Punjab-Haryana High Court
Ram Karan And Others vs State Of Haryana And Others on 25 January, 2011
Author: Jasbir Singh
Bench: Jasbir Singh, Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.18278 of 2008(O&M)
Date of decision: 25.01.2011
Ram Karan and others
.....Petitioners
versus
State of Haryana and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Rakesh Kumar Garg
Present: Mr.Arun Jain, Senior Advocate with
Mr.Amit Jain, Advocate for the petitioners
Mr.Kamal Sehgal, Addl. A.G. Haryana with
Ms.Palika Monga, DAG Haryana
Mr.Ajay Kaushik, Advocate for Union of India
Jasbir Singh, J.
This order will dispose of 13 Civil Writ Petitions bearing Nos.18278 of 2008, 3097 of 2009, 17720 of 2009 and 5526 of 2009, 8778 of 2009, 12884 of 2009, 13430 of 2009, 5034 of 2009, 18237 of 2009, 685 of 2010, 18098 of 2009 and 373 of 2010. 5530 of 2009.
CWP No.18278 of 2008 has been filed by the 56 petitioners / land owners. They have impugned a notification, issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) on 30.11.2006 (P2), proposing to acquire 483.14 acres of land for a public purpose, namely, 'for the development and utilization of land as residential area for Sectors 27, 28 and 30 Pinjore'. The development is to be undertaken by the Haryana Urban Development Authority. Further challenge is made to a declaration, Civil Writ Petition No.18278 of 2008 2 issued under Section 6 of the Act on 28.11.2007(P10), showing an intention of the respondents to finally acquire 467.03 acres of land.
During pendency of this writ petition, award was passed on 26.11.2009 for land measuring 465.29 acres.
In CWP No.18278 of 2008, it has been stated by the petitioners that they are the small land owners and earning their livelihood by cultivating the land which has now been made subject matter of the acquisition, which was started at the behest of some vested interests. It is further contended that in response to notification issued under Section 4 of the Act, they filed objections under Section 5-A of the Act, however, the Land Acquisition Collector, without giving an effective hearing to them, rejected their claim for release of the land. It is specifically stated by the petitioners that at the time of so-called hearing, only their presence was marked, however, their objections were not noted by the concerned authority. Objections were rejected by the Land Acquisition Collector by making stereo-typed observations and arbitrarily recommendation was made to acquire their land. It is their primary contention that the land, subject matter of acquisition, is a reserved forest as per the provisions of the Indian Forests Act, 1900, the Punjab Land Preservation Act, 1900 (in short, PLPA 1900) and for a period of 30 years, no tree can be cut, as such, no non- agricultural activity including the construction work can be undertaken in the said area. It was also averred that on both sides of the land under acquisition, the area has been declared as a 'Sanctuary' for the purpose of protecting, propagating and developing wild life and its environment as per the provisions of Section 18 of the Wild Life (Protection) Act, 1972. To support the above said contention, reliance was placed upon a notification issued on 29.1.1993 (P11), under Section 4 of PLPA 1900, vide which, Civil Writ Petition No.18278 of 2008 3 some conditions were imposed on clearing or breaking for cultivation or any other purpose of common grazing land etc. and also cutting and felling of the trees from shamlat deh and charand land. Further reliance was placed upon a notification dated 27.11.1997, vide which, some restrictions were notified in the areas comprising in Kalka, Panchkula tehsils District Panchkula) to conserve the ground water and to prevent land erosion in those areas. Still further, reliance has been placed upon a notification dated 28.11.1997, issued under Section 4 of the PLPA 1900, whereby some conditions were imposed regarding cutting of trees or timber etc. It was further stated that the land in question falls in the controlled area, declared under the provisions of Periphery Control Act, 1952 and before proposing acquisition of land to develop it as residential sectors, 'change of land use certificate' has not been obtained. Furthermore, there is no development scheme prepared for the area and as such acquisition cannot be sustained.
In CWP No.17720 of 2009, two plots owned by the petitioner, situated within the municipal limits of Pinjore are also subject matter of acquisition, mentioned above. It is her contention that her residential building is going to be acquired whereas buildings situated in the adjoining land were kept out of acquisition. Her is a case of discrimination.
In reply thereto, it is stated that out of total land, measuring 23 bighas and 14 biswas, falling in khasra Nos.2, 15 and 17, 10 bighas and 2 biswas of land was left out of acquisition being thickly populated, whereas vacant land, including land of the petitioners measuring 13 bighas 12 biswas was ordered to be acquired.
