C.W.P. No. 16257 of 1997 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 16257 of 1997 DATE OF DECISION: JANUARY 12, 2010 Shiam Kishore and others .....PETITIONERS Versus State of Haryana and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR --- Present: Mr.I.K. Mehta, Sr. Advocate, with Mrs.Ranjit Mehta, Advocate, for the petitioners. Ms. Palika Monga, D.A.G.,Haryana, for respondent No.1. Mr. A.K. Pathania, Advocate, for respondent-HSIDC. .. SATISH KUMAR MITTAL, J. In this writ petition filed under Article 226 of the Constitution of India, the petitioners have challenged the preliminary notification dated 31.7.1996 issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as `the Act') for acquiring 410 acres, 7 kanals and 4 marlas of land in villages Dhakaula and Rampur, for a public purpose, namely, for establishing the Industrial Growth Centre at Saha on Jagadhri- Ambala Road, Tehsil and District Ambala; and the declaration dated 30.7.1997 made under Section 6 of the Act, recording the satisfaction that the aforesaid land was needed for the aforesaid purpose; as well as the C.W.P. No. 16257 of 1997 -2- award dated 28.7.1999 made by the Land Acquisition Collector, being illegal, arbitrary and mala fide. It has been alleged that petitioner No.1 along with his brothers jointly owned about 19 acres of land. Similarly petitioner No.2 along with certain other persons jointly owned 26 acres, 7 kanals and 15 marlas of land and petitioner No.3 along with other persons jointly owned near-about 36 acres of land. It has been also alleged that petitioner Amar Singh along with other persons owned near-about 14 acres of land, whereas petitioner Lakhmir Singh and others owned about 17 acres of land in village Dhakaula. The petitioners being aggrieved against the preliminary notification issued under Section 4 of the Act proposing to acquire their land along with land of other persons of village Dhakaula, filed objections under Section 5-A of the Act to the proposed acquisition, while raising the following main points:- “(i) That the land sought to be acquired is very fertile and there are about 30 tubewells for supplementary irrigation. (ii) Haryana Highway on Saha-Bihta-Kesri road goes through the land. Acquisition of such land would be a traffic hazard. (iii) The land of the petitioners was being acquired only to accommodate persons having political links and to save their lands. (iv) Policy of pick and choose has been adopted and the land proposed to be acquired is in most irregular shape as the Sketch Plan shows. (v) Injuring religious feelings of the villagers – Cremation ground where the ancestors of the petitioners had been cremated and there is `Samadhi Sathal'. (vi) Mala fide action in acquiring land. (vii) Shri Phool Chand Mullana, formerly Minister entered into various benami transactions and after he acquired the C.W.P. No. 16257 of 1997 -3- land in village Saha, he made a summersault and while in the first instance recommendation was by him to acquire the land in village Saha, he later got the approval that land in village Dhakaula was suitable and land in village Saha was excluded.” It is admitted position that after providing an opportunity of hearing, the objections filed by the petitioners were not accepted and a declaration under Section6 of the Act was made vide notification dated 30.7.1997. When the notices under Section 9 of the Act were issued to the petitioners and other land owners, the petitioners filed the instant petition challenging the acquisition of their land by the aforesaid notifications on the grounds that the land of village Dhakaula, which is sought to be acquired, is very fertile, whereas the unfertile land is available in village Saha. It has been alleged that originally the land of village Saha was sought to be acquired, but due to intervention and manipulation of Shri Phool Chand Mullana, a former Minister in the Government of Haryana, the site of the proposed Industrial Growth Centre was changed for his personal benefit and, thus, the notification for acquiring the land of village Dhakaula was issued with a mala fide intention in colorable exercise of power to benefit Shri Phool Chand Mullana. In this regard, it has been alleged that Shri Phool Chand Mullana has purchased about 25 acres of land in village Saha in the year 1994 by way of benami transaction in the names of Shri Sita Ram and Smt. Kiran wife of Ishwer Dass, who are his relatives. In this regard, it has been further alleged that initially the mutation of the purchased land was sanctioned in favour of Shri Sita Ram and Smt. Kiran, but later on vide mutation dated 26.6.1996 ½ share of the land measuring 103 kanals 10 marlas was mutated in favour of Shri Phool Chand Mullana. On the basis of those averments, it