C.W.P.No.11612 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision : 09.03.2009 Bhushan Kumar and another .....Petitioners versus State of Punjab & others .....Respondents CORAM : HON'BLE MR.JUSTICE UMA NATH SINGH. HON'BLE MRS.DAYA CHAUDHARY. Present : Mr.M.L.Sarin, Senior Advocate, with Mr.Hemant Sarin, Advocate, Mr.Rakesh Gupta and Mr.Harkesh Manuja, Advocates, for petitioners. Mr.Manoj Bajaj, Senior Deputy Advocate General, Punjab. -.- UMA NATH SINGH, J. This judgment shall also dispose of the connected Civil Writ Petition Nos.10879 of 2008, 11777 of 2008 and 12469 of 2008 as all these writ petitions impugn the notifications: (i) annexure P-2 dated 30.1.2008 (published in newspapers on 15.2.2008) and (ii) annexure P-6 dated 22.5.2008 (published in newspapers on 24.5.2008), issued under Section 4 read with Section 17 (1) and (iii) annexure P-8 dated 6.6.2008 (published in newspapers on 8.6.2008), issued under Section 6 of the Land Acquisition Act (for short `the Act'). However, the brief facts of each writ petition are given separately hereinafter. In CWP No.11612 of 2008, petitioners claim to own a land measuring 4.69 acres in village Patti Jhuti, Bathinda, comprising in Khasra Nos.4572 min, 4573 min and 4574 min. According to petitioners, this chunk of land has great potential for being used for residential and commercial C.W.P.No.11612 of 2008 2 purposes, both. The land in question is located on Multanian Road, and it appears from the averments in writ petition that the petitioners decided to set up a Resort (marriage palace) to be known as `Skyland Resorts'. Accordingly, they applied to Government departments concerned for grant of no objection certificates for setting up the Resort, in 2006. On 23.6.2006, District Town Planner, Bathinda gave a report to the Senior Town Planner, Patiala, regarding the suitability of petitioners' land for setting up the proposed Resort. The District Town Planner, Bathinda, after inspecting the site, reported that his office was agreeable to the proposal as such. This was also pointed out by the District Town Planner that the land in question did not fall within any town planning scheme. However, it was noticed that some electricity wires were going over the land and, thus, the petitioners were required to deposit shifting charges with P.S.E.B., which according to them, they have since already done and thereafter, the electricity wires have also been shifted. On 29.9.2006, Punjab Pollution Board also granted no objection certificate for setting up the Resort, which was followed by grant of no objection by Punjab Urban Development Authority, (PUDA), on 26.10.2006, and the petitioners, thus, started raising constructions on the said land. On 30.01.2008, State of Punjab issued a notification under Section 4 of the Act, seeking to acquire a total area of 80 acres, 60 kanals, 10 marlas land in village Patti Jhuti and 9 acres, 5 kanals, 1 marla in village Behman Diwana for the public purpose like “construction of Ring Road, Phase-II, development of junctions and roadsite amenities, connecting Malout Road to Badal Road, Tehsil Bathinda and District Bathinda”. The State Government also invoked the urgency provisions C.W.P.No.11612 of 2008 3 under Section 17 (1) of the Act, and directed that the provisions of Section 5-A of the Act shall not apply in respect of this acquisition. A portion of petitioners' land as aforesaid, measuring 21 kanals and 6 marlas was found included in that notification. Besides, that part of the land which touches Multanian road and is proposed to be used towards main entry to the Resort, was also included in the notification (annexure P-2). As a result, now there is no access to the proposed Resort from the side of Multanian road. On 15.2.2008, after two weeks, the aforesaid notification issued under Section 4 of the Act (annexure P-2) was published in the newspapers 'Indian Express' and 'Ajit'. On 3.3.2008, only after over a month of issuance of the notification, an entry was made in the Rapat Roznamcha of village Patti Jhuti to show the carrying out of publication of the substance of notification in the locality. Thus, from the date of issuance of Section 4 notification, a period of 1 month and 15 days was lost in effecting publication and making entry in Rapat Roznamcha. It is also alleged that on 11.4.2008, the petitioners met the Minister incharge of Department of Public Works and submitted a representation (annexure P-3) against the acquisition of a portion of their land being used for the construction of a marriage palace as also the piece of land to be used for providing a passage from Multanian Road to the marriage palace. Their representation was marked to the officers of department for examination and providing necessary assistance to competent authority. On 