IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: April 21, 2010 CWP No. 9214 of 2003 Dharambir Singh through L.Rs. and others ..Petitioners Versus State of Haryana and others ...Respondents CWP No. 12905 of 2004 Smt. Onkari through L.Rs and others ...Petitioners Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Shailendra Jain, Advocate, for the petitioners. Mr. Kamal Sehgal, Addl. AG, Haryana. Mr. Aman Chaudhary, Advocate, for the respondent-HUDA. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This order shall dispose of CWP Nos. 9214 of 2003 & 12905 of 2004 because notifications acquiring the land in both cases are the same. The challenge in these petitions, filed under Article 226 of the Constitution, is to the notification dated 3.3.2003, issued under Section 4 read with Section 17(1) of CWP Nos. 9214 of 2003 & 12905 of 2004 the Land Acquisition Act, 1894 (for brevity, ‘the Act’) and declaration made under Section 6 of the Act, dated 4.3.2003. Additionally, order dated 24.5.2004, passed by the Commissioner and Secretary to the Government of Haryana, Urban Estates Department, has been subject matter of challenge in CWP No. 12905 of 2004, whereby the revision petition filed by the petitioners, under Section 15-A of the Act, has been dismissed. 2. Facts may first be noticed from CWP No. 9214 of 2003. The petitioners are owners of the land measuring 10 Biswas, comprised in Khewat No. 470/403, Khatoni No. 715, Khasra No. 2660, situated in Gurgaon, as per jamabandi for the year 1991-92 (P-1). It has been claimed that various colonisers including Ansals established a colony, namely, Palam Vihar, Gurgaon. The land belonging to the petitioners also forms part of abadi of said Palam Vihar, which is also known as Sector 3, Gurgaon. The petitioners have placed on record a site plan showing that their land is surrounded on two sides by the flats made by the Ansals and in the third and fourth sides, there are sector roads, one of which leads from Railway Road to Palam Vihar (P-2). 3. On 3.3.2003, a notification under Section 4 read with Section 17(1) of the Act for acquiring the land was issued by the respondent State for a public purpose, namely, for the development and utilisation of land for Haryana Vidyut Prasaran Nigam for setting up Grid Station in Sector 2-3 at Gurgaon under the Haryana Urban Development Authority Act, 1977 by the Haryana Urban Development Authority, in the area of village Gurgaon, HB No. 55, Tehsil and District Gurgaon. Since the aforementioned land was urgently required, therefore, the provisions of Sub-Section (1) of Section 17 of the Act were invoked and the requirement of filing of objections under Section 5A of the Act was dispensed with (P-3). According to the petitioners the notification was published in the official Gazette on 3.3.2003 and in terms of Section 4(1) of 2 CWP Nos. 9214 of 2003 & 12905 of 2004 the Act, the notice of the substance of the notification was caused in the locality vie Rapat Rojnamcha No. 257, dated 5.3.2003. Besides this the aforementioned notification was also published in the two daily newspapers, namely, ‘National Herald’ (English) and ‘Nav Bharat’ (Hindi), dated 12.3.2003. 4. On 4.3.2003, a declaration under Section 6 read with Section 17(1) of the Act was published in the official Gazette (P-4). As per provisions of Section 6(2) of the Act, the declaration was published in the Haryana Government Gazette on 4.3.2003, whereas the substance of the notification was entered in the Rapat Rojnamcha on 5.3.2003. The declaration was also published in two newspapers, namely, ‘National Herald’ (English) and ‘Nav Bharat’ (Hindi) on 12.3.2003. In this manner, the land of the petitioners has been acquired under the said acquisition. 5. It has further been claimed that after remaining silent for about a month, on 3.4.2003, the Land Acquisition Collector-respondent No. 3 issued notice under Section 9(1) of the Act requiring the petitioners to appear before him on 21.4.2003 and to put forward their respective interests in the land and their objections, if any, to the measurement of the lands made under Section 8 of the Act (P-5). 6. The petitioners in CWP No. 12905 of 2004 are owners of the land measuring 4 Bigas 2 Biswas, comprised in Khewat No. 806/674, Khatoni No. 1172 and 2659, situated in Gurgaon, as per jamabandi for the year 1991-92 (P-1). The factual position in this petition is same, as noticed above. The only additional fact which is required to be noticed is that on 11.12.2003, the petitioners filed a revision petition under Section 15-A of the Act before the Commissioner and Secretary to the Government of Haryana, Urban Estates Department, alleging that no urgency was involved to invoke urgency/emergency provisions of Sections 17(1) and 17(4) of the Act depriving 3 CWP Nos. 9214 of 2003 & 12905 of 2004 them from filing objections under Section 5-A of the Act. The arguments in the said revision petition were heard on 14.1.2004, however, no order was passed till the announcement of award by the Land Acquisition Collector, which was announced on 5.3.2004. On 24.5.2004, the Commissioner and Secretary to the Government of Haryana, Urban Estates Department dismissed the revision petition primarily on the ground that since the award has been announced, the merits of the case cannot be looked into. It is, however, conceded as a fact that the possession of the land was not taken after the award and Grid Station has already been built elsewhere. 