Punjab-Haryana High Court
State Of Haryana And Others vs Tara Chand And Others on 28 January, 2011
Bench: Jasbir Singh, Augustine George Masih
L.P.A.No.504 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision:- 28h.01.2011
L.P.A.No.504 of 2010
State of Haryana and others ....Appellant(s)
vs.
Tara Chand and others ....Respondent(s)
L.P.A.No.1657 of 2010
State of Haryana and others ....Appellant(s)
vs.
Ganga Jiwan and others ....Respondent(s)
L.P.A.No.1658 of 2010
State of Haryana and others ....Appellant(s)
vs.
Daya Ram and others ....Respondent(s)
L.P.A.No.1659 of 2010
State of Haryana and others ....Appellant(s)
vs.
Hukam Chand and others ....Respondent(s)
L.P.A.No.1660 of 2010
State of Haryana and others ....Appellant(s)
vs.
M/s. Kansal Industries and others ....Respondent(s)
L.P.A.No.1661 of 2010
State of Haryana and others ....Appellant(s)
vs.
Richhpal and others ....Respondent(s)
L.P.A.No.504 of 2010 -2-
L.P.A.No.895 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Maman Singh and others ....Respondent(s)
L.P.A.No.896 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Baljeet Singh and others ....Respondent(s)
L.P.A.No.897 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Surat Singh and others ....Respondent(s)
L.P.A.No.929 of 2010
HSIIDC ....Appellant(s)
vs.
Vineeta Trading Pvt.Ltd. and others ....Respondent(s)
L.P.A.No.973 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
M/s Air Gas Engineers & others ....Respondent(s)
L.P.A.No.974 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
L.P.A.No.504 of 2010 -3-
Richhpal and others ....Respondent(s)
L.P.A.No.975 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
M/s Kansal Industries and others ....Respondent(s)
L.P.A.No.982 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Munshi Ram and others ....Respondent(s)
L.P.A.No.1054 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Abhipra Trading Pvt.Ltd. and others ....Respondent(s)
L.P.A.No.1059 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Tara Chand and others ....Respondent(s)
L.P.A.No.1123 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Chandan Singh and others ....Respondent(s)
L.P.A.No.1124 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
L.P.A.No.504 of 2010 -4-
vs.
Daya Ram and others ....Respondent(s)
L.P.A.No.1125 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Hukum Chand and others ....Respondent(s)
L.P.A.No.1126 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Ganga Jiwan and others ....Respondent(s)
L.P.A.No.1138 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Ishwar Singh and others ....Respondent(s)
L.P.A.No.1139 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Surinder Singh and others ....Respondent(s)
L.P.A.No.1140 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Lal Singh and others ....Respondent(s)
L.P.A.No.504 of 2010 -5-
L.P.A.No.1142 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Dominant Web Pvt.Ltd. and others ....Respondent(s)
L.P.A.No.1210 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Ajay Kumar and others ....Respondent(s)
L.P.A.No.1211 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Sudhir Kumar and others ....Respondent(s)
L.P.A.No.1212 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Ramesh Chander and others ....Respondent(s)
L.P.A.No.1219 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Rupesh Yadav and others ....Respondent(s)
L.P.A.No.1220 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
L.P.A.No.504 of 2010 -6-
Mukesh Kumar and others ....Respondent(s)
L.P.A.No.1391 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Lakhpat Singh and others ....Respondent(s)
L.P.A.No.1392 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Billu Ram and others ....Respondent(s)
L.P.A.No.1393 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Naval Singh and others ....Respondent(s)
L.P.A.No.1424 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Rajinder Singh and others ....Respondent(s)
L.P.A.No.1425 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Manoj Kumar and others ....Respondent(s)
L.P.A.No.1426 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
L.P.A.No.504 of 2010 -7-
vs.
Ugersain and others ....Respondent(s)
L.P.A.No.1430 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Umrao Singh and others ....Respondent(s)
L.P.A.No.1431 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Hardev Singh and others ....Respondent(s)
L.P.A.No.1481 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Sada Ram and others ....Respondent(s)
L.P.A.No.1482 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Ashok Kumar and others ....Respondent(s)
L.P.A.No.1497 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Parmanand and others ....Respondent(s)
L.P.A.No.1498 of 2010
Haryana State Infrastructure Industrial
L.P.A.No.504 of 2010 -8-
Development Corporation ....Appellant(s)
vs.
Bala Ram and others ....Respondent(s)
L.P.A.No.1499 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Mangal Singh and others ....Respondent(s)
L.P.A.No.1513 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Mam Chand and others ....Respondent(s)
L.P.A.No.1514 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Kumbhkaran and others ....Respondent(s)
L.P.A.No.1544 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Sunil and others ....Respondent(s)
L.P.A.No.1545 of 2010
Haryana State Infrastructure Industrial
Development Corporation ....Appellant(s)
vs.
