IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.9065 of 2010 Date of decision: 22 .11.2010 Rohtash and others …..Petitioners versus State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.M.L.Sharma, Advocate for the petitioner(s) Mr.Mani Ram Verma, Advocate for the petitioner(s) Mr.Jai Vir Yadav, Advocate for the petitioner(s) Mr.T.S.Doabia, Sr.Advocate with Mr.I.P.S. Doabia, Advocate for the petitioner(s) Mr.Sandeep Sharma, Advocate for the petitioner(s) Mr.Parveen Malik, Advocate Ms.Palika Monga, DAG Haryana Mr.Arun Walia, Advocate for HUDA Jasbir Singh, J. This order will dispose of 31 writ petitions bearing CWP Nos. 6185, 6186, 6187, 6188, 6841, 6842, 6844, 6846, 6847, 6848, 6849, 6852, 6854, 6855, 6856, 6857, 6858, 6861, 7091, 7243, 7271, 7272, 7497, 7895, 7896, 8064, 8078, 8311, 9065, 9517 and 10063 of 2010, involving similar questions of law and facts. For the purpose of dictating order, facts are being mentioned from CWP No.9065 of 2010. This writ petition was filed to lay challenge to a notification dated 11.2.2010 (P8), issued under Section 4 read with Sections 17(1) and 17(4) of the Land Acquisition Act, 1894 (in short, the Act). Further Civil Writ Petition No.9065 of 2010 challenge has been made to a declaration dated 19.2.2010(P9) issued under Section 6 read with Sections 17(1) and 17(4) of the Act. Vide the notifications, mentioned above, a vast track of land, including land of the petitioners was ordered to be acquired for a public purpose, namely, ‘development and utilization of land for sector roads for sectors 81 to 95, Gurgaon’ (in short, the sector roads). Roads were to be developed by the Haryana Urban Development Authority (HUDA). As per facts on record, vide the notifications, mentioned above, an area measuring 861.47 acres was proposed to be acquired for development of sector roads in sectors 81 to 95, Gurgaon. Notice under Section 9 of the Act was issued on 2.4.2010. Award was pronounced on 14.6.2010. It is to be noted here that the petitioners came to this Court before pronouncement of an award, on the date mentioned above. Challenge to the acquisition was made on various grounds, like not conducting a proper survey before issuance of above said notifications, discrimination with the petitioners in not leaving out their residential houses, whereas said relief was granted to many others as per Policy of the State Government and further that to benefit some land owners, even alignment of the roads were changed. Acquisition is further challenged on a ground that the emergency provisions under Section 17 of the Act were wrongly invoked without application of mind and further that before initiating the project to carve out the sector roads, environment clearance from the competent authority was not obtained. Upon notice, reply has been filed wherein an attempt has been made to justify the acquisition by invoking the emergency provisions. Allegation regarding discrimination was denied and it was further said that environment clearance is necessary only when project to develop the roads 2 Civil Writ Petition No.9065 of 2010 will put in practice not at the time of acquisition of land for the said purpose. It was also stated that it was not possible to leave the constructed houses of the petitioners from the acquisition because those are falling in the road alignment. Heard counsel for the parties. Mr.Sharma has vehemently contended that right of filing objections and hearing given to the land owners under Section 5-A of the Act is akin to a fundamental right and the same can be denied to a land owner only in cases of real emergency. By referring to the facts of this case he argued that except the land for carving out sector roads rest of the land falling in sectors 81 to 95 was not acquired by the State for its development. Only licences have been granted to some developers and the exercise to carve out the sector roads was initiated to favour those developers only, to the detriment of the land owners. Virtually there was no population and traffic congestion in these sectors, as such, it was not a case of emergency. It is further argued by Mr.Sharma that despite existence of Policy, residential houses of the petitioners were not released from acquisition, whereas similar relief was given to many others. To get release of constructed houses, reference was made to a letter dated 8.1.2007 written by Director, Urban Estates, Haryana, Panchkula (P13) and Policy statement issued by the State of Haryana for release of land on 26.10.2007 (P14). It is specific case of Mr.Sharma that construction was raised by the petitioners before issuance of the notification under Section 4 of the Act. Mr.Doabia, Senior Advocate, who has put in appearance for the petitioner in CWP No.7243 of 2010, has stated that the petitioner, after getting change of land use certificate, has established his factory in the area under acquisition way back in the year 1997. It is his prayer that to save 3 Civil Writ Petition No.9065 of 2010 this factory, only slight change in the alignment of a road is needed. He stressed on a fact that in one case, the same exercise was done to save an industrial unit, which fact, as per his averment, was even admitted by the respondents in written statement filed by Mr.Vajinder Singh, District Town Planner, Gurgaon dated 21.7.2010. It is further contention of Mr.Doabia that because environment clearance was not taken from the competent authority before issuance of notifications under Sections 4 and 6 of the Act, as such, those are liable to be quashed. He, by making reference to the averments made in the written statement, stated that survey appears to have been conducted by some non- government outside agency. It is his contention that vital government functions cannot be outsourced. He also supported Mr.Sharma, by stating that invocation of emergency powers, under the provisions of Section 17 of the Act were not justified. Mr.Jai Vir Yadav, Advocate, who has put in appearance on behalf of the petitioners in CWP No.7272 of 2010, has argued that by not releasing land of the petitioners