23.4.2008,the SDM, Bathinda, submitted his report (annexure P4) to the Deputy Commissioner, mentioning that the petitioners had started the construction on the land under acquisition only after obtaining no objection certificates from PUDA, District Town Planner and C.W.P.No.11612 of 2008 4 Pollution Control Board etc. It was also pointed out that due to acquisition of about 40% of the land in question, the petitioners are left with almost no land to provide an access to the Resort. This was also pointed out that the land under acquisition, fell within a junction and, in order to give the access to Resort from Multanian road, some part of the junction would need to be left out. On 16.5.2008, SDM concerned (respondent No.2) vide his letter (annexure P-5) wrote to the Executive Engineer (B&R) Bathinda, informing him that the land of petitioners does not fall in the Ring Road, however, it comes within a pocket planned next to the Ring Road. This was also pointed out that as a result of acquisition, the petitioners would be left with no access to the remaining part of their land housing the Resort/marriage palace. This was clarified by respondent No.2 that for any further action in this regard, the acquiring department would alone be the proper authority to issue a corrigendum for releasing the said piece of land as has been done in respect of release of other lands like the one situated in village Bhagwangarh on Sangat Kotshamir Road. Thereafter, on 22.5.2008, State Government of Punjab issued another notification (annexure P-6) under Section 4 read with Section 17 (1) of the Act seeking to acquire 81 acres, 2 kanals, 15 marlas of land in village Patti Jhuti and 9 acres, 5 kanals and 1 marla land in village Behman Diwana, for the same public purpose, namely: “construction of Ring Road Phase-II, development of junctions and road site amenities”. That notification again included the land of petitioners measuring 23 kanals 4 marlas. According to writ petitioners, the notification (annexure P-6) covered the same area which was notified in the earlier notification (annexure P-2). Now, the difference between the two C.W.P.No.11612 of 2008 5 notifications is said to be that the areas of some khasra numbers being acquired under later notification (annexure P-6), have been increased while that of other khasra numbers have been decreased. Moreover, some khasra numbers, which were included in the earlier notification (annexure P-2), have been excluded from the later notification (annexure P-6). This is also mentioned that the area of 21 kanals and 6 marlas of land belonging to the petitioners, which was acquired vide the earlier notification (annexure P-2), has been increased to 23 kanals and 4 marlas in the later notification (annexure P-6). Besides, the portion of land which alone could provide the passage from Multanian road to the Resort was again included in the later notification (annexure P-6), like the earlier one. Now, after a gap of 13 days, State Government of Punjab issued the notification under Section 6 of the Act, which was published two days thereafter on 8.6.2008, in the English Daily “Tribune” vide annexure P-8. Moreover, the public purpose mentioned in the later notification (annexure P-6) was changed to read only as “for Ring Road Phase-II, Bathinda”. Thus, the items like construction of junction and Road Site amenities, do not find mention in the notification issued under Section 6 of the Act. The Executive Engineer concerned vide his letter (annexure P9), also wrote to the SDM (respondent No.2) that the passage to the Resort of the petitioners falls in a pocket under the notifications and thus, they would be left with no approach passage from Multanian road to the Resort. He also clarified that there would be no obstruction in the construction of Ring Road if the land meant for use as the passage to the Resort was released. The Executive Engineer, thus, recommended the release of land to be utilized for the passage. The SDM C.W.P.No.11612 of 2008 6 (respondent No.2) then wrote to Additional Secretary, Department of Public Works (B&R), Chandigarh, vide annexure P-10, that the petitioners had started construction of the Resort after obtaining NOCs from the departments and thus, with the acquisition of their land, they would be left with no passage to the Resort. Like the report of Executive Engineer, the SDM also pointed out that with the release of land to be used as passage, except the area marked as ABCD in a plan, there would be no obstruction to the construction of Ring Road. Respondent No.2 also pointed out that it would rather be in the public interest to release the land for passage to the petitioners. However, vide annexure P-11, a notice under Section 9 of the Act was issued. In C.W.P.No.10879 of 2008, the total area