Punjab-Haryana High Court
Munshi Ram Chhabra And Ors. vs U.T. Chandigarh And Ors. on 7 February, 2003
Equivalent citations: (2003)133PLR765, AIR 2004 (NOC) 1 (P&H), 2003 A I H C 3534, (2003) 1 PUN LR 765, (2003) 5 ALLINDCAS 922 (P&H), (2003) 2 ICC 952, (2003) 2 LANDLR 252
Author: Hemant Gupta
Bench: S.S. Nijjar, Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The petitioners have challenged the notification dated 19.6.2002, Annexure P-8 under Section 4 of Land Acquisition Act (for short hereinafter to be referred as "the Act") and notification dated 29.11.2002. Annexure P-11, published under Section 6 of the Act for acquisition of 91.656 acres of land situated in village Raipur Kalan and land measuring 61.39 acres situated in village Mauli Jagran, for the purpose of setting up of industrial area and other allied uses 3rd phase near Mauli Jagran.
2. The petitioners have challenged the said acquisition alleging that they have installed 3 brick kilns in the land falling part of the above notification at the cost of Rs. 15 lacs each in installing 3 high chimneys of 125-130 feet. These chimneys with chambers were installed in compliance with the directions issued by the Chandigarh Pollution Control Committee. They have also got requisite licence from Chandigarh Administration under Chandigarh Control of Bricks Supplies Orders, 1972.
3. It is stated that some part of the land owned by the petitioners was intended to be acquired, vide notification dated 18.11.1992, Annexure P-6, under Section 4 of the Act. The petitioners have challenged the said acquisition in a writ petition which is pending before this Court. Another writ petition was filed since the respondents had not announced the award within the mandatory period, which is also pending before this Court. Subsequently, the Administration intended to acquire 40 acres of land which included some land of the petitioners vide notification dated 4.4.1994, Annexure P-7 for rehabilitation of the labour colonies. However, another notification under Section 4 of the Act has been issued on 19.6.2002, Annexure P-8 to acquire land measuring 93.13 acres in village Raipur Kalan and 61.39 acres of land in village Mauli Jagran for the public purposes of .setting up of industrial area'. The petitioners have alleged that publication of the substance of such notification in the locality is merely paper entry and no proper publication was ever done. However, a Rojnamcha Wakiati has been attached as Annexure P-9 with this petition which reads as under;-
"Copy of Roznamcha Wakiati for 2001-2002 of Village Mauli Jagran, Hadbast No. 373, Tehsil and District Chandigarh.
Report No. 452. Today the notification No. 43/3/12 UTFI (5) 2002-5454 was received and its proclamation done that notification under Section 4 of the Land Acquisition Act, 1894 has been issued on 12.6.2002 for setting up industrial area Phase HI. If any owner or co-sharer or any interested person has to object then he can do so within one month under the provisions of Section 5-A of the Land Acquisition Act, 1894. Regarding this proclamation by beat of empty tin and by speaking loudly was got done through Gurmail Singh, Chowkidar of Hallo Majra in villages Mauli Jagran and Raipur Kalan in streets and through fares and a copy was pasted on the path used by all. A copy of report is sent to the Tehsil Office. The details of the Khasra numbers in village Raipur Kalan and Mauli Jagran are :
xx xx xx xx xx xx xx
4. Subsequently, the petitioners have filed separate objections under Section 5A of the Act pointing out, inter alia that they have been running brick kilns on the land in dispute for the last many years after obtaining licences. They have constructed residential quarters for the labourers, raised chimneys as per the specification of Chandigarh Pollution Control Committee and, therefore, the land be exempted from acquisition. It is admitted by the petitioners that they were called for hearing of their objections on 11.9.2002. However, on reaching the office of respondent No. 2 on the appointed date, they were asked to mark their presence and get their oral statements recorded by the clerical staff of Land Acquisition Collector. It is further stated that the petitioners were not given any opportunity to substantiate their objections and lead evidence in support thereof and the entire proceeding of 11.9.2002 was a mere eye wash. It is also stated that on that day, 60 other objectors were called for hearing of the objections and the Land Acquisition Collector-respondent No. 2 "as such could not devote any personal time and attention to each objector". Thereafter, the respondents have issued a notification under Section 6 of the Act on 29.11.2002. It is relevant to re-produce the averments made in para No. 11 of the writ petition which read as under: -
"II. That the petitioners were called for a hearing of their objections by respondent No. 2 on 11.9.2002. However, on reaching the office of respondent No. 2 on the appointed date the petitioners were all asked to mark their presence and get their oral statements recorded by the clerical staff of respondent No. 2. No hearing was afforded to the petitioners by respondent No. 2 himself. The petitioners were not given any opportunity to substantiate their objections and lead any evidence in support thereof and the entire proceedings of 11.9.2002 was a mere eye-wash. Moreover, on 11.9.2002 respondent no.2 had called over 60 other objectors for a purported hearing of their objections. Respondent No. 2 as such could not devote any personal time and attention to each objector."
