CWP No.6166 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.6166 of 2010 (O&M) Date of decision: 03.02.2011 Brahm Dutt and others ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.16189 of 2009(O&M) Maru Ram ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.8170 of 2010(O&M) Pramod Kumar Saxena ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.4462 of 2010(O&M) Krishan Murari ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.4463 of 2010(O&M) Chhatter Pal and others ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.4464 of 2010(O&M) Rajender Kumar ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.6166 of 2010 (O&M) 2 CWP No.4465 of 2010(O&M) Narender and others ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.4506 of 2010(O&M) Santosh Devi ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.5493 of 2010(O&M) Abhey Singh and others ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.8654 of 2010(O&M) Hukam Chand and others ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.8710 of 2010(O&M) Sunder Lal and another ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.7192 of 2010(O&M) Ram Pat and another ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.7517 of 2010(O&M) Amar Pal and others ......Petitioner(s) Versus CWP No.6166 of 2010 (O&M) 3 State of Haryana & others ......Respondent(s) CWP No.8845 of 2010(O&M) M/s Capital Education Service Pvt.Ltd. ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.8171 of 2010(O&M) Gurcharan Kaur ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.8172 of 2010(O&M) Raminder Singh ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.8173 of 2010(O&M) Sunita Malhotra and another ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.8174 of 2010(O&M) Sharad Kumar Anand ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.8175 of 2010(O&M) Abdul Wasim ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.6166 of 2010 (O&M) 4 CWP No.8296 of 2010(O&M) Jai Singh and others ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.8816 of 2010(O&M) Ram Kanwar and others ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.12033 of 2010(O&M) Sube Singh and another ......Petitioner(s) Versus State of Haryana & another ......Respondent(s) CWP No.12043 of 2010(O&M) Raj Singh and others ......Petitioner(s) Versus State of Haryana & another ......Respondent(s) CWP No.13185 of 2010(O&M) Hoshiar Singh ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.15015 of 2010(O&M) Meer Singh and others ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.9919 of 2010(O&M) Sheel Biotech Ltd. ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.6166 of 2010 (O&M) 5 CWP No.9920 of 2010(O&M) Sumer and others ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.428 of 2011(O&M) Parbhati ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.503 of 2011(O&M) Anita Devi ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.509 of 2011(O&M) Pratibha Chand ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.512 of 2011(O&M) Rakesh Devi ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.17879 of 2009(O&M) Ghamandi Lal ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.6166 of 2010 (O&M) 6 CWP No.17996 of 2009(O&M) Pritima Rajpal ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.15720 of 2009(O&M) Bohru ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.4179 of 2010(O&M) Navdeep Kumar and another ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.15508 of 2009(O&M) Bhurumal etc. ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.15516 of 2009(O&M) Uday Singh ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.4287 of 2010(O&M) Smt. Shanti Devi and others ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CWP No.6166 of 2010 (O&M) 7 CWP No.3066 of 2010(O&M) Sube Singh and others ......Petitioner(s) Versus State of Haryana & others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Shailendra Jain, Advocate, Mr. Vikas Bahl, Advocate, Mr. Ram Avtar Yadav, Advocate Mr. P.R. Yadav, Advocate, Mr. Gurinder Pal Singh, Advocate, Mr .Sachin Mittal, Advocate, Mr. M.L. Sharma, Advocate, Mr. Rajiv Sharma, Advocate, Mr. Raj Mohan Singh, Advocate, Mr.Sudhir Aggarwal, Advocate, Mr. Jagat Singh, Advocate, Mr Sanjay Mittal, Advocate, Mr. Puneet Bali, Advocate Mr. Sanjay Vij, Advocate, Mr. Sumit Goel, Advocate, Mr. Amit Jain, Advocate, for the petitioner(s). . Mr. M.L. Sarin, Sr. Advocate with Mr.Hemant Sarin, Advocate. Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate. Ms. Palika Monga, DAG, Haryana. Mr. Kamal Sehgal, Advocate for respondent No.3. Rakesh Kumar Garg, J. This judgment shall dispose of a bunch of 39 writ petitions i.e. 6166 of 2010, 16189 of 2009, 8170, 4462 to 4465, 4506, 5493, 8654, 8710, 7192, 7517, 8845, 8171 to 8175, 8296, 8816, 12033, 12043, 13185, 15015, 9919, 9920 of 2010, 428, 503, 509, 512 of 2011 whereby a challenge has been laid to the notifications dated 25.4.2008 and 22.4.2009 issued under Sections 4 and 6 of the Land Acquisition Act, 1894 CWP No.6166 of 2010 (O&M) 8 (hereinafter referred to as the 'Act') vide which land of the petitioners (over which residential houses/other construction have been raised), has been acquired against the Haryana Government policy dated 26.10.2007 . However, for the sake of convenience, facts are being culled out from CWP No.6166 of 2010 wherein a consolidated reply was filed by the State in compliance of the order dated 10.11.2010 passed by this Court. As per the averments made, the petitioners are owners in possession of land measuring 8 kanals comprised in Rectangle No.6 Killa No.13 in the revenue estate of village Kharkhari, Tehsil and District Gurgaon. They have constructed residential houses etc. in an area measuring 4 kanals and over the remaining 4 kanals, the petitioners have allegedly constructed cattle sheds etc. where they are keeping buffaloes and are doing the business of dairy. It is further alleged that the petitioners have raised huge construction over the aforesaid land after spending lacs of rupees. The said residential houses are A-class pucca houses and they have no other residential house in the State of Haryana and if the said houses are acquired, the petitioners and their families shall be rendered without any roof on their heads. It is further alleged that the aforesaid houses of the petitioners are situated just adjoining to the extended village abadi. The aforesaid land of the petitioners along with other lands of village Kukrola, Bas Lambi, Mokalwas, Seharavan, Fakharpur and Fazilwas, was acquired for a public purpose namely for setting up a Chaudhary Devi Lal Industrial Model Township by Haryana State Industrial Corporation Limited vide notification dated 14.12.2006 issued under Section 4 of the Act and followed by a declaration under Section 6 of the said Act vide notification dated 18.1.2008 (Annexure P-6). The petitioners and various other land owners filed civil writ petitions before this Court challenging the said acquisition proceedings. CWP No.6166 of 2010 (O&M) 9 One of the grounds taken was that the declaration under Section 6 was issued beyond the statutory period of one year. On 19.5.2008 during the pendency of those writ petitions before this Court, the aforesaid fact was admitted by the Advocate General, Haryana by placing on record a copy of the order dated 14.5.2008 stating that the declaration dated 18.1.2008 issued under Section 6 of the Act has lapsed. It was also stated by the learned Advocate General that a fresh notification under Section 4 of the Act has been issued which could be challenged in accordance with law on all available grounds. The aforesaid writ petitions were rendered infructuous by observing that whenever any other relief is claimed by the petitioners, it shall not cause any prejudice to them when they file a second petition. The respondent-State issued notification dated 25.4.2008 (Annexure P-8) under Section 4 of the Act intending to acquire the land of the petitioners for the same public purpose. In pursuance of the aforesaid notification, the petitioners filed objections under Section 5-A of the Act. According to the petitioners, no proper opportunity of hearing was given to them and respondent No.2 without dealing with the objections recommended to release only 2 kanals of land though the residential houses exists on 4 kanals. Declaration under Section 6 of the Act was issued on 22.4.2009 (Annexure P-11) acquiring the land in question of the petitioners along with other lands. According to the petitioners, their residential houses were acquired irrespective of the instructions (Annexure P-12 and P-17) wherein it has been stipulated that no constructed portion should be acquired, thus, violating their own instructions/guidelines. Challenging the aforesaid notifications, the petitioners have alleged that the instant notifications for acquisition are nothing but continuation of the earlier acquisition proceedings and they have been CWP No.6166 of 2010 (O&M) 10 discriminated by including the constructed houses of the petitioners in the acquired land whereas the lands of others, including one Randhir Singh who has manipulated the records and the recommendation report in connivance with the revenue officials and office of respondent No.2 by showing huge construction, though the lands are lying vacant. According to the petitioners, they were also entitled to the release of their land from acquisition and they cannot be discriminated. By placing on record Aks- sajra (Annexure P-4), it has been further averred that lands/residential houses of similarly situated persons have been released and in some cases in similar circumstances, land has not been acquired and thus, the acquisition was bad on account of discrimination and was liable to be quashed. Written