Antraj and others ....Respondent(s)
L.P.A.No.504 of 2010 -9-
C.W.P.No.1003 of 2006
Narain Singh and others ....Petitioner(s)
vs.
State of Haryana and others ....Respondent(s)
C.W.P.No.3574 of 2005
M/s Opera House Export Ltd. ....Petitioner(s)
vs.
State of Haryana and others ....Respondent(s)
C.W.P.No.17873 of 2004
Ram Pal and others ....Petitioner(s)
vs.
State of Haryana and others ....Respondent(s)
C.W.P.No.17836 of 2004
Ram Singh and others ....Petitioner(s)
vs.
State of Haryana and others ....Respondent(s)
***
CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
***
Present:- Mr.H.S.Hooda. Advocate General, Haryana with
Mr.Kamal Sehgal, Addl.A.G., Haryana, for the appellants.
Sh.Arun Kumar Jain, Sr.Advocate with
Sh.Nitin Goel, Advocate.
Mr. M.L.Sharma, Advocate.
Mr.Shailendra Jain, Advocate.
Mr. Ashwani Kumar Chopra, Sr.Advocate with
Mr.Ashish Chopra and Ms.Rupa Pathania, Advocates.
L.P.A.No.504 of 2010 -10-
Mr.Narender Sura, Advocate.
Mr.C.B.Goel, Advocate.
Mr.Sanjay Vij, Advocate.
***
Augustine George Masih, J.
By this order, we propose to decide LPA Nos.504, 1657, 1658, 1659, 1660 and 1661 of 2010 filed by the State of Haryana and LPA Nos.895, 896, 897, 929, 973, 974, 975, 982, 1054, 1059, 1123, 1124, 1125, 1126, 1138, 1139, 1140, 1142, 1210, 1211, 1212, 1219, 1220, 1391, 1392, 1393, 1424, 1425, 1426, 1430, 1431, 1481, 1482, 1497, 1498, 1499, 1513, 1514, 1544 and 1545 of 2010 filed by the Haryana State Infrastructure Industrial Corporation, wherein challenge has been posed to the judgment passed by the learned Single Judge in CWP No.17108 of 2004 (Tara Chand and others vs. State of Haryana and others) decided on 16.4.2009 vide which other similar writ petitions were also decided. Along with these Letters Patent Appeals, Civil Writ Petition Nos.1003 of 2006, 3574 of 2005, 17873 and 17836 of 2004 filed by the land owners are also being decided as notifications under challenge in these writ petitions are the same which were the subject-matter of CWP No.17108 of 2004 (Tara Chand and others) (supra).
In the writ petitions, challenge was to the notifications dated 17.9.2004 issued under Section 4 read with Section 17(2)(c) of the Land Acquisition Act, 1894 (hereinafter referred to as the LA Act) and to the notification dated 27.10.2004 issued under Section 6 of the LA Act. In the notification dated 17.9.2004, it was also mentioned that the provisions of Section 5-A of the LA Act would not apply. Notices under Section 9 of L.P.A.No.504 of 2010 -11- the LA Act were issued on 21.2.2006 calling upon the land owners to file their claims and thereafter the award was pronounced on 9.3.2006. The writ petitions were primarily allowed by the learned Single Judge on the ground that the State of Haryana had failed in exercise of its powers to abide by the mandate of law and had proceeded to invoke Section 17(4) of the Act arbitrarily, without application of mind and, therefore, notifications issued under Sections 4 and 6 of the LA Act and all proceedings emanating therefrom were quashed, however, subject to a different result in some specified cases.