has been alleged that since Shri Phool Chand Mullana C.W.P. No. 16257 of 1997 -4- was having interest in the land of village Saha, therefore, by using his political influence, he got the site of the Industrial Growth Centre changed from village Saha to village Dhakaula. It has been further alleged that in the west of the acquired land, the land of one Man Singh, Naib Tehsildar and his family in village Jawahargarh, has been excluded from the notification in a discriminatory manner so as to accommodate him by manipulating the report of the Committee which proposed for acquisition of the land covered by the impugned notifications for Industrial Growth Centre, being more suitable site. It has been further alleged that 35/36 acres of land owned by Sant Dayal Ji of village Balahrewala in village Saha/Laha has been excluded from the proposed acquisition for the reason that he yields great influence with the politicians. It has been alleged that the acquired land is not suitable for the public purpose for which the same is acquired as the land situated in village Saha is more suitable for the said purpose. In the written statement filed on behalf of the State of Haryana, the allegations of discrimination and mala fide have been denied. It has been stated that by the impugned notification, the land was compulsory acquired for a public purpose, namely, for establishing the Industrial Growth Centre in village Saha under the Government of India Aided Scheme. The main object of the said Scheme was to create Industrial Township providing basic infrastructure for industries, housing colony, commercial sites and other basic amenities like hospital, schools, colleges etc. The Government of India had sanctioned for setting up of two such Growth Centres, one at Bawal Tehsil, District Rewari and the other at Saha Tehsil, District Ambala. It has been stated that in order to select a suitable site for establishing the Industrial Growth Centre in Tehsil Saha, a Committee of the higher officers C.W.P. No. 16257 of 1997 -5- was constituted, which submitted its report, copy of which has been annexed as Annexure R-3 with the written statement. The said Committee after considering two available sites, i.e. site No.1 at villages Dhakaula, Rampur, Chhapra, Shergarh and Bitha and site No.2 at villages Saha, Laha, Fatehpur and Mehmoodpur, recommended site No.1 suitable for establishing the Industrial Growth Centre while taking into consideration the distance with National Highway, Railway head and availability of ground water, discharge for effluent and 66 KVA Power Sub Station near to the said site. After considering the report of the Committee, the Government has notified the land of villages Dhakaula, Rampur, Chhapra, Shergarh and Bitha for establishing the Industrial Growth Centre. It has been specifically denied that the Government has acted discriminately or has exercised its power of acquisition mala fidely or helped any individual or group of individuals. Shri Phool Chand Mullana also filed his written statement by way of an affidavit stating therein that the allegations of mala fide levelled against him in the writ petition are false, malicious and scandalous to defame his reputation and in order to gain sympathy of the Court. It has been stated that when the impugned notifications under Sections 4 and 6 of the Act were issued, he was not M.L.A. or a Minister, therefore, the question of using the influence and manipulating the acquisition proceedings for his personal benefits by changing the site of acquisition from village Saha to village Dhakaula, does not arise. With regard to the alleged purchase of land by Shri Sita Ram and Smt. Kiran wife of Ishwer Dass, who are his relatives, it has been stated that the answering respondent has no concern with the said purchase and the allegations of benami purchase levelled against him, are totally frivolous and scandalous. With regard to the exchange of land, it has C.W.P. No. 16257 of 1997 -6- been stated that those entries of oral exchange were recorded in the revenue record. He did not make any application for the alleged exchange. It has been further stated that he has no interest in the acquisition proceedings in village Dhakaula and all the allegations in this regard have been made in order to take undue benefit and sympathy of the Court. A joint written statement has also been filed on behalf of Shri Sita Ram and Smt. Kiran wife of Ishwer Dass (respondents No.3 and 4) in which it has been stated that they had purchased the land in village Saha for a consideration in their names. Shri Phool Chand Mullana has nothing to do with the land purchased by them. It has been further stated that the alleged mutation of exchange of land in favour of Shri Phool Chand Mullana was