Punjab-Haryana High Court
Capt. Gurdial Singh And Others vs State Of Punjab on 3 May, 2011
Author: Rakesh Kumar Garg
Bench: Jasbir Singh, Rakesh Kumar Garg
CWP No.4034 of 2005 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.4034 of 2005 (O&M)
Date of decision: 3.5.2011
Capt. Gurdial Singh and others ......Petitioner(s)
Versus
State of Punjab ......Respondent(s)
CWP No.942 of 2005 (O&M)
Jaswant Singh and others ......Petitioner(s)
Versus
State of Punjab ......Respondent(s)
CWP No.3820 of 2005 (O&M)
Gian Kaur and others ......Petitioner(s)
Versus
State of Punjab etc. ......Respondent(s)
CWP No.4915 of 2005 (O&M)
Gulzar Singh and others ......Petitioner(s)
Versus
State of Punjab ......Respondent(s)
CWP No.6224 of 2005 (O&M)
Labh Singh and others ......Petitioner(s)
Versus
State of Punjab etc. ......Respondent(s)
CWP No.8653 of 2005 (O&M)
Devinder Pal Singh and others ......Petitioner(s)
Versus
State of Punjab ......Respondent(s)
CWP No.4034 of 2005 (O&M) 2
CWP No.16495 of 2005 (O&M)
The Singhpora Co-operative House
Building Society Ltd. ......Petitioner(s)
Versus
State of Punjab and others ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE RAKESH KUMAR GARG
* * *
Present: Ms. Tanisha Peshawaria, Advocate,
Mr. B.S. Guliani, Advocate
for the petitioner(s).
Mr. K.D.S. Sidhu, Deputy Advocate General, Punjab.
Mr. Sanjeev Sharma, Sr. advocate with Mr. Shekhar Verma,
Advocate and Mr. Vikram Sharda, Advocate for GMADA.
Mr. Kamaljeet Singh, Advocate for Mr.R.S. Khosla, Advocate
for BDA (Bathinda).
Rakesh Kumar Garg, J.
In CWP Nos.942, 8653, 6224, 4915 of 2005, notifications dated 19.1.2004 and 11.11.2004 issued under Section 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') whereby land measuring 162 acres 3 marlas was acquired for a public purpose, namely, for establishment of Residential Urban Estate Planned Development in general public interest in the area of Mohali are under challenge on various grounds. Similarly, in CWPs No.4034, 3820 and 16495 of 2005, notifications dated 9.8.2004 and 10.2.2005 issued under Sections 4 and 6 of the Land Acquisition Act whereby land measuring 1041 bighas 3 biswas was acquired for setting up a Residential Urban Estate, Zirakpur in the area revenue estate of Tehsil Dera Bassi, District Patiala are under challenge.
The petitioners are claiming that they are the land owners and their lands have also been included in the acquired land. Further challenge CWP No.4034 of 2005 (O&M) 3 has been also laid in some of these writ petitions to an order dated 19.8.2004 issued under Section 178 of the Punjab Regional Town Planning and Development Act, 1995 (for short the 'Punjab Act') granting exemption from the proceedings of the said Act.
The grounds of challenge are as under:
That Clause First of Section 23(1) of the Land Acquisition Act, 1894 directs that compensation shall be paid on the market price when the notification under Section 4 of the Act was issued and not at the time of acquisition. Hence, the provisions of Section 23(1) clause First are ultravires of second proviso to Article 31-A of the Constitution of India and are liable to be declared unconstitutional and void as there is no provision in the Act to provide compensation at not less than the market price on the date of acquisition.
That the area covered by the impugned notifications falls within the Periphery of Chandigarh under the Punjab New Capital (Periphery) Control Act, 1952 (hereinafter called the '1952 Act'), and has been declared as "Controlled Area". Under the said Act, restrictions have been imposed on the use of land which falls in the periphery of Chandigarh and the provisions do not permit the change of use of land from agriculture to any other purpose and therefore, these restrictions imposed by the 1952 Act and the rules made thereunder are ultravires of the Constitution in view of second proviso of Article 31-A of the Constitution.
Second proviso of Article 31-A has been held to be a fundamental right of small land holders. In this view of the matter, no restriction can be imposed upon the right holders of permissible area for the use of their land who personally cultivates it. Moreover, by imposing restriction on the use of the land under 1952 Act, it is not possible to determine a fair market price of land in question as there are very few buyers. It was further submitted that CWP No.4034 of 2005 (O&M) 4 permission to change use of land cannot be granted for any purpose which is not subservient to the agriculture. Since it is impossible to assess the fair market price of the land in question due to the existence of restrictions under 1952 Act, to calculate market price is futile.
