IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.5878 of 2003(O&M) Date of decision: 08 .12.2009 Amita Banta and another -----Petitioners Vs. State of Haryana and others ----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Vinay Kuthiala, Advocate and Mr. Munish Behl, Advocate for petitioners in CWP No.5878 of 2003 and CWP No.9155 of 2004. Mr. Shailendra Jain, Advocate for the petitioners in CWP No.6038 of 2003, 9142 and 9181 of 2004. Mr. Ashish Chopra, Advocate for the petitioners in CWP No.11502 of 2004. Mr. Virender Kumar Kharta, Advocate for the petitioners in CWP No.7922 of 2003, 14858 of 2003 and 11637 of 2004. Mr. Sanjay Vij, Advocate for the petitioners in CWP No.8515 of 2003. Mr. Rameshwar Malik, Addl.A.G.Haryana for the State. Adarsh Kumar Goel,J. 1. This order will dispose of Civil Writ Petition Nos.5878, 6038, 7922, 8515, 8886, 14858 of 2003, 9142, 9155, 9181, 11502 and 11637 of 2004, as all the writ petitions seek same relief of quashing of proceedings for acquisition of land initiated in CWP No.5878 of 2003 (O&M) and connected petitions pursuance of notification dated 13.8.2001 under section 4 and notification dated 9.8.2002 under section 6 of the Land Acquisition Act, 1894 (for short, ‘the Act’). 2. Case set out in CWP No.5878 of 2003 is that the writ petitioners purchased land adjacent to Hotel Bristol and DLF Gymkhana Club in Gurgaon in 1990. Acquisition proceedings were earlier initiated vide notification dated 5.10.1984 under section 4 of the Act, which were challenged by filing CWP No.1470 of 1985. During pendency of the writ petition, the acquisition proceedings were withdrawn and the writ petition was disposed of as infructuous on 1.5.2000. 3. Thereafter, proceedings were initiated vide impugned notifications. The stated purpose for acquisition is “development and utilization of land for residential and commercial Sector 28 at Gurgaon”, by “Haryana Urban Development Authority”. The land notified was 36.59 acres. The petitioners raised objections under section 5-A of the Act, inter-alia, to the effect that land of the petitioners had 13000 square feet area for business purposes constructed at cost of Rs.65 lacs. The petitioners were doing multi business activities and had licences under various laws. Similar land on the other side of road, occupied by Sahara Mall, JMD and Shyam Lal Market was excluded from acquisition. It was also stated that there was policy not to acquire built up area. The objectors had applied for change of land use. The purpose of 2 CWP No.5878 of 2003 (O&M) and connected petitions acquisition could not be fulfilled as the area surrounding the land was being used for commercial complex. The area covered by the notification was not a compact block but comprised scattered pieces of land as per site plan Annexure P.10. No residential colony could be set up as proposed. 4. Grounds raised in the petition for challenging acquisition are that notification under section 6 of the Act was issued without considering the objections of the petitioners. The notification was not duly published. It has been further stated that substantial portion of area had already been released from acquisition in favour of DLF Construction Company and other persons mentioned in para 17 of the petition, who had influence on Government. The public purpose of development was an eye-wash. The area was surrounded by land belonging to private builder M/s DLF Universal Limited and acquisition will advance its pecuniary interest with the help of HUDA. The site was not validly selected. No development plan was prepared in accordance with the Punjab Scheduled Roads and Controlled Areas Restrictions of Unregulated Development Act, 1963 (in short, ‘the 1963 Act’) and Haryana Development and Regulation of Urban Areas Act, 1975 (in short, ‘the 1975 Act’). The acquisition amounted to benefiting a private builder by leaving out adjacent land from acquisition. 3 CWP No.5878 of 2003 (O&M) and connected petitions 4. The petitioners also filed rejoinder placing on record further developments that land abutting and behind their land was exempted from acquisition on account of which notified public purpose did not survive. Substantial part of the land covered by the notification was released in favour of persons to whom licences Annexures P.16 to P.18 were granted under the provisions of the 1975 Act. There was no objective criteria for release and action of the State was discriminatory. Order of Director Urban Estate Development, Haryana for release of part of acquired land dated 2.5.2003 has been filed as Annexure P.20. Further affidavit dated 26.7.2004 was filed on behalf of the petitioners stating that during pendency of the petition, more land out of the acquired land was