The learned Advocate General appearing on behalf of the appellant-State of Haryana while referring the pleadings in LPA No.504 of 2010, has submitted that the learned Single Judge has failed to fully appreciate the fact that the State of Haryana had acquired land by invoking the urgency provisions in accordance with law. The State Government produced the relevant record to establish the bona fides and to prove the application of mind by the competent Authority regarding invoking of the urgency provisions and the necessity for suspending the provisions of Section 5-A of the LA Act. There were no mala fides on the part of the State but the notifications were issued in compliance to the judgment passed by the Hon'ble Supreme Court in the case of M.C.Mehta vs. Union of India and others, Writ Petition (Civil) No.4677 of 1985 and another order dated 7.5.2004 passed in an interlocutory application directing rehabilitation of industrial units displaced from Delhi. He submits that the records which were produced before the learned Single Judge fully establish the application of mind which although has been referred to in the judgment passed by the learned Single Judge yet the same has not been taken note of L.P.A.No.504 of 2010 -12- in its right perspective. He submits that in any case, the decision of the Government to invoke the urgency provisions is a subjective satisfaction which should not be interfered with by the Courts. The initiation of proposal for acquisition upto its final approval by the officers concerned clearly establishes the application of mind to the nature of the urgency and the necessity of suspending the provisions of Section 5-A of the LA Act. The decision of the Government is not justiciable and falls within the domain of the administrative powers. The reasons are not to be clearly spelt out as is required by a judicial or quasi- judicial Authority and, therefore, it being not justiciable, the Court should not have interfered with in the exercise of powers by the Government in accordance with the provisions of the LA Act. He further contends that the whole area covered by the notification is required for the planned development as one single contiguous and integrated complex. The order of the learned Single Judge dated 16.4.2009 totally upsets the planned scheme of development of this area as with the quashing of the notification qua the petitioners leaves uncleared pockets in between rendering any planned development of the area impossible. It is absolutely essential that the entire land in question is acquired and developed as per the lay out plans. In support of these contentions, he has relied upon the judgment of the Hon'ble Supreme Court in the case of Nand Kishore Gupta and others vs. State of U.P., Civil Appeal No.7468 of 2010, Sheikhar Hotels Gulmohar Enclave vs. State of U.P, (2008) 14 SCC 716, First Land Acquisition Collector and others vs. Nirodhi Prakash Gangoli and another, (2002) 4 SCC 160, Union of India and others vs. Praveen Gupta and others, (1997) 9 SCC 78, Rajasthan Housing Board and others vs. Shri Kishan and others, (1993) L.P.A.No.504 of 2010 -13- 2 SCC 84, Tika Ram and others vs. State of Uttar Pradesh, (2009) 10 SCC 689.
His further contention is that even if it is accepted that the urgency provisions invoked by the State of Haryana were not justified or were without application of mind, still notification dated 17.9.2004 issued under Section 4 of the LA Act could not have been quashed by the Court as the petitioners could have been given an opportunity to file objections under Section 5-A of the LA Act so that the Government could proceed further from that stage. In support of this contention, he has relied upon the judgment of the Hon'ble Supreme Court in the case of Kanpur Development Authority vs. Mahavir Sahkari Awas Samiti Ltd., (2005) 10 SCC 320 and a Division Bench judgment of this Court passed in CWP No.1512 of 2010 decided on 4.2.2010 titled as Darshan Singh and others vs. State of Punjab and others.
As regards the contention of delay in filing the appeal, the ground which has been spelt out from the application and the submission which has been made by the learned Advocate General, Haryana is that the delay of 135 days in filing the appeal has occurred on account of procedural delay. Initially, the Advocate General, Haryana, opined that the Letters Patent Appeal be filed in the Hon'ble Supreme Court against the order passed by the learned Single Judge and the Legal Remembrancer and Secretary to the Government of Haryana, Law and Legislative Department, Haryana agreed with the views of the Advocate General, Haryana and accordingly issued instructions to the Advocate General to file an appeal. During this process, the delay of 135 days in filing the appeal has occurred. The delay is not intentional and rather it is a procedural delay which L.P.A.No.504 of 2010 -14- deserves to be condoned.
On the other hand, counsel for the respondents- land owners submits that the judgment passed by the learned Single Judge is based upon the facts and proper appreciation of the pleadings and the records which were produced. The judgment is in accordance with law which does not call for any interference by this Court. The only right which has been provided under the LA Act to the land owners to object to the acquisition of the land is under Section 5-A of the LA Act. Although the Act does provide for an exception i.e. non-application of the said provision but the same cannot be done arbitrarily and without application of mind. For invoking the provisions as contained under Section 17 of the LA Act, the mandate of the law has to be strictly complied with as it is of such a nature which compulsorily divests a land owner of his proprietary rights. The absolute powers conferred upon the State has necessarily to pass the test of strict compliance of the statutory right. Section 5-A of the LA Act has been held to be akin to the fundamental rights by the Hon'ble Supreme Court and, therefore, if a person is deprived of that right, it has to be done strictly in accordance with law. Although the powers of the State Government to invoke the urgency provisions are based upon the subjective satisfaction; nevertheless it is not beyond the judicial review while exercising the powers under Article 226 of the Constitution of India. The State has to discharge its onus before the Court by way of producing records to show application of mind which in the present case the State has miserably failed to discharge and, therefore, the findings recorded by the learned Single Judge being in accordance with law, do not call for any interference.
As regards the contention of the counsel for the appellant that L.P.A.No.504 of 2010 -15- the notification issued under Section 4 of the LA Act could not have been quashed by the learned Single Judge, it is submitted by the counsel for the respondents that now notification under Section 6 of the LA Act cannot be issued as the same had to be mandatorily issued within one year of the issuance of the notification under Section 4 of the LA Act. In this case, notification under Section 4 of the LA Act was issued on 17.9.2004 and, therefore, the notification under Section 6 could have been issued on or before 16.9.2005 which period has since expired and, therefore, notification under Section 6 at this stage cannot be issued and, thus, it would be a futile exercise even if Section 4 notification is upheld by this Court.