Challenge has also been laid in the writ petitions to the acquisition on the ground that the notifications have been issued in violation of mandatory provisions of 1995 Act as no notification was issued by the Board under Section 56 of 1995 Act and in any case exemption granted under Section 178 of the Punjab Act from provisions of the Act is bad and cannot be made applicable retrospectively.
It has been further averred in the writ petition that the whole procedure adopted for the implementation of the notifications is in favour of the respondents, the employees of the PUDA who are interested in the project and wants PUDA to make profit out of it, are performing administrative as well as statutory duties and thus, in the absence of any impartial tribunal, decision of such persons is hit by the rule of natural justice and no fair acquisition can be justified in such a procedure therefore, impugned notifications are liable to be quashed.
On the basis of the aforesaid submissions, the following law points involving in the present writ petitions have been culled out:
"(i) That the impugned notifications are unconstitutional and void, being in violation of 2nd proviso of Article 31-A.
(ii) That the whole proceedings have been started in violation of 1995 Act and are liable to be set aside.
(iii) That the procedure adopted for acquisition is arbitrary, unfair, contrary to principle of natural justice and liable to be quashed as held in R.C. Cooper case AIR 1970 S.C. 564.CWP No.4034 of 2005 (O&M) 5
(iv) The procedure adopted is ab initio void, because, acquisition is not being done by the government for a non-governmental body. In fact, it is done by a statutory corporation by iteself and for itself which is unknown to law.
That PUDA, at the most, is a local authority and has a right to appear before the Collector at the time of fixing the price and at the time of deciding objections under Section 5-A, etc. But, PUDA, itself, is doing acquisition, nobody appeared for PUDA before the Collector, for deciding objections under section 5-A, or at any other stage, because, the Collector himself represented PUDA. Therefore, this procedure is vitiated.
(v) Acquisition is also hit by the provisions of 1952 Act.
(vi) Before acquisition the Standing Orders for land acquisition of Financial Commissioner has not been complied with."
It is also relevant to point out that on the index of all these writ petitions, the following similar notes have been given by the petitioners:
"3. Any other case:
a) In CWP No.8246 of 2004, involving the question of vires of section 23(1) First of Land Acquisition Act, 1894, notice of motion has been issued and dispossession has been stayed. Said writ is fixed for arguments for 7.1.2005.
b) Regarding questions of violation of the Punjab Regional and Town Planning and Development Act, 1995, many writs have already been admitted in this CWP No.4034 of 2005 (O&M) 6 Hon'ble Court, including CWP No.5512 of 2001 and CWP No.7050 of 2001.
c) SLP 7946 of 2002 filed by PUDA against the judgment of division bench of this Hon'ble Court in Sanjeet Singh Grewal and others reported in 2001 (1) PLR 804, is pending in Hon'ble Supreme Court of India for final arguments.
The following orders were passed in these writ petitions by this Court on various dates:
Present: Mr.G.S.Grewal, Senior Advocate with Ms.Tanisha Peshawaria, Advocate, for the petitioners.
Notice of motion for 15.2.2005.
To be heard with CWP No.8246 of 2004.
(N.K. SUD) JUDGE (SATISH KUMAR MITTAL) 17.1.2005 JUDGE Present: Ms.Tanisha Peshawaria, Advocate.
Mr. P.S. Chinna, Addl.A.G. Punjab.
Mr. Akshay Bhan, Advocate Mr. Puneet Jindal, Advocate Mr. Shekhar Verma, Advocate Adjourned to 7.5.2005.
To be heard with CWP No.5648 of 2004.
(J.S. NARANG)
JUDGE
(RAJIVE BHALLA)
March 22, 2005 JUDGE
Present: Mr.G.S.Grewal, Senior Advocate with
Ms.Tanisha Peshawaria, Advocate
Mr. B.P. Singla, Addl. A.G. Punjab
Mr. Ashu Kumar Jain, Advocate force Mr. Puneet Jindal, Advocate CM No.8022 of 2005 CWP No.4034 of 2005 (O&M) 7 Interim orders in terms of C.W.P No.8246 of 2004.
CWP No.942 of 2005
On the request of learned counsel for the parties, adjourned to 25.8.2005.
To be heard with C.W.P. No.5648 of 2004.
(J.S. NARANG)
JUDGE
(RAJIVE BHALLA)
May 7, 2005 JUDGE
Present: Mr.H.S.Grewal, Senior Advocate with
Mrs.Tanisha Peshawaria, Advocate, for the petitioners.
Mr.B.S. Sewak, DAG, Punjab.
Mr. Aman Arora, Advocate for UOI.
Mr. R.K. Khosla, Advocate for PUDA.
Mr.Sanjiv Sharma and Mr. Rajesh Bhatia, Advocate, for respondent.
CM No.16942 of 2006Replication filed on behalf of the petitioners is taken on record.