7. In the backdrop of the aforementioned factual position, the petitioners have filed these petitions challenging the acquisition proceedings. C.W.P. No. 9214 of 2003 was filed on 16.6.2003 whereas C.W.P. No. 12905 of 2004 was filed on 21.8.2004. 8. In the written statement filed on behalf of respondent Nos. 1 and 2 the broad factual position has not been controverted. However, it has been denied that there is any delay in the matter. It has been asserted that emergency provisions were invoked because the project was of urgent nature. Regarding revision petition filed by the petitioners (in CWP No. 12905 of 2004) it has been submitted that the same has been decided in a reasonable time. The respondents have also raised an objection about the maintainability of CWP No. 12905 of 2004, inasmuch as, the same has been filed on 7.8.2004 (21.8.2004?) after announcement of award dated 5.3.2004. The respondents have also denied that the land belonging to the petitioners falls in the abadi area of Palam Vihar. It has also been stated that the land in question has been acquired as per the development plan of the area, which is required for the construction of Sub- power Grid Station for supplying the Electricity power to the residential area. Therefore, urgency is involved. 4 CWP Nos. 9214 of 2003 & 12905 of 2004 9. Mr. Shailendra Jain, learned counsel for the petitioners has vehemently argued that invocation of urgency/emergency would not ipso facto result in dispensing with inquiry contemplated by Section 5-A of the Act. According to the learned counsel even in cases where Section 17 is invoked, inquiry under Section 5-A is possible and in case the urgency is of such a nature that it cannot brook delay even of 30 days then the record must speak for such a hurry. In support of his submission, he has placed reliance on the judgments of Hon’ble the Supreme Court rendered in the cases of Union of India v. Mukesh Hans, (2004) 8 SCC 14 and Essco Fabs Private Limited v. State of Haryana, (2009) 2 SCC 377. 10. In CWP No. 12904 of 2004, Mr. Jain has further argued that before filing the writ petition, the petitioners in this case had filed a revision petition under Section 15-A of the Act believing the advise of the counsel on the basis of a judgment of Gauhati High Court, rendered in the case of Shankar Prasad Banik v. Collector, Karimganj, AIR 1994 Gauhati 56. However, the Commissioner and Secretary to Government of Haryana, Urban Estates Department, non-suited the petitioners on the ground that award had already been announced. According to the learned counsel, revision petition was filed before the award and the arguments were heard on 14.1.2004 and the order was passed on 24.5.2004. He has maintained that there is a valid and rationale explanation for coming to the Court after the award, especially when the notifications under Sections 4 and 6 had already been challenged before the competent authority by filing a revision petition under Section 15-A of the Act. Mr. Jain has also pointed out that land was sought to be acquired for setting up a Gird Station in Sector 2-3 at Gurgaon, has already been set up on another area. 11. Mr. Kamal Sehgal, learned State counsel has argued that in cases of urgency, there is no specific requirement of recording reasons for dispensing 5 CWP Nos. 9214 of 2003 & 12905 of 2004 with inquiry contemplated by Section 5-A of the Act. He has maintained that once Section 17 of the Act has been invoked then urgency is presumed to exist and the procedural detail in finalising the acquisition proceedings would not adversely affect legally invoked urgency provisions of Section 17 of the Act. Mr. Sehgal has produced the record as per the directions issued by this Court and has stated that the stay order passed by this Court have been given effect and the possession of the land has not been taken. In that regard, he has placed on record the correspondence of 2008, which are Mark ‘A’ and ‘B’. A perusal of the aforesaid correspondence shows that the possession of the land was not taken on account of the stay granted in both these petitions. 12. After hearing learned counsel for the parties, perusing their pleadings and the record, we are of the view that these petitions deserves to be allowed. A perusal of the record shows that there is no application of mind highlighting that the urgency of establishing the Grid Station in Sector 2-3 at Gurgaon, was of such a nature that the land was required immediately and there was no time to hold an inquiry under Section 5-A of the Act. The only indication in the record is that the land is being acquired by invoking Section 17 of the Act, which is no compliance with the requirement of law. It is trite to mention that law concerning compulsory acquisition of land has to be considered 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. It follows that the provisions of Section 17 of the Act have to be examined in the light of the aforesaid principle of construction laid down by Hon'ble the Supreme Court. Section 17(4) of the Act reads thus:- “17(4). In the case of any land to which, in the opinion of the 6 CWP Nos. 9214 of 2003 & 12905 of 2004 appropriate Government, the provisions of sub-section (1) or sub- section (2) are applicable, the appropriate government may direct that the provisions of Section 5-A shall not apply, and if it does do 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 sub-section (1).” 