As regards the application for condonation of delay in filing the appeal is concerned, counsel for the respondents has submitted that no details with regard to the delay of 135 days in filing the appeal have been given. Day to day delay is required to be explained in filing the appeal which in the present case has not been done and, therefore, the application for condonation of delay deserves to be dismissed as also the appeal which has been preferred by the State of Haryana.
We have heard counsel for the parties and with their able assistance, have gone through the pleadings and records of the case. Arguments were primarily addressed by the counsel in LPA No.504 of 2010 as the same was treated as the lead case.
LPA No.504 of 2010 came up for hearing before a Division Bench of this Court on 28.4.2010 and while admitting the appeal the Court observed in paras 8 to 11 in its order as follows:-
"xxx xxx xxx xxx
8. We have heard learned Advocate General, Haryana, L.P.A.No.504 of 2010 -16- who submits that invocation of urgency was based on subjective satisfaction and was not vitiated.
Alternatively, there was no ground to quash Section 4 Notification and the State should have been given liberty to proceed afresh from the stage of Section 4 Notification.
9. Although, we do not see any substance in the submission that subjective satisfaction for invocation of urgency was not vitiated, we are of the view that contention with regard to modifying the impugned order of learned Single Judge regarding Section 4 Notification will require consideration.
10. Admitted, subject to condonation of delay.
11. In the meanwhile, there will be stay of direction quashing Section 4 Notification and the State will be at liberty to proceed afresh from the stage of the said notification in accordance with law, subject to further orders."
A perusal of para 9 of the above order would show that the Division Bench did not see any substance in the appeal, with regard to the submission of the Learned Advocate General, Haryana that the subjective satisfaction for invocation of urgency was not vitiated. The appeal was admitted subject to condonation of delay and to the limited extent that there was no ground to quash Section 4 notification. It further shows that during the pendency of the appeal, the direction quashing Section 4 notification by the learned Single Judge was stayed and the State was given liberty to L.P.A.No.504 of 2010 -17- proceed afresh from the stage of the said notification in accordance with law.
Despite the above order, we have proceeded to hear the counsel for the parties on the merits of the case as well as on the alternative plea which has been raised by the learned Advocate General at the time of hearing of appeal when the order dated 28.4.2010 was passed.
A great emphasis has been laid by the learned Advocate General on the point that the State Government had acted upon the order issued by the Hon'ble Supreme Court dated 7.5.2004 in M.C.Mehta's case (supra) vide which time-bound directions for closing down and stoppage of operation of all industrial units which had come up in the residential/non- conforming areas of Delhi on or after 1.8.1990 were issued and the State of Haryana and other States falling in the National Capital Region were directed to extend full cooperation in re-location of the industry. He has taken us through the said order to justify the invocation of the urgency provisions while issuing notification under Section 4 of the LA Act. He has submitted that the land had to be acquired urgently with an intention to comply with the directions issued by the Hon'ble Supreme Court. Apart from that, it was in the interest of the State of Haryana to make available the land so that the industries could be established in the State of Haryana which would have not only brought in revenue but would have created a large number of job opportunities, besides developing the area as an industrial hub. He has referred to the photocopies of the records which have been produced herein and the notings to impress upon the Court that there was due application of mind from the very initiation of the process of acquisition till the issuance of the notification. About six thousand L.P.A.No.504 of 2010 -18- industrial units were required to be allotted plots immediately as per the directions of the Hon'ble Supreme Court dated 7.5.2004 and the development of the industrial plots was required for accommodating these units. The land acquisition and development of industrial infrastructure is a time consuming process. While the time taken in the development of infrastructure cannot be reduced, the process of land acquisition can be reduced if the same is carried out under the urgency provisions as contained under Section 17 of the LA Act. Prior to the issuance of the order dated 7.5.2004, all National Capital Region States, namely, Uttar Pradesh, Rajasthan and Haryana were associated with the National Capital Region Planning Board where the Hon'ble Supreme Court was informed that the State of Haryana had some industrial plots for shifting the units from Delhi. Accordingly, additional land was to be acquired for development so that other industrial units and entrepreneurs shifting out of Delhi State could be accommodated. The demand of the industrial infrastructure in Gurgaon district due to its locational advantage had to be exploited and accordingly, the land was identified for the said purpose. HSIIDC was identified for the development of the industrial infrastructure. HSIIDC proposed acquisition of land measuring 956 acres 5 kanals 18 marlas for expansion of Industrial Model Township Manesar ( IMT Manesar) which had already been developed accordingly. Notification under Section 4 read with clause (C ) of sub-section (2) of