statement on behalf of respondent No.1 was filed through Sh. Y.S. Malik, Financial Commissioner and Principal Secretary to Government of Haryana, Industries and Commerce Department submitting that the State of Haryana (in the industries and Commerce Department) issued notification 4 of the Act vide notification dated 25.4.2008 for acquisition of the land measuring 3510 acres 5 kanals 1 marla situated in the revenue estates of villages Fazilwas, Kukrola, Kharkhri, Bas Lambi, Mokalwas, Sehravan and Fakharpur, Tehsil and District Gurgaon for a public purpose for setting up of Ch. Devi Lal Industrial Model Township, as integrated complex for Industrial, commercial and other public utilities by the Haryana State Industrial and Infrastructure Development Corporation Limited (hereinafter referred to as the 'HSIIDC') for expansion of developed industrial infrastructure in this area. It was also submitted that a major portion of the land under acquisition is located along with the alignment of Kundli-Manesar-Palwal Expressway (KMP Expressway) and some portion of the land was urgently CWP No.6166 of 2010 (O&M) 11 required for construction of an interchange of the KMP Expressway on NH- 8. It was further stated that a number of land owners filed objections under Section 5-A of the Act. The Land Acquisition Collector considered these objections and submitted his recommendations to the Government. Since HSIIDC is the project development and implementation agency, the Government sought the comments of HSIIDC on the recommendations of the Land Acquisition Collector as HSIIDC alone was competent to comment on their requirements of land keeping in view its location and design etc. A team of the officers of the State consisting of the Chief Town Planner and Senior Town Planner, HSIIDC and the Technical Expert (office of the Director of Industries and Commerce, Haryana), visited the area in respect of which objections were filed on 3.4.2009 and the declaration under Section 6 of the Act was based on the recommendations of the Land Acquisition Collector, Gurgaon, comments of the HSIIDC and assessment made by the Joint Inspection Committee as stated above. While arriving at the decision, due regard was given to leave out such of the areas/already constructed structures as could be accommodated and adjusted within the development plans keeping in view the futuristic Development Plan of the township, while simultaneously being sensitive to the need for uninterrupted integration of various services as part of the infrastructure development plan. It was further submitted in the written statement that the State Government agreed with the recommendations and issued the declaration under Section 6 of the Act accordingly. A copy of shijra-cum-survey plan showing the land released (in purple hashes) at the time of issuance of Section 6 notification was also enclosed as Annexure R-1 by stating that the portions of land which could have been accommodated in planning were excluded from section 6 declaration. It was further stated that under Section 6 of the Act, CWP No.6166 of 2010 (O&M) 12 declaration was issued in two parts. First declaration under Section 6 of the Act was issued on 9.3.2009 in respect of 90 acres 5 kanals 14 marals land situated in revenue estates of villages Fazilwas, Kukrola and Fakharpur, Tehsil and District Gurgaon which was required for the interchange facility to be constructed on the intersection of NH-8 and the KMP Expressway. The award was announced for the aforesaid land on 24.8.2009 thus completing the acquisition proceedings. The second notification under Section 6 in respect of the land measuring 3325 acres 3 kanals 16 marlas was issued separately on 22.4.2009. It was further submitted in the written statement that as per the report of District Revenue Officer-cum-Land Acquisition Collector, Gurgaon, some of the petitioners i.e. Petitioners No.2 and 3 in CWP No.6166 of 2010, petitioners No.1 and 4 of CWP No.7446 of 2010 and petitioner No.5 to 11 in CWP No.5493 of 2010 and petitioners of CWP No.13185 of 2010 did not file objections under Section 5-A of the Act and therefore, the aforesaid writ petitions were not maintainable and were liable to be dismissed in view of the judgment of the Hon'ble Supreme Court in Delhi Administration v. Gurdip Singh Uban and others AIR 1999 SC 3822. It was also averred that many petitioners have filed multiple writ petitions without making a disclosure to that effect before this Court such as petitioner No.1 in CWP No.6166 of 2010, petitioner No.2 of CWP No.7446 of 2010 petitioner No.2 of CWP No.7517 of 2010 and their writ petitions were also liable to be dismissed on this ground alone. Apart from the aforesaid submissions, it was also averred that the NCR Regional Plan-2021 had proposed an Orbital Rail Corridor with Right of Way (ROW) of 100 meters, around Delhi which is parallel to the upcoming