wrongly got sanctioned in collusion with the revenue authorities. They never entered into any exchange. It has been stated that the land purchased by them was never acquired nor there was any proposal to acquire the said land. It has been alleged that Shri Phool Chand Mullana was not MLA/Minister at that time when the aforesaid notifications were issued. Even the Congress Party was not in power at that time. The notifications were issued when Shri Phool Chand Mullana, who belongs to Congress Party, was not in power, therefore, all the allegations have been levelled in the writ petition without any responsibility and in order to achieve undue gain. Since the award with regard to the acquired land was made on 28.7.1999, i.e., during the pendency of the writ petition, the petitioners amended the writ petition by challenging the said award also. After the amendment, only State of Haryana filed the written statement. Respondents No.2,3 and 4 could not be served in the amended petition as the petitioners C.W.P. No. 16257 of 1997 -7- did not file their correct addresses. Therefore, no written statement with regard to those respondents came on the record. However, the allegations of mala fide levelled against those persons in the amended petition, which are similar to those levelled in the un-amended writ petition, have already been controverted by the written statements filed by those respondents to the original writ petition. On 31.3.2009, an additional affidavit of Shri I.S. Jolly, AGM (IA) HSIDC, a Nodal Agency to establish Industrial Growth Centre, has been filed in order to place on record certain subsequent facts. In this affidavit, it has been stated that after announcing the award on 28.7.1999 by the Land Acquisition Collector, the Government took over the possession of the acquired land (except the land on which the stay order has been passed by this Court) and handed over the same to the respondent-Corporation. It has been further stated that after taking possession of the acquired land, the planning of the Industrial Growth Centre was made and plots of various sizes have been carved out and allotted to the eligible persons. It has been further stated that about 60 units have been established on the acquired land which are running their industrial activities and due to the stay granted by this Court, respondent-HSIDC could not complete the laying down of the infrastructure to provide public utilities and other services to the entrepreneurs/allottees of the plots. It has been further mentioned that due to the stay order, 30 meter green belt on either side of the National Highway and 30 meter wide road and other roads as well as internal roads could not be carved out as the possession of the land could not be taken over. It has been further stated that after the award, most of the land owners, including some of the petitioners, have withdrawn the amount of C.W.P. No. 16257 of 1997 -8- compensation. We have heard the learned counsel for the parties. Learned counsel for the petitioners challenged the acquisition of the land of the petitioners mainly on the ground of mala fide exercise of the power of acquisition by the State Government at the behest of Shri Phool Chand Mullana. It has been argued by him that in the year 1993, it was almost settled that the Industrial Growth Centre was to be established on the land of village Saha/Laha etc. as the lands of the said villages was of inferior quality and was more suitable for the said public purpose. But, subsequently Shri Phool Chand Mullana purchased about 25 acres of land in village Saha by benami transaction, therefore, he got changed the site for establishing the said Industrial Growth Centre from village Saha to village Dhakaula etc. It has been further argued that Shri Phool Chand Mullana by using his influence got recommended for acquisition of the land of village Dhakaula etc. for establishing the said Growth Centre from the High Power Selection Committee constituted by the State Government. It has been further argued that the land of certain other influential persons of villages Saha, Laha, Fatehpur and Mehmoodpur were got exempted from acquisition, therefore, the respondent-State has not only colorablly exercised the power with mala fide intention to benefit Shri Phool Chand Mullana but has also acted discriminately while acquiring the land. During the course of arguments, learned counsel put much emphasis on the purchase of land by Shri Sita Ram and Smt. Kiran wife of Ishwer Dass as benamidars of Shri Phool Chand Mullana. The counsel further put much reliance on the mutation of exchange to show that the purchase by the aforesaid two persons was actually a benami purchase, C.W.P. No. 16257 of 1997 -9- therefore, half of the share was transferred