Punjab-Haryana High Court
Anil Garg vs State Of Haryana And Others on 7 April, 2010
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No. 18821 of 2009
Date of Decision: April 7, 2010
Anil Garg
...Petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Arun Jain, Senior Advocate, with
Mr. Arun Jindal, Advocate,
for the petitioner.
Ms. Palika Monga, DAG, Haryana,
for the respondents.
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in
the Digest?
M.M. KUMAR, J.
This petition filed under Article 226 of the Constitution challenges notification dated 7.9.2007 (P-10), issued under Section 4 of the Land Acquisition Act, 1894 (for brevity, 'the Act') and declaration dated 19.1.2009 (P-12), made under Section 6 of the Act. The short question which arise for consideration in this case is whether the last date of publication of notification acquiring land and the date of publication of such public notice would be the date for CWP No. 18821 of 2009 2 reckoning the period of one month for filing objections and for all other purposes.
2. Brief facts of the case are that the petitioner purchased land measuring 6 Kanals 5 Marlas, comprised in Rect. No. 170, Killa No. 18/2/3 (0-5), 23/2/1 (0-11), 18/2/2 (0-6), 23/2/2 (0-15), 23/2/3 (3-10), 18/2/1 (0-17) and Rect. No. 199, Killa No. 3/3 (0-1), situated within the revenue estate of village Chandhut, Tehsil and District Palwal, vide three different sale deeds dated 13.12.2002. On 28.12.2002, mutations were sanctioned in favour of the petitioner. The land in question has been purchased by the petitioner for installing and running of a petrol pump through the dealership of the Indian Oil Corporation Limited. It is claimed that the petitioner as well as the Indian Oil Corporation at their ends initiated various steps for installation of the petrol pump such as process for obtaining No Objection Certificate from the Deputy Commissioner, Faridabad, obtaining of electricity connection etc. The petitioner also invested huge money for filling earth, leveling the land and on fencing. However, on 7.9.2007, the respondent State of Haryana issued a notification under Section 4 proposing to acquire 19 Kanals of land for the purpose of construction of Police Line and Police Station at village Chandhut, which also includes the land belonging to the petitioner (P-10). On 5.6.2008, the petitioner filed objections under Section 5-A of the Act against the proposed acquisition seeking release of his land (P-11). On 9.1.2009, declaration under Section 6 of the Act was made acquiring the land in question (P-12). The CWP No. 18821 of 2009 3 grievance of the petitioner is that without affording an opportunity of hearing to him by the Land Acquisition Collector, declaration under Section 6 of the Act has been made. Later on, under the Right to Information Act, 2005, he came to know about some proceedings held on 29.7.2008 about which no notice dated 29.7.2008 was ever served to him.
3. In the preliminary submission of the written statement filed on behalf of respondent Nos. 1 and 3 it has been asserted that the land in question has been acquired after religiously following various provisions of the Act. After making of declaration under Section 6 of the Act, dated 19.1.2009, even award has been announced on 5.2.2010 and the possession of the acquired land was taken and handed over to the Superintendent of Police, District Palwal on the same day vide Rapat No. 158, dated 5.2.2010. As such the land vests in the police department free from all encumbrances for the construction of the Police Station Chandhat. It has further been submitted that the petitioner can withdraw the amount of compensation and other statutory benefits under Sections 23(2) and 23(1)(a) of the Act, which have been adequately awarded by the Collector.
4. With regard to filing of objections under Section 5-A of the Act by the petitioner and non-affording of opportunity of hearing, it has been stated in para 8 (1 to 5) of the written statement on merits as under:-
"8(1 to 5) That the contents of para no. 8 and its sub CWP No. 18821 of 2009 4 paras no. 1 to 5 are not disputed to the extent that the petitioner filed the objections under section 5A of the Land Acquisition Act, which are attached as Annexure P11. Rest of the contents are wrong and denied. However, it is submitted that the objection filed by the petitioner was at very late stage as the objection under Section 5A can be filed within 30 days from the date of publication of the notification and as such, objection filed by the petitioner have no relevancy with the acquisition proceedings."
5. In the replication to the aforementioned written statement it has been asserted that during the pendency of the instant petition, on 14.1.2010, a notice under Section 9 of the Act was issued to the petitioner for appearance before the Collector on 5.2.2010 either in person or through authorised representative (P-18). However, the envelop containing the notice shows that the same was dispatched on 2.2.2010 through Speed Post, which was received on 4.2.2010 (P-19). Thereafter, he has filed CM No. 1537 of 2010 for staying the proceedings. On 15.2.2010, this Court stayed dispossession of the petitioner. It has, thus, been averred that the provisions of Sections 4, 5-A, 6 and 9 of the Act have been violated by the respondents, inasmuch, as notification under Section 6 of the Act has been issued without affording an opportunity of hearing to the petitioner. It has also been submitted that even the declaration under Section 6 of the Act has been made after the prescribed period of one year. CWP No. 18821 of 2009 5
6. Mr. Arun Jain, learned senior counsel for the petitioner has vehemently argued that from the categorical stand taken by respondent Nos. 1 and 3 in para 8 of the written statement it is clear that the objections filed by the petitioner under Section 5-A of the Act were never considered by the Land Acquisition Collector on the wrong notion that the same were filed beyond the prescribed period of 30 days from the date of publication of the notification under Section 4 of the Act, whereas as a matter of fact the same were filed on 5.6.2008 within the prescribed period of limitation of 30 days. Learned counsel has brought to our notice that though the notification under Section 4 of the Act was published on 7.9.2007 but the substance of the same was made in the locality on 29.5.2008 and eventually declaration under Section 6 of the Act was made on 19.1.2009.