KMP Expressway with a green belt of 100 meters width on either sides of the Expressway. This corridor is envisaged to run parallel to the CWP No.6166 of 2010 (O&M) 13 KMP Expressway in order to have transition of passengers from road to rail and vice-versa. This proposed orbital rail is to have an active interchange facility with all the radial rail lines that originate from Delhi and run into Haryana sub-region to provide complete accessibility to the region. It was further stated that another major infrastructure project by the Government of India known as the Delhi-Mumbai Freight Corridor is in the offing in order to arrange for efficient transportation of goods for export purposes and this project is a mega infrastructure project with the financial and technical aids from Japan covering an overall length of 1483 KMS between Delhi and Mumbai. The Government of India had constituted a Delhi- Mumbai Industrial Corridor Development Corporation Limited (DMICDC) to conceptualize development of industrial-cum-commercial hubs along the proposed freight corridor to optimize the opportunities created with this initiative. According to the respondents, the HSIIDC has also been nominated as the nodal agency to work with the DMICDC and to facilitate the development of various initiatives in Haryana State. Keeping in view the above plans, the State Government has identified three projects i.e. (i) An Exhibition-cum-Convention Centre (ECC) Project, (ii) An integrated Multimodal Logistics Hub; and (iii) A Mass Rapid Transit System (MRTS) between Gurgaon-Manesar-Bawal. The consultants have proposed an Exhibition-cum-Convention Centre and have recommended the site at Panchgaon Chowk (the site marked on the annexed Shijra Plan) as the most appropriate site for the project keeping in view its excellent location and connectivity from the KMP Expressway and the National Highway No.8 and an area of about 250 acres has been earmarked for this purpose. Once implemented, this project will provide unprecedented boost to the growth of industry and trade prospects in this part of the State. The State CWP No.6166 of 2010 (O&M) 14 Government has also sought to justify the release of land in favour of the private respondents and admitted that it has released 50 acres land being under forest, 42 acres belonging to Gram Panchayats and 2 acres in favour of others. It was admitted that 42 acres 7 kanals 15 marlas of land was released in favour of M/s Chinar Estates Private Limited vide notification dated 7.5.2010 issued under Section 48 of the Act. It was also admitted that land measuring 19 kanals 16 marlas of M/s Hess Hospitality who had applied for CLU on 12.6.2006 before the initiation of process of acquisition was also executed. Regarding release of land in favour of M/s VSR Infrastructure Pvt. Ltd., it was stated that the aforesaid Company had applied for grant of licence under Section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975 for setting up of a industrial township colony on land measuring 133.777 acres. The aforesaid land was initially included in the notification under Section 4 issued earlier but the same was not included in the earlier declaration dated 18.1.2008 issued under Section 6 of the Act and further this land was not notified under Section 4 of the Land Acquisition Act vide notification dated 22.4.2009 which is under challenge. It may also be relevant to mention at this stage that the land of the writ petitioners has been sought to be acquired and justified on the ground that the same were required for the infrastructure facilities and cannot be adjusted. A defence has also been taken submitting that the existing shops and residential structures under acquisition which have been acquired could not be adjusted and are stand alone structures in the vacant land and are not contiguous to the village abadi as evidence from the site plan Annexure R-1 and was rightly acquired. It was prayed that writ petitions be dismissed. CWP No.6166 of 2010 (O&M) 15 We have heard learned counsel for the parties and perused the pleadings and the documents placed on record of the case. It is not in dispute that in the earlier notification dated 14.12.2006 issued under Section 4 of the Act, land measuring 3718 acres 6 kanals 9 marlas was sought to be acquired whereas declaration dated 18.1.2008 under Section 6 of the Act was issued for acquisition of land measuring 3510 acres 5 kanals 1 marla only, thus, excluding from the acquisition land measuring more than 200 acres which includes the land belonging to M/s VSR Limited etc and others shown as green in the site plan Annexure R-1. Again it is not in dispute that vide impugned notifications dated 25.4.2008 land measuring 3510 acres 5 kanals 1 marla was notified under Section 4 of the Act and vide notification dated 9.3.2009 in respect of 90 acres 5 kanals 14 marlas and vide notification dated 22.4.2009 