Punjab-Haryana High Court
Chetna Estate Pvt. Limited And Others vs The State Of Haryana And Others on 1 July, 2009
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel, Jitendra Chauhan
CWP No.8274 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CWP No.8274 of 2009
Date of decision: 01 .7.2009
Chetna Estate Pvt. Limited and others
...Appellant
vs.
The State of Haryana and others
...
Respondents
CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MR JUSTICE JITENDRA CHAUHAN
Present:- Mr. Hemant Saini, Advocate for the petitioners.
Adarsh Kumar Goel,J.:
1. This petition seeks a direction to release of land of the petitioners in the same manner as has been done in other cases under the policy of the State dated 26.10.2007, Annexure P.6, from acquisition and for quashing the proceedings for acquisition initiated vide notification dated 7.2.2008 under section 4 of the CWP No.8274 of 2009 2 Land Acquisition Act, 1894 (for short, 'the Act') notification dated 6.2.2009 under section 6 of the Act on the ground of policy of release.
2. Thus, there are two issues raised:-
(i) Enforcement of policy dated 26.10.2007 to release land from acquisition on the ground that colonization licence has been applied for in respect of land covered by acquisition.
(ii) Quashing the acquisition proceedings on the ground that the same were vitiated by arbitrary exercise of power.
3. Having regard to the nature of issues which may not only affect the petitioners but also others, we consider it appropriate to pass a reasoned order even at the stage of issuing notice.
4. Facts pleaded are that the petitioners are developers and have purchased land for development in consonance with the State policy. They purchased the land between 2005-07 except 11 kanals 10 marlas of land purchased by petitioner No.1 on 5.9.2008. The said land has been included in acquisition by the above notification. The State of Haryana has a policy of issuing CWP No.8274 of 2009 3 licences under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 for development of a colony even if lands proposed to be developed as colonies are already covered by notifications under sections 4 and 6 of the Act. This is evident from the affidavits filed by the State dated 26.8.2007, 20.9.2007 and 29.10.2007, Anenxures P.2 to P.4 and also from the report of the Chief Secretary dated 10.2.2009, Annexure P.5. Further policy of the State is that application for grant of licence is entertained even after initiation of acquisition proceedings. The Government has also adopted a policy dated 26.10.2007, Annexure P.6. Notification dated 6.2.2009 has been issued without considering the objections of the petitioners under section 5-A of the Act. There was non compliance of provisions relating to publication. As per notification dated 14.9.2006 issued by the Ministry of Environment and Forest, projects covered under the Schedule require prior clearance which has not been done in the present case. Some of the land has already been released from acquisition. Affidavit Annexure P.2 mentions that where area is notified for acquisition, release can be considered for those who apply for licence under the provisions of the 1975 Act. There is a reference to policies permitting the release of land CWP No.8274 of 2009 4 from acquisition for developers or for Star Hotels even after initiation of acquisition proceedings. Report Annexure P.5 states that licence for development could be granted to land owner whose land was occupied for acquisition, if he enters into a collaboration with a colonizer. Policy Annexure P.6, inter-alia, is that if an application for licence is made under section 3 of the 1975 Act prior to award for converting land into a colony, such land can be considered for release. The Government may also consider release of land where owners have approached the Court and obtained stay.
5. We are, prima-facie, of the view that prayer for release of land as per policy of the State dated 26.10.2007 cannot be granted for the very reason for which the petitioners are seeking to question acquisition as being vitiated by policy of release while prayer for quashing acquisition needs consideration.
6. From the notification Annexure P.1, it is clear that the stated purpose of acquisition is for development and utilization as residential and commercial sectors under the Haryana Urban Development Authority Act, 1977 by the Haryana Urban Development Authority (HUDA). It is not the declared purpose CWP No.8274 of 2009 5 that acquisition is with a view to enable developer of a land to get a licence under the provisions of the 1975 Act for colonization.
7. The policy dated 26.10.2007, Annexure P.6, inter-alia, is as under:-
"In supersession of the policy framed vide letter No.5/30/2007-2TCP dated 30.9.2007 (copy enclosed for reference), the Government has framed a comprehensive policy as detailed below:-
xx xx xxx xxxx
5. Any land in respect of which an application under section 3 of the Haryana Development and Regulation of urban Areas Act, 1975 has been made by the owners prior to the award for converting the land into a colony, may also be considered for released subject to the condition that the ownership of the land should be prior to the notification under section 4 of the Act.