In CWP No.3097 of 2009, Mr.Vijay Bansal, Advocate is the petitioner. He has shown concern to protect the environment, forests etc. in the land falling within the territory of tehsil Kalka, which is also subject Civil Writ Petition No.18278 of 2008 4 matter of acquisition as discussed in earlier part of the order. It is his prayer that 'Final Development Plan of Pinjore Kalka Urban Complex 2025 A.D." (in short, the development plan), having been prepared in contravention to the provisions of Forest Conservation Act, 1980, PLPA 1900, cannot be sustained. Challenge has been laid to the development plan exactly on the similar grounds, on which in CWP No.18278 of 2008 objections have been raised to the acquisition in dispute.
To the averments made in this writ petition, a stand has been taken by the respondents that the acquisition does not violate any of the provisions of the Forest Act or PLPA 1900.
It is further stated that after recommendations made by the Land Acquisition Collector, a Joint Inspection Committee was constituted and on observations made by the Committee, additional constructed areas, other than the one recommended by the Land Acquisition Collector were also ordered to be released.
Heard counsel for the parties.
It is not necessary to refer to facts of other cases because in all those writ petitions, factual and legal objections are virtually the same, as has been enumerated in three writ petitions, mentioned above.
To dictate order, facts are being mentioned from CWP No.18278 of 2008.
Before noting down main arguments of counsel for the petitioners, it is necessary to refer to Sections3, 4, 5 and 20 of PLPA 1900, which are reproduced as under:-
3. Notification of areas. Whenever it appears to the State Government that it is desirable to provide for the conservation of subsoil water or the prevention of erosion in any area Civil Writ Petition No.18278 of 2008 5 subject to erosion or likely to become liable to erosion, such Government may by notification make a direction accordingly.
4. Power to regulate, restrict or prohibit, by general or special order, within notified areas, certain matters. In respect of areas notified under section 3 generally or the whole or any part of any such area, the State Government may by general or special order temporarily regulate, restrict or prohibit-
(a) the clearing or breaking up or cultivating of land not ordinarily under cultivation prior to the publication of the notification under section 3;
(b) the quarrying of stone or the burning of lime at places where such stone or lime had not ordinarily been so-
quarried or burnt prior to the publication of the notification under section 3 ;
(c) the cutting or trees or timber, or the collection or removal or subjection to any manufacturing process, otherwise than as described in clause (b) of this subsection of any forest-produce other than grass, save for bona fide domestic or agricultural purposes of right-holder in such area;
(d) the setting on fire of trees, timber or forest produce;
(e) the admission, herding, pasturing or retention of sheep goats or camels;
(f) the examination of forest-produce passing out of any such area; and Civil Writ Petition No.18278 of 2008 6
(g) the granting of permits to the inhabitants of towns and villages situated within the limits or in the vicinity of any such area, to take any tree, timber or forest produce for their own use therefrom, or to pasture sheep, goats or camels or to cultivate or erect buildings therein and the production and return of such permits by such persons.
5. Power in certain cases, to regulate, restrict or prohibit by special order, within notified area, certain further matters. In respect of any specified village or villages, or part or parts thereof, comprised with in the limits of any area notified under section 3, the State Government may, by special order, temporarily regulate, restrict or prohibit-
(a) the cultivating of any land ordinarily under cultivation prior to the publication of the notification under section 3:
(b) the quarrying of any stone or the burning of any lime at places where such stone or lime had ordinarily been so quarried or burnt prior to the publication of the notification under section 3;
(c) the cutting of trees and timber or 'the collection or removal or subjection to any manufacturing process, otherwise than as described in clause (b) of this sub-
section, of any forest-produce for any purposes; and
(d) the admission, herding, pasturing or retention of cattle generally other than goats and camels, or of any class or description of such cattle.
Civil Writ Petition No.18278 of 2008 7
20. Application of provisions of the Indian Forest Act 1927. The provisions of sections, 52, 54, 55, 56, 57, 58, 59 , 60, 61, 62, 64, ( excluding the last sentence), 66, 67,68 and 73 of the Indian Forest Act, 1927, shall so far as applicable, be read as part of this Act, and for the purposes of those provisions, every offence punishable under section 19 shall be deemed to be a "forest offence", and every officer employed in the management of any area notified under section 3 or section 8, as caretaker or otherwise, shall be deemed to be a forest officer."
Perusal of Section 3 indicates that the State Government is competent to issue directions for the purpose of conservation of sub-soil water or to prevent erosion of land in any area which may be subject to erosion or likely to become liable to erosion. Section 4 of the PLPA 1900 prohibits cutting of trees subject to certain conditions and the government is competent to issue directions in that regard. Section 5 authorizes the government, in an area notified under Section 3 of the Act, by passing a speaking order, either temporarily or otherwise, to restrict, regulate or prohibit cultivation of land, quarrying of stone etc., cutting of trees and timber etc. It is necessary to mention here that vide order dated 18.1.2010, qua petitioner Nos.1 to 20, 21, 26, 27, 28, 29, 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46 and 47, this writ petition was ordered to be dismissed as withdrawn, vide order dated 17.2.2010, this writ petition was dismissed as withdrawn qua the petitioner No.43 and vide order dated 8.3.2010, it was dismissed as withdrawn qua petitioner No.32.
