IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.4186 of 2009 Date of decision: 22 .11.2010 Diljit Singh and others …..Petitioners versus Union of India and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.Ashok Aggarwal, Senior Advocate with Mr.Mukul Aggarwal, Advocate for the petitioners Mr.Kamal Sehgal, Addl.A.G. Haryana Ms.Ranjana Shahi, Sr.Panel Counsel, for UOI Mr.Sidharth Batra, Advocate for respondent-HUDA Jasbir Singh, J. This order will dispose of 11 writ petitions bearing CWP Nos.4186, 4211, 4224, 4499, 4625, 8157, 8198, 8543, 9422, 9726, 13257 of 2009 and also CWP No. 8204 of 2009, involving similar questions of law and facts. For the purpose of dictating order, facts are being mentioned from CWP Nos.4186 and 8204 of 2009. By filing these writ petitions, the petitioners have laid challenge to a notification issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) on 3.10.2006 (P5), proposing to acquire 507.63 Civil Writ Petition No.4186 of 2009 acres of land for a public purpose, namely, ‘for development and utilization of land as residential and commercial area for sector 13, Jagadhri’. After acquisition, the development was to be done by the Haryana Urban Development Authority (HUDA)- respondent No.4. Further challenge is to a notification dated 1.10.2007 (P20), issued under Section 6 of the Act, declaring an intention of the government, to acquire the above said area, except a very small piece of land, which was left out of acquisition after hearing objections of the land owners under Section 5-A of the Act. In CWP No.8204 of 2009, the petitioners have raised challenge against a notification issued under Section 4 of the Act on 21.7.2006, proposing to acquire a vast track of land for a public purpose, namely, ‘development of industrial model township Faridabad’. Further challenge has been made to a notification under Section 6 of the Act on 7.8.2007. It is necessary to mention here that in this case, award was pronounced on 28.7.2008. Mr.Ashok Aggarwal, Senior Advocate, who has put in appearance on behalf of the petitioners, has raised the following two issues in this case, to assail the acquisition proceedings:- (i) Government of Haryana (respondent No.2) failed to apply its independent mind to the recommendation made by the Land Acquisition Collector Urban Estates (respondent No.3), recommending release from acquisition of the land owned by the petitioners measuring about 42 acres. (ii) Before proposing to acquire the land in question, prior environmental clearance (EC) has not been obtained by the respondents from the State Level Environment 2 Civil Writ Petition No.4186 of 2009 Impact Assessment Authority (in short, assessment authority), constituted by the Central Government under sub-section 3 of the Environment (Protection) Act, 1986. So far as CWP No.8204 of 2009 is concerned, besides raising objection shown at serial No.(ii) above, it is contended that the hearing given to the land owners by the Land Acquisition Collector when deciding their objections under Section 5-A of the Act was not proper. Counsel for the parties heard. Facts of CWP No.4186 of 2009 About 32 acres of land of the petitioners is under acquisition. It is case of the petitioners that with a dint of hard labour and on spending huge amount, they have developed an orchard of many fruit bearing trees like Mango, Lichi, Nashpati etc. in the above said land. The number of fruit bearing trees is about 2300. It was further contended that they have also raised construction/ farm house in the land under acquisition. It is contention of Mr.Aggarwal that despite favourable recommendation made, to release their land from acquisition, by the Land Acquisition Collector, without any application of mind, it was made part of the declaration issued under Section 6 of the Act. To stress this point, reliance has been placed upon extract of the report of the Land Acquisition Collector, which, qua the petitioner No.1 reads thus:- “At the spot there exists a Farm House in Khasra No.1063 and in the remaining area, there exists a well developed orchard of a very good quality. Recommendation is being made for releasing the same land/ orchard and Farm House from the acquisition, as in case they are acquired, a lot of compensation has to be paid by the HUDA department.” 3 Civil Writ Petition No.4186 of 2009 Besides as above, regarding Rajinder Pal Singh etc., the Collector has made mention regarding existence of Smadhi in the land under acquisition. Rest of the recommendation was the same. It is necessary to mention here that most of the land owned by the petitioners falls in 75 meters wide road and green belt to be left on both sides of the same. By making reference to the site plan Annexure P32, Mr.Aggarwal contended that by slight shifting of alignment of the road towards its right side, orchard of the petitioners can be saved. He further raised an objection that to controvert averments by the petitioners regarding non-suitability of their land for acquisition, an affidavit, only of the Land Acquisition Collector has been filed, who was not associated in the process when decision was taken to acquire land at the State level. To say so, he has placed reliance upon a judgment of this Court in CWP No.5878 of 2003 titled Amita Banta and another v. State of Haryana and others, decided on 8.12.2009. He prayed that on this score alone, notifications under challenge cannot be sustained. To rebut his above said contention, Mr.Sehgal argued that recommendation made by the Collector was not binding because the same was made on the basis of wrong facts. As per development plan for the area, alignment of the road and green belt has been fixed and it is not possible to change the same as prayed by the petitioners. By making reference to the site plan Annexure P32, he has stated that if alignment is shifted towards its