therein, discrimination has been done to them, because land of many other similar situated land owners was released from acquisition. To strengthen his argument, he has referred to paragraph 10 of the reply filed by respondent No.6, wherein no specific rebuttal has been offered to the allegations leveled by the petitioners. In reply to the arguments raised by counsel for the petitioners, the State counsel has vehemently contended that before issuing the notifications, proper survey was conducted, keeping future needs in mind, to develop infrastructure, land was acquired for carving out the sector roads, sewerage lines and green belts etc. Before invoking the emergency provisions, matter was perused properly and sensing future encroachment in 4 Civil Writ Petition No.9065 of 2010 the area under acquisition and to provide facilities to develop sectors, emergency powers were invoked to acquire land in question. She further argued that to acquire land, it was not necessary for the State Government to get environment clearance from the competent authority, as has been agitated by counsel for the petitioners. By stating that there was no discrimination at all in the case of petitioner in CWP No.7243 of 2010, the land regarding which change of land use certificate was issued, it was left out of acquisition and the area, on which unauthorized construction has been raised, is going to be acquired. She further argued that it is not possible to shift alignment of the roads because the roads are going to be carved out as per Master Plan issued for the development of the Gurgaon city. She prayed that the writ petitions, having no substance, be dismissed. After hearing counsel for the parties, we are of the opinion that primary contention of all the petitioners is regarding invocation of provisions of Section 17 of the Act and denial of right to the land owners as per provisions of Section 5-A of the Act. Before adverting to other objections to the acquisition raised by the petitioners, we will first look into their above said grievance. It is true that the government, in exercise of powers of ‘eminent domain’ is capable of acquiring property of the citizens, however, it has to be done as per the provisions of the Act. The land can be acquired for a public purpose and against compensation and after very strictly complying with the provisions of publication of notifications, survey for acquisition, providing of opportunity of hearing to the land owners etc. Before proceeding further, it is necessary to note down the provisions of Section 5-A and Section 17 of the Act. The same are reproduced as under:- 5 Civil Writ Petition No.9065 of 2010 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 form the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, 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 he deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act. 17. Special powers in cases of urgency. - (1) In cases of urgency, whenever the Appropriate Government so directs, the Collector, through no such award has been made, may, on the expiration of fifteen days from the publication of the notice 6 Civil Writ Petition No.9065 of 2010 mentioned in Section 9, sub-section (1), 1[take possession of any land needed for a public purpose] Such land shall thereupon vest absolutely in the Government, free from all encumbrances. (2) Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, 1[or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity,] the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances. Provided that the Collector shall not take possession on any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours’ notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such bundling without unnecessary inconvenience. 7 Civil Writ Petition No.9065 of 2010 (3) In every case under either of the proceeding subsections the Collector shall at the time of taking possession offer to the persons interested, compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in Section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage, shall be allowed for in awarding compensation for the land under the provisions herein contained, [(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3), - (a) Tender payment of eight per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and (b) Pay it to them, unless prevented by some one or more of the contingencies mentioned in Section 31, sub-section (2), and where the Collector is so prevented, the provisions of Section 31, subsection (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section. (3-B) The amount paid or deposited under sub-section (3A), shall be taken into account for determining the amount of compensation required to be tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under Section II, the 8 Civil Writ Petition No.9065 of 2010 excess may, unless refunded within three months from the date of the Collector’s award, be recovered as an arrear of land revenue.] (4) In the cases of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1), or subsection (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time [after the date of the publication of the notification] under Section 4 subsection (1) Section 5-A contemplates that any person, who is interested in land under acquisition, within a stipulated period, can object to the same by putting in writing a representation before the Collector. The Collector is under an obligation to provide an opportunity of hearing to the person concerned and if need be, after making further enquiry, shall submit a report to the competent government regarding feasibility of acquisition of the land or otherwise. Decision of the government on the recommendation made shall be final. Provision of Section 17 is an exception to the right of a land owner provided under Section 5-A of the Act. It confers special powers on the government to acquire land in case of emergency. Instances of cases, in which, this power can be exercised, are given in sub-section 2 of Section 17. Before taking possession, it is mandatory to offer compensation for the standing crop and payment