released, which was covered by licences Annexures P.23 to P.26. Most of the acquired land having thus been released, there was no purpose for continuing acquisition proceedings. Similar averments have been made in Paras 7 and 8 of replication dated 27.2.2004 in CWP No.6038 of 2003, which are as under:- “7. That para No.7 of the written statement is totally wrong, incorrect and hence denied. The averments made in the corresponding para of the writ petition are reiterated being correct. It is further submitted that the instant proceedings for acquisition of the land in question have been initiated with malafide motive and in colourable exercise of powers. The land of the petitioners is surrounded on all sides by the lands which have already been released from the acquisition 4 CWP No.5878 of 2003 (O&M) and connected petitions proceedings and for which licences have been granted to the influential persons for change of land use. Thus, the land of the petitioners cannot be put to any use much less the purpose for which the same have been notified and thus the instant acquisition is motivated by ulterior considerations. As stated in the writ petition, the land of the petitioners is situated on the main Faridabad-Gurgaon Highway and it is adjacent to the Hotel Bristol and Gymkhana Club Gurgaon. The land immediately near to the land of the petitioners has now been exempted from the acquisition proceedings and no public purpose, whatever, can be served by acquiring the land of the petitioners. The land comprised in Khasra Nos.100, 101, 102, 95, 96/1, 96/2 has now been excluded from the acquisition proceedings and change of land use licences have already been granted to the land owners. Further, the land surrounding the land of the petitioners, comprised in Khasra Nos.99, 107, 108, 113 to 116 are already dotted with commercial complex buildings or under construction activities. True copies of the said permission/licences are annexed herewith as Annexures P.8 to P.10. It would be apparent from the perusal of these licences that the same were issued in June 2003 i.e. much after the filing of the instant writ petition. Thus, the specific averment of the petitioners in the instant writ petition that the adjoining land was being exempted from the array of acquisition and that they were being discriminated against in this regard, stands proved to be true. It would also be relevant to mention here that in similar circumstances a Division bench of 5 CWP No.5878 of 2003 (O&M) and connected petitions this Hon’ble Court has quashed the acquisition proceedings vide order dated May 21, 2002 passed in CWP No.12714 titled as Ghanshayam v. State of Haryana and a true copy of which is annexed herewith as Annexure P.11. it may be relevant to mention here that in so far as licence No.10, Annexure P.9 is concerned, the same has been granted for land measuring less than one acre to joint owners of the same. Further vide letter No.1-2003/3105 dated 2.5.2003, a true copy of which is also annexed herewith as Annexure P.12, land belonging to different co owners which was being acquired for development of sector 28, Gurgaon, for which Sector alone the land of the petitioners is being acquired, has since been released from the array of acquisition and a joint CLU has been granted to different persons/owners for commercial purposes. Thus, the land of the petitioners cannot be utilized for any purpose whatsoever inasmuch as the same is surrounded by the land on all sides for which change of land use licences have been granted to various private organizations. Further, the respondents have themselves formulated a policy to allow 100% change of land use for construction of Malls on the Gurgaon Mehrauli road in respect of the land of the petitioners as well as other adjoining lands. A true copy of the newspaper report to this effect dated 4.12.2003 is also annexed herewith as Annexure P.13. The petitioners crave the indulgence of this Hon’ble Court that they also intend to take the benefit of the policy so formulated by the respondents, as aforesaid and they shall use the land in question in accordance 6 CWP No.5878 of 2003 (O&M) and connected petitions with the policy/laws formulated by the state Legislature or HUDA in this regard. 