6. That the Government may also consider release of land in the interest of integrated and planned development for the lands where the owners have approached the Hon'ble Courts and have obtained stay dispossession.
Provided that the Government may release any land on the grounds other than stated CWP No.8274 of 2009 6 above under Section 48(1) of the act under exceptionally justifiable circumstances for the reasons to be recorded in writing."
8. Extract from the report of the Chief Secretary Annexure P.5 submitted in another case relating to the said policy is as under:-
"Within the framework of the Act of 1975, the Government has from time to time formulated several policies which inter alia also relate to issues pertaining to acquisition of land under the Land Acquisition act, 1894 and its release during the acquisition process. Land being a sensitive and a dynamic sector, the policies pertaining to release of land from acquisition have also evolved with the passage of time during the past 18 years period. Specific policies pertaining to release of land from acquisition vis a vis the applications for grant of licence have been in vogue since 1991.
14. Once some land falls within the urbanization limits defined in the development Plan, notified under the provisions of Act No.41 of 1963, the land use changes from the existing agriculture use to some urban land use, viz, Residential, Commercial, Institutional, Open Space etc. It is only a matter of time when the agriculture use of CWP No.8274 of 2009 7 the said land gets converted to the prescribed land use as per the Development Plan, either through a state agency like HUDA or HSIDC or through some private licencee. 'Change of Land Use (CLU) permission for a use in conformity to the Development Plan can also be undertaken by the land owner.
15. The land owner, whose land falls within the urbanisable limits, is entitled to best possible price that his land can fetch. The policies of the Government have, therefore, been aimed at empowerment of the land owner, whose land comes under urbanisable limits. In order to gain technical competence for development of a colony and be eligible for grant of licence, such land owners, however, enter into an agreement with colonizers of their choice. The licence is still granted in favour of the land owner who is free to enter into an agreement with a colonizer offering him the best terms.
9. The exercise of the power of acquisition to advance policy of colonization by private persons will be indirectly doing something which is not permissible in law. It is not permissible to acquire land for a private builder or to acquire the land to enable CWP No.8274 of 2009 8 private builder to get a licence. Once this is so, the consideration for release of land in favour of a person who has applied for or who has been granted a licence on the ground that the same will also result in development, is not permissible. Prayer in the petition for direction to release the land on the ground that the petitioner will apply for a licence for colonization in terms of policy of the State which allows the land to be released from acquisition, if a license is applied for or is granted, cannot, thus, be granted.
10. Power of acquisition under the Act, as already observed, can be exercised for public purpose. In State of Bihar v. Kameshwar Singh, AIR 1952 SC 252, para 45, it was observed:-
"......The sovereign power to acquire property compulsorily is a power to acquire it only for a public purpose. there is no power in the sovereign to acquire private property in order to give it to private persons. Public purpose is a content of the power itself. Reference in this connection may be made to Willoughby's Constitutional Law (page 795). Therein it is stated:
"As between individuals, no necessity, however great, no exigency, however imminent, no CWP No.8274 of 2009 9 improvement, however valuable, no refusal, however unneighbourly, no obstinacy, however unreasonable, no offers of compensation, however extravagant, can compel or require any man to part with an inch of his estate."
It was further observed in para 52:-
".....There can be no manner of doubt that acquisition of private property by legislation under Entries 33, 36 and 42 can only be made either for purposes of the Union or for purposes of the State or for a public purpose and that it is unnecessary to state in express terms in the statute itself the precise purpose for which property is being taken, provided from the whole tenor and intendment of the Act it could be gathered that the property was being acquired either for purpose of the State or of purposes of the public and that the intention was to benefit the community at large...."
11. It can hardly be disputed that acquisition to advance any purpose other than public purpose is not permissible under the law.
12. 'Public purpose' is defined under section 3(f) of the Act as under:-
CWP No.8274 of 2009 10
"3(f) - the expression "public purpose" includes -
(i) the provision of village sites, or the extension, planned development or improvement of existing village sites;
(ii) the provision of land for town or rural planning;
(iii) the provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned;
(iv) the provision of land for a corporation owned or controlled by the State;
(v) the provision of land for residential purposes to the poor or landless or to person residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by Government, any local authority or a corporation owned or controlled by the State;
(vi) the provision of land for carrying out any educational housing, health or slum clearance scheme sponsored by Government or by any authority established by Government for carrying out any such scheme, or with the prior approval of the appropriate Government, by a local authority, or a society registered under the Societies Registration Act, 1860, CWP No.8274 of 2009 11 or under any corresponding law for the time being in force in a State, or a co-operative society within the meaning of any law relating to co-operative societies for the time being in force in any State;
(vii) the provision of land for any other scheme of development sponsored by Government, or, with the prior approval of the appropriate Government, by a local authority;
(viii) the provision of any premises or building for locating a public office, but does not include acquisition of land for Companies".