C.M stands disposed of.
Main case Learned counsel for the petitioners prays for time to go through the judgment in a similar matter.
Adjourned to 6.11.2006.
(ASHUTOSH MOHUNTA)
JUDGE
(NIRMAL YADAV)
October 13, 2006 JUDGE
Present: Mr.G.S.Grewal, Senior Advocate
with Ms.Tanisha Peshawaria,
CWP No.4034 of 2005 (O&M) 8
Advocate.
Mr. CM Munjal, Senior Addl.A.G.
Punjab.
Mr. RS Khosla, Advocate.
Adjourned sine-die to await the
decision of the Supreme Court.
(K.S. GAREWAL)
JUDGE
(AJAI LAMBA)
18.1.2007 JUDGE
Present: Mr.G.S.Grewal, Senior Advocate
with Ms.Tanisha Peshawaria,
Advocate, for the petitioners.
Mr.Manoj Bajaj, Senior Deputy
Advocate General, Punjab.
Mr.Sanjiv Sharma, Advocate, for
PUDA.
-.-
Learned counsel for PUDA prays for
and is granted a week's time to place on record copies of relevant judgments on the point in question.
Adjourned to 18.8.2008.
Other connected cases being CWP Nos.3820 of 2005; 4034 of 2005; 4915 of 2005; 6214 of 2005; 6224 of 2005; 8615 of 2005; 8653 of 2005, and 942 of 2005 to be taken up with this case.
Concerned Assistant Registrar to place photocopies of this order in the files of connected cases.
(UMA NATH SINGH)
JUDGE
(L.N.MITTAL)
06-08-2008 JUDGE
CWP No.4034 of 2005 (O&M) 9
Present: Mr.H.S.Grewal, Senior Advocate with
Ms.Tanisha Peshawaria, Advocate, for the petitioners.
Mr.Palwinder Singh, Deputy Advocate General, Punjab.
Mr.Rupinder Khosla, Advocate, for respondent Nos.2 & 3.
-.-
Learned counsel for parties submitted that a Special Leave Petition, involving same issues, is pending before Hon'ble the Apex Court, although notice therein is only confined to prayer for setting aside the order of the High Court and remanding the matter back for consideration afresh.
On joint request of learned counsel for parties, this matter is adjourned till the said S.L.P. is disposed of.
Parties to complete pleadings in the meantime.
Other connected cases being CWP Nos.942, 3820, 4034, 4915, 6214, 6224, 8615, 8653 and 16495 of 2005, and 4956 of 2008, to be taken up with this case.
Concerned Assistant Registrar to place photocopies of this order in files of connected cases.
(UMA NATH SINGH)
JUDGE
(L.N.MITTAL)
18-08-2008 JUDGE
Present: Ms.Tanisha Peshawaria, Advocate,
for the petitioners.
Ms.Ambika Luthra, AAG, Punjab for
respondent No.1.
Mr. Rupinder Khosla, Advocate for
respondents No.2 & 3.
CWP No.4034 of 2005 (O&M) 10
Case is complete for arguments.
Adjourned to 20.1.2010 for
arguments.
It is made clear that no further
adjournment will be granted.
(SATISH KUMAR MITTA)
JUDGE
(MEHINDER SINGH SULLAR)
16.12.2009 JUDGE
Present: Mr.G.S.Grewal, Senior Advocate
with Ms.Tanisha Peshawaria,
Advocate for the petitioner.
Mr. Suvir Sehgal, Addl.A.G.Punjab for respondent No.1.
Mr. Pardeep Bajaj, Advocate for Mr. Rupinder S.Khosla, Advocate for respondents No.2 and 3.
Heard.
Admitted to D.B.
Stay in the same terms as granted in
CWP No.8155 of 2006, CWP
No.7160 of 2006 and CWP No.17879
of 2006.
To be heard along with
CWP Nos.16104, 16110, and 16111
of 2008, on 15.3.2010.
(M.M. KUMAR)
JUDGE
(JITENDRA CHAUHAN)
20.01.2010 JUDGE
Present: Mr.G.S.Grewal, Senior Advocate
with Ms.Tanisha Peshawaria,
Advocate for the petitioner(s).
CWP No.4034 of 2005 (O&M) 11
Mr. Sudeepti Sharma, Sr .DAG,
Punjab, for respondent No.1.
Mr. Rupinder Khosla, Advocate with Mr. Pardeep Bajaj, Advocate for PUDA, Bathinda.
(in CWP Nos.4915, 6224, 8653 of 2005) Counsel for the petitioners states that period of limitation has expired and no Award has been passed qua the acquired land.
State counsel seeks time to get instructions.
Adjourned to 21.09.2010.