8. That para No.8 of the written statement is totally wrong, incorrect and hence denied. The averments made in the corresponding para of the writ petition are reiterated being correct. It may be further respectfully submitted here that as already stated hereinabove, with regard to the lands situated in the nearby vicinity to the land of the petitioners, the state of Haryana has already granted permission for change of land use and has also exempted the same from the array of acquisition. Moreover, some other lands situated in the vicinity of the land of the petitioners are either occupied by the already existing commercial complexes or the same are under construction. The land in question of the petitioners is more valuable keeping in view its locational advantage and in fact the State of Haryana in its Urban estates Department has already formulated a policy to grant change of land use to such land owners but in colourable exercise of powers, the instant land is being sought to be acquired.” Facts in other petitions are identical. 5. In reply filed by Land Acquisition Collector on behalf of the State as well as himself, stand taken is that publication was duly made and objections were duly considered and validly rejected. Acquisition was as per development plan. The land released was not similarly situated. In reply to further developments, affidavit dated 25.10.2004 was filed on behalf of 7 CWP No.5878 of 2003 (O&M) and connected petitions the respondents by District Town Planner, Gurgaon stating that after initiation of acquisition proceedings, applications were received under the provisions of the 1975 Act and as per policy of the State of the year 2000, acquired land could be released in favour of developers/colonizers who made application for grant of licence. Accordingly, before announcement of award dated 3.8.2004, land measuring 22.61 acres was released from acquisition and award for only 13.9 acres was announced. No award was announced for 22.61 acres of land. On the remaining land, there was proposal to construct multi level parking and service roads/green belts. Further affidavit dated 21.10.2004 was filed by the Land Acquisition Collector stating that in view of traffic jam on Mehrauli-Gurgaon road, Metro rail had been finalized and part of area covered by acquisition was required for planning roads etc. 6. Learned counsel for the petitioner points out that as against 36.59 acres of land notified for the purpose of development by HUDA under the HUDA Act, the award was made only of 13.9 acres and there has been further release of more than 8 acres of land even after the award by way of licence dated 18.8.2005, a copy of which has been taken on record as Mark ‘X’. It was, thus, submitted that stated public purpose for acquisition is mere pretence. Purpose of acquisition was not a public purpose but to benefit persons who were granted licence under the 1975 Act by 8 CWP No.5878 of 2003 (O&M) and connected petitions the State authorities in their “discretion”, in furtherance of policy of the State spelt out in affidavit dated 21.10.2004 on behalf of the State. The State has, thus, acted contrary to its declared purpose. No doubt, the declared purpose may have been a public purpose but action of the State is contrary to the said declaration. It was submitted that the purpose should not be viewed only from the declaration in the notification but also from the subsequent actions of the State, read with the policy of the State. Thus viewed, the purpose of the State was to use the power of acquisition ostensibly for public purpose of development by the State or its authorities but for real purpose of benefiting private individuals by releasing substantial part of notified land to such persons as may be granted licences ‘in discretion’ of the State Government or its authorities. Such action was vitiated by fraud and adoption of unfair and unwarranted procedure to deprive land owners affected by acquisition of their constitutional right of property. Exercise of power by the State withdrawing from acquisition was clearly beyond the scope of Section 48 of the Act and is not only ultravires the Act but is also hit by Articles 14, 21 and 300-A of the Constitution. The policy of the State amounted to exercise of legislative power by exercise of essential legislative functions beyond the scheme of the Act. No public purpose survived after 90% of notified land has been released. 9 CWP No.5878 of 2003 (O&M) and connected petitions 7. Learned counsel for the petitioners have referred to orders passed in various pending cases wherein clear trend of notifying land for public purpose and thereafter large scale release thereof contrary to declared purpose and without following objective norms having any statutory backing has been noticed. In CWP No.1356 of 2004 (Pardeep Yadav v. State of Haryana), after noticing the said trend based on instances mentioned therein, it was observed that exercise of power of acquisition called for a close scrutiny by Court and may also call for independent investigation to check wrongful gain to individuals and wrongful loss to the State. It was further observed that the released land may have to be restored to the State or to the original owner by