Civil Writ Petition No.18278 of 2008 8
It is also not in dispute that except, petitioner Nos.22, 23, 24, 30, 49 to 52, 54, 55, 56, all other petitioners have received compensation, which was determined vide an award dated 26.11.2009.
Mr.Arun Jain, Senior Advocate has vehemently argued that the land being acquired in contravention to the provisions of PLPA 1900 and the Forest Act, cannot be sustained. To support his contention, reference was made to three notifications issued under the provisions of PLPA 1900 on 29.1.1993, 27.11.1997 and 28.11.1997, imposing conditions and restrictions to preserve underground water and also on cutting of the trees. Following contention of counsel for the petitioners was noticed on 22.10.2008:-
"Learned counsel for the petitioners has inter alia argued that the notification issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') on 30.11.2006 (Annexure P2) and the notification issued on 28.11.2007 (Annexure P10) under Section 6 of the Act are vitiated because the land sought to be acquired is protected forest land as declaration under Section 4 of the Punjab Land Preservation Act 1900 has already been issued. It is found that the land is protected till the year 2006."
In the Public Interest Litigation, main thrust of the petitioner against the development plan, is also on the similar grounds.
Mr.Jain, by making reference to the provisions of PLPA 1900, reproduced above, argued that area was declared as a forest, in which, non- agricultural activities are totally prohibited, as such, land cannot be acquired to construct the residential sectors.
Civil Writ Petition No.18278 of 2008 9
To rebut the above said contention, reference has been made by the State counsel to paragraph Nos.7, 8 and 9 of the written statement filed by District Town Planner (respondent No.4), which are reproduced as under:-
"7. That the notification dated 29.1.1993 under Section 4 of the L\PLPA 1900 covers the Kalka Tehsil and almost the entire Panchkula tehsil and restricts:-
(a) clearing or breaking of land for cultivation or for any other purpose of common grazing lands or areas recorded in revenue settlement record as Ghasanies, Charand, Shamlat deh without prior approval of the Divisional Forest Officer of the Forest Department.
(b) cutting and felling of trees from Shamlat Deh, Charand and Ghasanies including private lands. However the trees other than chil and khair may be cut with permission by the right holders for bonafide domestic and agricultural requirements, extraction of resin from 'chil' trees only of the specified height and girth only.
A perusal of restrictions imposed in notification dated 29.1.1993, mentioned just above, in no manner prohibits either the urbanization or the acquisition of land, hence there is no violation of terms and conditions stipulated in this notification. It is to state here that through the present acquisition proceedings total land sought to be acquired for sector 27, 28 and 30 is 467.03 acres out of total proposed urbanisable zone of 9780 acres in Pinjore-Kalka Urban Complex 2025 AD. In this area, permission can be obtained from the Forest Civil Writ Petition No.18278 of 2008 10 Department against above mentioned restrictions under section 3 and 4 of PLPA 1900. Hence, these restrictions are not absolute.
It is also being stated here that every effort shall be made to protect trees. More trees and plants etc. suitable to this soil shall be planted by the State along sector roads, in parks and in green belts.
8. That the petitioner has also drawn attention of this Hon'ble Court to notification dated 17.11.1997 made under section 3 of the PLPA 1900 by the Forest Department to arrive at a conclusion that the areas subject matter of above notification are forest area.
This averment of the petitioner is misconceived and misleading. This notification imposes certain specified restrictions on the specified areas within the area so notified. A bare perusal of this notification would reveal that it covers entire tehsils of Panchkula and Kalka apart from other areas falling in Ambala, Yamuna Nagar and Faridabad Districts. This notification identifies the areas requiring imposition of restrictions for conservation of sub-soil water and prevention of soil erosion.
That the permission, in accordance with above notification, if necessary, will be obtained from the competent authority/ Divisional Forest Officer concerned and further, as stated in foregoing paras, more plantation shall be done in the area by the concerned authorities to ensure that ecology and Civil Writ Petition No.18278 of 2008 11 environment area protected and conserved and their status further enhanced.
9. That the large extent of areas covered by these notifications clearly demonstrates that the Government did not intend to stop all the development activities but intended to place certain restrictions to save the area from soil erosion and to check the depletion of sub soil water.
The notification dated 17.11.1997 under section 3 and notification dated 29.1.1993 under Section 4 of PLPA 1900 does not in any way designate any area as forest area." It is further stated that the proposed urbanization of Pinjore Kalka Urban Complex is to the extent of 9780 acres. In this area also, approximately 36% of the land shall be kept as open space/ green belt etc. Regarding cutting and plantation of trees, it is stated that every effort shall be made to protect the existing trees. More trees and plants etc. suitable to the soil shall be planted by the Horticulture Department of State along with the sector roads, in the parks and in the green belts.
