Punjab-Haryana High Court
Surinder Kumar And Others vs State Of Punjab And Others on 14 October, 2011
Author: Augustine George Masih
Bench: Augustine George Masih
Amended C.W.P.No.82 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
Date of Decision:- 14.11.2011
Amended C.W.P.No.82 of 2010
Surinder Kumar and others ....Petitioner(s)
vs.
State of Punjab and others ....Respondent(s)
C.W.P.No.1829 of 2010
Parshotam Singh and others ....Petitioner(s)
vs.
State of Punjab and others ....Respondent(s)
C.W.P.No.2626 of 2010
Kuldip Singh Gill ....Petitioner(s)
vs.
State of Punjab and others ....Respondent(s)
C.W.P.No.3932 of 2010
Daljit Singh and others ....Petitioner(s)
vs.
State of Punjab and others ....Respondent(s)
C.W.P.No.18228 of 2009
Sarabjit Singh and others ....Petitioner(s)
vs.
State of Punjab and others ....Respondent(s)
C.W.P.No.15151 of 2011
Naveen Aggarwal and others ....Petitioner(s)
Amended C.W.P.No.82 of 2010 -2-
vs.
State of Punjab and others ....Respondent(s)
***
CORAM:- HON'BLE MR.JUSTICE M.M.KUMAR
HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- Mr.Arun Jain, Sr. Advocate with
Mr.Rajesh Gupta, Advocate
for the petitioners in CWP Nos.1829 and 82 of 2010.
Mr.Naresh Kaushal, Advocate and
Mr.S.S.Rathore, Advocate for the petitioners
(in CWP No.18228 of 2009).
Mr.A.K.Chopra, Sr.Advocate with
Mr.Aashish Chopra, Advocate and
Mr.G.S.Sullar, Advocate for the petitioner
(in CWP No.15151 of 2009)
Mr.Kuldeep Singh Gill, petitioner in person
(in CWP No.2626 of 2010)
Mr.Sandeep Moudgil, D.A.G., Punjab,
for respondents No.1 and 2.
Mr.Sanjeev Sharma, Sr.Advocate with
Mr.Vikram Vir Sharda, Advocate,
for respondent No.3.
Mr.Rajiv Joshi, Advocate,
for respondent No.5 (in CWP No.82 and 2626 of 2010)
Mr.Kanwaljit Singh, Sr.Advocate with
Mr.S.S.Chatrath, Advocate for respondents No.5 and 7.
Mr.H.S.Mann, Advocate for respondent
No.6 (in CWP No.2626 of 2010).
Mr.K.S.Sidhu, Advocate for respondent
No.7 (in CWP No.2626 of 2010).
***
AUGUSTINE GEORGE MASIH, J.
By this order we propose to decide CWP Nos. 82, 1829, 2626 and 3932 of 2010, 18228 of 2009 and 15151 of 2011 wherein challenge has been raised by the petitioners to notification issued on 16.10.2008 Amended C.W.P.No.82 of 2010 -3- under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') and notification dated 11.9.2009 issued under Section 6 of the Act vide which land has been acquired from Sector 74, SAS Nagar, Mohali to Kharar National Highwary for construction of 200 feet wide road and 200 meters mix land use alongside the road in Urban Estate SAS Nagar, District Mohali, on the ground that the said notifications are illegal, arbitrary, motivated, ultra vires and violative of Article 14 of the Constitution of India.
Petitioners contend that they are owners in possession of built up residential/commercial properties which fall within the limits of Municipal Council, Kharar. They have raised 'A Class' constructions after getting the building plans sanctioned from the Municipal Council, Kharar, much before the issuance of the notification under Section 4 of the Act. They obtained electricity connections and some of them have telephone connections and are using the premises for commercial/residential purposes. State of Punjab issued notification for acquisition of land measuring 269.52 acres situated in villages Ballomajra, Baryali, Desumajra and Fateullapur from Sector 74 to Kharar National Highway for construction of 200 feet wide road and alongside this road 200 meters mix land use for Urban Estate SAS Nagar, District Mohali for public purpose at public expenses. It need to be highlighted here that the residential/commercial buildings of the petitioners do not fall on the proposed 200 feet wide road and in fact falls on the areas sought to be acquired for mix land use by the respondents.
