95 Gurgaon came in for consideration before this Court wherein the land was also sought to be acquired by invoking the provisions of Section 17 of the Act. A Division Bench of this Court in Civil Writ Petition No.9065 of 2010, decided on 22.11.2010, titled as Rohtash and others versus State of Haryana and others, opined that acquisition of land for sectors roads without showing any urgent need was not justified, writ petitions were allowed and notification under Section 6 and the award passed qua the petitioners therein, were quashed, the Land Acquisition Collector was directed to give opportunity to the land owners to file objections under Section 5-A of the Act and then proceed further to acquire the land as per procedure provided. The facts of that case are approximately the same as are involved in this case.Civil Writ Petition No.13839 of 2008 21
Once, we are convinced that invocation of provisions of Section 17 of the Act were not justified, we feel that it is not necessary for us to look into other objections raised by the land owners to the proposed acquisition at this stage.
Now it is to be seen whether it is desirable for us to quash the entire acquisition proceedings, including award passed or whether purpose will be served in this case by quashing the award and Section 6 declaration only, qua the petitioners.
In this writ petition, dispossession of the petitioner was stayed by a Division Bench of this Court on 10.12.2008. In CWP No.18259 of 2008, dispossession was stayed on 5.11.2008.
In some other cases, dispossession was stayed thereafter, may be beyond the period of one year from the date of issuance of a notification under Section 4 of the Act.
It is contention of Mr.Shailendra Jain, Advocate and Mr.M.L.Sarin, Senior Advocate that in view of facts and circumstances of this case, entire acquisition proceedings qua the petitioners in these writ petitions may be quashed.
Whereas to the contrary, by placing reliance upon ratio of the judgment of the Hon'ble Supreme Court in Om Parkash v. Union of India and others, AIR 2010 Supreme Court 1068, Mr.Sehgal states that in case, the Court is convinced that the invocation of provisions of Section 17 of the Act were not desirable, by excluding time during which dispossession of the land owners remained stayed, the State shall have sufficient time, after giving opportunity to file objections to the land owners under Section 5-A of the Act, to issue declaration under Section 6 of the Act. Civil Writ Petition No.13839 of 2008 22
Controversy, whether stay granted in favour of a land owner, whose land is subject matter of acquisition along with others will stop the running of period of limitation, to issue a declaration under Section 6 of the Act, came up for consideration before the Hon'ble Supreme Court in Om Parkash's case (supra). In that case, the Hon'ble Supreme Court has interpreted the provisions of Section 6 of the Act and exception No.1 added to sub-section 1 of Section 6 of the Act. After discussing those provisions and various judgments on the subject, Hon'ble the Supreme Court observed as under:-
"87. Perusal of the opinion of Full Bench in B.R. Gupta-I would clearly indicate with regard to interpretation of the word 'any' in Explanation 1 to the first proviso to Section 6 of the Act which expands the scope of stay order granted in one case of land owners to be automatically extended to all those land owners, whose lands are covered under the notifications issued under Section 4 of the Act, irrespective of the fact whether there was any separate order of stay or not as regards their lands. The logic assigned by Full Bench, the relevant portions whereof have been reproduced hereinabove, appear to be reasonable, apt, legal and proper."
In that case, Hon'ble the Supreme Court has approved the following ratio of a Full Bench of the Delhi High Court in the case of Balak Ram Gupta v. Union of India AIR 1987 Delhi 239:-
"26. Learned counsel for the petitioners is to some extent right in his contention that broad as the above observations are, these cases are slightly different in that they all dealt with the effect of the operation of stay order only vis-a-vis one of the Civil Writ Petition No.13839 of 2008 23 parties to the litigation in which the stay order is passed. But we are of opinion that these decisions are of guidance as to the proper approach to such a question. In the first place, they show that a stay of execution of a decree can be pleaded as a ground for conclusion of the period of stay even by a judgment-debtor who did not seek the stay. To that extent, the insistence by the petitioners that the exclusion can operate only against the party who obtained the stay order would not be correct. Secondly, these decisions show that the prohibition on action need not be the direct effect of a stay order of a court. Thus, in the present cases, even if in terms the court be held not to have stayed a declaration in other cases, such was the indirect effect of the stay order inthese cases. Thirdly, they lay down that we should not interpret a provision of this type rigidly but should give it an interpretation that gives effect to the object of the legislature.