Section 17 of the LA Act was issued on 17.9.2004 for acquisition of the above-mentioned land falling in villages Nabada Fatehpur, Naurangpur, Manesar, Lakhnoula, Naharpur Kasan and Shikopur, Tehsil and District Gurgaon. The land was urgently needed by the Government on public expenses for a public purpose, namely, for L.P.A.No.504 of 2010 -19- setting up of Chaudhary Devi Lal Industrial Model Township, Phase-V, Manesar to be planned and developed as an integrated complex for industrial, institutional, commercial, recreational and other public utilities. Notification under Section 6 read with clause (c ) of sub-section (2) of Section 17 of the LA Act was issued by the State Government on 27.10.2004. As a subsequent event, the Hon'ble Apex Court was pleased to extend the period of shifting of industrial units from Delhi and the emergent situation for entrepreneurs existing in the National Capital Territory of Delhi did not remain so pressing. Accordingly, the delay in announcement of the award occurred. Notice under Section 9 was issued on 21.2.2006 and the award was announced by the Land Acquisition Collector on 9.3.2006. A large number of land owners accepted compensation and even preferred reference under Sections 18 and 30 of the LA Act. The possession of the land measuring 475 acres was taken by the State of Haryana vide Rapat No.654 dated 9.3.2006 but due to the stay granted by this Court vide order dated 2.11.2004, possession of the remaining land could not be taken. The land involved in the present Letters Patent Appeals wherein the writ petitions have been allowed, is scattered and the total land measuring therein is 290 acres. The purpose for which the acquisition has been made would be frustrated if the present acquisition is not upheld. The quashing of the notification qua the petitioners by the learned Single Judge would not only disturb the planning of the entire area but would also thwart the efforts of the appellant-State to expand an existing industrial township in a planned and coordinate manner. He, on this basis, has prayed for setting aside the order passed by the learned Single Judge.
Despite the efforts which have been put in by the learned L.P.A.No.504 of 2010 -20- Advocate General to persuade us to accept his contention with regard to the proper application of mind for invoking the urgency provisions as contained under Section 17 of the LA Act, we are unable to accept the same.
The learned Single Judge after considering the relevant provisions of the Statute, has referred and quoted from the judgments of the Hon'ble Supreme Court in the case of Nandeshwar Prasad and another vs. State of Uttar Pradesh and others, (1964) 3 SCR 425, Narain vs. State of Maharashtra, AIR 1977 SC 183, State of Punjab vs. Gurdial Singh 1980 (2) SCC 471, Om Parkash and another vs. State of U.P. and others, 1998 (6) SCC 1, Union of India and others vs. Krishan Lal Arneja, AIR 2004 SC 3582, Union of India and others vs. Mukesh Hans, (2004) 8 SCC 14 and Essco Fabs Pvt.Ltd. and another vs. State of Haryana and another, (2009) 2 SCC 377 and then stated the law on the question as reproduced below:
"The above enunciation of law, in my considered opinion, can be briefly and succinctly set out as follows :- (a) The expropriatory power of the State to acquire land, for a public purpose is absolute (b) rights conferred by Section 5-A of the Act, to file objections against proposed acquisitions of property are akin to fundamental rights; (c) the power under Section 17(1) of the Act, to take possession, of acquired land can be exercised, if there is an urgency; (d) the satisfaction as to the existence of an urgency falls within the subjective satisfaction of the State but would be open to judicial L.P.A.No.504 of 2010 -21- review, where the exercise of power is malafide, arbitrary or discloses an abject failure of the appropriate Government to apply its mind to relevant facts namely:-
(1) the urgency should be of such a nature as does not brook any delay; (2) it is not the urgency alone that would determine the exercise of power under Section 17 (4) of the Act, but the existence of such an urgency, as renders imperative, the suspension of rights conferred by Section 5-A of the Act, (e) where the State proposes to invoke Section 17(4) of the Act, the appropriate authority must satisfy itself that the urgency is of such a nature that does not brook the time required to invite and decide objections; (f) the State would be required, to disclose to the Court, whether it has applied its mind not merely to the existence of an urgency, but also to the facts that the urgency is of such a nature, as would render imperative the suspension of, rights conferred by Section 5-A of the Act."
There can be no dispute with the above settled position in law on this issue. The arguments raised by the Learned Advocate General has to be tested on the touch-stone of these principles in the light of the documents placed before the Court. No new documents have been placed on record by the appellants. The relevant extracts of the records produced before us have been in extenso reproduced in the judgment of the learned Single Judge whereafter it has been held as follows:-
"It is, sought to be argued on behalf of the State L.P.A.No.504 of 2010 -22- of Haryana and on behalf of the HSIDC that as the entire matter, including the nature of the urgency was placed before the Secretary and the Chief Minister, it leaves no manner of doubt that the decision to invoke the provisions of Section 17(1) and (4) of the Act, were taken after due consideration of the entire material on record and was only accepted after due application of mind with respect to the existence of the urgency and the necessity of dispensing with the provisions of Section 5- A of the Act.