of land belonging to Village Patti Jhuti is 81 acres 2 kanals 15 marlas whereas to Village Baihman Dewana is 9 acres 5 kanals 01 marla. Thus, the entire area would work out to 90 acres 7 kanals and 16 marlas. Learned counsel for petitioners submitted that respondents herein did not carry out proper publication of the substance of notification (Annexure P-3) in the locality as required under mandatory provisions of the Act. Moreover, an entry to show carrying out of publication of the substance of notification (Annexure P-3) in the locality in the Rapat Roznamcha of village Patti Jhuti was made after a month of the issuance of the notification. Thus, the entry was only a paper formality. As per notification, the acquisition intends to lay an eight kms road known as the Ring Road Phase-II stretching from Malout Road to Badal Road. The respondents have also projected the development of 6 junctions/pockets C.W.P.No.11612 of 2008 7 with some commercial buildings. Though this writ petition was filed by 30 petitioners, but vide our order dated 24.9.2008, in C.M.No.18823 of 2008 (application under Section 151 CPC, for dismissing the writ petition as withdrawn qua petitioner nos.5,6, 22, 23, 26, 27, 28 & 30), the writ petition was dismissed as withdrawn in respect of the said petitioners. Coming to the facts of C.W.P.No.12469 of 2008, which has been filed by two land-owners, the total area of land involved is 2 bighas and 1 biswa (comprising of Khasra No.5997/4341, khewat khatoni No.1019/5735 as per jamabandi for the year 2002-2003), situated within the municipal limits of Bathinda. The land of petitioners has also been sought to be acquired by the same notifications with the same public purpose, as detailed herein above in other writ petitions. Besides raising contentions like other writ petitioners, petitioners herein have also contended that they have raised construction of a two room set and a boundary wall on their land and a few trees are also standing inside the boundary. According to writ petitioners, the possession of land, and also the constructions which were raised thereon after receiving approval of site plan have already been recognized by the Municipal Corporation, Bathinda vide Survey No.27596 allotted to the property. Further, this is also alleged that the second notification in respect of almost the same total area of land with a little variance was issued only in order to help certain influential persons whose lands the State Government wanted to release. According to writ petitioners, though the total stretch of land is 8 kms., but it has been planned in such a manner that it would only turn out to be a jig-jag road and further, the junctions and pockets sought to be set up, are designed to help grow only C.W.P.No.11612 of 2008 8 the stretch of one km. urban area. In CWP No.11777 of 2008, petitioners have asserted that they purchased 0K-16M of land, situated in Khasra No.4573, in the revenue estate of village Patti Jhuti, Tehsil and District Bathinda, vide sale deeds dated 29.3.1996 and 8.1.1999. After purchasing the aforesaid land, they started an industrial unit for manufacturing batteries etc. in the name of M/s Capital Batteries, since the year 1999. Petitioners also got this firm registered as an 'SSI' unit with the District Industries Centre, Bathinda, and further they were granted sales tax exemption vide certificate dated 18.4.2000 (Annexure P-5). Thereafter, they applied for issuance of a fresh registration certificate under the Punjab VAT Act, and were granted the new registration number vide a letter dated 14.1.2005 (Annexure P-6). They have challenged the impugned notifications, inter-alia, on the ground that initially, as per the plan drawn by Town and Country Planning Department, the road in question was to pass through khasra No.4572, situated parallel to their land under acquisition. This is also alleged that as khasra No.4572 belongs to the family of a local politician from the ruling party, who has been impleaded as respondent No.5 herein, the State Government has changed the alignment of Ring Road, Phase-II without getting an approval from the Town and Country Planning Department, to protect his interest, and thus, vide notification dated 22.5.2008, petitioners' land under acquisition falling in khasra No.4573, has also been acquired. We have heard learned counsel for parties and perused the writ records. Learned senior counsel for petitioners submitted that the C.W.P.No.11612 of 2008 9 petitioners are not opposed to construction of the proposed Ring Road, but they are certainly aggrieved by the manner the acquisition notifications have been issued by invoking the urgency provisions of Section 17 (1) of the Act. It also appears that the State Government itself was not sure as to whether there is any