IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 1620 of 2010 Date of Decision: October 1, 2010 Mir Singh and another …Petitioners Versus State of Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Lokesh Sinhal, Advocate, for the petitioners. Mr. Narender Hooda, Sr. Addl. AG, Haryana, for respondent Nos. 1 to 3. Mr. S. Ganesh, Senior Advocate, with Mr. Ashish Chopra, Advocate, Mr. Pritpal Nijjar, Advocate, and Ms. Rupa Pathania, Advocate, for respondent No. 4. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The petitioners have challenged the acquisition proceedings which have culminated in the award dated 09.02.2004 announced by the Land Acquisition Collector, Gurgaon (P-4) for a total amount of Rs. 3,91,13751.85 Paise. Earlier a notification dated 3.1.2003 (P-2) was issued under Section 4 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’) and declaration dated 12.6.2003 (P-3) was made under Section 6 of the Act. Still further, the petitioners have also challenged the conveyance deed dated 4.8.2006 (P-5), CWP No. 1620 of 2010 executed between the State of Haryana and M/s DLF Universal Ltd.- respondent No. 4 regarding transfer of acquired land measuring 19 Acres, 4 Kanals and 5 Marlas, situated at village Nathupur, District Gurgaon, for establishment of a Cyber City, in favour of respondent No. 4 Company, for a consideration of Rs. 51,00,30,000/- (Rupees Fifty One Crores and Thirty Thousand only). 2. The undisputed facts of the present case are that the petitioners are residents of village Nathupur, Tehsil and District Gurgaon. They have filed the instant petition being residents of village Nathupur as a public interest litigation challenging the aforementioned acquisition proceedings acquiring land belonging to the Gram Panchayat of their village on the ground of fraud. It has been alleged that the State of Haryana has been acquiring the land under the garb of public purposes but for the benefit of private companies dealing in real estate. This act of the respondent State is fraudulent and inconsistent with the aims and objects of the Act. 3. It has been submitted that the land comprised in the revenue estate of village Nathupur in Tehsil and District Gurgaon, is very precious. The district Gurgaon in the State of Haryana is situated in close proximity of the National Capital and being a developing city has great potential so far as the real estate is concerned. Every company dealing in real estate keeps an eye on the valuable pieces of land in that village and other surrounding areas. Same is the position with M/s D.L.F. Universal Ltd.-respondent No. 4. Highlighting the modus operandi of the real estate companies, it has been stated that when they are not able to purchase the land from the land owners at the prevalent market value they join hands with the Government officials and get the same acquired for their own purpose. 4. Land measuring 19 Acres 4 Kanals and 5 Marlas was owned by 2 CWP No. 1620 of 2010 the Gram Panchayat, Nathupur. Most part of the said land was being used as a gair mumkin Nullah (water course) and a part thereof as gair mumkin rasta for the benefit of the inhabitants, as is evident from the jamabandi for the year 1995-96 (P-1). It has been alleged that M/s DLF-respondent No. 4 approached the Gram Panchayat and offered to exchange their land with the aforementioned land. The market value of the land offered by the DLF- respondent No. 4 was low as also the same was of no use for the inhabitants of the village. When the Gram Panchayat refused to exchange their land, a novel method was devised by DLF-respondent No. 4. It approached the Government authorities for acquisition of the land in question. As a result of their connivance, on 3.1.2003 a notification under Section 4 of the Act was issued proposing to acquire total land measuring 19 Acres 4 Kanals and 5 Marlas for a public purpose, namely, for setting up Cyber City at Village Nathupur, Tehsil and District Gurgaon (P-2). Since the land belonged to the Gram Panchayat and no personal interest was involved, no objection under Section 5-A of the Act was filed before the Collector. On 12.6.2003, a declaration under Section 6 of the Act was made acquiring the land in question (P-3). On 9.2.2004, the Land Acquisition Collector, Gurgaon, announced the award and a total sum of Rs. 3,91,13,751.85 paise was assessed (P-4). 