IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 3129 of 2008 DATE OF DECISION: December 8, 2008 Punita Chaudhary and others …Petitioners Versus State of Haryana and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JORA SINGH Present: Mr. Arun Jain, Senior Advocate, with Mr. Vishal Goyal, Advocate, for the petitioners. Mr. Ashish Kapoor, Addl. AG, Haryana, for respondent Nos. 1 and 2. Mr. Narender Hooda, Advocate, for respondent Nos. 3 and 5. Dr. Anmol Rattan Sidhu, Senior Advocate, with Mr. Ajay Kaushik, Advocate, for respondent No. 4. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. 1. The petitioners have approached this Court with a prayer for quashing notification dated 28.11.2007 (P-5) issued under Section 4 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’) and C.W.P. No. 3129 of 2008 declaration of the same date made under Section 6 read with Section 17(2)(c) and 17(4) of the Act (P-6). The public purpose for acquisition of land as per the notifications is construction of approach road from National Highway-65 to Haryana Thermal Power Plant, Hisar [now named as ‘2 x 600 MW Rajiv Gandhi Thermal Power Plant’ (for brevity, ‘Thermal Power Plant’)]. 2. Brief facts of the case are that the land comprised in Rect. No. 282//14Min, 15Min and Rect. No. 283//20Min, situated in village Khedar, Sub Tehsil Barwala, District Hisar, is the subject matter of dispute in the present case. Petitioner No. 1-Smt. Punita Chaudhary owned land comprised in Rec. No. 282//14Min, 15Min, situated in village Khedar, Sub Tehsil Barwala, District Hisar, which she leased out for 99 years in favour of Alliance Education Society- petitioner No. 2, vide registered sale deed dated 10.9.2007. On the land comprised in Rect. No. 283/20Min a factory, namely, Amba Polymer exists, which was purchased by petitioner No. 3-Sanjay Makhija from the Haryana Financial Corporation, vide conveyance deed dated 9.3.2004. 3. It is claimed that petitioner No. 2 Society raised construction after obtaining No Objection Certificate from the Gram Panchayat because the land does not fall within the controlled area so as to be hit by the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963. Accordingly, petitioner No. 2 Society has raised construction of college building for running College of Education, namely, Gurudham College of Education. On 18.10.2007, a written request was made by the petitioner No. 2 Society to the National Council for 2 C.W.P. No. 3129 of 2008 Teacher Education (NCTE) for grant of recognition for establishing a new institution for conduct of B.Ed. course, which is pending consideration as is evident from letters dated 12.11.2007 and 15.1.2008 (P-2 & P-3). The factory, namely, Amba Polymer in Rect. No. 283/20Min, which is part of the same land and owned by petitioner No. 3, has been reflected on the site plan in green colour and Marked ‘A’ & ‘B’ (P-4). 4. The petitioners have asserted that two separate notifications under Sections 4 and 6 read with Section 17(2)(c) and 17(4) of the Act, proposing to acquire land in question, have been issued on 28.11.2007. They have alleged that if the proposed acquisition is permitted then it would divide the college building rendering it unfit for the purpose of education as also the factory owned by petitioner No. 3. They have disputed invocation of urgency provision and have also pointed out that already a kacha rasta on the Government land leading from NH-65 Hisar-Barwala Road to the Thermal Power Plant is available, which is Marked ‘C’ on the site plan (P-4), which could easily be used by the respondents without damaging the factory premises and dividing the college building of petitioner No. 2 Society. 5. Three separate written statements have been filed. In the written statement filed on behalf of respondent Nos. 1 and 2 it has been asserted that the process of acquisition was started on 29.8.2007 by sending draft notification to the State Government and in response notifications under Section 4 and 6 read with Section 17 were issued on 28.11.2007. Therefore, the no objection certificate dated 15.10.2007 obtained by petitioner No. 2 Society from the Gram 3 C.W.P. No. 3129 of 2008 Panchayat for construction of college building would be rendered insignificant. It has also been pointed out that construction of college building, in fact, had started during or after commencement of acquisition proceedings. Respondent Nos. 1 and 2 have also averred that building could not have been constructed after obtaining no objection certificate from the Gram Panchayat on 15.10.2007 and construction could not be completed within four days because in the letter dated 18.10.2007 addressed to the NCET it has been acknowledged that the building has been constructed. The respondents have further pointed out that commissioning of first unit of the Thermal Power Plant during the month of November 2009 cannot be delayed and the proposed approach road is the only access available for transportation of material and machinery. The existence of any kacha rasta has been denied. However, it has been conceded that there is a defunct portion of Rajbah (abandoned water drain) in Khasra No. 309, which is abandoned water channel. It has further been claimed that neither the abandoned water channel nor the other passage proposed by the petitioners is of the same width nor the same is in straight position which is required for transportation of material and machinery through heavy vehicles. 