(JASBIR SINGH)
JUDGE
(AUGUSTINE GEORGE MASIH)
September 08, 2010 JUDGE
Present: Mr. G.S. Grewal, Sr. Advocate with
Mr. H.S. Grewal Advocate
for the petitioner.
Mr. Manohar Lall, Additional Advocate General, Punjab.
Mr. Sanjeev Sharma, Sr. Advocate with Mr. Shekhar Verma, Advocate for respondent No.3.
* * *
Counsel for the parties are in
agreement that in the matters involving similar controversy, arguments have been heard and judgment has been reserved by a Special Division Bench of this Court.
On request, adjourned to 5.4.2011.
A photocopy of this order be placed on the files of other connected cases.
CWP No.4034 of 2005 (O&M) 12
(JASBIR SINGH)
JUDGE
March 7, 2011 (RAKESH KUMAR GARG)
JUDGE
Present: Mr. H.S. Grewal Advocate
for the petitioner.
Mr.K.D.S Sidhu, DAG Punjab.
****
On request made by counsel for the
petitioner, adjourned to 28.04.2011.
(JASBIR SINGH) JUDGE 05.04.2011 (RAKESH KUMAR GARG) JUDGE From the various orders as reproduced above, it is amply clear that during the course of motion hearing, learned counsel appearing on behalf of the petitioners has placed reliance upon CWP Nos.8246 of 2004, 5512 of 2001 and 7050 of 2001 and SLP No.7946 of 2002 against the judgment of this Court in Sanjeet Singh Grewal v. State of Punjab 2001 (3) RCR (Civil) 398=2001(1) PLR 804.
It has been brought to the notice of this Court that the questions raised in the aforesaid writ petitions are not res integra and have been squarely answered against the petitioners in various judgments of this Court and the Hon'ble Supreme Court of India .
The argument raised on behalf of the learned counsel for the petitioners to the effect that exemption granted under Section 178 (2) from the operation of the Punjab Act and its retrospective applicability has CWP No.4034 of 2005 (O&M) 13 already been decided against the petitioners in CWP No.29 of 2004 by a Division Bench of this Court on 26.9.2007. The relevant para reads as follows:
"Adverting to the impugned order, we notice that it makes into consideration various difficulties being faced by the respondents which propelled them to resort to the exercise of power under Section 178(2) of the 1995 Act. Amongst the reasons, the few major considerations were the challenge to the acquisition qua 10% of the said land as against 90% which was already available and for which the acquisition was complete; approximately a sum of Rs. 100 Crores having been disbursed to the land-owners,whereas the writ petitions who had challenged the acquisition were entitled to only Rs. 14 Crores approximately as compensation which would have paid to them, had they accepted the acquisition.
One important aspect,which has to be borne in mind was the fact that out of a total about 1264 acres, which was proposed to be acquired, about 1162 acres already stood acquired and only 102 acres was under litigation. As 90% of the land being available for development and 10% left over land was under litigation. As 90% of the land being available for development and 10% left over land was under litigation made it impossible to develop 90% of the land as developed and approximately utilized as 10% of the land under litigation was scattered all over Sectors 76 to 80 in small, different pockets which was proving to be a major obstacle for development of the land including laying of road network and sewage.CWP No.4034 of 2005 (O&M) 14
The township of SAS Nagar (Mohali) recorded the highest rate of growth of population necessitating to urgency to take up a planned development and to prevent haphazard growth and the city of SAS Nagar (Mohali) is a satellite town of Chandigarh which had already achieved saturation of sorts with no room to take in anything more even after it had extended its wings to the limits.
In our opinion, the reasons which has gone into the exercise of the power under Section 178 (2) of the 1995 Act is sufficiently plausible which reflects the adequate concern and the on-going process of achieving the object of development o the extension of the existing township of SAS Nagar (Mohali)and does not seem to be, in any manner, a decision which is seeped in irrationality and arbitrations or being a deliverance of a malicious and colourable exercise of power.
The second limb of the argument of the learned counsel for the petitioner that exemption having been given subsequent to the acquisition notifications under Sections 4 and 6 of the 1894 Act imply a retrospective operation does no stand the scrutiny of law.
Section 178(2) of the 1995 Act contemplates that "'if the State Government is of the opinion that the operation of any provision of this Act causes any undue hardship or circumstances exist which render it expedient so to do, it may,subject to such terms and conditions as it may impose, by general or special order, exempt class of persons or areas, from all or any of the provisions of this Act."
CWP No.4034 of 2005 (O&M) 15
In view of this, the power of the State Government to grant exemption under Section 178 (2) cannot be doubted and the said power can be exercised at any stage even if an action has been taken strictly following the provisions of the 1995 Act, provided it forms a valid opinion by giving cogent reasons to resort to the said Section. This would not render the grant of exemption from a retrospective effect as it is only after traversing on the path of decision making on route to the achieving of the object sought to be met under the 1995 Act that the State can become aware of the existence of the circumstances causing hardship for which it will form an opinion regarding the expediency to resort to the powers under Section 178(2) of the said Act. To our minds, that has been done substantially.