5. The petitioners have asserted that they came to know about the conveyance deed dated 4.8.2006, for a sum of Rs. 51,00,30,000/- had been executed between the State of Haryana and M/s DLF-respondent No. 4 in respect of the land in question whereby the land stood transferred in favour of respondent No. 4 for establishing a Cyber City when the DLF-respondent No. 4 started building the Cyber City. In this manner, the land which was acquired by the respondent State by paying a compensation of Rs. 3,91,13,751.85 paise 3 CWP No. 1620 of 2010 for a public purpose, stands transferred in favour of respondent No. 4 by making huge profit of more than Rs. 47 crores. The petitioners have alleged that the respondents have played a fraud with public at large as also with the inhabitants of the village Nathupur because no objection was filed by the Gram Panchayat since it was assumed that the land was being acquired for a public purpose. 6. In the written statement filed on behalf of respondent Nos. 1 to 3 the allegation of connivance of private companies engaged in real estate business with the respondent authorities has been specifically denied. However, the factum of acquisition of the land in dispute has not been denied. It has been stated that the land in question has been acquired for a public purpose i.e. setting up of Cyber City and the same has been sold to D.L.F.- respondent No. 4 to achieve the said purpose. In para 3 of the preliminary objections, it has been pointed out that the State of Haryana formulated and published its Industrial Policy-1999 wherein special emphasis has been given for development of Information Technology and its extensive usage. Thereafter, Information Technology Policy-2000 was formulated and approved wherein the Development of I.T. Infrastructure including Cyber Cities was put in the high priority zone. On 29.9.2000, the Council of Ministers in the State approved the proposal of Town and Country Planning Department fixing the norms for Cyber Cities and other I.T. Units. Minimum area for setting up of a Cyber City was fixed as 100 acres. 7. In pursuance of the aforementioned policies M/s D.L.F Universal Ltd.-respondent No. 4 submitted an application for grant of licence for development of Cyber City Project in Sector 24, 24-A and 25 at Gurgaon, over an area of 72.823 acres out of their total area of 85.823 acres. It is claimed 4 CWP No. 1620 of 2010 that the matter was considered at the highest level by a High Powered Committee in its meeting held on 4.4.2001 (R-1/1). The Director Panchayats suggested that the panchayat land could be given to the DLF-respondent No. 4 for the purpose of setting up of Cyber City at the prevalent market rate. The High Powered Committee approved the location of Cyber City in residential zone of Sector 25 and 25-A, Gurgaon. To meet the minimum area requirement of 100 acres for Cyber City, it was decided to get allotment of 19.5 acres of land from Panchayats Department at the prevalent market rate. It has been asserted that 19.5 acres of panchayat land of village Nathupur was lying in the shape of a long strip, which was totally unutilised because of its shape and deep ditches. It has been clarified that though the said land has been described to be a Nullah in the revenue record but after the construction of National Highway-8, it was not in use for want of any connectivity of flow of storm water. 8. On 2.9.2002, a notification was issued reducing the requirement of minimum size of plot for Cyber City from 100 acres to 50 acres. In this way, M/s D.L.F.-respondent No. 4 became eligible for grant of licence for Cyber City even without the said Panchayat land. However, considering the fact that a small patch of land in the shape of a strip could not be left un- utilised in between the Cyber City, thus, it was decided to acquire the land for public purpose of Cyber City. Accordingly, notifications under Section 4 and 6 were issued and land was acquired. 9. On 4.1.2006, a meeting was held under the Chairmanship of the Principal Secretary to the Chief Minister Haryana, and the matter of utilisation of 19.5 acres of acquired land in village Nathupur was discussed. Eventually it was decided to auction the land through Swiss Challenging Route fixing the 5 CWP No. 1620 of 2010 reserve price to be Rs. 40.00 crores. The minutes of the said meeting have been placed on record as Annexure R-1/3. On 28.2.2006, the Council of Ministers approved the proposal for auction of land in question with the modification that the reserve price would be Rs. 50.00 crores instead of Rs. 40.00 crores. 10. On 7.3.2006, an advertisement was issued in various newspapers including ‘The Hindustan Times’, ‘Economic Times’ and the ‘Business Standard’, inviting technical and commercial bids from interested companies who wish to set up Cyber City/Technology/I.T. Park. In response to the said advertisement, respondent No. 4 as well as one Unitech Ltd. gave their technical and commercial bids and ultimately respondent No. 4 was found to be the highest bidder and consequently land in question was sold to it for a sum of Rs. 51,00,30,000/-. Thus, respondent Nos. 1 to 3 have sought to justify their action emphasising that there is no illegality committed at any stage and there has been complete transparency. 