in the name of Shri Phool Chand Mullana in exchange of the land of certain other villages owned by Shri Phool Chand Mullana. Learned counsel has further put much reliance on one line of the report of the Selection Committee dated 2.2.1994 wherein it was mentioned that “Director, Industries advised Deputy Commissioner, Ambala to appraise all facts of this case to the local Minister of this area”. It has been argued that Shri Phool Chand Mullana has manipulated the report of the Committee in selecting the site for establishing the Industrial Growth Centre at village Dhakaula, therefore, the entire acquisition proceedings are vitiated by mala fide exercise of power by the State Government. In support of his contention, learned counsel for the petitioner placed reliance upon the Division Bench decisions of this Court in Sanjeet Singh Grewal and others v. The State of Punjab and others, 2001(1) PLJ 378 and M/s Hindustan Automobiles Industries, Rohtak v. State of Haryana and others, 2001(1) PLJ 281 and judgments of the Supreme Court in Smt. Somawanti and others v. The State of Punjab and others, AIR 1963 SC 151, The State of Punjab and another v. Gurdial Singh and others, AIR 1980 SC 319 and B.E.M.L., Employees House Building Co-operative Society Ltd. v. State of Karnataka and Ors., JT 2004(7) SC 398. It is specifically mentioned here that except on the grounds of mala fide and discrimination, learned counsel for the petitioners did not raise any other ground to challenge the acquisition of land of the petitioners. On the other hand, learned counsel for the respondent-State argued that the Central Government had sanctioned 63 Industrial Growth Centres throughout India to be established in backward areas, out of which two Growth Centres were sanctioned to be established in Tehsils Bawal and C.W.P. No. 16257 of 1997 -10- Saha. The HSIDC was appointed as Nodal Agency to establish those Growth Centres. It has been argued that the State Government after thorough examination of the suitability of the land, has chosen the land in village Dhakaula for establishing the Growth Centre in Tehsil Saha, keeping in view the recommendations made by the Selection Committee. Learned counsel argued that the State Government has selected the site for establishing said Centre without any interference by any individual in a very fair manner. The allegations of mala fide levelled that the site was got changed by Shri Phool Chand Mullana, are concocted one and have been levelled without there being any basis or material only with an object to take sympathy of the Court. It has been argued that when the notifications under Sections 4 and 6 of the Act were issued, Shri Phool Chand Mullana was neither a MLA nor his party was in power, therefore, there was a remote possibility that he could have exercised the influence on the Committee or on the State Government in choosing the site of village Dhakaula for establishing the Industrial Growth Centre. Learned counsel further argued that certain khasra numbers, which were earlier shown in the impugned notification under Section 4, were not notified under Section 6 because of some printing mistake in the khasra numbers, therefore, those khasra numbers were left over when the notification under Section 6 was issued. Subsequently those khasra numbers have been acquired while issuing the notifications under Section 4 and 6 of the Act dated 21.6.1999 and 22.3.2000, respectively. Therefore, there was no discrimination in acquisition of the land, as alleged by the petitioners. Learned counsel for the respondent-State while referring to the decision of the Supreme Court in Anand Buttons Ltd. v. State of Haryana and others, C.W.P. No. 16257 of 1997 -11- (2005) 8 SCC 164 has argued that the decision that a particular land is needed for a public purpose, is an administrative decision. The authority which has to carry out the planned development of the industrial estate, is the best judge to decide as to which land is suitable for the said public purpose. Such satisfaction of the authority cannot be interfered by the Court. Learned counsel further argued that a declaration made under Section 6 of the Act and published in the official gazette is the conclusive evidence of the fact that the land is needed for a public purpose. She submitted that in the instant case the petitioners have not questioned that the purpose for which the land is acquired, is not a public purpose. The only ground in challenging the acquisition is the mala fide exercise of power. Learned counsel while referring to the decisions of the Supreme Court in First Land Acquisition Collector and others v. Nirodhi Prakash Gangoli and another, (2002) 4 SCC 160 an Girias Investment Private Limited and another v. State of Karnataka and