annulling the orders if the same were found to be vitiated by fraud, fixing accountability of the persons who may have abused the power. In order dated 21.8.2009, it was noticed that information furnished by State in this regard showed that out of 17000 acres of land notified for acquisition in the last three years, award was made only for 3876 acres and the remaining land was either expressly released or no award was announced. In order dated 16.9.2009 in CWP No.16363 of 2005 (HMD Technologies v. State of Haryana), it was noticed that after notifying huge track of land for public purpose of setting up Special Economic Zone by Haryana Industrial Development Corporation (a Government Corporation), major chunks of land 10 CWP No.5878 of 2003 (O&M) and connected petitions were released to private parties even after award was made. Reference in the said order was also made to release of land to Shri H.S.Chatha who was elected as MLA and was also a Minister. In order dated 8.1.2009 in CWP No.2227 of 2008 (Haryana Rice Mills and others v. State of Haryana and others), release of land in favour of Smt.Sumita Singh, MLA was made. Similar issue was considered, inter-alia, in order dated 7.1.2009 in CWP No.3972 of 2008 (Nirmala Rani and others v. State of Haryana and others), order dated 14.1.2009 in CWP No.15370 of 2008 (Malho Devi v. State of Haryana), order dated 26.3.2009 in CWP No.15777 of 2004 (Rajyoga Education and Research Foundation v. State of Haryana and others), order dated 24.3.2009 in CWP No.21308 of 2008 (Inder Mohan Rai v. State of Haryana and others) and order dated 27.3.2009 in CWP No.4857 of 2009 (Sunder Lal v. State of Haryana). 8. In support of their submissions, learned counsel for the petitioners cited following judgments:- i) Hindustan Petroleum Corpn. Limited v. Darius Shapur Cheniai and others, (2005) 7 SCC 627, paras 15, 16, 18 and 28, to submit that Section 5-A confers valuable and important right which is akin to fundamental right. The purpose is to give opportunity to show that purpose of acquisition is not public purpose and that land acquired was not suitable for the purpose. Hearing must be effective and not a formality. Opinion for 11 CWP No.5878 of 2003 (O&M) and connected petitions public purpose must be formed after application of mind and on relevant factors. Even though, reasons may not be indicated in the declaration under section 6, the declaration must precede decision by the State Government. The Collector must submit his report alongwith record and thereafter the State Government must apply its mind. Counter affidavit filed on behalf of the Collector is not sufficient compliance of the requirement of law to show application of mind by the State. Collector cannot file counter affidavit on behalf of the State. ii) Abhishek Gupta v. State of Haryana, 2008(3) Law Herald (P&H), para 26 to submit that where reasons given by the State are not rational, exercise of power under section 5-A will stand vitiated. iii) Shri R.R.Gupta v. Union of India and others, CWP No.1639 of 1985 decided on 18.11.1988 (Del.) to submit that if there is non compliance of requirement of section 5-A, notification under section 6 was liable to be quashed. iv) Gopal Krishan Gutpa v. State of Haryana, 1993(3) PLR 560 (P&H) to submit that personal hearing under section 5-A was mandatory and must be meaningful and in absence thereof, acquisition was liable to be quashed. 12 CWP No.5878 of 2003 (O&M) and connected petitions v) State of Tamil Nadu and another v. A.Mohammed Yousef and others, (1991) 4 SCC 224 to submit that acquisition must be preceded by a scheme and pre-scheme acquisition was premature. (the above view does not appear to have been approved in later judgment in State of T.N. v. L. Krishnan (1996) 1 SCC 250, paras 29 and 33). vi) Tulsi Cooperative Housing Society, Hyderabad v. State of Andhra Pradesh and others, AIR 1999 SC 3667 to submit that acquired land should be used for purpose for which the same was acquired. vii) Municipal Corporation of Great Bombay v. The Industrial development and Investment Co.Pvt. Limited and others, (1996) 11 SCC 501, para 22 To submit that land acquired for a public purpose could be used for any other public purpose on account of change of circumstances or on land becoming surplus. It was also not necessary that the original purpose must continue till award was made. Reference was made to earlier judgment in Gulam Mustafa v. State of Maharashtra, (1976) 1 SCC 800 stating that once title was vested in the acquiring authority, it could use the excess land for any other public purpose. viii) & (ix) Union of India, new Delhi and others v. Nand Kishore and another, AIR 1982 Delhi 13 CWP No.5878 of 2003 (O&M) and connected petitions 462, Paras 9 