A consideration of the averments in the reply and an appraisal of the record discloses an abject failure of the State of Haryana, to record any satisfaction much less a subjective satisfaction, as to the existence of an urgency or the existence of such an urgency as would necessarily require it to invoke the provisions of Section 17(4) of the Act. The material placed before this Court refers to the highly successful marketing tours by the Chief Minister, in India and abroad, the request by Maruti Udyog Ltd. for further allotment of land and a request by M/S B.M.W. for allotment of land etc. The material refers to the need to create land banks etc. and in compliance with an order passed by the Hon'ble Supreme Court, to rehabilitate industries displaced from Delhi. The need to rehabilitate displaced industries, may in the facts and circumstances of the present case be L.P.A.No.504 of 2010 -23- urgent, but the question that begs to be answered by the State and for which no answer is forthcoming, is whether the avowed public purpose was so urgent as to require the suspension of the provisions of Section 5-A of the Act and whether the appropriate Government, i.e. the State of Haryana,or any officer acting on his behalf applied its mind to the necessity of suspending the provisions of Section 5-A of the Act on the basis of this urgency. The record placed before this Court does not refer to any urgency, much less spell out the nature thereof but merely states that land be acquired by invoking urgency provisions. Be that as it may, and for a moment accepting that their was an urgency, the respondents were required to produce some material to suggest a minimal application of mind to the nature of the urgency and the consequent need to suspend Section 5-A. Mere reference, in the office note or in the letters exchanged that urgency provisions should be invoked would not, in my considered opinion, satisfy the requirements of a bonafide exercise of statutory power under Section 17(4) of the Act. A significant omission, in the exercise of power by the appropriate Government, is the failure by any officer, whether the officer initiating the proposal, the officer who examined it or the final authority that approved the proposal for acquisition, to record even a rudimentary satisfaction that the urgency L.P.A.No.504 of 2010 -24- is of such a nature, as would necessarily require the appropriate Government to suspend the provisions of Section 5-A of the Act. The respondents were apparently oblivious of the principles that govern the exercise of their powers and in their zeal to create land banks for industries ,proceeded to invoke Section 17(1) and Section 17(4) in a cavalier fashion, disregarding the constraints enacted by Section 17 and the rights of land owners conferred by Section 5-A of the Act. It is true that while recording its satisfaction, the appropriate Government is not required to record detailed reason or pass an order akin to a judicial or a quasi judicial order, but one cannot loose sight of the significance of a decision to suspend Section 5-A of the Act and the fait accompli attendant thereto. The State of Haryana was, therefore, required before proceeding to invoke the provisions of Section 17 to record satisfaction, howsoever perfunctory, to the fact that the urgency is so pressing as would require the suspension of the provisions of Section 5-A of the Act. The record placed before this Court, in my considered opinion, does not disclose any application of mind as to the nature of the urgency and the necessity to suspend the provisions of Section 5-A of the Act.
The submission by counsel for the State of Haryana that as the proposal for acquisition clearly states that L.P.A.No.504 of 2010 -25- urgency provisions should be invoked an inference should be drawn that the appropriate authority applied its mind to the nature of the urgency and the necessity to invoke its powers under Section 17 of the Act, must be rejected. An inference in law arises from relevant facts. In the absence of any relevant facts, no such inference can be drawn. A perusal of the initial proposal, the letters placed on record and the final note prepared for approval of the Chief Minister and the Secretary concerned do not disclose any reference to the nature of the urgency or the fact that the urgency is of such a nature as would not brook any delay. It was, therefore, imperative that the State before invoking its powers under Section 17(1) and (4) of the Act, should have called for and appraised all relevant material to form a considered opinion necessitating the suspension of Section 5-A of the Act.
The power conferred by Section 17(4) of the Act, enables the appropriate Government to divest a land owner of his only right to protest against the expropriatory divesting of his property but, where the exercise of this power discloses a failure to consider relevant material or record even a perfunctory reason for suspending the rights conferred by Section 5-A of the Act such an exercise of statutory power would have to be held to be arbitrary. The submissions made by counsel L.P.A.No.504 of 2010 -26- for the State of Haryana that the subjective satisfaction by the State is not justiciable and should, therefore, be upheld, cannot be accepted. Divesting land owners of their right to voice objections, is a significant departure from the rules of natural justice appearing in Section 5-A of the Act. Any aberration, on the part of the State, in the exercise of its powers, would invite adverse consequences. No amount of legal semantics would save governmental action vitiated by an arbitrary exercise of power.