At the time of arguments, it was brought to our notice that dispute, whether land under acquisition and the surrounding areas, is a part of the forest land, was finally decided by a Division Bench of this Court in CWP No.20134 of 2004 on 15.5.2009, titled as Vijay Bansal and others v. State of Haryana and others (surprisingly, the petitioner in CWP No.3097 of 2009 was also the petitioner in that case, however, in the present writ petition, factom of filing earlier writ petition is not disclosed at all).
Counsel for the petitioner in CWP No.3097 of 2009, to quash the development plan, has relied upon observations made by the Hon'ble Supreme Court in the case of M.C. Mehta v. Union of India and others JT Civil Writ Petition No.18278 of 2008 12 2004 (4) SC 181, showing its concern to preserve forest area in the State of Haryana. Perusal of the judgment passed in Vijay Bansal's case (supra) on 15.5.2009, indicates that the questions, which are now being raised, by placing reliance upon notifications, issued by the State Government under the PLPA 1900 and judgment of the Supreme Court, as mentioned above, were also raised by Sh.Vijay Bansal in his earlier litigation in CWP No.20134 of 2004. In that writ petition, direction was sought, to prevent the authorities from indiscriminate and callous mining operation going on in the lower Shivalik hills of district Panchkula. Reliance was placed upon the provisions of PLPA 1900 and the Forest Act and also notifications dated 29.1.1993, 27.11.1997 and 28.11.1997. Before this Court, besides other, following question was for consideration:-
"what is the legal impact of notifications issued under Sections 3, 4 and 5 of the PLPA 1900"
Vide order dated 15.5.2009, after taking note of the provisions of Section 3, 4, 20 of PLPA 1900, three notifications, mentioned above and observations made by the Hon'ble Supreme Court in the case of T.N. Godavarman Thirumulkpad v. Union of India & Others, (1997)2 SCC 267 and M.C. Mehta's case (supra), it was held as under:-
"Suffice it to state here that the powers of the State Govt. to impose restrictions or issue directions under Sections 3, 4 and 5 of the PLPA are supplementary and complimentary to its somewhat similar powers under Section 35 of the Indian Forest Act, 1927 (in short the 1927 Act). The only inescapable conclusion would be that if directions against cutting of trees or timber etc. have been issued under Section 4 in respect of an area or a part thereof notified for the purpose of 'conservation Civil Writ Petition No.18278 of 2008 13 of subsoil water' or 'prevention of erosion' under section 3 of the PLPA, such an area being 'forest land' for the purposes of 1927 and 1980 Acts, cannot be used for 'non forest purposes' save as permitted by the Central Govt. We, however, hasten to add that the afore-stated prohibition against use for "non forest purposes" does not ipso-facto apply to the entire area forming part of the notification under section 3 of the PLPA."
Thereafter, C.M. Nos.12170 and 13502 of 2009 were filed by the State of Haryana in CWP No.20134 of 2004 for review/ clarification of the order, mentioned above, inter-alia, on the following grounds:-
"[i] the total forest area of the State, at present, is 1,54,706 hectares, including 12,527.94 hectares of the land notified under Sections 4 and 5 of the PLPA, 1900, which is duly recorded as 'forest land' in the records of the Forest Department;
[ii] the 'forest land' notified under Sections 4 and 5 of the PLPA, 1900 earlier contained 11,513 hectares only and this fact was duly mentioned in the affidavit dated 8.12.1996 filed by the then Chief Conservator of Forests, Haryana before the Hon'ble Supreme Court in WP No. 171 of 1996 [Environmental Awareness Forum v State of J&K & Ors.]. [iii] the State Government later on wanted to exclude the afore-stated privately owned land from the 'forest area' and moved IA No. 839 of 2002 to this effect before the Hon'ble Supreme Court in Writ Petition [Civil] No. 202 of 1995 [ T.N.Godavarman Thirumulkpad v Union of India & Ors], but the same having been dismissed while issuing directions in Civil Writ Petition No.18278 of 2008 14 M.C.Mehta's case [supra], the Forest Department has always treated and maintained the afore-stated area measuring 11513 hectares [now increased to 12527.94 hectares] as the 'forest land';
[iv] all the lands/areas notified under Section 4 or 5 of the PLPA are not 'forest lands'. Only those lands where clearing, breaking up or cultivation has been prohibited, are being treated as 'forest lands';
[v] where the notifications under Sections 4 and 5 of the PLPA restricts only "the cutting of trees or timber or collection or removal or subjection to any manufacturing process", those lands are not to be treated as 'forest lands' and such lands can be used for 'non-forest purposes'."