27. We, therefore, think that, in proceeding to interpret the scope of the explanation, we should keep in mind the nature of the proceedings under the Land Acquisition Act and the nature of the proceedings in which stay orders are obtained. So far as the first of these aspects is concerned, while it is possible for the Government to issue notifications under S. 4 in respect of each plot of land sought to be acquired, it is not feasible or practicable to do so, particularly in the context of the purpose of many of the acquisitions at the present day. It is common knowledge that in Civil Writ Petition No.13839 of 2008 24 Delhi, as well as many other capital cities, vast extents are being acquired for 'planned development' or public projects. The acquisition is generally part of an integrated scheme or plan and, though, technically speaking, there can be no objection to individual plots being processed under Ss. 5A, 6, 9, 12, etc., particularly after the amendment of 1967, the purpose of acquisition demands that at least substantial blocks of land should be dealt with together at least upto the stage of the declaration under S.6. To give an example, if a large extent of land is to be acquired for the excavation of a canal, the scheme itself cannot be put into operation unless the whole land can be eventually made available. If even one of the land owners anywhere along the line applies to court and gets a stay of the operation of the notification under S. 4, in practical terms, the whole scheme of acquisition will fall through. It is of no consolation to say that there was no stay regarding other lands covered by the scheme. To compel the Government to proceed against the other lands (by refusing the benefit of the explanation in such a case on the ground that there is no stay order in respect thereof) would only result in waste of public expenditure and energy. If, ultimately, the single owner succeeds in establishing a vitiating element in the S.4 notification and in getting it quashed by the Supreme Court, the whole proceeding of acquisition will fail and the government will have to retrace the steps they may have taken Civil Writ Petition No.13839 of 2008 25 in respect of other lands. (See: Shenoy Vs. Commercial Tax Officer, AIR 1985 SC 621 and Gauraya Vs. Thakur, AIR 1986 SC 1440. Assuming that where such final order is by a High Court the position is not free from difficulty, the debate as to whether, in law, the quashing of the order enures only to the benefit of the party who filed the writ petition and obtained the order is futile, for the moment the Government seeks to enforce the acquisition against the others, they would come up with similar petitions which cannot but be allowed. In other words, in many of the present day notifications, the acquisition scheme is an integral one and the stay or quashing of any part thereof is a stay or quashing of the whole. This aspect should not be lost sight of.
28. It is true that the object of having contiguity of all plots sought to be acquired may fail for various reasons. For instance, there may be items of properties exempt from acquisition in between. Again, it may happen that a particular person may have been able to stave off acquisition of his land for one reason or other, particularly since dates of declarations under S.6, awards and taking of possession may vary from plot to plot. Moreover, it is not in all cases that the object of acquisition needs a number of contiguous plots and may be workable even without some of the intervening lands. However, in considering a question of interpretation, one should not go only by one particular situation but must consider all Civil Writ Petition No.13839 of 2008 26 eventualities to the extent possible. It is only on a broad perspective of the scheme of present day acquisitions in large measure that we say that any hurdle in regard to any one plot of land can hold up an entire acquisition, all promptness and expedition on the part of the Government notwithstanding.
29. It was sought to be urged that the interpretation sought to be placed by the respondent would result in equating an interim order with a final judgment and the final judgment in a land acquisition case to a judgment in rem and in this context reference was made to S.41, Evidence Act, and to a passage in Woodroffe on Evidence (14th Edition, Vol.2) at page 1225. We do not think this analogy is correct. If the final order can operate to the benefit of all the parties, there is no reason why the interim order cannot also affect them. Moreover, we are considering the nature and effect of an injunction passed by the court against one of the parties thereto who has to act in the same capacity not only in the acquisition of the plot of land the owner of which has obtained a stay order but in all proceedings consequent on or in pursuance of the same notification that is challenged in that petition.