5. On these pleaded facts, the petitioners have sought quashing of the notification, Annexure P-8 and P-11 on the following grounds;-
1. The substance of the notification under Section 4 of the Act was not published in the locality. Since the publication of the notification under Section 4 of the Act is mandatory, therefore, such non publication will vitiate the acquisition proceedings. Even though the petitioners have filed objections but the respondents are bound to comply with the mandatory provisions and it is not necessary for the petitioners to suffer any prejudice.
2. The objections filed by the petitioners under Section 5A of the Act have been disposed of in perfunctory manner, without giving adequate opportunity to substantiate their objections and leading any evidence.
3. The petitioners require about 5 acres of land for each of their 3 brick kilns and brick kiln is an industry and, therefore, can very well be adjusted in the land sought to be acquired and that alternative, land is available with the Administration for the purpose of acquisition.
6. GROUND NO. 1.
The dispute raised by the petitioners is regarding non publication of substance of notification under Section 4 of the Act in the locality by the Chowkidar. It has been submitted that as per entry in Rojnamcha Wakiati, publication is purported to have been made by the Chowkidar of Hallo Majra, whereas the land is situated in villages Mauli Jagran and Raipur Kalan. It has also been submitted that no date has been mentioned in Rojnamcha Wakiati and, therefore, it can not be said to be a proper publication.
The entry in the Rojnamcha Wakiati as appended by the petitioners shows that proclamation was made by beat of empty tin and by speaking loudly in the streets and thorough fares of the villages Mauli Jagran and Raipur Kalan. A copy was pasted on the path used by all as well. It was not necessary that the publication of the substance is to be made by the Chowkidar of the same village. The purpose is publication in the locality, whether by the Chowkidar of the same village or of another village or even by a third person. The report attached by the petitioners has serial number. Therefore, reliance of the petitioners on Ghansham Dass Goyal and Ors. v. The State of Haryana and Ors., 1982 Revenue Law Reporter 267 is misconceived as that was a case where publicity was made in Hisar town and in that situation, the Court found that publication in a town with a population of few lacs can not be sufficient to hold that mere was a publication in the locality. The reliance of the petitioner on State of Punjab and Anr. v. Des Raj Mehta and Ors., (1991-1)121 P.L.R. 139 is again not tenable, in view of the fact that admittedly no publication in the locality was made at all. The said judgment is clearly distinguishable.
The petitioners have produced entry from rqjnamcha Wakiati. It has been alleged that it is a paper entry. The Rojnamcha Wakiati is the record maintained in normal course and thus, carries a presumption of correctness. It has been held in State of Mysore v. Abdul Razak Sahib, A.I.R. 1973 S.C. 2361 that the publication of the notice in the locality is mandatory requirement. The important purpose behind that is to enable the interested persons to file objections. It has been held by Supreme Court in para No. 4 as under:-
"4. With the above background, we have to consider the scope of Section 4(1). Under certain circumstances publications in the Official Gazettes are presumed to be notice to all concerned. But in the case of a notification under Section 4 of the Land Acquisition Act the law has prescribed that in addition to the publication of the notification in the Official Gazette the Collector must also give publicity of the substance of the notification in the concerned locality. Unless both these conditions are satisfied, S.4 of the Land Acquisition Act cannot be said to have been complied. The publication of the notice in the locality is a mandatory requirement. It has an important purpose behind it. In the absence of such publication the interested persons may not be able to file their objections about the acquisition proceedings and they will be deprived of the right of representation provided under S.5A which is very valuable right."
Subsequently, in State of Haryana and another v. Raghubir Dayal* (1995)1 Supreme Court Cases 133, the Supreme Court has held the importance of publication in the locality is that in rural areas most agriculturists may not read even the vernacular newspapers. Their fields are their world and work therein is their breadwinner. They would come to know only if the substance of the notification is published (announced) in the village by beat of drum. It has been held by Supreme Court in para no. 7 as under;-
"7. Therefore, the word 'shall' used in Section 4(1) should be construed to be mandatory because the requirement of Section 4(1) of the publication of the notification in the Gazette followed by their publication in the newspapers perhaps in some cases may not meet the needed purpose of notice to the owner or person claiming interest in the land proposed to be acquired. For instance, in rural areas most agriculturists may not read even the vernacular newspapers. Their fields are their world and work therein is their breadwinner. They would come to know only if the substance of the notification is published (announced) in the village by beat of drum. Therefore, publication of the substance of the notification of Section 4(1) and in the locality is mandatory but it is not the requirement of the law that it be done simultaneously with the publication in the Gazette or newspapers. Though there is a time gap of more than six months between the date of the notification under Section 4(1) in the State Gazette and the date of the publication of the substance of the notification in the locality, the delay by itself does not render the notification under Section 4(1) published in the State Gazette, invalid."