Petitioners filed objections under Section 5-A of the Act, which according to them, had not been decided in accordance with the provisions Amended C.W.P.No.82 of 2010 -4- of the Act as they have not been given personal hearing. Even the Municipal Council, Kharar had objected to the proposed acquisition and in this regard a resolution dated 30.12.2008 was passed by it to the effect that the notification for acquisition be dropped.
Respondents published notification under Section 6 of the Act on 11.9.2009. In this notification large areas of land were released belonging to the Colonizer/developer, namely, Taneja Developers Infrastructure (Pvt.) Ltd. (hereinafter referred to as TDI ). Petitioners allege malafides and discrimination on the part of the respondents on the ground that the land belonging to TDI which falls in the mixed land use area has been exempted from acquisition which is vacant whereas the constructed properties of the petitioners have been acquired. Out of the total acquired land of 127.7875 acres of village Ballomajra, 43.2325 acres have been released, in village Baryali, 62.88 acres of land was notified, out of which 26.1088 acres stand released and in village Desumajra, 9.38 acres were acquired, out of which 0.14 acres stand released. Petitioners had sought information from the respondents under the Right to Information Act, 2005 vide application dated 26.10.2009 asking for the site plan and map with details of khasra nos./killa nos. of the land under acquisition under Section 4 of the Act, report prepared by Greater Mohali Area Urban Development Authority (hereinafter referred to as GMADA) for requirement of land at the time of issuance of notification under Section 4 of the Act, site plan and map with details of khasra nos. and killa nos. prepared by GMADA at the time of issuance of notification under Section 6 of the Act for the land acquired i.e. 200.0487 acres, details of the land left out of Amended C.W.P.No.82 of 2010 -5- acquisition, reasons for exempting the land measuring approximately 69.52 acres from acquisition and map of proposed road and mix land use with specific mention of khasra nos/killa nos. were also requisitioned.
This information was not supplied to the petitioners and during the pendency of this application, GMADA issued a public notice in the news paper 'The Tribune' dated 28.11.2009 requiring the persons whose land was being acquired to submit documentary proof of ownership and proof of sanction of plan on or before 14.12.2009. Petitioners supplied the information as sought for by GMADA-respondent No.2 with the hope that respondents would take some favourable decision. But thereafter, nothing was heard from their side. On coming to know that the process for issuing notices under Section 9 of the Act had started, the petitioners approached this Court by filing writ petitions challenging acquisition of their land on the grounds of non-compliance of provisions of Section 5-A of the Act, discrimination while issuing notification under Section 6 of the Act and for releasing the vacant land of the builders with a malafide intention while acquiring the land of the petitioners on which residential/commercial establishments stood constructed. Further, it is pleaded that the mix land use has not been defined, therefore, it cannot be termed as a public purpose and, thus, was a colourable exercise of power by the respondents. Accordingly, prayer has been made for quashing the notifications issued under Sections 4 and 6 of the Act.
Reply has been filed by the respondents wherein the assertions made by the petitioners with regard to violation of the provisions as contained under Section 5-A of the Act stand denied. The fact that the Amended C.W.P.No.82 of 2010 -6- petitioners have construction over the land, which had been done after proper sanction of the maps by the Competent Authority, has not been denied. The ground taken by the petitioners with regard to the discrimination qua TDI-respondent No.6 has been tried to be explained by contending that the said Company had, in pursuance to the Industrial Policy, 2003, sought approval from the State Government for the mega project which was duly approved by the Empowered Committee and the Change of Land Use (for short CLU) had also been applied. Because of the policy of the Government, the land of the TDI was not included in the notification issued under Section 6 of the Act. An agreement was entered into between the State and TDI on 26.5.2006 with regard to the establishment of the mega project. It has been stated that the contentions of the petitioners are mis- conceived and the writ petitions deserve to be dismissed.