As regards the dismissal of CWP No.4508 of 2006 vide order dated 21.4.2006, where the urgency has been upheld, suffice it to say that it relates to a different notification and the invoking of urgency provisions was upheld on facts.
In view of what has been stated herein above, I have no hesitation in holding that the State of Haryana failed in the exercise of its power to abide by the mandate of law and proceeded to invoke Section 17(4) of the Act arbitrarily, without application of mind and, therefore, the notifications issued under Sections 4 and 6 of the Act and all proceedings emanating therefrom are quashed subject, however, to a different result on account of the individual pecularities of each case, which shall be dealt with separately."
The learned Single Judge has minutely gone into each and L.P.A.No.504 of 2010 -27- every aspect of the matter and has returned the findings which, both on facts and law are correct and, thus, do not call for any interference. We do not see any reason to take a contrary view from the one which has been formed by the learned Single Judge.
In the light of the above, the contention of the learned Advocate General, Haryana that the powers under Section 17 of the LA Act have been invoked in accordance with law, cannot be accepted.
The other question which needs our consideration and adjudication is the alternative plea which has been pressed into service by the learned Advocate General, Haryana to the effect that there was no ground to quash Section 4 notification and the State should have been given liberty to proceed afresh from the stage of issuance of notification under Section 4 of the LA Act. There is substance in this contention. The Hon'ble Supreme Court in the case of Kanpur Development Authority (supra) while dealing with a case wherein it was contended that no opportunity was given to the land owners in the enquiry said to have been held under Section 5-A of the LA Act, has held that there was no justification to quash notification issued under Section 4 of the LA Act in case the Court comes to a conclusion that the opportunity had been denied to the land owners during the course of enquiry under Section 5-A of the LA Act.
This principle when extended and applied to the case in hand where by invoking the provisions of Section 17 (4) of the LA Act, provisions of Section 5-A of the LA Act was notified not to apply, would lead to the conclusion that the notification issued under Section 6 of the LA Act has been rightly quashed by the learned Single Judge. A perusal of the L.P.A.No.504 of 2010 -28- order dated 28.4.2010 passed by the Division Bench of this Court in this appeal would show that this Court had stayed the direction quashing the notification under Section 4 and the State was given liberty to proceed afresh from the stage of issuance of the said notification in accordance with law. In our considered view, the judgment of the learned Single Judge deserves to be modified to this extent.
The question which would arise now is whether on giving liberty to the State to proceed afresh from the stage of issuance of notification under Section 4 of the LA Act can a declaration under Section 6 be issued now by the State as the period for issuing such declaration under Section 6 is one year after the issuance of the notification under Section 4 of the LA Act as contended by the counsel for the respondents.
Notification under Section 4 was issued on 17.9.2004. The petitioners in the writ petition approached this Court on 2.11.2004 when their dispossession was stayed by this Court. The order of stay continued during the pendency of the writ petition. The learned Single Judge allowed the writ petitions vide order dated 16.4.2009 and quashed the notifications issued under Sections 4 and 6 of the LA Act. The State of Haryana preferred LPA No.504 of 2010 which came up for hearing before this Court on 28.4.2010 and it is on this date again, direction for quashing notification under Section 4 by the learned Single Judge was stayed and the State was given liberty to proceed afresh from the stage of the said notification in accordance with law. Even if the period during which the stay granted by this Court i.e. 2.11.2004 to 16.4.2009 is excluded from counting the period for limitation for issuing the declaration under Section 6 of the LA Act, the period would have expired on 28.4.2010, when the notification under L.P.A.No.504 of 2010 -29- Section 4 of the LA Act was made operative vide the order of the Division Bench. This position on the face of it may appear to be correct but a fact which needs to be taken note of is that during the period from 16.4.2009 till 28.4.2010, notification issued under Section 4 of the LA Act could not be acted upon as the same had been struck down by the learned Single Judge and, therefore, was not in force. This period, thus, can also not be included while calculating the period for issuance of the declaration under Section 6 of the LA Act. When this period is also excluded, there is still time left for issuance of a declaration under Section 6 of the LA Act.