right side, as prayed by the petitioners, it will eat away orchards being maintained by other land owners. If released, the land owned by the petitioners, it will bifurcate rest of the area under acquisition. He further argued that to verify the feasibility of release of land as per recommendation made, a Joint Site Inspection Committee was constituted, which visited the site on 19.8.2007 and recommended acquisition of the 4 Civil Writ Petition No.4186 of 2009 land. He stated that there was proper application of mind in ordering acquisition of land of the petitioners. After hearing counsel for the parties, we are of the opinion that no relief can be granted to the petitioners in view of facts on record. It is true that the Land Acquisition Collector, in its report made a recommendation that on account of existence of an orchard in the land owned by the petitioners, it be kept out of acquisition because if acquired, it would involve payment of huge amount of compensation by the HUDA to the petitioners. After looking at the report made by the Joint Site Inspection Committee, we are of the opinion that recommendation made by the Land Acquisition Collector was not justified. Merely because, trees were standing in the land, in dispute, and payment of huge amount of compensation would be involved, is no ground to exempt the land, if otherwise, it fits in the overall planning of the area to be developed. The Collector has nowhere stated that as to how it is possible to shift the alignment of road and the green belt to save this land. Be that as it may, when this objection was raised at the time of hearing, the Court on 9.3.2010, passed the following order:- “Learned counsel for the petitioner(s) by citing a Division Bench judgment of this Court rendered in CWP No.5878 of 2003 (O&M), decided on 8.12.2009 (Amita Banta and another v. State of Haryana and others) has argued that the affidavit considering the objections about existence of public purpose and fitness of the land for acquisition by a person associated with the decision making at the State level is required to be filed. 5 Civil Writ Petition No.4186 of 2009 Admittedly, there is nothing on record to show that any such affidavit has been filed. Learned State counsel seeks and granted two weeks time to file the appropriate affidavit. List again on 29.3.2010. A photocopy of this order be placed on the files of connected cases.” In response thereto, an affidavit has been filed by the Principal Secretary to Government of Haryana, Urban Estates Department at Chandigarh, wherein it is stated as under:- “That after the receipt of the report of the Land Acquisition Collector, Panchkula the Joint Site Inspection Committee visited the site on 29.8.2007 and observed that:- “DTP pointed out that major parts of these orchards fall in the alignment of the proposed peripheral road (75 m wide) and its 50 meters wide green belts. Acquisition of these orchards can not be avoided even if alignment of road is shifted towards Eastern or Western wide as there are orchards existing on either sides of the proposed peripheral road. The committee inspected the area. It observed that there is no possibility of shifting the alignment of the proposed peripheral road considering existing of orchards of other land owners on either sides of the road. Considering the constraints the Committee suggested that the entire land under the orchards may be acquired. Planning of the area may be done so precisely that least number of trees are felled for 6 Civil Writ Petition No.4186 of 2009 construction of the peripheral road and remaining area under orchards may be retained and maintained as such by HUDA to avoid any environmental degradation. It is no loss if HUDA sheds a few lacs of extra bucks in lieu of compensation to protect the environment and landscape of the area. Regarding farmhouse, the Committee observed that, it falls right in the alignment of the proposed peripheral road. Hence, there is no justification of exempting it from declaration u/s 6 of Land Acquisition Act, 1894.” The complete report of the J.S.I.C. is annexed herewith as Annexure R1. That the Government while considering the report of Land Acquisition Collector, Panchkula accepted the recommendation made by the Joint Site Inspection Committee due to the reason that the petitioners’ land falls in the proposed sector master road.” It is coming out from the records that after receipt of recommendations made by the Land Acquisition Collector, Joint Site Inspection Committee was constituted, consisting of the following officers:- 1. Smt.Neelam P. Kansni, IAS, Administrator, HUDA Panchkula 2. Sh.Dilbag Singh Sihag, Senior Town Planner, Panchkula 3. Sh.P.K. Garg, Superintending Engineer, HUDA, Karnal 4. Sh.Narinder Singh, Estate Officer-cum-SDO© Jagadhri 5. Sh.R.K.Singh, District Town Planner, Yamuna Nagar. 7 Civil Writ Petition No.4186 of 2009 6. Sh.Devender Kaushik, Land Acquisition Officer, Panchkula.” The Committee took note of the recommendations made by the Land Acquisition Collector to release land of the petitioners. The District Town Planner brought it to the notice of the Committee that major part of the orchard owned by the petitioners falls in the alignment of a proposed peripheral road (75 meters wide) and its 50 meters wide green belt. It was further stated that acquisition of these orchards cannot be avoided even if alignment of road is shifted towards eastern or western side as there are also orchards in existence. The Committee then inspected the site and it was observed that there was no possibility of shifting of alignment of the proposed road. It was recommended that “planning of the area may be done so precisely that least number of trees are felled for construction of the peripheral road and remaining area under orchards may be retained and maintained as such by HUDA to avoid any