We are also mindful of the fact which has been brought to our notice that the entire challenge to the acquisition pertains to only 102 acres of land out of total acquisition of 1264 acres and this fact has also been noticed in the impugned order. The land under litigation is also scattered in small pockets from all over the remaining land i.e. 1162 acres for which the acquisition is complete and compensation has been paid.
One such substantial acquisition has been completed, the same cannot be held to be mala fide merely because a small percentage of land- owners felt otherwise, unless it is shown that the rights of the individual land-owners have been violated or there has been discrimination qua them. Besides, this small percentage of land is CWP No.4034 of 2005 (O&M) 16 likely to impede and hamper the entire project and derail the development. These small pockets of lands will not only from islands of unplanned areas in a sea of planned area, but will also stand out a sore thumb, in a developed area.
We, however, leave this question open as the challenge to the acquisition has been made in other writ petitions which we are not dealing presently. But, we certainly wish to observe to defeat the entire acquisition is a valid consideration for exercise of power under Section 178(2) of the 1995 Act.
As a sequel to our discussion above, we hold that the exemption granted by the State Government under Section 178(2) of the 1995 Act, vide order Annexure P-2, was justified in law and in the circumstances of the case.
Hence, this writ petition, being devoid of any merit, is dismissed."
A special leave petition against that judgment was dismissed by the Hon'ble Supreme Court vide order dated 26.10.2007 in SLP(C) No. 19139 of 2007. Not only this, the aforesaid judgment dated 26.9.2007 passed in CWP No.29 of 2004 (Jasmer Singh v. State of Punjab) has been affirmed by the Hon'ble Supreme Court in Civil Appeal No.834 of 2010 Amarjit Singh and others vs. State of Punjab decided on 29.9.2010 cited as 2010 (10) SCC 43 and has observed as under:
"Once the existence of circumstances that are relevant to the exercise of the power of exemption under Section 178(2) are found to exist the formation of the opinion by the Government about the expediency of granting an exemption is a matter on which the court would be slow to interfere unless the CWP No.4034 of 2005 (O&M) 17 decision is shown to be a colourable exercise or vitiated by any extraneous motive or consideration. For the Government to exercise its power of exemption on the ground of expediency two requirements must be satisfied viz. (i) that circumstances exist which render it expedient to grant the exemption and (ii) the Government upon a consideration of those circumstances forms an opinion that it is expedient to do so. The latter requirement is more in the nature of a subjective satisfaction of the Government while the former is dependent on objective consideration of the circumstances that are germane.
xxxx xxxx xxxx xxxx Power of exemption reserved in favour of Government under Section 178 of the Punjab Regional and Town Planning and Development Act, 1995 is also intended to relieve hardship arising from the operation of the Act. It is intended to enable the Government to deal with situations in which circumstances independent of the question of hardship render it expedient to do so by granting exemption.
xxxx xxxx xxxx xxxx A liberal construction has to be placed upon the provisions of Section 178(2) so that exercise of power for good and bona fide reasons is not defeated. The term "expedient" appearing in Section 178 though not defined in the Act, has to be interpreted keeping in view the context and the object of the provisions in widest amplitude. The term has been designed to enable the Government to get over a difficult situation surcharged with dangerous potentialities."
It may also be pointed out that CWP Nos.5648 of 2004 and 8246 of 2004, on which reliance has been placed by the petitioners, have CWP No.4034 of 2005 (O&M) 18 also been dismissed by this Court vide judgment dated 8.5.2006.
In the aforesaid writ petitions, challenge to the land acquisition was made primarily on the ground that the State had resorted to the acquisition under the provisions of Part VII of the Act and this was not an acquisition which was covered by Part II of the Act. Since the acquisition was being made for a Company which was interested in profiteering and there was no public purpose involved in acquisition, the procedure as envisaged therein ought to have been followed and any violation of the provisions contained in Part VII would result in the entire acquisition proceedings being vitiated. The Division Bench vide its judgment dated 8.5.2006 held as under:-
"We now proceed to assess as to whether the present acquisition is for a public purpose and that whether this acquisition would be under the provisions of Part II of the Act or it would be covered under the provisions of Part VII.