13. The definition of 'Public purpose' came up for consideration before the Hon'ble Supreme Court in H.M.T House Building Cooperative Society v. Syed Khader and others, AIR 1995 SC 2244 and in paras 20,21 and 22, it was observed:-
"20. Now the question which is to be answered is as to whether in view of the definition of "public purpose" introduced by the aforesaid amending Act 68 of 1984 in Section 3(f)(vi), is it open to the appropriate Government to acquire land for co-operative society for housing scheme without making proper enquiry about the members of the Society and without putting such housing co-CWP No.8274 of 2009 12
operative society to term in respect of nature of construction, the area to be allotted to the members and restrictions on transfer thereof ?
21. According to us, in Section 3(f)(vi) the expression "housing" has been used along with educational and health schemes. As such the housing scheme contemplated by Section 3(f)(vi) shall be such housing scheme which shall serve the maximum number of members of the society. Such housing scheme should prove to be useful to the public. That is why the Parliament while introducing a new definition of "public purpose", said that any scheme submitted by any co- operative society relating to housing, must receive prior approval of the appropriate Government and then only the acquisition of the land for such scheme can be held to be for public purpose. If requirement of Section 3(f)(vi) is not strictly enforced, every housing co-operative society shall approach the appropriate Government for acquisition by applying Section 3(f)(vi) instead of pursuing the acquisition under Part VII of the Act which has become more rigorous and restrictive. In this background, it has to be held that the prior approval, required by Section 3(f)(vi), of the appropriate Government CWP No.8274 of 2009 13 is not just a formality; it is a condition precedent to the exercise of the power of acquisition by the appropriate Government for a housing scheme of a co-operative society.
22. In the present case, a hybrid procedure appears to have been followed. Initially, the appellant society through M/s. S. R. Constructions purported to acquire the lands by negotiation and sale by the land holders. Then from terms of the agreement dated 17-3-1988, it appears that the procedure prescribed in Part-VII was to be followed and the lands were to be acquired at the cost of the appellant society treating it to be a "company". The allegation made on behalf of the appellant society that the housing scheme had been approved by the appropriate Government on 7-11-1984 shall not be deemed to be a prior approval within the meaning of Section 3(f)(vi) but an order giving previous consent as required by Section 39 of Part-VII of the Act. In the agreement dated 17-3- 1988 it has been specifically stated "And whereas the Government having caused inquiry to be made in conformity with the provisions of the said Act and being satisfied as a result of such inquiry that the acquisition of the said land CWP No.8274 of 2009 14 is needed for the purpose referred to above has consented to the provisions of the said act being in force in order to acquire the said land for the benefit of the society members to enter in the agreement hereinafter contained with the Government". (emphasis supplied) But, ultimately, the lands have been acquired on behalf of the appropriate Government treating the requirement of the appellant society as for a public purpose within the meaning of Section 3
(f)(vi). It is surprising as to how respondent M/s.
S. R. Constructions entered into agreement with the appellant society assuring it that the lands, details of which were given in the agreement itself, shall be acquired by the State Government by following the procedure of Sections 4(1) and 6(1) and for this, more than one crore of rupees was paid to M/s. S. R. Constructions (respondent No.11)."
14. Following the observations in H.M.T (supra), in Vyalikaval Housebuilding Coop. Society by its Secretary v. V.Chandrappa and others, (2007) 9 SCC 304, the Hon'ble Supreme Court upheld quashing of acquisition on the ground that the same was for colourable exercise of power. The finding of the CWP No.8274 of 2009 15 High Court extracted in para 3 of the said judgment was as under:-
"The irresistible inference flowing from the facts and circumstances of these cases is, whereas the poser conferred under the Land Acquisition Act is for acquiring lands for carrying out housing scheme by a housing society, in each of the cases the acquisition of lands is not for a bona fide housing scheme but is substantially for the purpose of enabling the concerned office bearers of respondent- societies and their agents to indulge in sale of sites in the guise of allotment of sites to the Members/ Associate members of the society to make money as alleged by the petitioners and therefore it is a clear case of colourable exercise of power. Thus the decision of the Government to acquire the lands suffers from legal mala fides and therefore the impugned Notifications are liable to be struck down."