urgency and which land needs to be acquired for the public purpose. This is apparent from the facts of these writ petitions that the State Government issued notifications under Section 4 of the Act twice after invoking the urgency provisions of Section 17 (1) of the Act. First notification under Section 4 of the Act (annexure P-2) is dated 30.1.2008, whereas, the second one under Section 4 of the Act (annexure P-6) is dated 22.5.2008. Both these notifications seem to cover more or less the same area with a little difference of a few khasra numbers. Thus, when the State Government could take three months time to decide as to what land it needs to acquire for the public purpose, this is very well clear that there was no urgency to invoke the provisions of Section 17 (1) of the Act, and the Government could give 30 days time to land owners to file their objections under Section 5-A of the Act. In support of these contentions, learned senior counsel for petitioners placed reliance on the judgments as: (i) State of Punjab versus Sudhir K.Dhingra & another (1978 Revenue Law Reporter 530); (ii) State of Punjab versus Gurdial Singh and others (AIR 1980 SC 319); (iii) Gurdev Singh versus State of Punjab and another, (1995 Revenue Law Reporter 30); (iv) Om Parkash and another versus State of U.P. & others, (1998 (6) SCC 1), and (v) Gurcharan Singh and others versus State of Punjab and others (2007 (1) PLR 261. This is also a submission of learned senior counsel that filing of C.W.P.No.11612 of 2008 10 objections under Section 5-A of the Act is a very valuable right available to a land owner. He referred to the judgment of Hon'ble the Apex Court in Hindustan Petroleum Corporation versus Darius Shapur (2005 (7) SCC 627 para 6, 9 to 12 & 29), wherein this right has been held to be akin to a fundamental right. Such a valuable right, if required to be taken away, can be done so only in exceptional circumstances. According to learned senior counsel, no such exceptional circumstances have been shown by the State Government in the present case, particularly, for the fact that the land in question is required for construction of junctions and roadside amenities and not even the main Ring Road. Learned senior counsel while challenging the decision of Government to invoke the provisions of Section 17 (1) of the Act, submitted that there is nothing on record to suggest that the officials concerned while putting up the proposal of impugned notification before the concerned Minister, had even sought and/or obtained his permission for dispensing with the requirements of Section 5-A under Section 17 (4) of the Act. The only permission sought and specifically granted was to invoke Section 17 (1) of the Act, and dispensing with the filing of objections under Section 5-A of the Act, is not an automatic process to flow from the application of provisions of Section 17 (1) of the Act and a decision under Section 17 (4) of the Act ought to have been taken before issuing the impugned notifications. To fortify his submission, learned senior counsel cited the judgment of Hon'ble the Apex Court in Union of India versus Mukesh Hans (2004 (8) SCC 14, paras 29 to end). This is also a submission of learned senior counsel that the Executive Engineer, PWD was a member of the Site Selection Committee (subject matter of CWP No.11612 of 2008), C.W.P.No.11612 of 2008 11 and vide his correspondence dated 9.6.2008 (annexure P-9), he reported that there would be no obstruction in the construction of Ring Road by releasing the passage from Multanian road to the Resort of the petitioners. Though it appears that initially he had given a contrary report, but in the later report, he recommended the release of said land meant to be utilized for passage to Resort, with reasons. Petitioners were constructing the Resort on the land in dispute when the impugned notifications were issued. The construction started only after obtaining necessary approval and sanctions from PUDA, Pollution Control Board, District Town Planner etc. Thus, the State Government acted contrary to decisions taken by its functionaries earlier and is thus, estopped from acquiring the land in question, According to petitioners, by acquisition of this land, they would be left with no access to the Resort from the main road. Learned senior counsel, in support of his contention, has placed reliance on the judgments as: (i) Savitri Devi versus State of Haryana and others (2007 (4) PLR 240, paras 17 & 21); (ii) Eros City Developers (P) Ltd. versus State of Haryana and others (2008 (2) PLR 492, paras 26 to 28), and (iii) Busching Schmitz (P) Ltd., versus State of Haryana and others (1997 (1) PLR 183, para 18). This is also a submission of learned senior counsel that there is no mention about the junctions and roadside amenities