We have already held that the acquisition was for a public purpose and now the next question to be determined would be as to who is going to bear the cost of acquisition of the land. The Act nowhere provides as to in what ratio is the State to contribute towards the cost of acquisition when it resorts to acquisition proceedings under the provisions of Part II of the Act. Part VII is a completely different matter in which the acquisition cost is met by the company. An agreement has already been executed between the company and the Government by which the company has agreed to bear the cost of acquisition. Our attention was drawn to the decision of the Government where the respondent - State has contributed Rs.100/- towards the cost of acquisition. This according to the respondents was sufficient compliance of the Act. According to the petitioners, this was merely lip service and could not be termed as sufficient compliance of the provisions of the CWP No.4034 of 2005 (O&M) 19 Act. As stated above the Act does not provide for any percentage of the total cost to be borne by the State to make it an acquisition under the provisions of Part II of the Act.
The matter was settled way back in 1971 when the Supreme Court observed in Jage Ram and others v. The State of Haryana and others AIR 1971 SC 1033 that even if a government contributed Rs.100/- towards the cost of the land then it was not necessary for the Government to proceed with the acquisition under Part VII of the Act.
The settled proposition of law is that the provisions of Section 6 are subject to Part VII of the Act. There is an apparent distinction between the acquisition for a public purpose and acquisition for a company. If the compensation is to flow from the public revenue or some fund controlled or managed by the local authority then the declaration of the purpose is essential a public purpose. But in so far as Part VII is concerned, even if there is a public purpose behind the acquisition the same cannot be deemed to be an acquisition for public purpose unless at least part of the compensation is payable out to the public revenue. But the ratio in which the public revenue is to be contributed has not been specified.
We are inclined to follow the ratio of the judgments in Jage Ram's case (supra) and Pratibha Nema's case (supra). A perusal of the record shows that the State has paid Rs.100/- and the rest of the cost is to be borne by the company. An agreement has been chalked out between the Government and the company. We have no hesitation to accept that the State's contribution makes the present acquisition and "acquisition for a public purpose". This acquisition has been done in furtherance of provisions of Part II of the Act and, therefore, the provisions of Part VII would not be attracted."CWP No.4034 of 2005 (O&M) 20
It may also be noticed that in CWP No.8246 of 200, an additional submission was made to the effect that before resorting to the acquisition, Rule 4 of the Land Acquisition (Companies) Rules, 1963, which contemplates an enquiry where the landowner is entitled to be given an opportunity of hearing had not been complied with and non- compliance of these Rules vitiates the acquisition. The Division Bench answered the aforesaid submission which reads as follows:
"This matter has recently been concluded by the Apex Court in M/s Fomento Resorts and Hotels Ltd. v. Gustavo Ranato Da Cruz Pinto and others (1985)2 SCC 152 and it has been held that Rule 4(1) is not mandatory. It is desirable that in appropriate case an enquiry under Rule 4(1) may be held for the issuance of notification under Section 4 but it is not a mandatory requirement which must proceed before the issuance of notification under Section 4. These steps may be necessary for the issuance of notification under Section 4 but for all practical purposes the acquisition proceedings actually began after notification under Section 6. The satisfaction of the government is, therefore, necessary at the time of issuance of notification under Section 6.
Once this rule is held to be directory then what is to be seen is that there should be a fair enquiry before the issuance of notification under Section 6. In the instant case the objections filed by the petitioners were detailed objections which were duly considered and, therefore, it cannot be said that any right of the petitioners has been infringed or they have been prejudiced in any manner.
We, therefore, conclude by saying that the action of the respondents does not smack of colourable exercise of power. The petitioners have not been prejudiced in any manner and there has been substantial compliance of the provisions of the Act. The CWP No.4034 of 2005 (O&M) 21 acquisition is not for a company simpliciter and the provisions of Part VII of the Act are not attracted while Part II stands substantially complied with.
In the result the petitions do not deserve to succeed and the same are accordingly dismissed with no order as to costs."
However, the said question is not involved in the present writ petitions.
The argument of the petitioners as raised in these writ petitions that the provisions of Section 23(1) Clause First are ultra vires of second proviso to Article 31-A of the Constitution of India as there is no provision in the Act to provide compensation at not less than the market price on the date of acquisition, is also liable to be rejected in view of the law laid down by a Division Bench of this Court in CWP No.9060 of 2005 decided on 26.9.2006 titled as Amarjit Singh and others v. State of Punjab and others. The relevant observations of this Court read as follows:-
"The contention of the counsel for the petitioners that after the 44th amendment to the Constitution, especially after the second proviso to Article 31-A stood inserted, it was not permissible to acquire land under personal cultivation of the owner so long as, his total holding was within the ceiling limit does not appear to be well founded. The alternate plea that the market value that is assessed under the Land Acquisition Act, 1894 is based on the value determined on the date of notification issued under section 4 whereas, according to the provisions contained in Article 31-A it would have to be on the day on which possession was taken away and thus, the acquisition is unlawful also seems difficult to agree to."