At the time of arguments, in that application, an affidavit was filed by Dr.D.R. Ramesh Singh, IFS, Principal Chief Conservator of Forests, Haryana alongwith copies of the notifications, issued under Sections 4 and 5 of the PLPA 1900, which were in existence as per time limit fixed in those notifications. In that affidavit, it was specifically stated that area covered under notification dated 29.1.1993 was never treated and maintained as forest land for a reason that the said notification was general in nature and there was no absolute prohibition on clearing or breaking up of the land for non-forest purposes without the consent of land holders. It was further stated that even as per notification dated 28.11.1997, only some restrictions were imposed upon cutting of trees or timber etc. Another notification was also put on record, which completely prohibits clearing, breaking up or cultivation of the land in the notified area. By taking note of Civil Writ Petition No.18278 of 2008 15 the averments made in that affidavit, the applications were allowed, by observing as under:-
"We, therefore, allow this application and modify our order dated 15th May, 2009 qua Issue No. 1 read with direction No. [i] contained in Paragraph 57 thereof, and clarify that only those lands/areas forming part of the notification issued under Section 3 of the PLPA, 1900 in respect of which restrictions against clearing, breaking up or cultivation have been imposed under Sections 4[a] or 5[a] of the said Act, are declared as 'forest lands' for the purposes of the Indian Forest Act and the Forest [Conservation] Act, 1980 and the said areas shall not be used for 'non-forest purposes' including the mining of major or minor minerals. This shall, however, not preclude the State Government from imposing such restrictions in respect of the remaining area[s] notified under Section 3 of the Act, if so required to be done in public interest."
In view of finding given above in Vijay Bansal's case (supra), we feel that the contention raised by counsel for the petitioners is not sustainable.
At the time of arguments, it was noticed by this Court that to earmark the forest area with complete prohibition on cutting of trees etc. and the sanctuary area, demarcation was going on in many villages. Mr.Sehgal shown a letter dated 7.1.2011, written by the Forest Divisional Officer to the District Town Planner, Panchkula, stating that demarcation of the area, declared forest under Sections 4 and 5 is complete. By making reference to that report and also on instruction from Mr.Anil Kumar, Deputy Civil Writ Petition No.18278 of 2008 16 Ranger, Mr.Sehgal states that no part of the area under acquisition, falls in the area declared as protected forest/ sanctuary.
Otherwise also, it appears that the argument regarding the violation of provisions of Forest Act and PLPA 1900 is being raised as an excuse to oppose the acquisition of land. At the time of arguments, it was intimated to us that petitioner No.22 has raised building and a boundary wall, petitioner No.23 is running a steel factory, petitioner No.24 is running a saw-mill, petitioner No.30 had also constructed a room and bath room, petitioner Nos.49, 52 and 56 had constructed residential units in their land without getting any permission from the competent authority. In other cases also, similar information was supplied to the Court. This fact prove that most of the petitioners are the law breakers.
In view of above, contention raised stands rejected. Mr.Jain has further contended that the land owned by the petitioners is a fertile land under cultivation, which is the only source of livelihood for them, as such, it be exempted from acquisition and rather barren land be acquired.
To show that any banjar land is available, which can be used as per development plan, nothing has been brought on record.
Mr.Sehgal has brought to our notice that the land has been acquired to use it for the purpose, shown in the development plan, which was notified and approved much earlier. He has further stated that no other land is available for the purpose for which land has been acquired in this case. We are satisfied with the argument raised by the State counsel.
It is further contention of counsel for the petitioners that proper opportunity of hearing was not granted to them when their objections, filed under Section 5-A of the Act, were disposed of.
Civil Writ Petition No.18278 of 2008 17
By making reference to the documents on record, Mr.Sehgal stated that after receipt of objections, notice was sent to the objectors and objections were heard from 25.4.2007 to 27.4.2007. Presence of objectors was marked, who came present (this fact is also not denied by the petitioners). The Land Acquisition Collector made recommendation for release of those residential buildings, which could have been adjusted in the over-all planning. Thereafter, a Joint Inspection Committee was constituted, consisting of Senior Government officers. The Committee went to the spot and made further recommendations regarding some structures and those were also released from acquisition.
We are satisfied with the reply given by the State Government. Except making a bald statement, there exists nothing on record that effective opportunity of hearing was not granted to the petitioners when objections filed under Section 5-A of the Act were disposed of. The very fact that the Collector has noted existence of construction and made recommendations where-ever it was possible to release it, shows application of mind. On this score also, no relief can be granted to the petitioners.
So far as ground of discrimination raised by the petitioner in CWP No.17720 of 2009 is concerned, the same is also not sustainable. It is an admitted fact that out of total land measuring 23 bighas 13 biswas, owned by the petitioner and her co-sharers, 10 bighas and 2 biswas with construction was released from acquisition, rest of the land, which was lying vacant, was ordered to be acquired. There is nothing on record to show that construction allegedly existing in the land owned by the petitioner was in existence before issuance of notification under Section 4 of the Act. In the report made by the Land Acquisition Collector, it is shown that the land was lying vacant only with a boundary wall. The land falls in the municipal Civil Writ Petition No.18278 of 2008 18 limits. The petitioner has failed to bring on record anything to show that the construction was raised after getting sanction of building plans from the competent authority.