30. Secondly, the nature of proceedings in which stay orders are obtained are also very different from the old pattern of suits confined to parties in their scope and effect. Section 4 notifications are challenged in writ petitions and Civil Writ Petition No.13839 of 2008 27 it is now settled law that in this type of proceeding, the principle of locus standi stands considerably diluted. Any public spirited person can challenge the validity of proceedings of acquisition on general grounds and when he does this the litigation is not inter parties simpliciter: it is a public interest litigation which affects wider interests. The grounds of challenge to the notification may be nothing personal to the particular landholder but are, more often than not, grounds common to all or substantial blocks of the land owners. In fact, this group of petitions now listed before us raise practically the same contentions just as the previous batch of writ petitions challenging the notifications under S. 4 raised certain common contentions. To accept the contention that the challenges and interim orders in such petitions should be confined to the particular petitioners and their lands would virtually provide persons with common interests with a second innings. If the initial challenge succeeds, all of them benefit; and if for some reason that fails and the second challenge succeeds on a ground like the one presently raised, the first batch of petitioners also get indirectly benefited because of the impossibility of partial implementation of the scheme for which the acquisition is intended.
31. We have, therefore, to give full effect to the language of the section and the stay orders in question, in the above context and background. The use of the word "any" in the explanation considerably amplifies its scope and shows clearly Civil Writ Petition No.13839 of 2008 28 that the explanation can be invoked in any case if some action or proceeding is stayed. It may be complete stay of the operation of the entire notification or may even be a partial stay - partial in degree or in regard to persons or lands in respect of whom it will operate. The words used in the explanation are of the widest amplitude and there is no justification whatever to confine its terms and operation only to the cases in which the stay order is actually obtained."
In view of ratio of the judgment, mentioned above, we feel that after quashing award and declaration under Section 6 of the Act, qua the petitioners in these writ petitions, an opportunity can be granted to the land owners to file objections under Section 5-A of the Act and the Land Acquisition Collector can be directed to proceed further with the acquisition as per law.
CWP No.1912 of 2010
In this writ petition, as has been noted in the earlier part of this order, challenge has been made to the Final Development Plan 2021 AD for Gurgaon Manesar Urban Complex. The above said master plan was prepared in terms of the provisions of the Punjab Scheduled Roads and Controlled Areas Restrictions Unregulated Development, 1963.
Mr.Sarin, at the time of arguments, has very fairly stated that so far as procedural aspect of the preparation and publication of the Draft Plan etc. is concerned, he has no objection to the same. Only objection of the petitioner is that the Master Plan is not khasra no. based. Detail of land owned by the individuals through which roads etc. shall pass is not given on Civil Writ Petition No.13839 of 2008 29 account of which the petitioner failed to file objections to the proposed Master Plan.
In reply to the averments made, it is stated by the respondents that the Draft Master Plan was published in the month of July 2006, inviting the objections and suggestions to the same. The petitioner did not file any objection. In response to that publication, 1795 objections/ suggestions were received from different quarters, which were taken note of and suitable amendments etc. were also effected in the Final Master Plan. It was further stated that this writ petition having been filed at a belated stage, after issuance of Final Master Development Plan, is not maintainable.
We have seen the copy of the Master Plan annexed on record. A cursory perusal of the same will indicate that it was possible for any land owner to identify the main areas and also to visualize from which land, roads etc. will pass.