13. The aforesaid provision clearly spells out that the appropriate Government is under an obligation to take an express and a conscious decision that provisions of Section 5-A are not to apply and it is thereafter that declaration under Section 6 could be issued at any time after the publication of the notification under Section 4(1) of the Act. The aforesaid provision came up interpretation of their Lordships of Hon'ble the Supreme Court in the case of Mukesh Hans (supra). The principle enunciated by their Lordships’ is discernible from para 32 of the judgment, which reads thus:- “32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4) that by itself is not sufficient to direct the dispensation of 5A inquiry. It requires an opinion to be formed by the concerned government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5A inquiry which indicates that the Legislature intended that the appropriate government to apply its mind before dispensing with 5A inquiry. It also indicates the mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by themselves be sufficient for dispensing with 5A inquiry. If that was not the 7 CWP Nos. 9214 of 2003 & 12905 of 2004 intention of the Legislature then the latter part of sub-section (4) of Section 17 would not have been necessary and the Legislature in Section 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5A inquiry will be dispensed with. But then that is not language of the Section which in our opinion requires the appropriate Government to further consider the need for dispensing with 5A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with 5A inquiry does not mean that in and every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with 5A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5A but then there is a need for application for mind by the appropriate Government that such an urgency for dispensation of the 5A inquiry is inherent in the two types of urgencies contemplated under Section 17(1) and (2) of the Act.” (emphasis added) 14. A perusal of the aforesaid para shows that an opinion is required to be formed by the State Government that along with the existence of urgency or unforeseen emergency contemplated by Section 17(1) and Section 17(2) respectively, there is also a need for dispensing with Section 5-A inquiry. The 8 CWP Nos. 9214 of 2003 & 12905 of 2004 aforesaid provision indicates that the Legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It has further been pointed out that mere existence or unforeseen emergency would not by itself be sufficient for dispensing with Section 5-A inquiry. It means, even in cases of urgency or emergency right to file objections and grant of an opportunity to hearing under Section 5A of the Act may still be kept intact. The decision of Mukesh Hans's case (supra) has been followed and applied in the case of Essco Fab (supra). Furthermore, this Court while deciding the cases of Punita Chaudhary and others v. State of Haryana (CWP No. 3129 of 2008, decided on 8.12.2008) and Bhopu and others v. State of Haryana and others (CWP No. 16832 of 2003, decided on 18.1.2010), has also followed the aforesaid decision. 15. When the aforesaid principles are applied to the facts of present case, it becomes evident from the perusal of the original record that there is no decision with regard to dispensing with inquiry under Section 5-A of the Act. An office note dated 23.1.2003, would show that a proposal for acquisition of 2.89 acres of land for the Haryana Vidyut Prasaran Nigam for setting up Grid Station in Sector 2-3 at Gurgaon under emergency clause was put up. The matter was processed through the Financial Commissioner Town and Country Planning. The note when translated into English reads thus: “From pre page: This matter pertains to the acquisition of 2.89 acres of land in Sector 2 and 3 Gurgaon, for Haryana Vidyut Prasaran Nigam under emergency clause. In this regard kindly peruse on Flag ‘A’ of C.P./1 letter dated 9.12.2002 of the District Town Planner, Gurgaon, wherein he has requested for acquisition of proposed land. The Land Acquisition 9 CWP Nos. 9214 of 2003 & 12905 of 2004 Collector, Gurgaon, after obtaining the limits of the proposed land to be acquired, from the District Town Planner, Gurgaon, has prepared the draft of notifications under Sections 4 and 6 under emergency clause and sent the same through the Administrator, HUDA, Gurgaon. Details of which is as under:- Sr. No. Village Area 1 Gurgaon 2.89 Acres. On the noting Page 4, the Committee has recommended for acquisition of 2.89 acres of land under emergency clause of Section 17 of the Land Acquisition Act. The drafts of Section 4 and 6 notifications are placed at Flags ‘a’ and ‘b’ and the copy of the Shijra Plan is at Flag ‘B’. Therefore, the proposal for acquiring 2.89 acres of land by invoking emergency clause of Section 17 of the Land Acquisition Act be got approved from the Government so that the notifications under Sections 4 and 6 could be issued. Sd/- DS(A) Sd/- Assistant (RAM MEHAR) 23.1.03 Suptt. UE Dy. Supdt. The proposal may kindly be got approved from the Chief Minister. The acquisition of this land is to be made for establishment of Grid Sub Station immediately. Sd/- 24.1.03 (Sic) CTP DTP (N) Sd/- 27/1 A.T.P. FPP 10 CWP Nos. 9214 of 2003 & 12905 of 2004 Sub: Land Acquisition for HVPN in Sector 2, 3 at Gurgaon. Kindly peruse prepage. 