7. In the backdrop of the aforesaid factual situation, the question which falls for consideration is whether the principles of natural justice and the mandatory provisions of Sections 4 and 5-A of the Act have been violated. It is pertinent to examine the provisions of sub-section (1) of Section 4 of the Act, which reads thus:-
Section 4(1) of the Act "4. Publication of preliminary notification and powers of officers thereupon. - (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be CWP No. 18821 of 2009 6 published in the official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of die notification."
8. A plain reading of sub-section (1) of Section 4 of the Act makes it abundantly clear that for the purpose of reckoning the period of one year or 30 days, the last of the date of such publication and the giving of such public notice has to be regarded "as the date of the publication of the notification", as per the provisions of sub-section (1) of Section 4 of the Act. Accordingly, it has to be understood to mean that the date of publishing the substance of the notification in the locality, which is 29.5.2008, would be relevant date for the pur- poses of reckoning the period of 30 days provided by Section 5-A of the Act concerning filing and hearing of objections. At this stage it would be convenient to make a reference to the provisions of Section 5-A of the Act, which reads thus:-
Section 5-A of the Act "5A. Hearing of objections. - (1) Any person interested in any land which has been notified under Section 4, sub- section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days CWP No. 18821 of 2009 7 form the date of the publication of the notification, ob- ject to the acquisition of the land or of any land in the lo- cality, as the case may be.
(2) Every objection under subsection (1) shall be made to the Collector in writing and the Collector shall give the objector, an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, subsection (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the Appropriate Government on the objections shall be final.
(3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act."
9. It is, thus, evident from the perusal of sub-section (1) of Section 5-A that any person interested in any land notified under Section 4(1), is entitled to file objection to the acquisition of the land within 30 days from the date of the publication of the notification. CWP No. 18821 of 2009 8 The expression 'the date of the publication of the notification' has to be understood in accordance with the guidance given by Section 4(1) of the Act. Accordingly, it has to be held that the last date of publication of substance of the notification in the locality has to be regarded/considered for counting 30 days. Accordingly, the objections filed on 5.6.2008 were within a period of 30 days because in the present case the substance of the notification dated 7.9.2007, under Section 4 of the Act, was published in the locality on 29.5.2008.
10. The stand taken by the respondents in their written statement has completely overlooked the provisions of Section 4(1) read with Section 5-A of the Act when it is asserted that the objections were filed after the period of 30 days.
11. There is another aspect of the matter. It has come on record that notification under Section 4 of the Act was issued on 7.9.2007 (P-10) and declaration under Section 6 was made on 19.1.2009 (P-12). The stand of the respondents is wholly inconsistent and self contradictory, inasmuch as, the declaration made under Section 6 of the Act would have lapsed on 19.1.2009 had the period of one year been reckoned from 7.9.2007. It is, thus, obvious that on the date of declaration under Section 6, more than one year had passed. However, the declaration did not lapse because the substance of the notification in the locality was published on 29.5.2008, which is the crucial date for the purposes of reckoning the period of thirty days or one year as per the provisions of Section 4(1) of the Act. CWP No. 18821 of 2009 9 Viewed from that angle, the stand of the respondents is not sustainable in law.
12. It is equally well settled that the right of hearing contemplated by Section 5-A is akin to fundamental rights and it is not an empty formality, as has been held by Hon'ble the Supreme Court in the case of Hindustan Petroleum Corporation Limited v. Darius Shapur Chenai, (2005) 7 SCC 627. The filing of objection is one thing. Thereafter, issuance of notice of hearing and then affording of an opportunity of hearing either to the objector in person or through his counsel are mandatory stages implicit in Section 5-A of the Act. It is admitted in the instant case that as the objections were time barred no notice of hearing could be issued to the petitioner. The views of Hon'ble the Supreme Court are clear from judgments rendered in the cases of Shri Mandir Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298 and Farid Ahmed Abdul Samad v. Municipal Corporation of the City of Ahmedabad, (1976) 3 SCC 719. The question regarding issuance of notice for hearing and affording of opportunity have been squarely answered in para 10 of the judgment in the case of Shyam Nandan Prasad v. State of Bihar, (1993) 4 SCC 255, which reads thus:-
"10. ......That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That at the time of the enquiry, for which prior notice shall be essential, the objector has the right to appear in CWP No. 18821 of 2009 10 person or through pleader and substantiate his objection by evidence and argument. And lastly, since the decision of the Collector may turn out to be final, unless interfered with by the Government, suo motu or on application, the Collector's decision is that of a quasi-judicial authority, arrived at by quashi-judicial methods." (emphasis added)
13. Viewed in the light of the aforesaid observations of Hon'ble the Supreme Court, the notifications under Sections 4 and 6 of the Act cannot survive judicial scrutiny because no notice under Section 5-A of the Act was issued to the petitioner prior to declaration made under Section 6 of the Act, which was made on 19.1.2009. Therefore, we have no hesitation to hold that no effective opportunity of hearing has been afforded to the petitioner and the principles of natural justice as contemplated by Section 4 and 5-A of the Act have not been complied with.
14. As a sequel to the above discussion, the instant petition succeeds and the impugned notifications under Section 4 and 6 of the Act, dated 7.9.2007 and 19.1.2009 (P-10 and P-12) and the award dated 5.2.2010 (P-19) in respect of the land of the petitioner are quashed with liberty to the respondents to initiate acquisition proceedings afresh in accordance with law if so advised.
15. The writ petition stands disposed of in the above terms.
(M.M. KUMAR)
JUDGE
CWP No. 18821 of 2009 11
(JITENDRA CHAUHAN)
April 7, 2010 JUDGE
Pkapoor