The matter came up for hearing on 24.5.2011 wherein this Court passed the following order:-
"After going through the written statement, filed on behalf of respondent No.1-State, we find that it has not been specifically explained by the Government that what is the 'Mix Land Use', for which a strip of 200 Meters of land has been acquired. No planning of the Government for acquiring the said land has been explained in the written statement. Faced with this situation, learned counsel for respondent No.1-State seeks time to file a detailed affidavit on behalf of the Government with relevant documents to show that for Amended C.W.P.No.82 of 2010 -7- what purpose, this 200 Meters of land is going to be acquired and what is the planning of the Government, for which this land is needed for a public purpose.
During the course of arguments, it transpired that after issuance of the notification under Section 4 and even the notification under Section 6 of the Land Acquisition Act, 1894, some part of the land from the aforesaid belt of 200 Meters has been released.
However, no detail with regard to the release of land has been given in the written statement. Therefore, learned counsel for respondent No.1-State is further directed to supply information with regard to each and every release of land from 200 Meters of land, which falls in three villages, namely Ballo Majra, Baryali and Desu Majra, on whatsoever account, till date.
Adjourned to July 07, 2011."
In pursuance to the above order, affidavit dated 30.6.2011 was filed in Court. It was stated therein that the land is acquired for the public purpose, namely, for construction of 200 feet wide road and 200 meters for mix land use along with proposed side road. In the affidavit, mix land use has been explained as follows:-
"xxxx xxxx xxxx
3). That in the present affidavit, the deponent is explaining the term 'Mixed Land Use' and in this regard wish to state that before preparation of the Master Plan for S.A.S Nagar Mohali, the State of Punjab availed Amended C.W.P.No.82 of 2010 -8- professional services of a Singapore based consultants namely, M/s Jurong Consultants Pvt. Ltd. which conducted a detailed study of the existing structures along road sides in the SAS Nagar, Mohali District.
4). That while submitting its detailed report, the aforesaid consultant identified commercially potential zones along road sides in the Master Plan. These commercially potential areas were identified keeping in view the tendency of the public at large to use their residential houses/areas for commercial purposes and creating nuisance along with roadsides. The report of the master plan was prepared along with the master plan in which the term "Mix Land Use Area" has been clearly defined with regard to the uses it can be put to. The relevant extract of the report of master plan containing the same is reproduced as under:-
Table (5.2) Intensity of Development (overall) Land use FAR Permitted uses Mixed Use a) Mix use 1- Commercial use
a) Mix use 1 is allowed and flatted high end residential on upper floors is allowed. Minimum size is 5 acres. Shopping malls ; cinemas, institutions and plotted/flatted residential development. Small infill pockets of retail shops etc. for the strip of Mix commercial uses in support of the airport are allowed.
Note: decision under item no.6 of the 12th meeting of the Punjab regional and Town Planning and Development Board, held on 24/07/08 shall remain operative.
b) Mix use 2 b) Mixed use 2- Commercial and residential use is allowed.
For residential, the minimum site area is 20 acres.
Amended C.W.P.No.82 of 2010 -9-
5). That report of the Consultant was accepted and incorporated in the Master plan which was prepared and approved in accordance with law. The Master Plan was duly notified on 16.12.2008. A copy of the Master Plan is annexed herewith as "Annexure A".
6). That the purpose of incorporating "Mix Land Use Area" in master plan was to prohibit public from creating nuisance by misusing their residential areas in an unplanned manner, certain areas have been kept for "Mixed Land Use". In these mixed land use area minimum plot size has also been fixed so as to regulate commercial activities along road sides in certain commercially potential areas along road sides.
7). That the technical plan for the pockets of land kept reserved for "Mixed Land Use" shall be prepared later on after completion of remaining development works as envisaged in the Master Plan/Zonal development plan."