The aforesaid judgment in Amarjit Singh's case (supra) has CWP No.4034 of 2005 (O&M) 22 been further followed by a Division Bench of this Court in CWP No.5065 of 2007 decided on 18.3.2011 (Surinder Singh Brar etc . v. Union of India and others).
Insofar as the contention that provisions of the Punjab New Capital (Territory) Control, Act, 1962 are ultra vires, the same is without any force. The said question has been negatived by a Division Bench of this Court in a judgment reported as AIR 1999 Punjab and Haryana 43. The aforesaid judgment has also been followed by this Court in Surinder Singh Brar' case (supra). Furthermore, since it was always open to the petitioners to seek enhanced compensation in accordance with law, merely because sale instances were alleged to be on the lower side, would not entitle the petitioners to challenge the acquisition itself. It may be notice, that the allegation by the petitioners that land prices beyond the Periphery Control Act were much higher has been denied by the respondents.
Though in the writ petition, an argument has been raised that before acquiring the land, prior approval and sanction under the provisions of the Forest Act and Environmental laws has not been received and therefore, the acquisition is liable to be set aside, it is suffice to say that approval and sanction of the competent Authorities under the Forest and Environmental laws is not needed at the time of acquisition and the same is required only at the time when the land is to be put to use. We are fortified in our view by Division Bench judgments of this Court in CWP No.4186 of 2009 (Diljit Singh and others v. Union of India and others) decided on 22.11.2010 and CWP No.18278 of 2008 (Ram Karan and others v. State of Haryana and others), decided on 25.1.2011.
It may also be relevant to mention that in one of the connected cases it has been averred that the land forming part of the controlled area on the Periphery of Chandigarh cannot be acquired unless prior permission CWP No.4034 of 2005 (O&M) 23 of the competent Authority under the Punjab New Capital (Periphery) Control Act, 1952 is obtained. However, the aforesaid argument is liable to be rejected in view of a Division Bench judgment of this Court in Sanjeet Singh Grewal v. State of Punjab 2001 (3) RCR (Civil) 398. In the aforesaid case, an argument was raised that land cannot be acquired unless prior permission of the competent Authority under the Punjab New Capital (Periphery) Control Act, 1952 was obtained. However, the aforesaid argument was rejected by this Court holding that no such prior permission was required for acquiring the land as the permission of the competent Authority under the aforesaid Act was needed only when one wants to erect or re-erect any building etc. or use the land in question as per the provisions of the aforesaid Act. The aforesaid view was reiterated in a subsequent judgment cited as Rabindra Nath Gupta, IAS v. State of Haryana 2003 (1) RCR (Civil) 88. Even the view of the Division Bench of this Court in Sanjeet Singh Grewal's case (supra) was not set aside by the Hon'ble Supreme Court in State of Punjab and others v. Sanjeet Singh Grewal and others (2007) 6 Supreme Court Cases 292 .
It may also be useful to notice at this stage that in CWP No.13601 of 2009 (Dr. Gurdeep Singh and others Versus State of Punjab etc.) decided on 8.2.2011, this Court has held that "land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth and thus, the argument that the provisions of the Land Acquisition Act could not be applied in the present case as the same were applicable to the land and not to the existing structures, is liable to be rejected.
A ground has also been raised with regard to non-compliance of the standing orders issued by the Financial Commissioner, Punjab, however, it has not been mentioned as to how these standing orders have CWP No.4034 of 2005 (O&M) 24 been violated.
It may also be relevant to mention at this stage that though the aforesaid submissions as averred in the writ petition to challenge the impugned notifications have been answered, however, no factual foundation has been laid in the writ petitions even the petitioners have not mentioned about the extent of their holdings under challenge.
No other point has been argued.
Thus, all the writ petitions are dismissed.
(JASBIR SINGH) (RAKESH KUMAR GARG)
JUDGE JUDGE
May 3, 2011
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CWP No.4034 of 2005 (O&M) 25
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.942 of 2005 (O&M) Date of decision: 3.5.2011 Jaswant Singh and others ......Petitioner(s) Versus State of Punjab ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Ms. Tanisha Peshawaria, Advocate, for the petitioner(s).
Mr. K.D.S. Sidhu, Deputy Advocate General, Punjab. Mr. Sanjeev Sharma, Sr. Advocate with Mr. Shekhar Verma, Advocate and Mr. Vikram Sharda, Advocate for GMADA. Mr. Kamaljeet Singh, Advocate for Mr.R.S. Khosla, Advocate for BDA (Bathinda).
Rakesh Kumar Garg, J.
For orders, see CWP No.4034 of 2005 (Capt. Gurdial Singh and others Versus State of Punjab).