6. Respondent Nos. 3 and 5 filed separate written statement by asserting that on the date of execution of the sale deed dated 9.3.2004 there was no construction on the notified track except 6 feet height boundary wall as per the verification report submitted by the Local Revenue Patwari on 18.8.2007. The construction work of first phase of the Thermal Power Plant is to be completed by November 2009 and second phase by March 2010, which is going on round the 4 C.W.P. No. 3129 of 2008 clock at war footing. The construction material and machinery, which include imported portion from China is to be transported by NH-65 Hisar-Barwala road from where the approach road has been proposed. The completion of this approach road is urgently required because in its absence the necessary material/equipments cannot be transported to the Thermal Power Plant. Therefore, invocation of urgency clause in the impugned notifications is sought to be justified. The respondents have also taken a categorical stand that the abandoned water channel on Khasra No. 309 involves a curve whereas a approach road is required which should go straight upto the gate of the Thermal Power Plant from NH-65. 7. The petitioners have initially leveled allegations that the entire exercise to acquire their land is politically motivated at the instance of Km. Sheilja, Union Minister of State, Urban Development Department, New Delhi-respondent No. 4. However, during the course of arguments, Mr. Arun Jain learned senior counsel for the petitioners has stated that all such allegations in the writ petition be permitted to be withdrawn and the name of respondent No. 4 may be ordered to be deleted from the array of parties. The prayer made by the learned counsel is accepted. Accordingly, the name of respondent No. 4 is deleted from the array of parties. 8. Mr. Arun Jain, learned senior counsel for the petitioners has raised before us three submissions. Firstly he has argued that on the language of Section 17(4) of the Act there has to be some gap between the date of notification issued under Section 4 read with Section 17(2)(c) and declaration made under Section 6 read with Section 17(2)(c). He has argued that use of expression ‘after the date 5 C.W.P. No. 3129 of 2008 of publication of notification under Section 4(1)’ in Section 17(4) would clearly show that notification cannot be issued on the same date as has been done in the present case. In support of his submission learned counsel has placed reliance on the judgment of Hon’ble the Supreme Court in the case of Shri Mohan Singh v. International Airport Authority of India, JT 1996 (10) SC 311. 9. The second submission made by Mr. Jain is that when equally wide Government land is available then demolition of college building of petitioner No. 2 Society could be avoided by constructing approach road from NH-65, which also reach the gate of the Thermal Power Plant. He has maintained that the excuse put forward that there is a curve is absolutely unwarranted because when the heavy vehicles are to enter the approach road they have to take turn from NH-65 Hisar-Barwala road to reach the gate of the Thermal Power Plant. Therefore, it has been suggested that the curves do not obstruct entry of heavy vehicles in the Thermal Power Plant. 10. Learned counsel then submitted that no urgency or emergency existed for invoking the provisions of Section 17(2)(c) and 17(4) of the Act and it cannot be stated that construction of approach road could not have waited for a period of 30 days. Therefore, he has requested for quashing of the impugned notifications. 11. Mr. Ashish Kapoor, learned Additional Advocate General, Haryana on behalf of respondent Nos. 1 and 3 as well as Mr. Narender Hooda, learned counsel for respondent Nos. 3 and 5 have argued that acquisition of the land in dispute cannot be avoided at the convenience of the petitioners. Learned counsel have placed reliance 6 C.W.P. No. 3129 of 2008 on the record to show that the land of the abandoned water channel for construction of approach road was considered on 18.4.2007 and permission was sought for transfer of 1½ acres of land from Haryana Irrigation Department to the Thermal Power Plant for construction of approach road. However, after discussion the possibility of having a straight approach road from the entrance of the Thermal Power Plant to NH-65 was sought to be explored. Note dated 28.5.2007 of the Executive Engineer shows that the Managing Director of the Haryana Power Generation Corporation Limited-respondent No. 3 (HPGCL) was asked to explore the possibility of purchasing land by negotiation from the petitioners. However, the petitioners plainly refused to sell the land at any cost. Therefore, the process of acquisition was initiated. Learned counsel have maintained that in the opinion of the Engineering Department straight road has been recommended. 