Thus, there is no doubt that the publication of notification under Section 4 of the Act is mandatory. However there is nothing on record to doubt the correctness of entries in the rojnamcha Wakiati regarding publication of the notification in the locality. Still further the petitioners are not agriculturists. They are residing in Chandigarh and have brick kilns in the village. They have filed objections in pursuance of the publication made in the newspapers. The purpose of publication is to apprise the land owners of the intention of the State Government to acquire land and to enable the officers of the State Government to enter the land for the purpose of survey. The petitioners were aware of the intention of the State Government and, thus, filed objections. In these circumstances, it can not be held that there is non compliance with Section 4 of the Act.
7. GROUND NO.2.
In support of ground No. 2, learned counsel for the petitioners has relied upon Farid Ahmed Abdul Samad and Anr. v. The Municipal Corporation of the City of Ahmedabad and Anr., A.I.R. 1976 Supreme Court 2095, Shyam Nandan Prasad and Ors. v. State of Bihar and Ors., (1993)4 Supreme Court Cases 255, Surat Singh, Engineer qrid another v. State of Punjab and Anr., 1996(2) R.L.R. 285 and Gopal Krishan Gupta and Ors. v. The State of Haryana and Anr. (1993-3)105 P.L.R. 560 to contend that the inquiry in pursuance of objections filed under Section 5A of the Act is of quasi judicial nature and entails civil consequences. Therefore, the manner in which hearing was conducted by the Land Acquisition Collector is only sham and does not satisfy the principles of natural justice. In Shyam Nandan Prasad and others case (supra), the Court was considering provisions of the Act as amended by Bihar and wherein the land was acquired for the purpose of company. Apart from the fact that the provisions of Section 5A are different in the State of Bihar and the Court was considering acquisition of the company which was again dealing with the interpretation of rule 4 of Land Acquisition (Companies) Rules, 1963 but still it can not be disputed that the Land Acquisition Collector, while hearing objections under Section 5A of the Act, is to comply with the principles of natural justice, while sending his report to the State Government.
As per the averments made in the writ petition, the grievance of the petitioners is that the Land Acquisition Collector could not devote any personal time and attention to each objector, as he had called over 60 other objectors for hearing of the objections on 11.9.2002. Such averment, in our opinion, is not sufficient to hold that the principles of natural justice were given complete go-bye by the Land Acquisition Collector. As averred by the petitioners, their statements were recorded. An objector can not be satisfied with any quantum of time spent by Land Acquisition Collector. It may be stated that land measuring 93.13 acres situated village Raipur Kalan and 61.39 acres situated in Mauli Jagran was intended to be required, vide notification under Section 4 of the Act, whereas the State Government has acquired 91.656 acres of land situated in village Raipur Kalan and 61.39 acres in village Mauli Jagran. Thus, land over 10 kanals was not acquired while publishing notification under Section 6 of the Act. It is apparent from the averments made by the petitioners that opportunity of hearing was granted. Thus, there was compliance of principles of natural justice.
8. GROUND No. 3.
A perusal of plan, Annexure P-14 shows that an area measuring 61 acres is the land of the petitioners which is now the subject matter of acquisition. The petitioners are run ning the brick kilns in the said area. The land is sought to be acquired for setting up in dustrial area and other allied uses. The brick kiln may be an industry for the purpose of Employees Provident fund and Miscellaneous Provision Act or for the purpose of Indus trial Disputes Act but it is an industry which can not be carried out in the developed in dustrial area as it has incidences of high dust and pollution. The petitioners have no right to claim that their brick kiln should be allowed to operate in the required land. The State authorities are to judge the suitability of the land sought to be required and its lo cation. A perusal of the plan shows that the adjoining land is the subject matter of ac quisition for one purpose of the other. Therefore, there is nothing unusual for the Ad ministration to acquire the land on which the petitioners have got brick kilns.
In view of the above, we do not find any illegality in the acquisition proceedings. Conse quently, the writ petition is dismissed in limine.
Sd/- S/S/ Nijjar, J.