and 19; Jaipal Singh and others v. state of Haryana and another, 1981 PLJ 392 (P&H) to submit that midstream change of purpose was not permissible. x) Suresh Verma v. The state of Punjab and others, AIR 1971 P&H 406 to submit that subsequent change of purpose, if bonafide, was permissible. xi) The Industrial development and Investment Co.Pvt. Limited and another v. State of Maharashtra and others, AIR 1989 Bombay 156, para 4 to submit that purpose specified in the declaration must continue till land vests in the State (follows Union of India, new Delhi and others v. Nand Kishore and another, AIR 1982 Delhi 462). xii) BEML Employees House Buiilding Cooperative Society Limited v. State of Karnataka and others, AIR 2004 SC 5054, para 7 to submit that the State could not discriminate in exercise of its statutory discretion in dealing with objections under section 5-A. xiii) The State of Punjab and another v. Gurdial Singh and others, AIR 1980 SC 319, para 9 to submit that if real purpose of acquisition is different from the declared purpose, exercise of 14 CWP No.5878 of 2003 (O&M) and connected petitions power may be vitiated by fraud or colourable exercise of power. xiv) Ghansham v. State of Haryana and others, CWP No.12714 of 2000, decided on 21.5.2002 (P&H) to submit that where land was not capable of being used for the declared purpose, the acquisition was liable to be quashed. In that case, the land was surrounded by land of private builder and thus was not fit for development for residential, commercial or institutional purposes for which the same was notified. xv) & (xvi) Davinder Kumar v. State of Haryana and others, 1995(2) PLR 438; State of Haryana and others v. Gyan Chand Madhok, 1972 PLR 110, para 9, to submit that if some land was released on the ground that it had construction, there was no reason not to release other land having construction. (Relying on Chandra Bansi Singh v. State of Bihar, AIR 1984 SC 1767). xvii) Union of idnia and another v. Balram Singh and another, 1992 Supp (2) SCC 136 to submit that residential area was allowed to be released on facts of the case. (xviii) & (xix) Sube Singh and others v. State of Haryana and others, (2001) 7 SCC 545, Para 10; Jagdish Chand and another v. State of Haryana 15 CWP No.5878 of 2003 (O&M) and connected petitions and another, (2005) 10 SCC 162, to submit that policy of the State to exclude only A class construction was held to be arbitrary and the said policy was held to apply to B and C class structures also. (xx) Jagdish Chand and another v. State of Haryana and another, (2005) 10 SCC 162, to submit that proceedings for acquisition should be finalized expeditiously. (xxi) Orders of this Court dated 21.8.2009 in CWP No.1356 of 2004 (Pardeep Yadav v. State of Haryana); 16.9.2009 in CWP No.16363 of 2005 (HMD Technologies v. State of Haryana); 8.1.2009 in CWP No.2227 of 2008 (Haryana Rice Mills and others v. State of Haryana and others); 7.1.2009 in CWP No.3972 of 2008 (Nirmala Rani and others v. State of Haryana and others); 14.1.2009 in CWP No.15370 of 2008 (Malho Devi v. State of Haryana); 26.3.2009 in CWP No.15777 of 2004 (Rajyoga Education and Research Foundation v. State of Haryana and others); 24.3.2009 in CWP No.21308 of 2008 (Inder Mohan Rai v. State of Haryana and others) ;27.3.2009 in CWP No.4857 of 2009 (Sunder Lal v. State of Haryana); 1.7.2009 in CWP No.8274 of 2009 (Chetna Estate Pvt. Limited and others v. The State of Haryana and others) and 8.1.2009 in CWP No.5038 of 2006 (Purushottam and others v. State of Haryana 16 CWP No.5878 of 2003 (O&M) and connected petitions and others), to submit that exercise of power of acquisition is vitiated when real purpose is other than declared purpose which could be inferred from exercise of power of release in terms of policies of the State of Haryana. 9. Learned counsel for the State defended the acquisition proceedings and submitted that even if out of 36.59 acres of land notified for acquisition, about 23 acres was released before award and award was made for about 13 acres out of which about 8 acres was further released, the purpose of acquisition still survives with regard to remaining about 5 acres. With regard to the land which was released also, purpose of acquisition of development for residential/commercial purposes was achieved. The State had a policy of releasing land in respect of which licence was applied for and granted, which policy was permissible under section 48 of the Act and had not been challenged as such. In any case, the land was validly acquired. After acquisition, the land could be used for a changed purpose. Part of land was now required for Delhi Metro project, which was certainly a genuine public purpose. It was further submitted that there