Mr.Jain has further contended with vehemence that as per provisions of Environment (Protection) Act, 1986 and the Rules framed thereunder and also judgment of the Hon'ble Supreme Court in Karnataka Industrial Areas Development Board v. C.Kenchappa and others, (2006) 6 Supreme Court Cases 371, it was mandatory for the authorities to get environment clearance before initiating the process of acquisition of land.
We feel that in view of a Division Bench of this Court in Civil Writ Petition No.4186 of 2009 Diljit Singh and others versus Union of India and others, decided on 22.11.2010, no relief can be granted to the petitioners in terms of objection raised. In the case of Diljit Singh (supra), this Court, after noting the provisions of Environment (Protection) Act, 1986, rules framed thereunder, ratio of the judgment in the case of Karnataka Industrial Areas Development Board (supra), the provisions of notification issued by the Ministry of Environment and Forest on 14.9.2006 and by placing reliance upon latest judgment of the Hon'ble Supreme Court in Villianur Iyarkkai Padukappu Maiyam versus Union of India and others, (2009) 7 Supreme Court Cases 561, came to a conclusion that application, to get environment clearance, has to be made after securing the land for construction activities and it was ordered that immediately on pronouncement of award and after taking possession of the land under acquisition, process to get environment clearance shall be started by the executing agencies and construction activities shall be started only after getting clearance from the State Level Environment Impact Assessment Authority (in short, assessment authority). Objection raised regarding non- Civil Writ Petition No.18278 of 2008 19 getting of environment clearance before issuance of notification under Section 4 of the Act, in view of ratio of judgment in Diljit Singh (supra) cannot be sustained.
In the present case, development is to be undertaken by the Haryana Urban Development Authority (HUDA), which can be done only after passing an award, payment of compensation and getting possession of the land under acquisition. Prior thereto, HUDA is not competent to move any application for getting environmental clearance.
In view of facts, mentioned above, contention raised is liable to be rejected.
However, it is directed that after getting possession of the land under acquisition, before start of any construction activities, it is mandatory for Haryana Urban Development Authority to get permission from the assessment authority as is envisaged under the provisions of notification dated 14.9.2006, issued by the Ministry of Environment and Forest.
Mr.Jain, by making reference to the provisions of Articles 243ZD and 243ZF of the Constitution of India, also argued that as the State of Haryana has not constituted the development committees, as envisaged in the above said provisions, present acquisition cannot be sustained.
To rebut above said contention, Mr.Sehgal stated that in view of ratio of the judgment of a Division Bench of this Court in CWP No.3845 of 2008 titled as Rohtash Chaudhary & another v. State of Haryana and others, decided on 28.5.2010, objection cannot be sustained.
In the case of Rohtash Chaudhary & another (supra), similar objection was raised to the acquisition, by stating that in the absence of constitution of Regional Development Committee within a period of one year, acquisition of land was illegal. By noting the provisions of Chapter Civil Writ Petition No.18278 of 2008 20 IX of the Constitution of India and various judgments of the Hon'ble Supreme Court, this Court observed as under:-
"It must be kept in mind that Article 243ZD of the Constitution deals with a subject which essentially falls within the State list at entry No.6 and that is why it stipulates a discretion in the State to legislate for the purposes mentioned therein. In Shanti G. Patel and others vs State of Maharashtra and others, (2006) 2 SCC 505, the Hon'ble Supreme Court held as follows :-
" 9. Article 243-W whereupon great emphasis has been laid by the petitioners herein provides for an enabling clause so as to enable the State to endow by law the municipality with such powers and authority, as may be necessary, to enable the State to make, by law, by endowing the municipalities to function as institutions of self-government which may contain provisions for the devolution of powers and responsibilities subject to the conditions which may be specified in the Twelfth Schedule. The Twelfth Schedule of the Constitution referable to Article 243-W, inter alia, provides for urban planning including town planning, regulation of land- use and construction of buildings. Thus, Article 243-W contains merely an enabling provision, and it does not mean that the State is obligated to provide for such a statute. The Constitution (Seventy-fourth Amendment) Act, in any event, does not envisage that the existing laws would become non-operative or a vacuum would be created in the matter of enforcement of existing laws relating to urban planning and/or regulation of land-use and construction of buildings, etc."