in the notification under Section 6 of the Act (annexure P-8), thus, the State Government cannot acquire the land in dispute for such purposes. In order to answer the averments made in the writ petitions, the State has filed replies by way of counter affidavits sworn by one Manjit Singh, Executive Engineer, in CWP Nos.11612 of 2008, 12469 of 2008 and C.W.P.No.11612 of 2008 12 11777 of 2008, and has adopted the reply filed in CWP No.11612 of 2008, for the purpose of disposal of CWP No.10879 of 2008, vide our order dated 24.9.2008. This is averred in reply to CWP No.11612 of 2008 that only those portions of land which are needed for the construction of Ring Road, Phase-II have been sought to be acquired under the impugned notifications. Further, out of the entire land measuring 90 acres 7 kanals and 16 marlas, which have been sought to be acquired, in respect of 95% thereof, possession has been taken after payment of compensation. The petitioners are said to be owners of 4.69 acres of the land in Khasra No.4572 min, 4573 min and 4574 min, as per revenue record, and out of 4.69 acres, only 2 acres, 7 kanals and 12 marlas of land have been acquired for the purpose of construction of Ring Road, Phase-II, and the balance 1 acre and 2 kanals land is still with the petitioners. According to the State, as this land would be very less in area for building up a Resort, therefore, the claim for leaving passage to the Resort is wrong and baseless. The State has also denied knowledge about the issuance of no objections from different departments for construction of the Resort. Construction of Ring Road, according to reply, is required to divert the traffic outside the city so as to keep the city free from air and sound pollution. The reply has justified the invoking of urgency provisions of Section 17 (1) of the Act and dispensing with the provisions of Section 5-A of the Act, only on the ground of a mention like that in the notifications. Further, according to averments in reply to para 6 of the writ petition, as the notification under Section 6 of the Act has already been issued, it would not be possible to make a change at this stage, however, there is no complete denial of the assertions of petitioners in C.W.P.No.11612 of 2008 13 respect of their claim over the land. While strongly denying the allegations that the substance of notification (annexure P-2) was not carried out in the locality, in reply to para 8 of the writ petition, the State has averred as under: “.........It is specifically denied that petitioners did not carry out proper publication on the substance of notification Annexure P-2 in the locality as per mandatory provisions of the Act. In fact, the answering respondent made proper publication on the instance of notification Annexure P-2 in the locality by publication in two newspapers as well as by beat of drum. A rapat in this regard was also lodged in the Rapat Roznamacha of the Halqa Patwari. It is specifically denied that Rapat Roznamacha of the Halqa Patwari was merely a paper entry rather the same was got entered in the Rapat Roznamacha after due publication of the substance of notification by beat of drum. It is further submitted that all the residents of that locality including petitioners were well aware of the substance of notification and they started making objections to the concerned official, i.e., Land Acquisition Collector. The petitioners also started making representations to different authorities against the above said acquisition......” C.W.P.No.11612 of 2008 14 As regards the necessity to invoke the urgency provisions of Section 17 (1) of the Act, the State has tried to justify it by stating in reply to para 12 of the writ petition, as under:- “........It is also admitted that answering respondents had invoked urgency provisions of the Act, but rest of the para as stated is wrong hence denied. It is specifically denied that there was/is no urgency in the matter or that provisions of Section 5(A) of the Act have been by- passed without application of mind. The petitioner is well conversant with the notification wherein clearly notified that his land is urgently needed for the construction of said road and provisions of Section 5-A shall not apply in regard to this acquisition. Hence, all these averments are false and baseless. The urgency clause was invoked vide the above said notification because there was/is real urgency of construction of this Ring Road, Phase-II. This Ring Road Phase-II has been purposed to link two National Highways, i.e., Dabwali Bathinda NH-64 and Malout Bathinda NH-64. Bathinda is a fast developing city and various important projects have been announced by the Government.......” Coming to second notification dated 22.5.2008, issued under Section 4 of the Act to acquire 81 acres, 2