others, (2008) 7 SCC 53 argued that the burden of establishing mala fides is very heavy on the person who alleges it. Mere allegation of mala fide is not enough to succeed. She submitted that in the instant case the alleged mala fide is not only without any material and basis, but the alleged benami purchase in village Saha in 1994 by Shri Phool Chand Mullana has also no bearing in the instant controversy. Even if it is accepted that Shri Phool Chand Mullana is having some land in village Saha, even then no inference can be drawn that the State Government has issued notifications under Sections 4 and 6 of the Act at his instance in order to save his land from acquisition for establishing the Industrial Growth Centre and to help him. Such inference cannot be drawn to quash the acquisition proceedings so long as the power has been exercised for a public C.W.P. No. 16257 of 1997 -12- purpose on the basis of the recommendations of the report made by the Selection Committee duly constituted by the State Government. After hearing the arguments of the learned counsel for the parties and going through the record of the case, we do not find any merit in the instant petition. It is conceded position that two Industrial Growth Centres were sanctioned by the Central Government with financial assistance, which were to be established in two backward Tehsils in Haryana, one in Tehsil Bawal and other in Tehsil Saha. In order to choose a suitable site for the said Growth Centre in Tehsil Saha, a High Powered Committee was constituted by the State Government, which included Director of Industries, Haryana, Managing Director, HSIDC, Deputy Commissioner, Ambala, General Manager, HSIDC, SDO, Drainage, District Revenue Officer, Ambala, Director, Town and Country Planning, Ambala etc. The Committee in its meeting held on 2.2.1994 approved the site at villages Dhakaula, Rampur, Chhapra, Shergarh and Bitha for establishing Industrial Growth Centre, keeping in view its closeness to National Highway, Railway head and availability of ground water, discharge for effluent and 66 KVA Power Sub Station near to the said site. It is pertinent to mention here that the Committee did not find favour with site No.2 at villages Saha, Laha, Fatehpur and Mehmoodpur, for the reasons that the said site is 10 Kms. away from National Highway and Railway head, the ground water is very deep, extra financial burden shall be incurred for establishing 66 KVA Power Sub Station nearby. The alleged mala fide in the entire writ petition is based on the allegations that in the year 1994 Shri Phool Chand Mullana had purchased about 25 acres of land in village Saha through his benamidars, namely, Shri Sita Ram and Smt. Kiran wife of Ishwer Dass. C.W.P. No. 16257 of 1997 -13- Therefore, in order to save his land, he had put his influence on the State Government not to acquire the land in the area of village Saha and the State Government acting upon his influence, shifted the site and acquired the land of village Dhakaula for the said public purpose. Though the allegation of benami purchase of 25 acres of land in the names of Shri Sita Ram and Smt. Kiran wife of Ishwer Dass, has been denied by Shri Phool Chand Mullana as well as Shri Sita Ram and Smt. Kiran wife of Ishwer Dass, the original purchasers, but in our view, on the basis of the alleged purchase, it cannot be inferred that the State Government has acquired the land of village Dhakaula for the aforesaid public purpose with a mala fide intention or in colorable exercise of power in order to help Shri Phool Chand Mullana or any other persons, who were owning the land in village Saha. When the notification under Section 4 was issued on 31.7.1996, neither Shri Phool Chand Mullana was the MLA/Minister nor his party was in power. The State Government while taking into consideration the recommendations made by the site Selection Committee and after satisfying itself that the land in villages Dhakaula and Rampur was more suitable for establishing the Industrial Growth Centre, had acquired 410 acres, 7 kanals and 4 marlas of land in the said villages for the said public purpose by issuing the notifications under Sections 4 and 6 of the Act. No illegality or procedural irregularity in acquisition proceedings has been pleaded or argued by the learned counsel for the petitioners. The allegations made in the petition with regard to the alleged benami purchase, the alleged exchange of 103 kanals 10 marlas of land in village Saha and the alleged manipulation in the report of the Selection Committee, are totally baseless and without any material. It is pertinent to mention here that the recommendations of the Committee to C.W.P. No. 16257 of 1997 -14- acquire the land of village Dhakaula were much prior to the alleged