Another affidavit was filed by the respondents dated 8.9.2011 wherein it was mentioned that the planned urban development is a public purpose and an important function of the Government. Master plan is intended to cater to the current and future requirements of the people at large. The road and mixed land use development form an integral development as funding is required to construct the roads. Keeping in view the recent land acquisition and road construction rates as bench mark, certain commercially potential areas along with the road side can be used for funding of the road.
Amended C.W.P.No.82 of 2010 -10-
Particulars of the land released in the villages, after the issuance of the notification under Section 4 of the Act, which has not been included in the notification issued under Section 6 of the Act, have been given in paras 14 and 15 of the said affidavit which read as follows:-
"14.The particulars of the land released in these villages for the belt under acquisition is at Annexure -'D' (colly). Total area of land released is 69.35 acres.
Out of this, a total of land measuring 27.215 acres falling in village Ballomajra and 16.155 acres falling in Village - Baliali belonging to TDI has been released.
19.75 acres of land of TDI falling in village Ballomajra was released, whose CLU was applied on 06.12.2006 and granted on 22.12.2006 i.e. prior to Section 4 notification.
11.0875 acres of land of TDI falling in Village Baliali and 2.656 acres of land of TDI falling in Village Ballomajra was released, whose CLU was applied on 26.06.2008 but granted on 12.11.2008.
5.068 acres of land of TDI falling in Village Baliali and 1.168 acres of land of TDI falling in Village Ballomajra was released, whose CLU was applied on 22.07.2009 & 10.11.2009 and granted on 01.06.2010. Similarly 0.881 acres of land of TDI falling in Village Ballomajra was released, whose CLU was applied on 14.10.2010 & granted on 12.01.2011.
2.76 acres of land of TDI falling in Village Ballomajra was released, whose CLU was not applied but it forms part of the Mega Housing Project of TDI, approved by the Empowered Amended C.W.P.No.82 of 2010 -11- Committee on 28.10.2005.
Apart from above, 16.85 acres of land falling in Village Ballomajra and 8.99 acres of land falling in Village Baliali belonging to private land owners has been released as the same does not fall in the boundary of the Scheme.
Rest of the land released is 0.14 acres, which falls in Village Fatehullapur and is also out of the boundary of this scheme.
However, the land measuring 8K-0M falling in Khasra No.20//14 of Village Ballomajra and 0K- 13M falling in Khasra No.4//24/1 of Village Baliali, which falls in the green buffer and the road portion, has been released inadvertently in the notification under Section 6, as such the said released land is being reacquired. Thus, no land under the green buffer and the road, shall be released from this acquisition.
15. Keeping the larger public interest associated with the project in view and the peculiar circumstance of the petitioners and other similarly situated land owners, government has taken the following view so as to protect the interest of the owners, whose structures and land falls in the land proposed to be acquired for this project:
(i) Land pooling will be offered to all land owners, even to those whose land falls under road or the green belt (Annexure-A).
(ii) Land owners who opt for cash compensation
will benefit from the Oustee Policy of the
Government approved on 25.5.2011.
(Annexure-'B').
(iii) Structures approved by Municipal Council, Amended C.W.P.No.82 of 2010 -12- Kharar falling in the area to be acquired will be retained in planning to the extent possible or relocated equitably.
a) Structures falling in the mixed land use belt and approved by the Municipal Council, Kharar will be adjusted in the planning and retained as such.
b) Three unapproved structures belonging to two petitioners (Petitioner No.11 & 16) in CWP No.82 of 2010 cannot be retained but they will be considered under the Land Pooling Policy or the Oustees Policy, as the case may be.
c) Approved structure of three SCO's falling in the area of road will be acquired but relocated to an another place in the area planned by GMADA. All this planning has been marked on attached layout plan Annexure 'E'".
A justification has been given by the respondents with regard to the pleas taken by the petitioners challenging the acquisition proceedings.
We have heard counsel for the parties and gone through the records of the case.