Approving the said findings, relying upon earlier judgment in H.M.T (supra), it was observed:-
"8.Similarly, in H.M.T.House Building Co- operative Society (1995) 3 SCC 128 in which the present appellant was one of the societies, which challenged the order of the Division Bench of the High Court of Karnataka, their Lordships CWP No.8274 of 2009 16 dismissed the Special Leave Petition following the judgment in H.M.T. House Building Co- operative Society (supra). In paragraph 3 of the judgment while dealing with the facts of this society their Lordships observed that this society had advertised inviting persons who want to have mansions in the city of Bangalore and had also given the names and addresses of the representative at Dubai."
15. In Padma v. Hiralal Motilal Desarda and others, AIR 2002 SC 3252, the issue considered by the Hon'ble Supreme Court was whether City and Industrial Development Corporation to whom land was allotted by the State after acquisition could transfer the same to professional builders for development. It was observed that land allotted to CIDCO could not have been parted with by sole consideration of money making. CIDCO was not a commercial concern. The land had to be utilized according to plan. It was observed:-
".....the constitutional court acts as the sentinel on the qui vive discharging its obligation as custodian of the constitutional morals, ethics and code of conduct - well defined by series of judicial pronouncements. The Court is obliged to see while scrutinising the conduct CWP No.8274 of 2009 17 and activities of a public body constituted with the avowed object of serving the society to see that its activities bear no colour except being transparent, are guided with the object of public good and are within the four corners of law governing the same. The holder of every public office hold a trust for public good and therefore his actions should all be above board...."
"31. It is not disputed that CIDCO is supposed to carry out its activities on 'no profit no loss' basis and that is the basis on which CIDCO, as per its own case, has been acting until it decided to part with the chunk of developable land by bulk sale which proposal was obviously in departure from the policy of serving on 'no profit no loss' basis such people as were craving for a roof over their heads. The High Court while dealing with this aspect of the matter has assigned several convincing reasons why the very concept of sale of bulk land cannot sail with CIDCO, either in law of in propriety. Assuming that an extraordinary situation which there was none - had warranted a policy decision for bulk sale the decision should have been of the Board and accompanied by reasons. In the present case, if only the proposal would have been placed before the Board of CIDCO in all probability it would have been discarded. It is pertinent to note that good number of officials, through whose hands the CWP No.8274 of 2009 18 proposal passed while travelling up, were not agreeable to and had their own reservations on the proposal of such bulk sale. What prevailed with one or two of those placed at the higher rung or bureaucratic ladder in permitting such bulk sale in hot haste defies explanation for the simple reason that in the decisions available on the note sheets of the record looked into by the High Court no reasons have been assigned in favour of endorsing the proposal for bulk land sale. We are not prepared to accept even for a moment that there was no demand of land. Even if the development plan for the developable land was not approved by the State Government there is nothing which had prevented the CIDCO from carving out small middle level and larger plots which those who can afford would have certainly been prepared to take and build small, middle level or spacious houses or bungalows for their own residential requirements. This find support from the overwhelming demand of land which the High Court has noted and which demand the CIDCO had found out of proportion as compared to the availability of land with it. The decision for bulk land sale cannot be said to have been taken in public interest. The High Court has rightly observed in its judgment that some public institutions who were allotted large pieces of land have developed parks and gardens but they are not open for free access by people CWP No.8274 of 2009 19 generally. The local residents and children must have place enough to be used as parks, gardens and for entertainment which not only act as lungs and ventilators for suffocating growth of population but also add luster and beauty to the township. The utility of such pieces of land acting as buffer for maintaining ecological balance and environmental demands needs no emphasis. We entirely agree with the reasons of the High Court and the observations made by it while recording its strong disapproval of bulk sale.