2. The branch of Urban Estate has forwarded the case for land acquisition required for sub-station in sector 2, 3 Gurgaon. The Zonal Committee at NP/4 has recommended land acquisition u/s 17 of Land Acquisition Act. The total area under acquisition is 2.89 acre. 3. It is submitted that Sect-2, 3 are earmarked as residential zone as per published final development plan-Gurgaon. It is also submitted that layout of Sector 2&3, Gurgaon is not available in this office, as same has been developed by private colonizer. Looking towards the utilization of land for substation case may be forwarded to Govt. for approval. Submitted pl. Sd/- 28/1 DTP(N) ATP(D) The recommendations of Zonal Committee at NP/4 and detailed office note at NP/5&6 may kindly be seen. Orders of the Govt for acquisition of 2.89 acres of land of village Gurgaon for setting up of electric sub station, u/s 17 of LA Act may kindly be obtained pl. C.T.P. Sd/- Sd/- 28/1 F.C.T.P. Sd/- Sd/- C.M. Subject:- Acquisition of land for Haryana Vidut Prasaran Nigam in Sector 2 & 3 at Gurgaon. … 11 CWP Nos. 9214 of 2003 & 12905 of 2004 C.M. has approved as proposed. Sd/- (Birbal Dass Bhalia) PSCM 7.2.2003” 16. A perusal of the noting shows that there is no whisper with regard to dispensing with inquiry under Section 5-A of the Act what to talk of taking any decision for dispensing with such an inquiry showing that there is complete lack of application of mind as required by the principle laid down in Mukesh Hans's case (supra). In the absence of any such decision dispensing with Section 5-A enquiry, Section 17(4) of the Act could not alone be invoked to defeat the vital rights of hearing and filing objections by the land owners. 17. The argument of the learned State counsel that C.W.P. No. 12905 of 2004 has been filed after the award is not sustainable in the peculiar facts and circumstances of the case because the petitioners had earlier filed a revision petition under Section 15-A of the Act before the Commissioner and Secretary to Government Haryana, Urban Estates Department, on 10.12.2003. Moreover, the arguments were heard by the Commissioner and Secretary on 14.1.2004 and the order was not passed deliberately so as to enable the respondent State to announce the award. It is also pertinent to notice that possession of the land has not been taken. Eventually, on 24.5.2004 the Commissioner dismissed the revision petition holding that award has already been announced and nothing could be done thereafter. Apart from the fact that filing of the revision petition would furnish reasonable explanation for coming to this Court after passing of award, the petitioners cannot be faulted for not challenging the acquisition proceedings before passing of the award. The revision petition was filed before passing of award challenging acquisition proceedings which were based on a 12 CWP Nos. 9214 of 2003 & 12905 of 2004 judgment of the Gauhati High Court in the case of Shankar Prasad Banik (supra). Moreover, the land cannot be considered to have vested in the State free from all encumbrances because possession was not taken and Section 48 of the Act has not exhausted itself. Therefore, in the facts and circumstances of this case we cannot sustain the objection with regard to filing of this petition after the award. The present case is an exception to the general rule. Accordingly, the objection is rejected. 18. There is yet another factor which lead us to lean in favour of the petitioners. The land was acquired for setting up of a Grid Station in Sector 2-3 at Gurgaon. As per the un-controverted stand taken by the petitioners, the Grid Station has already been established elsewhere. Therefore, the land may not even otherwise be required for the notified public purpose. This may not itself be sufficient to quash the impugned acquisition notifications but coupled with other factors, this factor would assume significance. 19. As a sequel to the above discussion, both the petitions succeed and the impugned notification under Section 4 of the Act, dated 3.3.2003, declaration under Section 6 of the Act, dated 4.3.2003, order dated 24.5.2004 passed by the Commissioner and Secretary to Government of Haryana, Urban Estates Department (in CWP No. 12905 of 2004) or any other proceedings pursuance to such declaration are hereby quashed qua the petitioners. The respondent State, however, is not debarred from acquiring the land in question in accordance with law. A photocopy of this order be placed on the file of the connected case. (M.M. KUMAR) JUDGE 13 CWP Nos. 9214 of 2003 & 12905 of 2004 (JITENDRA CHAUHAN) April 21, 2010 JUDGE Pkapoor 14