12. Having heard learned counsel, perusal of the paper book minutely and examination of the original record with their able assistance, we have reached the conclusion that this petition deserves to succeed. It is well settled that law concerning compulsory acquisition of land has to be construed strictly as it is an ‘expropriatory legislation’. In that regard reliance may be placed on the judgments of Hon’ble the Supreme Court in the cases of Devinder Singh v. State of Punjab, (2008) 1 SCC 728 and Hindustan Petroleum Corporation Limited v. Darius Shapur Chenal, (2005) 7 SCC 627. The provisions of Section 17 of the Act has to be examined in the light of the aforementioned principle of construction as per the guidelines of Hon’ble the Supreme Court. Section 17 of the Act reads thus:- 7 C.W.P. No. 3129 of 2008 “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 mentioned in Section 9, sub-section (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, 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 8 C.W.P. No. 3129 of 2008 absolutely in the Government free from all encumbrances. Provided that the Collector shall not take possession of 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. (3) In every case under either of the preceeding sub-sections 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 9 C.W.P. No. 3129 of 2008 (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, sub-section (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section. (3B) The amount paid or deposited under sub- section (3A), shall be taken into account for determining the amount of compensation required to he tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under Section II, the 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 sub-section (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) . ” (emphasis added) 13. Sub-section (4) of Section 17 of the Act clearly spells out that notification under Section 6 read with Section 17 has to be 10 C.W.P. No. 3129 of 2008 issued after the date of publication of the notification under Section 4 (1). The aforementioned question has also been considered by Hon’ble the Supreme Court in the case of Mohan Singh (supra). Dealing with the issue in para 13 of the judgment Hon’ble the Supreme Court observed as under:- “13. The question is: whether it is mandatory in such a situation, i.e., after the publication of the notification in the Gazette publication in two local newspapers and giving of notice of the substance of the notification at convenient places in the locality, to await the exercise of power under Section 17(4)? After giving due and deep consideration to the respective contentions raised by the learned counsel, we are of the considered view that though the compliance of these three steps required under Section 4(1) is mandatory for the exercise of the power under Section 17(4), it is not necessary that all the three steps should be completed before making the declaration under Section 6(1) and have it published for directing the Collector to take possession under Section 17(1) or 17(2). What is needed is that there should be a gap of time of at least a day between the publication of the notification under Section 4(1) and of the declaration under Section 6(1). ……” 14. In the present case notifications under Sections 4 and 6 read with Section 17 of the Act have been issued on the same date i.e. 28.11.2007, therefore, the writ petition deserve to be allowed on this short ground alone. 11 C.W.P. No. 3129 of 2008 15. We are further of the view that, in fact, there is no such urgency so as not to brook delay of 30 days. A perusal of the original record shows that respondent Nos. 3 and 5 have considered the question of construction of approach road on the site of abandoned water channel on 17.4.2007 and the noting was approved and proposal was made by the Executive Engineer (Civil). The proposal was approved by the Chief Engineer on 18.4.2007. Even the Director Project on 23.4.2007 has approved the proposal and the Managing Director, HPGCL also approved the proposal by suggesting that request be sent to the Irrigation Department for transfer of land to HPGCL at agreed price. However, on 26.4.2007, the possibility of straight approach road from the entrance of the Thermal Power Plant to NH-65 Hisar-Barwala road was required to be explored. For that purpose it was also proposed to explore the possibility of purchase of land by negotiation from the petitioners. However, the note dated 18.5.2007 of the Executive Engineer (Civil) states that the petitioners were not prepared to sell the land by negotiations and thereafter on 28.5.2007 the process of acquisition was initiated. But the impugned notifications could be issued only on 28.11.2007, which clearly shows that there was adequate time available with the respondents to issue notice to the petitioners for affording an opportunity of hearing to them. They could have pleaded before the respondents in their objections filed under Section 5A of the Act to construct the approach road on the abandoned water channel in order to avoid any demolition of their college building or part of the factory premises. It is well settled that land owner are entitled to hearing of their objections 12 C.W.P. No. 3129 of 2008 under Section 5A of the Act unless hearing of objection has been dispensed with after proper application of mind by the authorities. 