32. There is yet another angle of looking at the propriety of the questioned bulk sale of land by CIDCO and the manner in which it was done. The land acquired and entrusted to CIDCO cannot just be permitted to be parted with guided by the sole consideration of money-making. CIDCO is not a commercial concern whose performance is to be assessed by the amount it earns. Its performance would be better assessed by finding out the number of needy persons who have been able to secure shelter through CIDCO and by the beauty of township and quality of life for people achieved by CIDCO through its planned development schemes. So long as such objectives are fulfilled CIDCO's operation on 'No- profit-No Loss' basis cannot be found fault with. There should have been no hurry on the part of CIDCO in CWP No.8274 of 2009 20 disposing of the balance land and that too guided by the sole consideration of earning more money. Even that object the CIDCO has not been able to achieve for at the end it has parted with land at a price less than Rs. 1500/- per square meter - the reserved price. Even if a sale of left-over land was a felt-necessity it should have satisfied at least two conditions: (i) a well- considered decision at the highest level; and (ii) a sale by public auction or by tenders after giving a more wide publicity than what was done so as to attract a larger number of bidders."
17. The Court has to see not the form of action but the effect thereof, as held in Rustom Cavasjee Cooper v. Union of India, AIR 1970 SC 564 and Smt.Maneka Gandhi v. Union of India and another, AIR 1978 SC 597. In Maneka Gandhi (supra), while discussing the approach for judging the validity of State action, the doctrine that object and form of State action alone cannot determine the extent of protection available, was rejected. It was held that the approach of the Court is to see not merely object and form of the State action but its effect. Following observations from R.C.Cooper (supra) were relied upon:-
"........... it is not the object of the authority making the law impairing the right of a citizen nor the form of CWP No.8274 of 2009 21 action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual's right."
"We are of the view that the theory that the object and form of the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme................."
18. It is clear that while provisions of the Act read with Articles 14, 19, 21 and 300-A of the Constitution permit property of a person to be taken only for advancing public purpose. The State, while purporting to take property of a person for public purpose for development by HUDA, in effect has a different purpose in mind of licensing of developers, builders or property dealers. This action may invalidate acquisition. It has been brought to our notice while hearing some other cases including CWP No.8274 of 2009 22 CWP No.1356 of 2004 that after initiating acquisition proceedings ostensibly for a legitimate public purpose, substantial part of the land so notified has been released to builders, property dealers, developers, colonizers. While exercise of power of release is subject matter of other writ petitions, question which requires consideration is whether acquisition itself is vitiated when the same is not for declared public purpose of development by HUDA which declaration is conclusive under Section 6(3) of the Act but to advance policy of the State to encourage development of acquired land by private builders.
19. The policy of the State has created a situation whereby it has enabled itself to exercise power of acquisition contrary to ostensible and declared purpose. While the purported object is acquisition for development by State agencies but in implementing the policy for giving licences, the effect is to exercise power of acquisition for private builders which is not legally permissible. By initiating acquisition proceedings, the original owners may be forced to part with the land. Since the purpose for which in effect, power is exercised, is not permissible under the law, this amounts to fraud on exercise of power. Fraud not only vitiates acquisition proceedings but also exercise of CWP No.8274 of 2009 23 power of release as both have been inter-linked. The power of licence under the 1975 Act can have no connection or nexus with the acquisition proceedings except to use the power of acquisition for prohibited purpose and to legitimize the same. In such situation, action of the State may be liable to be quashed. Wherever power of release has already been exercised by unlawfully using power of acquisition, the released land may have to be restored to the State to prevent unjust enrichment. In those cases, mere quashing of acquisition may perpetuate illegal release and conferment of illegal benefits. However, that is the issue being considered in cases where power of release is at issue.
20. It is not a case of acquisition under Chapter VII of the Act for which different procedure is applicable, as held by the Hon'ble Supreme Court in Devinder Singh vs. State of Punjab, (2008) 1 SCC 728. What cannot be done directly is sought to be done indirectly. Exercise of power apparently for public purpose of development by State is sought to be used for extraneous purpose.
21. We may refer to some of the judgments of the Hon'ble Supreme Court in this regard. In Collector (DM) v. Raja Ram Jaiswal, (1985) 3 SCC 1, it was observed:-
CWP No.8274 of 2009 24
"25. It is well settled that where power is conferred to achieve a certain purpose, the power can be exercised only for achieving that purpose. Sec. 4(1) confers power on the Government and the Collector to acquire land needed for a public purpose.....