Pleadings and submissions, when considered, clearly established hostile discrimination practiced by the respondents while releasing the land of TDI whereas similar prayer made by the petitioners has not been accepted. It is not in dispute that the petitioners have constructed their houses/commercial establishments, after obtaining proper sanctions as required under the Statute from the Competent Authority. The land falls in Amended C.W.P.No.82 of 2010 -13- the area which is earmarked for the mix land use. The reason assigned for not including the land of TDI in the notification issued under Section 6 of the Act is that the CLU was applied for by TDI and granted with regard to 19.75 acres of land in village Ballomajra prior to Section 4 notification. Qua 11.0875 acres of land of TDI falling in village Baryali and 2.656 acres in village Ballomajra, CLU had been applied for on 26.8.2008 which is prior to the notification issued under Section 4 of the Act but was granted on 12.11.2008 which is after the issuance of notification under Section 6 of the Act i.e. 16.10.2008. Land measuring 2.76 acres of TDI falling in village Ballomajra was released from acquisition, whose CLU was not applied but it formed part of the Mega Housing Project of TDI approved by the Empowered Committee on 28.10.2005. But the most startling fact which clinches the issue with regard to discrimination is that 5.068 acres of land of TDI falling in village Baryali was not included in notification under Section 6 of the Act, whose CLU was applied on 22.7.2009 and the same was granted only on 1.6.2010 i.e. much after the issuance of notification under Section 6 of the Act. Further, 1.168 acres of land of the TDI falling in village Ballomajra was not included in the notification under Section 6 whose CLU was applied for on 10.11.2009, which is even after the issuance of notification under Section 6 of the Act, for which the CLU was granted on 1.6.2010. Another 0.881 acres of land of TDI falling in village Ballomajra was not included in the notification issued under Section 6 whose CLU was applied on 14.10.2010 and granted on 12.1.2011 which again is much after the Section 6 notification. No further elaboration is required to be made with regard to the conduct of the respondents. Amended C.W.P.No.82 of 2010 -14-
While issuing notification under Section 6 of the Act, discrimination is writ large as vacant land of TDI which falls in the mixed land use area was not included in the acquisition, for which either CLU was applied but not granted till the date of notification under Section 6 of the Act and in three instances CLU was applied for after the issuance of notification under Section 6 of the Act but the land has not been included in the notification issued under Section 6 of the Act. Petitioners are justified and correct in asserting that they have been treated differently from other similarly situated, especially when they are owners in possession of residential/commercial buildings which are built up and can be adjusted in the Mix land use as per Government decision. Their claim is much better than that of TDI for the reason that they had already obtained the necessary sanctions and approval from the Competent Authority for constructing and occupying their premises. This itself is a good ground for quashing the notification issued under Section 6 of the Act.
Even notification under Section 4 cannot withstand the test as mandated under Section 4 of the Act. As per Section 4 of the Act, whenever it appears to the Appropriate Government that the land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect is to be published in the manner prescribed therein. The language of this Section indicates that a decision has to be taken by the Appropriate Government prior to issuance of a notification that the land is situated in a locality which is needed or likely to be needed for a public purpose. If that is so, the decision making process is open to judicial review which mandates proper application of mind on the Amended C.W.P.No.82 of 2010 -15- basis of facts, figures and requirements which obviously require some ground work to be done by the Appropriate Government to come to a conclusion and take such a decision. It cannot be said that the government takes a decision without even assessing the requirement of the land and the purpose for which it is being sought to be acquired. In the present case, the position appears to be that the decision to acquire the land was taken even prior to assessing the requirement and purpose for which the land is to be acquired.