Almost a similar situation was dealt with by another Division Bench of this Court in Darshan Singh's case (supra) on which reliance was placed by the learned Advocate General, wherein the question as to how should the period from the date of quashing of the notifications issued under Sections 4 & 6 of the LA Act and the date when the review application preferred by the State was allowed keeping the notification issued under Section 4 of the LA Act intact, has to be treated, was answered by holding that once the notification is quashed, then it is wiped out from its initiation and the said period cannot be taken into consideration for calculating the period of one year for issuance of notification under Section 6 of the LA Act. In that case also, initially when the writ petitions were filed, interim orders were passed by the Writ Court. The said interim orders continued till the writ petitions were allowed challenging the notification issued under Sections 4 & 6 of the LA Act by quashing the same. Review application was preferred by the respondent-State wherein a plea was taken that even if the invocation of the provisions of the urgency clause envisaged in Section 17 of the LA Act does not pass the test as per the Statute, still the L.P.A.No.504 of 2010 -30- notification under Section 4 could not have been quashed. The said review application was allowed. Subsequently, the land owners in a separate writ petition submitted that the period for issuance of declaration under Section 6 of the LA Act was one year after the issuance of notification under Section 4 of the LA Act and even if the period during which the interim order passed by the Court was continuing is excluded still the said period of one year stood expired and, therefore, the declaration issued under Section 6 of the LA Act deserves to be quashed. The Court on consideration of the submission of the parties had finally held that the period from the date of order passed by the Court quashing the notifications under Sections 4 and 6 of the LA Act and the period when the review application was allowed as also the period during which the interim order passed by the Court was in operation had to be excluded for the purpose of reckoning the period of one year for issuance of declaration under Section 6 of the LA Act. We are in agreement with this view and, thus, the period for issuance of declaration under Section 6 of the LA Act, in the instant case, has still not expired.
The delay in filing this appeal is only 135 days. The reason assigned for the delay is a procedural one. There appears to be no intentional delay in preferring the appeals. It has been consistently held by the Courts that the justice should not be made a casualty because of the procedural delays and that too in cases relating to the Government as has been seen that the officials tend to take and deal the matters in routine and at times without taking any personal interests therein. That does not, in any way, give a licence to the Government Authorities to act casually, leisurely or negligently. In the case in hand, since the delay has been, to some L.P.A.No.504 of 2010 -31- extent, explained although not as it should have been, yet keeping in view the interest of justice, the delay of 135 days in filing the appeal deserves to be condoned. Ordered accordingly.
In the light of the above, we uphold the judgment of the learned Single Judge by affirming it to the extent that the State of Haryana has failed in exercise of its powers to abide by the mandate of law and proceeded to invoke Section 17(4) of the LA Act arbitrarily without application of mind and, therefore, quashing the notification to that extent as also the quashing of the notification issued under Section 6 of the LA Act and all proceedings emanating therefrom. We, however, set aside the judgment quashing the notification issued under Section 4 of the LA Act. The Order dated 28.4.2010 passed by the Division Bench of this Court is hereby made absolute, the State will be at liberty to proceed afresh from the stage of the issuance of notification under Section 4 of the LA Act in accordance with law. The appeals filed by the State of Haryana i.e. LPA Nos.504, 1657, 1658, 1659, 1660 and 1661 of 2010 are partly allowed in the afore-said terms.
It has been brought to the notice of the Court that during the interregnum i.e. 16.4.2009, the date of order of the learned Single Judge quashing the notifications, to the date the Division Bench passed the order dated 28.4.2010 i.e. for a period of more than one year, certain developments have taken place, such as, sale of land and in some cases constructions have also been raised and likewise some other things and events. Keeping these factors in view, a direction is issued to the appellant that the respondent(s)/land-owners and persons in whose favour rights have been created/vested during this period should be given opportunity of L.P.A.No.504 of 2010 -32- hearing during enquiry under Section 5-A of the LA Act after giving notice of hearing indicating a fixed date. It shall be open to the respondents-land owners or the subsequent purchasers during the interregnum, to bring to the notice of the Land Acquisition Officer as regard the subsequent developments. The Land Acquisition Authorities, after holding enquiry under Section 5-A of the Act, shall proceed in accordance with law.
In the light of the above, no further orders are required to be passed in LPA Nos. 895, 896, 897, 929, 973, 974, 975, 982, 1054, 1059, 1123, 1124, 1125, 1126, 1138, 1139, 1140, 1142, 1210, 1211, 1212, 1219, 1220, 1391, 1392, 1393, 1424, 1425, 1426, 1430, 1431, 1481, 1482, 1497, 1498, 1499, 1513, 1514, 1544 and 1545 of 2010 filed by the Haryana State Infrastructure Industrial Corporation and they are disposed of accordingly.
As regards C.W.P.Nos.1003 of 2006, 3574 of 2005, 17873 and 17836 of 2004, the same are allowed to the extent that the decision to invoke the provisions of Section 17(4) of the LA Act, 1894 vide notification dated 17.9.2004 and notification dated 27.10.2004 issued under Section 6 of the LA Act and all proceedings emanating therefrom are quashed. However, State would be at liberty to proceed from the stage of the issuance of notification dated 17.9.2004 under Section 4 of the LA Act in accordance with law.
A photocopy of this order be placed on the files of connected cases.
( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH )
JUDGE JUDGE
January 28th, 2011
poonam
Whether referred to Reporters Yes/No