In yet another later decision in Bondu Ramaswamy v. Bangalore Development Authority and others, Civil Appeal No.4097 of 2010 decided on 5.5.2010, the Hon'ble Supreme Civil Writ Petition No.18278 of 2008 21 Court was considering the question of acquisition of certain land on the ground that it was invalid with reference to Parts IX and IXA of the Constitution. The Hon'ble Supreme Court held as follows :-
" 12. Part IX and IX-A of the Constitution, relating to Panchayats and Municipalities were inserted by the Constitution (Seventy-third Amendment) Act, 1992 and Constitution (Seventy-fourth Amendment) Act, 1992. Part IX and IX-A came into force on 24.4.1993 and 1.6.1993 respectively. The object of Part-IX was to introduce the Panchayat system at grass root revel. As Panchayat systems were based on state legislations and their functioning was unsatisfactory, the amendment to the Constitution sought to strengthen the Panchayat system by giving a uniform constitutional base so that the Panchayats become vibrant units of administration in the rural area by establishing strong, effective and democractic local administration so that there can be rapid implementation of rural development programmes. The object of Part-IX as stated in the Statement of Objects and Reasons is extracted below :-
` In many States, local bodies have become weak and ineffective on account of variety of reasons, including the failure to hold regular elections, prolonged supersessions and inadequate devolution of powers and functions. As a result, urban local bodies are not able to perform effectively as vibrant democratic units of self- Government.
Having regard to these inadequacies, it is considered necessary that provisions relating to urban local bodies are incorporated in the Constitution, particularly for-
(i) putting on a firmer footing the relationship between the State Government and the Urban Local Bodies with respect to :-Civil Writ Petition No.18278 of 2008 22
(a) the functions and taxation powers, and
(b) arrangements for revenue sharing.
(ii) ensuring regular conduct of elections.
(iii) ensuring timely elections in the case of supersession; and
(iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women.' xx xx xx xx
22. To enable the municipalities (that is municipal corporations, municipal councils and Nagar Panchayats) to function as institutions of self-
government, Article 243W authorizes the legislature of a state to endow to the municipalities, such powers and authority as may be necessary, by law. Such law made by the state legislature may contain provision for the devolution of powers and responsibilities upon municipalities, with respect to the following :
(i) The preparation of plans for economic development and social justice; and
(ii) The performance of functions and implementation of schemes as may be entrusted to them including those in relation to the following matters (earmarked in the twelfth schedule):
1. Urban planning including town planning.
2. Regulation of land-use and construction of buildings.
3. Planning for economic and social development.
4. Roads and bridges.
5. Water supply for domestic, industrial and commercial purposes.
6. Public health, sanitation conservancy and solid waste management.
7. Fire services.
8. Urban forestry, protection of the environment and promotion of ecological aspects.Civil Writ Petition No.18278 of 2008 23
9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded.
10. Slum improvement and upgradation.
11. Urban poverty alleviation.
12. Provision of urban amenities and facilities such as parks, gardens, playgrounds.
13. Promotion of cultural, educational and aesthetic aspects.
14. Burials and burial grounds; cremations, cremation grounds; and electric crematoriums.
15. Cattle pounds; prevention of cruelty to animals.
16. Vital statistics including registration of births and deaths.
17. Public amenities including street lighting, parking lots, bus stops and public conveniences.
18. Regulation of slaughter houses and tanneries.
The aforesaid powers and authority (enumerated in the twelfth Schedule) may also be endowed to the Ward Committees which are required to be constituted, by Article 243S xx xx xx xx xx.
23. On the other hand, the purpose and object of the BDA is to act as a development authority for the development of the city of Bangalore and areas adjacent thereto. The Preamble of BDA Act describes it as `an Act to provide for the establishment of a Development Authority for the development of the city of Bangalore and areas adjacent thereto and for matters connected therewith. The development contemplated by the BDA Act is "carrying out of building, engineering or other operations in or over or under land or the making of any material change in any building or land and includes redevelopment" (vide Section 2(j) of BDA Act.
Therefore, the purpose is to make lay outs, construct buildings or carry out other operations in regard to Civil Writ Petition No.18278 of 2008 24 land. Municipalities are not concerned with nor entrusted with functions similar to those entrusted to BDA under the BDA Act, that is building, engineering or other operations by forming layout of plots with all amenities, construction of houses and apartments, as a part of any scheme to develop a city. Municipalities are concerned with the overall economic development providing social justice (urban poverty alleviation and slum improvement) regulating land use and constructions, providing amenities (roads, bridges, water supply, fire services, street lighting, parking, bus stops, public conveniences), promoting education and culture etc. Neither urban town planning nor regulation of land use and construction, is similar to the `development' as contemplated in BDA Act, that is carrying out building, engineering operations in or over or under land. It would thus be seen that the object and functions of a Municipal Corporation are completely different from the object and purpose of a development authority like BDA, BDA is not a municipality.
Therefore, it cannot be said that mere existence of Municipal Corporations Act, duly amended to bring it in conformity with Part IX-A of the Constitution, will nullify or render redundant, the BDA Act.