16. We have also gone through the notings dated 21.6.2007 and 29.6.2007. On 29.6.2007, the Executive Engineer has requested for according approval to initiate the process for acquisition of the land belonging to the petitioners. The Superintending Engineer on 3.7.2007 marked the file to the Chief Engineer and on 7.7.2007 the Chief Engineer states that sketch showing the land proposed to be acquired/transferred is Mark CH-10 & 11. Thereafter, the matter was taken through various other channels and put up for approval of the Chief Minister on 19.7.2007. There is no whisper of invoking urgency clause, which shows that there is no application of mind. It is only on 17.8.2007 that the Executive Engineer (Civil) states that the forwarding letter alongwith relevant documents is to be signed for sending the same to the Land Acquisition Collector, Ambala, for initiation of necessary action to acquire the land under Section 4, 6 and 17 of the Act. It took more than three months for issuance of notifications on 28.11.2007. It is well settled that a decision to dispense with filing of objections under Section 5A of the Act has to be taken by the Government as is plain from the bare perusal of Section 17(4) of the Act. The position has been reiterated by Hon’ble the Supreme Court in the case of Nandeshwar Prasad v. State of U.P., (1964) 3 SCR 425. The Supreme Court observed that ‘it is only when the Government also makes a declaration under S. 17(4) that it becomes unnecessary to take action under S. 5-A and make a report thereunder.’ In somewhat similar circumstances such a non- application of mind by the Government was pointed out by Hon’ble 13 C.W.P. No. 3129 of 2008 the Supreme Court in the case of Union of India v. Mukesh Hans, (2004) 8 SCC 14, wherein the provisions of Section 17(4) of the Act have been interpreted to mean that it is the State Government which may direct that the provisions of Section 5A of the Act were not to apply. In the present case, from the record no decision of the State Government is forthcoming for dispensing with the provisions of Section 5A of the Act. 17. The general rule is that right of hearing as postulated by Section 5A of the Act has to be given to the land owner presumably because it is ‘expropriatory legislation’ and it would require rigorous compliance. The significance of this right has been considered by their Lordships’ of Hon’ble the Supreme Court in the case of Essco Fabs Pvt. Ltd. and another v. State of Haryana and another (Civil Appeal No. 6580 of 2008, decided on 7.11.2008). After placing reliance and analyzing the earlier judgments of the Supreme Court rendered in the case of Nandeshwar Prasad (supra); Mukesh Hans (supra); Jai Narain v. Union of India, (1996) 1 SCC 9; and Chameli Singh v. State of U.P., (1996) 2 SCC 549, their Lordships’ proceeded to observe thus: “44. In our judgment, from the above case law, it is clear that normal rule for acquisition of land under the Act is issuance of notification under sub-section (1) of Section 4, hearing of objections under Section 5A and issuance of final notification under Section 6 of the Act. Award will be made by the Collector, notice has to be issued to the land-owners or the person interested and thereafter possession can be taken. Section 17, no doubt, 14 C.W.P. No. 3129 of 2008 deals with special situations and exceptional circumstances covering cases of `urgency' and `unforeseen emergency'. In case of `urgency' falling under sub-section (1) of Section 17 or of `unforeseen emergency' covered by sub-section (2) of Section 17, special powers may be exercised by appropriate Government but as held by a three Judge Bench decisions before more than four decades in Nandeshwar Prasad and reiterated by a three Judge Bench decision in Mukesh Hans, even in such cases, inquiry and hearing of objections under Section 5A cannot ipso facto be dispensed with unless a notification under sub-section (4) of Section 17 of the Act is issued. The legislative scheme is amply clear which merely enables the appropriate Government to issue such notification under sub-section (4) of Section 17 of the Act dispensing with inquiry under Section 5A if the Government intends to exercise the said power. The use of the expression `may' in sub-section (4) of Section 17 leaves no room of doubt that it is discretionary power of the Government to direct that the provisions of Section 5A would not apply to such cases covered by sub-section (1) or (2) of Section 17 of the Act. 45. In our opinion, therefore, the contention of learned counsel for the respondent authorities is not well founded and cannot be upheld that once a case is 15 C.W.P. No. 3129 of 2008 covered by sub-section (1) or (2) of Section 17 of the Act, sub-section (4) of Section 17 would necessarily apply and there is no question of holding inquiry or hearing objections under Section 5A of the Act. Acceptance of such contention or upholding of this argument will make sub-section (4) of Section 17 totally otiose, redundant and nugatory.” 18. It is, thus, evident that the general rule is filing of objections under Section 5A, grant of hearing and making