26. Where power is conferred to achieve a purpose it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. And in this context 'in good faith' means 'for legitimate reasons'! Where power is exercised for extraneous or irrelevant considerations or reasons, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated. If the power to acquire land is to be exercised, it must be exercised bona fide for the statutory purpose and for none other. If it is exercised for an extraneous, irrelevant or non-germane consideration, the acquiring authority can be charged with legal mala fides. In such a situation there is no question of any personal ill-will or motive. In Municipal Council of Sydney v. Campbell, 1925 AC 338 at p. 375 it was observed that irrelevant considerations on which power to acquire land is exercised, would vitiate compulsory purchase orders or scheme depending on them. In State of Punjab v. Gurdial Singh, (1980) 1 SCR 1071 : (AIR 1980 SC 319) acquisition of land for constructing a CWP No.8274 of 2009 25 grain market was challenged on the ground of legal mala fides. Upholding the challenge this Court speaking through Krishna Iyer, J. explained the concept of legal mala fides in his hitherto inimitable language, diction and style and observed as under (at p. 321 of AIR) :
"Pithily put, bad faith which invalidates the exercise of power - sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions - is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment; When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in Law when he stated : "I repeat .........that all power is a trust - that we are accountable for its exercise - that, from the people, and for the people, all springs, and all must exist."CWP No.8274 of 2009 26
22. In R.L.Arora v. State of UP, AIR 1964 SC 1230, it was observed:-
"17....The intention of the legislature clearly is that private individuals and private companies which really consist of a few private individuals banded together should not have the advantage of acquiring land even though they may be intending to engage in some industry or work which may be for a public purpose inasmuch the enrichment consequent on such work goes to private individuals or to a group of them who have formed themselves into a private company.
23. In S.R. Venkataraman v. Union of India, (1979) 2 SCC 491, it was observed:-
"5.....Malice in law is however, quite different. Viscount Haldane described it as follows in Shearer v. Shields, (1914) AC 808:
"A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently."CWP No.8274 of 2009 27
24. In Secy., Jaipur Development Authority v. Daulat Mal Jain, (1997) 1 SCC 35, it was observed:-
18. In other words, the public policy under the Act is that the acquired land should be used only for public purpose declared under Section 6(1) of the Act or any other public purpose and, under no circumstances, for any private purpose. The limited relaxation of public power entrusted with the LAO is to allot any other land, if available to the owner with limited interest or remission of land revenue when limited interest is acquired for public purpose.
25. In Sooraram Pratap Reddy v. District Collector, Ranga Reddy District,(2008) 9 SCC 552, it was observed:-
"The majority concluded: (Somawanti v. State of Punjab, AIR 1963 SC 151) "40. Though we are of the opinion that the courts are not entitled to go behind the declaration of the Government to the effect that a particular purpose for which the land is being acquired is a public purpose we must emphasise that the declaration of the Government must be relatable to a public purpose as distinct from a purely private purpose. If the purpose for which the acquisition is being made is not relatable to public purpose then a question may well arise whether in making the declaration there has been, on CWP No.8274 of 2009 28 the part of the Government a fraud on the power conferred upon it by the Act. In other words, the question would then arise whether that declaration was merely a colourable exercise of the power conferred by the Act, and, therefore, the declaration is open to challenge at the instance of the party aggrieved. To such a declaration the protection of Section 6(3) will not extend. For, the question whether a particular action was the result of a fraud or not is always justiciable, provisions such as Section 6(3) notwithstanding." (emphasis supplied)
26. The power of excluding land from notification under section 4 while issuing notification under section 6 can be exercised, which may not defeat the declared public purpose. Exercise of power for issuing licences for earning development charges or releasing land to builders may not be consistent with the declared public purpose and doing so may vitiate the acquisition itself apart from vitiating the release. The power of licensing of colonizers under the 1975 Act cannot be linked to the power of land acquisition.
27. Since it is acknowledged case of the State in the report of the Chief Secretary and its policies that grant of licence under CWP No.8274 of 2009 29 the 1975 Act is linked to land acquisition proceedings, we are, prima-facie, of the view that exercise of power of acquisition linked to advancing policies for giving licence under 1975 Act may be illegal. Since the said power is being exercised at large scale covering thousands of acres of land, we have already called upon the State of Haryana to furnish details in CWP No.1356 of 2004 of all lands released after initiating acquisition proceedings in last three years. Subject to matter being further examined, the exercise of power in all such cases may stand vitiated and beneficiaries of exercise of such power may be liable to restore the said benefits to the State, as we have already observed in earlier orders in CWP No.1356 of 2004 and other cases.
28. We, therefore, propose to examine the validity of exercise of power of acquisition in the light of above observations.
29. Notice of motion for 13.7.2009.
30. Stay further proceedings.
(Adarsh Kumar Goel)
Judge
July 01 , 2009 (Jitendra Chauhan)
'gs' Judge