of 80% of the compensation assessed for the land. Sub-section 4 of Section 17 mandates that in cases where provisions of Section 17 have been invoked, the government may direct that the provisions of Section 5-A shall not apply. If that is done, then declaration 9 Civil Writ Petition No.9065 of 2010 can be issued under Section 6 of the Act to acquire the land at any time after the date of publication of the notification under Section 4 sub-section 1 of the Act. As per established law, right given to a land owner under Section 5-A of the Act, is very important and it has been held to have the flavour of fundamental rights. We are of the opinion that unless there is a real emergency, this right can not be taken away on the basis of presumption alone. Their Lordships of the Hon’ble Supreme Court in Essco Fabs Pvt. Ltd. & another v. State of Haryana and another, (2009) 2 Supreme Court Cases 377 were dealing with a similar situation and it was observed as under:- “39. It is in exercise of power of eminent domain that a sovereign may acquire property which does not belong to him. In the circumstances, as a general rule, before exercise of power of eminent domain, law must provide an opportunity of hearing against the proposed acquisition. Even without a specific provision to that effect, general law requires raising of objections by and affording opportunity of hearing to the owner of the property. The Land Acquisition (Amendment) Act, 1923 (Act 38 of 1923), however, expressly made such provision by inserting Section 5A in the Act. 40. It is, therefore, clear that after issuance of preliminary notification under Section 4 before and final notification under Section 6 of the Act, the Appropriate 10 Civil Writ Petition No.9065 of 2010 Government is enjoined to hear persons interested in the property before he is deprived of his ownership rights. But then there may be cases of `urgency' or `unforeseen emergency' which may brook no delay for acquisition of such property in larger public interest. The Legislature, therefore, thought it appropriate to deal with such cases of exceptional nature and in its wisdom enacted Section 17.” It was then observed that Section 17 deals with cases of urgency which covers the cases of sudden change in the channel of any navigable river or other unforeseen emergency. It was further held that even in such like cases of emergency or unforeseen emergency, enquiry contemplated under Section 5-A of the Act, cannot be dispensed with except otherwise by application of mind to the facts of each case. In the case of Essco Fabs Pvt. Ltd. (supra), it was further observed as under:- “42. Sub-section (4) of Section 17 is an enabling provision and it declares that if in the opinion of the appropriate Government, the provisions of sub-section (1) or (2) are applicable, it may direct that the provisions of Section 5-A would not apply. It is, therefore, clear that the Legislature has contemplated that there may be `urgencies' or `unforeseen emergencies' and in such cases, private properties may be acquired. But, it was also of the view that normally even in such cases, i.e. cases of urgencies or unforeseen emergencies, the owner of property should not be deprived of his right to property and possession thereof without following proper 11 Civil Writ Petition No.9065 of 2010 procedure of law as contemplated by Section 5-A of the Act unless the urgency or emergency is of such a nature that the Government is convinced that holding of enquiry or hearing of objections may be detrimental to public interest.” The Hon’ble Supreme Court in Mahender Pal and others v. State of Haryana and others, AIR 2009 Supreme Court 3220, was also dealing with the application of the provisions of Section 17 of the Act i.e. when emergency clause can be invoked by the State authorities to acquire land of a citizen. After discussing the provisions of Section 5-A of the Act and provisions of Section 17 of the Act, it was observed as under:- “14. As an extraordinary power has been conferred upon the Appropriate Government in terms whereof the normal procedure laid down under Section 5-A of the Act could be dispensed with, the High Court, in our opinion, should have entered into the merit of the matter. [See Mahadevappa Lachappa Kinagi and Others v. State of Karnataka and Others (2008) 12 SCC 418] In Union of India and Others v. Mukesh Hans [(2004) 8 SCC 14], this Court held: "32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of the Section 5-A inquiry. It requires an opinion to be formed by the 12 Civil Writ Petition No.9065 of 2010 Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 5-A inquiry. If that was not the intention of the legislature then the latter part of sub-section (4) of Section 17 would not have been necessary and the legislature in Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. But then that is not the language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5-A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does not mean that in each and every case when there is an urgency contemplated under Section 17 (1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5-A inquiry. It is 13 Civil Writ Petition No.9065 of 2010 possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5-A inquiry is inherent in the two types of urgencies contemplated under Sections 17(1) and (2) of the Act." 15. In Union of India and Others v. Krishan Lal Arneja and Others [(2004) 8 SCC 453], this Court held: "16. Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however, laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a land owner of his right in relation to immoveable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The Authority must 14 Civil Writ Petition No.9065 of 2010 have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the land owners and the inquiry under Section 5A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen's property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the State should indeed act with due care and responsibility. 15 Civil Writ Petition No.9065 of 2010 Invoking urgency clause cannot