for land measuring 3325 acres 3 kanals 16 marlas , a declaration was made under Section 6 of the Act. Thus, leaving about more than 93 acres of land from acquisition which includes the land released in favour of M/s Hess Hospitality and M/s Chinar Estates Pvt.Ltd. And others. Sh. Shailendra Jain, Advocate appearing on behalf of the writ petitioners has vehemently argued that the action of the respondents in acquiring the land of the petitioners was illegal as no hearing on objections under Section 5A(2) of the Act was granted to them. Elaborating his argument further learned counsel has submitted that the petitioners were not heard by the Land Acquisition Collector and were only asked to make a statement before a Clerk of the office of respondent No.2 deputed for the said purpose. It has been stressed that there exists no record with the respondents regarding the arguments raised and a speaking order showing the grant of opportunity of hearing was required to be passed by respondent No.2 before its recommendations to respondent No.1. No such CWP No.6166 of 2010 (O&M) 16 record has been sent by respondent No.2 along with his recommendations report. Counsel for the petitioners has also referred to the averments made in para No.18 to 25 of the CWP to contend that the lands which were lying totally vacant and were made the subject matter of earlier notification under Section 4 of the Act and were not made the subject matter of the earlier declaration under Section 6 of the Act on account of the fact either there being manipulations by their respective owners in connivance with the respondents and also that the existing similar construction raised as demonstrated from Annexure R-1 were released in the present acquisition and thus, meeting a hostile discrimination to the petitioners rendering the whole of the acquisition proceedings illegall. In addition to the arguments raised by Sh. Shailendra Jain, Sh. Vikas Behl, learned counsel appearing on behalf of the petitioners in CWP No.8170 to 8175 of 2010 has further argued that environmental clearance has not been sought from the concerned authorities before the acquisition and therefore, the same was liable to be set aside. Elaborating his argument further, learned counsel for the petitioners has argued that the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 under which the above said notification and the drawing has been prepared clearly shows that the land covering under the same cannot be put to any use which is contrary to the use as given in the said notification/drawing. According to the learned counsel for the petitioners, the mala fides of the respondent-Authorities are apparent from the record that the land of the petitioners who have made their residential houses/construction and has a small area of land which does not fall in the industrial/commercial/public utility is sought to be acquired whereas the land of the respondent-Company i.e. M/s VSR Infrastructure Pvt. Ltd. which is vacant and falls in the industrial area has been released by the CWP No.6166 of 2010 (O&M) 17 respondent-State. Counsel for the petitioners has further placed reliance on Annexure P-9 i.e. notification dated 27.12.2007 issued by respondent No.1 according to which the hotels, restaurants and dhabas can also be established in the public and some public uses zone and thus, the construction made by the petitioners which was much prior to the notification under Section 4 of the Act and was a A-Class construction, was permissible and the usage to which the petitioner has put the land is also permissible and was liable to be exempted. Sh. Rajiv Sharma, Advocate, appearing in CWP Nos.9919 and 9920 of 2010 has also raised objections by stating that there exists a full fledged export units and the acquired land is necessary for the aforesaid plant and the petitioner-Company was rendering an important role in fulfilling the requirement of National Horticulture Mission by supplying top quality of tissue culture plants produced in its premises to the farmers of Haryana and other States. It is the further case of the petitioner that it has already invested crores of rupees to run a unit for industrial purposes since 1992 and as the land is being acquired for industrial, commercial and other public utility services, the respondents have erred at law while not releasing the land of the petitioners. Sh. P.R. Yadav, Advocate appearing on behalf of the writ petitioners in CWP Nos.5493, 8654, 8710 of 2010 and 428 of 2011, Mr. G.S Dhaliwal, Advocate appearing in CWP Nos.13185 of 2010, Sh. R.A. Yadav, Advocate appearing in CWP Nos.4462 to 4465, 4506 of 2010, 503, 509 and 512 of 2011, and Sh. G.P.Singh, Advocate appearing in CWP No.8296 of 2010 have adopted the arguments raised by the learned counsel appearing in the lead case. On the other hand, Sh. Kamal Sehgal, counsel for HSIIDC, has vehemently argued that