Be that as it may, it is not in dispute that the Draft Plan was published, inviting objections / suggestions to the same in the month of July 2006. 1795 objections were received. The petitioner failed to file any objection at the relevant time, as such, at this stage, it is not open to the petitioner to raise objection to the Final Master Plan, which was published on 5.2.2007. In this writ petition, it is case of the petitioner that he came to know about the publication of the Final Master Plan only when reply was filed by the respondents in CWP No.13839 of 2008, filed by him. We feel that it is only an excuse on the part of the petitioner to file this writ petition. In the writ petition filed by him earlier, mentioned above, no objection was raised to the Development Plan. Reply in that case was filed by the respondents therein in the month of May 2009, however, this writ petition was filed in the month of February 2010. It appears that filing of this writ Civil Writ Petition No.13839 of 2008 30 petition was an after thought only to strengthen case of the petitioner regarding challenge to the proposed acquisition. It is also not in dispute that the petitioner became owner of the land in dispute in the month of March 2005. Thereafter, he raised construction in question. It is case of the respondents that as per provisions of Sections 6 and 7 of the 1963 Act, construction raised without getting any permission was unauthorized. Be that as it may, the authorities will look into this aspect when deciding objections filed by the petitioner to the proposed acquisition. In reply filed, it has been stated as under:-
"7. That the contents of para No.7 of the petition so far as they relate to declaration of Controlled Area around Municipal Towns of Gurgaon vide notification dated 3.7.1964 and 21.5.1981 being matter of record are not disputed. However, plea of the petitioner that no Khasra based surveys were carried out before issue of notification of Controlled Area or at the time of publication of the Draft Development Plan of Gurgaon are misconstrued, misleading and hence denied. It is submitted that Controlled Area around Municipal Town is declared keeping in view the potentiality of growth of a town in future. This cannot be done on particular Khasra based. However, as is clear from Annexure R-5, which is attached herewith, details of the areas of villages falling with in the proposed boundaries of Controlled Area are specifically mentioned in the notification issued under Section 4 of the Act No.41 of 1963. It is further clarified that the Development Plans are supposed to provide a broad outline of the physical Development and Infrastructure Planning proposals for the Civil Writ Petition No.13839 of 2008 31 development of an urban area for a perspective year, which is normally adopted as 20 years keeping in view the inherent strength and growth potentials of a town.
It is further submitted that the petitioner is interlinking two types of surveys one which is undertaken at the time of preparation of Development Plan and another which is taken up at the time of initiating acquisition proposal for a particular provision of a Development Plan, without understanding the objective of undertaking such exercise at different stage of development. The first one i.e. the Development Plan are never khasra based and it is a standard universal practice. The Development Plan being a macro level physical planning exercise done on a large scale (viz. 1:50,000 scale) are never based on cadastral revenue/ khasra maps owing to several inherent complications and being more of a conceptual plan wherein a broad outline of physical development and infrastructure planning proposals for the development of an urban area is envisaged, which are to come up over a period of 20 year in a phased manner. Hence, a reconnaissance level survey is carried out based on khasra plans, however, a detailed survey regarding existence of individual structure etc. are undertaken at the subsequent stage when the implementation of provisions of Development Plan through acquisition is undertaken. Since the implementation of the provisions of Development Plan are not taken up at once but in phased manner, hence a detailed survey is undertaken only prior to notification to be issued Civil Writ Petition No.13839 of 2008 32 under Section 4 of the Land Acquisition Act 1894. Hence, the plea raised by the petitioner in this para is not tenable, submissions made in para No.8 of the preliminary submissions are also reiterated."
We are satisfied with the stand taken in the written statement. Otherwise also, as has been observed earlier that by taking cursory look at the Draft Master Plan, one could easily know as to what will be situation in future. The petitioner was required to file objections to the Master Plan at the relevant time. Having failed to do so, now it is not open to him to lay challenge to the same.
In view of facts, mentioned above, CWP No.1912 of 2010 is dismissed. However, CWP Nos.13839, 15087, 18040, 18259 of 2008, 6809, 11362, 11459, 11464, 11736, 14198 of 2009, 2255, 5365 of 2010 are partly allowed, award dated 12.8.2009 and declaration under Section 6 of the Act dated 14.7.2008 qua the petitioners in these writ petitions are quashed. Notwithstanding invocation of provisions of Section 17 of the Act in the notification issued under Section 4 of the Act on 24.6.2008, we direct that the petitioners in these writ petitions be given an opportunity to file objections to the proposed acquisition and also to provide an opportunity of hearing to them before taking any decision on their objections to the proposed acquisition, within a month from today. The Land Acquisition Collector, thereafter, on completion of all the formalities, shall make a report, either recommending acquisition of the land or otherwise. The petitioners' right to raise any other objection other than laying challenge to the Master Plan shall remain open. The Land Acquisition Collector shall pass a brief reasoned order on objections raised by the petitioners. Civil Writ Petition No.13839 of 2008 33
We are hopeful that the authorities will take a practical and sympathetic view in this case. Entire development process is for the benefit of the citizens and for the said process, if possible their, uprooting shall be the minimum.
(Jasbir Singh)
Judge
28.01.2011 (Augustine George Masih)
gk Judge