Xx xx xx xx
26. The appellants submitted that the powers, authority and responsibilities to be endowed by the State Legislature upon the Municipalities are enumerated in Article 243W read with Twelfth Schedule; that Articles 243ZD and 243ZE require the state government to constitute a District Planning Committee at District Level and a Metropolitan Planning Committee for every Metropolitan Area; that such Metropolitan Planning Committee is required to prepare a draft development plan for the Metropolitan Area as a whole. It was contended that the BDA Act was a Legislation which Civil Writ Petition No.18278 of 2008 25 related to some of the responsibilities and functions of Municipalities, enumerated in the Twelfth Schedule to the Constitution read with Article 243W and that its provisions, in particular, sections 15 to 19 were inconsistent with the provisions of Part IXA of the Constitution; that no law can entrust powers and responsibilities referred to in Article 243W including those relating to matters listed in Twelfth Schedule to an authority other than an authority having popular mandate; and that therefore the BDA Act entrusting such powers and responsibilities to a non-elected authority ceases to be in force.
27. While it is true that BDA is not an elected body like the municipality, it has several elected representatives as members. Section 3 relates to the Constitution of the Authority and provides that the Authority shall consist of 22 members and made up as follows :-
` Six officers of the BDA viz, The Chairman, The Finance Member, The Engineering Member, The Town Planning Member, The Commissioner and Secretary of the Authority. (All of them are full- time employees, three of them are specialists in finance, engineering and town planning.
- Four elected representatives, that is, two members of state legislature assembly and two counsellors of Bangalore Municipal Corporation.
- One representative of the state government and four representatives of statutory corporations, that is, the Commissioner of Bangalore Municipal Corporation and representatives of Bangaore Water Supply Sewerage Board, Karnataka Electricity Board, and Karnataka State Road Transport Corporation.
- Six members of the public (with minimum of one woman, one person belonging to SC/ST, and one representing labour).Civil Writ Petition No.18278 of 2008 26
- One Architect.' It would thus be seen that members of the BDA represent different interests and groups, technical persons and elected representatives. Further, no development scheme can be finalised or put into effect without the sanction of the State Government which in turn has to take note of any representation by the Bangalore Municipal Corporation in regard to the development scheme. Therefore, the mere fact that BDA is not wholly elected body as in the case of a municipal corporation will make no difference. The membership pattern is more suited to fulfil the requirements of a specialist agency executing development schemes. We therefore find no merit in the contention that provisions of BDA Act become inoperative, on Parts IX and IX-A of the Constitution coming into force."
In the present case also, it must be held that the existing laws would not become non-operative or vacuum would be created in the matter regarding acquisition of land for a public purpose. Similarly, it is also held that the functions of the Agricultural Marketing Board as well as of the Haryana Urban Development Authority would not fall within the strict purview of the District Level Planning Committee. It cannot be gainsaid that the purposes for which the present acquisition has been initiated viz. to develop Sabji Mandi/Anaj Mandi/to develop Sector 22 of Ambala City are essential matters of public interest. In the circumstances, relying upon the two judgments of the Hon'ble Supreme Court, it has to be held that the acquisition in question is not bad for any alleged inconsistency with Part-IX of the Constitution." Same is the situation in the present case and as per stand taken by the respondents, land is acquired to use it for the purpose depicted and shown in the development plan, which has become final. Merely because, the Planning Committee has not been constituted, in terms of the provisions of Chapter IX of the Constitution, entire development work cannot be Civil Writ Petition No.18278 of 2008 27 stopped. However, as has been mandated by a Division Bench of this Court in the case of Rohtash Chaudhary & another (supra), the State is required to bring a suitable legislation in terms of provisions of Article 243ZD of the Constitution.
At the time of arguments, it was undertaken by the State counsel that construction will be started only after getting clearance from the competent Assessment Authroity.
It is not possible for us to give any relief to the petitioners on the basis of arguments raised by them, however, at the same time, we cannot ignore that the State authorities are duty bound to protect environment in terms of the Environment (Protection) Act, 1986 and the notifications issued on 29.1.1993, 27.11.1997 and 28.11.1997.
At the time of arguments, Mr.Sehgal, by making reference to the written statement filed and on getting instructions from Mr.Anil Kumar, Deputy Ranger stated that the trees will be cut only if it is most needed and not otherwise and that too after getting permission from the competent officer/authority. He further submitted that construction activities shall be started only after getting environment assessment report from the competent authority.
No other argument was raised.
In view of above, these writ petitions fail and are dismissed. However, the State is directed to get environment clearance before start of any development activity and further that no tree shall be cut until and unless it is most urgently needed that too, after getting permission from the competent officer/ authority under the provisions of PLPA 1900. It is further directed that for cutting a one tree, the State shall plan three trees and maintain and preserve the newly planted trees for a period of five years.
Civil Writ Petition No.18278 of 2008 28
(Jasbir Singh)
Judge
25.01.2011 (Rakesh Kumar Garg)
gk Judge