environmental degradation. It is no loss if HUDA sheds a few lacs of extra bucks in lieu of compensation to protect the environment and landscape of the area. Regarding the farmhouse, the committee observed that, it falls right in the alignment of the proposed peripheral road. Hence, there is no justification of exempting it from declaration u/s 6 of Land Acquisition Act, 1894.” Report of the Committee is also annexed with the affidavit filed by Mr.D.S.Dhesi. We have gone through the same and are satisfied that there was proper application of mind to the recommendations made by the Land Acquisition Collector for release of land, as is coming out from the affidavit filed by Mr.D.S.Dhesi, Principal Secretary to Government of Haryana, Urban Estates Department. Recommendation made by the Joint 8 Civil Writ Petition No.4186 of 2009 Site Inspection Committee was accepted by the Government and thereafter notification under Section 6 of the Act was issued. Reliance of Mr.Aggarwal on the ratio of judgment in Amita Banta’s case (supra), is of no help to the petitioners. In that case, admittedly, affidavit was filed only by the Land Acquisition Collector. By taking note of the same, it was observed by a Division Bench of this Court that because no affidavit by any of the functionaries, who may have dealt with the decision making at the State level has been brought on record, to show application of mind to the objections filed under Section 5-A of the Act, before issuing notification under Section 6 of the Act, the Land Acquisition Collector’s affidavit would not show application of mind at the level of the State government and accordingly, it was ignored. The situation is altogether different in the present case. In response to the order dated 9.3.2010, passed by this Court, affidavit dated 30.5.2010 was filed by Mr.D.S. Dhesi, Principal Secretary to Government of Haryana, Urban Estates Department, stating the circumstances and the reasons for ordering acquisition of land of the petitioners despite recommendation made to the contrary by the Land Acquisition Collector. We are satisfied with the procedure adopted by the State authorities in rejecting recommendation made by the Land Acquisition Collector, which otherwise also was not binding on the State government. Furthermore, this writ petition, having been filed at a belated stage, possibly cannot be entertained. Notification under Section 4 of the Act was issued on 1.10.2007, the petitioners allowed the grass to grow under their feet and filed this writ petition only in the year 2009. Their conduct in not agitating the matter promptly, disentitle them to get any relief under Articles 226/227 of the Constitution of India. 9 Civil Writ Petition No.4186 of 2009 In view of above, objection No.(i) raised by the petitioners is rejected. In CWP No.8204 of 2009, it is contended by counsel for the petitioners that proper hearing was not given when objections were heard under Section 5-A of the Act. We are of the opinion that the argument raised is liable to be rejected. It is apparent from the records that after receipt of objections under Section 5-A of the Act, notice was given to the petitioners to appear before the Land Acquisition Collector on 21.7.2008, which they did. Award was passed on 28.7.2008. Despite issuance of notification under Section 4 of the Act on 31.7.2006, the petitioners woke up only after passing of the award and this writ petition was filed in the year 2009. In view of ratio of the judgments of the Hon’ble Supreme Court in Star Wire (India) Ltd. v. State of Haryana, (1996) 11 SCC 698; Municipal Council Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48; C. Padma v. Dy. Secretary to the Government of Tamil Nadu, (1997) 2 SCC 627; and M/s Swaika Properties Pvt. Ltd. v. State of Rajasthan, JT 2008 (2) SC 280, this writ petition cannot be entertained. Now, we will deal with objection No.(ii) raised by the petitioners in both the writ petitions. Before dealing with objection on merits, it is necessary to note down few provisions of the Environment (Protection) Act, 1986 and the Rules framed thereunder. Section 3 of the Act empowers the Central Government to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, 10 Civil Writ Petition No.4186 of 2009 controlling and abating environmental pollution. To achieve above said object under the Act or any other law, the Central Government was mandated to plan and execute programmes, to lay down standards for the quality of environment, including emission etc. to put reasonable restrictions etc. to regulate pollution in the environment. Sub-section 2 of Section 3 give detail of all such activities which the Central Government is competent to undertake to achieve object of this Act i.e. the protection and improvement of environment and prevention of harassment to human beings, other living creatures, plants and properties. As per record, this Act was enacted taking note of the parameters laid down, to preserve environment, by the United Nations Conference on the Human Environment held at Stockholm in the month of June, 1972. Sub-section 3 of Section 3 of the Act empowers the Central Government to constitute authority/ authorities to monitor measures for protection of environment and to ensure compliance of the rules, regulations and instructions issued from time to time to achieve that object. Section 6 empowers the Central Government to formulate rules to regulate environmental pollution. This Act has further laid down the norms to be observed by a person to run any industry or similar process or handling hazardous substances. Regulatory and preventive measures have also been mentioned to prevent environment pollution. To carry out purpose of this Act, the State government is also competent to formulate the rules. As per the above said provisions, the Central Government enacted the Environment (Protection) Rules, 1986. Rule 5 lays down the parameters which the Central Government has to notice before putting on 11 Civil Writ Petition No.4186 of 2009 any prohibition and restriction on the location of an industry and carrying on processes and operations in different areas within the country. Rule 5 of the Rules reads thus:- “5. Prohibitions and restrictions on the location of industries and the carrying on processes and operations in different areas(1) The Central government may take into consideration the following factors while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas- (i) Standards for quality of environment in its various aspects laid down for an area. (ii) The maximum allowable limits of concentration of various environmental pollutants (including noise) for an area. (iii) The likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted. (iv) The topographic and climatic features of an area. (v) The biological diversity of the area which, in the opinion of the Central Government needs to be preserved. (vi) Environmentally compatible land use. 12 Civil Writ Petition No.4186 of 2009 (vii) Net adverse environmental impact likely to be caused by an industry, process or operation proposed to be prohibited or restricted. (viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, National Park, game reserve or closed area notified as such under the Wild Life (Protection) Act, 1972 or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international confcrcnce1 association or other body. (ix) Proximity to human settlements. (x) Any other factor as may be considered by the Central Government to De relevant to the protection of the environment in an area. (2) While prohibiting or restricting the location of industries and carrying on of processes and operations in an area, the Central Government shall follow the procedure hereinafter laid down. (3) (a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the locations Of an industry or the carrying on of processes and operations in an area, it may by notification in the Official 13 Civil Writ Petition No.4186 of 2009 Gazette and in such other manner as the Central government may deem necessary from time to time, give notice of its intention to do so. (b) Every notification under clause (a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the locations of the industries and carrying on of process or operations in that area. (c) Any person interested in filing an objection against the imposition of prohibition or restrictions on carrying on of processes or operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication of the notification in the Official Gazette. (d) The Central Government shall within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette consider all the objections received against such notification and may within one hundred and eighty days from such day of publication impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area. 14 Civil Writ Petition No.4186 of 2009 4. Notwithstanding anything contained in sub-rule (3), whenever it appears to the Central Government that it is in public interest to do so, it may dispense with the requirement of notice under clause (a) of sub-rule (3).” Reading of the provisions indicates that vast powers have been given to Central Government to lay down the norms in the shape of prohibition and restrictions to prevent environment pollution. To exercise powers the Central Government is required to issue notifications as per requirement from time to time. Mr.Aggarwal to stress his argument has placed reliance upon ratio of the judgment of the Hon’ble Supreme Court in Karnataka Industrial Areas Development Board v. C.Kenchappa and others, (2006) 6 Supreme Court Cases 371, delivered on 12.5.2006, wherein after discussing various aspects of environmental pollution, it was observed as under:- “100. The importance and awareness of environment and ecology is becoming so vital and important that we, in our judgment, want the appellant to insist on the conditions emanating from the principle of `Sustainable Development'. (1) We direct that, in future, before acquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development that they do not gravely impair the ecology and environment. (2) We also direct the appellant to incorporate the condition of allotment to obtain clearance from the Karnataka State Pollution Control Board before the 15 Civil Writ Petition No.4186 of 2009 land is allotted for development. The said directory condition of allotment of lands be converted into a mandatory condition for all the projects to be sanctioned in future.” By referring to the observations made by the Hon’ble Supreme Court, Mr.Aggarwal has stated that it was mandatory for the State authorities to get prior environmental clearance from the State Level Environment Impact Assessment Authority (assessment authority). He also made reference to the notification (Annexure P-4/A), issued by Ministry of Environment and Forest on 14.9.2006 (in short P4/A), issued under sub- rule 3 of Rule 5 of the Environment (Protection) Rules 1986, for imposing certain restrictions and prohibitions on new projects/ activities or on the expansion or modernization of existing projects or activities based on their potential environmental impacts. In the schedule annexed with that notification, it was specified as to on which activity, what conditions will be applied to prevent environmental pollution. It was further envisaged that a project shall not be commenced unless getting clearance from the assessment authority. Paragraph no.2 of the notification P4/A reads thus:- “2. Requirements of prior Environmental clearance (EC):- The following projects or activities shall require prior environmental clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category ‘A’ in the Schedule and at State level the State