Our Constitutional system is based upon the Rule of Law which emphasizes absence of arbitrary powers. The executive government or any of its officer cannot possess and exercise arbitrary powers over the interests of the individual. All actions of the executive government must be informed with reasons and should be free from arbitrariness. Government, while exercising its powers, which involves affecting of some right or denial of some privilege cannot act arbitrarily on its sweet will and like a private individual deal with any person it pleases but its action must be in conformity with the standards and norms which are not arbitrary, irrational or irrelevant. If the government deviates from such standards or norms in any particular case or cases, the action of the government would be liable to be struck down. In a system, Government by rule of law, discretion when conferred upon an executive authority, must be confined within clear defined limits. This would mean that decision should be made by the application of known-principles and rules and in general such decision should be predictable and the citizen should know where he stands. The decision making process is open to judicial review and the decision should Amended C.W.P.No.82 of 2010 -16- be reached by taking into account the relevant considerations moreso when the Statute itself requires and emphasizes on the same. The Authority should not refuse to consider relevant matter or material nor should it take into consideration wholly irrelevant or extraneous considerations. If the action taken and the decision so arrived is mis-directed on a point of law, the same cannot be allowed to stand. The Courts have powers to see that the authority acts lawfully in exercise of its discretion but when irrelevant or extraneous considerations are taken into account for coming to a conclusion which leads to an illegal decision, such decision cannot be defended by taking shelter/recourse to exercise of powers in a bonafide or ill-motivated decision which would otherwise amount to colourable exercise of power.
A perusal of the affidavit dated 30.6.2011, relevant portion whereof has been reproduced above, would show that the respondents have tried to explain the application of mind for reaching the decision to acquire the land basing it on the master plan prepared for SAS Nagar, Mohali. While explaining the term 'mix land use', it has been stated that before the preparation of the master plan for SAS Nagar, Mohali, professional services of M/s. Jurong Consultants Private Limited were availed of, which conducted a detailed study of the existing structures along road side in SAS Nagar, District Mohali. A detailed report was submitted where commercially potential zones/areas along the road side were identified and incorporated in the master plan. The report of the consultant was accepted and incorporated in the master plan which was prepared and approved in accordance with law. The crucial date on which the master plan was Amended C.W.P.No.82 of 2010 -17- notified is 16.12.2008 which is after the issuance of notification under Section 4 of the Act i.e. 16.10.2008. It would not be out of way to mention here that after the notification of the master plan, detailed procedure for finalization of the same is to be followed which would include inviting objections, hearing the objectors, disposing of the objections and finally approving and notifying the final master plan. If the notification of the master plan is on 16.12.2008 wherein mix land use area was identified and defined with regard to the use to which it can be put to, the decision prior thereto, for acquiring land for the said purpose by issuing notification on 16.10.2008 shows total non-application of mind by the Appropriate Government. If a decision had not been taken prior to the issuance of the notification under Section 4 of the Act, which appears to be the situation in the present case in the light of the affidavit dated 30.6.2011, the notification issued under Section 4 of the Act qua the mix land use area i.e. Land along side 200 feet wide road cannot legally sustain.
Since the decision of the government in the present case is against the rule of law, the decision of the government to acquire land for mix land use alongside the 200 feet road cannot be upheld. The Constitution enshrines and guarantees rule of law and the High Court under Article 226 of the Constitution is empowered to ensure that each and every authority of the State, including the government acts bonafide and within the limits of its power. This would include exercising the powers by the government in accordance with the requirement of the Statute which as demonstrated above, has not been done by the State. In such a situation where there is arbitrariness in the state action or such action is to help some Amended C.W.P.No.82 of 2010 -18- individual at the cost and peril of other similarly situated person(s) resulting in discrimination leading to depriving him/them of their rights. Article 14 steps in and judicial review strikes such an action to be not in accordance with law and, thus, has to be struck down.
Further as per Section 3 of the Act, public purpose has been defined to include the provision of land for town or rural planning which obviously has to be prior to issuance of a notification under Section 4 of the Act which is missing in the present case as the Master Plan was notified after issuance of notification under Section 4. Unless there is proper planning for acquisition of land by the Appropriate Government, it would not pass the test of public purpose for which only the land can be acquired. For this reason also the challenged notifications cannot be upheld.
In view of the above, the present writ petitions are allowed, notifications issued under Sections 4 and 6 of the Act dated 16.10.2008 and dated 11.9.2009 qua the land falling alongside the road earmarked for mix land use are hereby quashed.
(M.M.KUMAR) ( AUGUSTINE GEORGE MASIH )
JUDGE JUDGE
November 14, 2011
poonam
Amended C.W.P.No.82 of 2010 -19-