(JASBIR SINGH) (RAKESH KUMAR GARG)
JUDGE JUDGE
May 3, 2011
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CWP No.4034 of 2005 (O&M) 26
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.3820 of 2005 (O&M) Date of decision: 3.5.2011 Gian Kaur and others ......Petitioner(s) Versus State of Punjab etc. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Ms. Tanisha Peshawaria, Advocate, for the petitioner(s).
Mr. K.D.S. Sidhu, Deputy Advocate General, Punjab. Mr. Sanjeev Sharma, Sr. Advocate with Mr. Shekhar Verma, Advocate and Mr. Vikram Sharda, Advocate for GMADA. Mr. Kamaljeet Singh, Advocate for Mr.R.S. Khosla, Advocate for BDA (Bathinda).
Rakesh Kumar Garg, J.
For orders, see CWP No.4034 of 2005 (Capt. Gurdial Singh and others Versus State of Punjab).
(JASBIR SINGH) (RAKESH KUMAR GARG)
JUDGE JUDGE
May 3, 2011
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CWP No.4034 of 2005 (O&M) 27
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.4915 of 2005 (O&M) Date of decision: 3.5.2011 Gulzar Singh and others ......Petitioner(s) Versus State of Punjab ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Ms. Tanisha Peshawaria, Advocate, for the petitioner(s).
Mr. K.D.S. Sidhu, Deputy Advocate General, Punjab. Mr. Sanjeev Sharma, Sr. Advocate with Mr. Shekhar Verma, Advocate and Mr. Vikram Sharda, Advocate for GMADA. Mr. Kamaljeet Singh, Advocate for Mr.R.S. Khosla, Advocate for BDA (Bathinda).
Rakesh Kumar Garg, J.
For orders, see CWP No.4034 of 2005 (Capt. Gurdial Singh and others Versus State of Punjab).
(JASBIR SINGH) (RAKESH KUMAR GARG)
JUDGE JUDGE
May 3, 2011
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CWP No.4034 of 2005 (O&M) 28
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.6224 of 2005 (O&M) Date of decision: 3.5.2011 Labh Singh and others ......Petitioner(s) Versus State of Punjab etc. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Ms. Tanisha Peshawaria, Advocate, for the petitioner(s).
Mr. K.D.S. Sidhu, Deputy Advocate General, Punjab. Mr. Sanjeev Sharma, Sr. Advocate with Mr. Shekhar Verma, Advocate and Mr. Vikram Sharda, Advocate for GMADA. Mr. Kamaljeet Singh, Advocate for Mr.R.S. Khosla, Advocate for BDA (Bathinda).
Rakesh Kumar Garg, J.
For orders, see CWP No.4034 of 2005 (Capt. Gurdial Singh and others Versus State of Punjab).
(JASBIR SINGH) (RAKESH KUMAR GARG)
JUDGE JUDGE
May 3, 2011
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CWP No.4034 of 2005 (O&M) 29
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.16495 of 2005 (O&M) Date of decision: 3.5.2011 The Singhpora Co-operative House Building Society Ltd. ......Petitioner(s) Versus State of Punjab and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. B.S. Guliani, Advocate, for the petitioner(s).
Mr. K.D.S. Sidhu, Deputy Advocate General, Punjab. Mr. Sanjeev Sharma, Sr. Advocate with Mr. Shekhar Verma, Advocate and Mr. Vikram Sharda, Advocate for GMADA. Mr. Kamaljeet Singh, Advocate for Mr.R.S. Khosla, Advocate for BDA (Bathinda).
Rakesh Kumar Garg, J.
For orders, see CWP No.4034 of 2005 (Capt. Gurdial Singh and others Versus State of Punjab).
(JASBIR SINGH) (RAKESH KUMAR GARG)
JUDGE JUDGE
May 3, 2011
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CWP No.4034 of 2005 (O&M) 30
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.8653 of 2005 (O&M) Date of decision: 3.5.2011 Devinder Pal Singh and others ......Petitioner(s) Versus State of Punjab ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Ms. Tanisha Peshawaria, Advocate, for the petitioner(s).
Mr. K.D.S. Sidhu, Deputy Advocate General, Punjab. Mr. Sanjeev Sharma, Sr. Advocate with Mr. Shekhar Verma, Advocate and Mr. Vikram Sharda, Advocate for GMADA. Mr. Kamaljeet Singh, Advocate for Mr.R.S. Khosla, Advocate for BDA (Bathinda).
Rakesh Kumar Garg, J.
For orders, see CWP No.4034 of 2005 (Capt. Gurdial Singh and others Versus State of Punjab).
(JASBIR SINGH) (RAKESH KUMAR GARG)
JUDGE JUDGE
May 3, 2011
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CWP No.4034 of 2005 (O&M) 31
CWP No.4034 of 2005 (O&M) 32