11. It has also been denied that the respondent State has earned huge profit by selling the acquired land at a high price because the sale proceeds became part of the consolidated fund of the State, which would be utilised for the larger public interest and development programmes. It has further been pointed out that the Gram Panchayat, Nathupur has also filed C.W.P. No. 17948 of 2006 in this Court seeking enhancement of the compensation, which is pending consideration. 12. In the separate written statement filed on behalf of M/s D.L.F.- respondent No. 4 other than the factual position enumerated above, it has been asserted that the instant petition is not maintainable because the same has been filed after a huge delay of six years after the announcement of the award dated 6 CWP No. 1620 of 2010 9.2.2004 (P-4) by the Land Acquisition Collector. It has been pointed out that the Director, Town and Country Planning, Haryana, Chandigarh, had granted a licence in favour of respondent No. 4 under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 (for brevity, ‘the 1975 Act’) and the Rules framed thereunder in respect of land measuring 72.825 acres in village Nathupur for setting up/developing Cyber City in pursuance to the Information Technology Policy-2001. Since the land in question was in pockets and could not be properly utilised for development and integration of services, therefore, respondent No. 4 approached the respondent authorities for taking over the said land. Eventually, respondent No. 4 has purchased the land in question after paying huge bid of Rs. 51,00,30,000/-. One of the terms and conditions arrived at between the respondent State and respondent No. 4 is that the land shall be used exclusively for setting up of Cyber City Project and for no other purpose, as is evident from letter dated 2.5.2006 (R-4/2). 13. It has been submitted that the petitioners have not disclosed complete facts before this Court. The Gram Panchayat, Nathupur, through its Sarpanch had filed C.W.P. No. 4905 of 2006 challenging the same notifications which are subject matter of challenge in the instant petition. Even the action of the respondent State seeking to auction the land of the Gram Panchayat was also challenged in the said writ petition. However, during the course of hearing before a Division Bench, the Gram Panchayat limited its claim with regard to receiving of compensation. Accordingly, the Division Bench disposed of the said petition vide order dated 6.4.2006 granting liberty to the Gram Panchayat to pursue its remedy regarding compensation in accordance with law before the Collector or any other forum (R-4/3). 7 CWP No. 1620 of 2010 14. It has further been stated that after execution of the conveyance deed dated 4.8.2006 (P-5) in respect of the land measuring 19.5 acres and accepting the bid of M/s D.L.F-respondent No. 4, even a notification under Section 4 of the Act, dated 3.10.2006, was issued seeking to acquire certain part of the land measuring 19.5 acres alongwith other land for a public purpose, namely, for development and utilisation of the land for residential, commercial and institutional Sector 24 and 25A at Gurgaon (R-4/4). In pursuance of the said notification, respondent No. 4 filed its objections under Section 5-A of the Act on 2.11.2006, highlighting all the factual position. Despite that, a declaration under Section 6 of the Act was made on 1.10.2007 acquiring part of the aforesaid land. In this manner, 6.58 acres of land forming part of 19.5 acres belonging to respondent No. 4 come under acquisition. Faced with this problem, M/s D.L.F.-respondent No. 4 also filed CWP No. 763 of 2008. On 1.2.2008, this Court passed an interim order staying dispossession of the petitioner (M/s D.L.F.) in respect of khasra nos. for which conveyance deed has been executed (R-4/5). Later on, consequent upon an affidavit filed by the Collector that the land belonging to the D.L.F. was not included in the declaration dated 1.10.2007, the said writ petition was disposed of vide order dated 25.9.2008. Respondent No. 4 has also raised the issue that since third party rights in favour of individuals/persons in the substantial portion of the land in dispute have been created, thus, the petitioners have no right to question the acquisition proceedings at such a belated stage and the writ petition is liable to be dismissed. It is alleged that no public interest is involved. 15. Mr. Lokesh Sinhal, learned counsel for the petitioners has argued that the basic purpose for acquisition of land under the Act was to set up Cyber 8 CWP No. 1620 of 2010 City, which could obviously be in public sector alone and the Gram Panchayat was divested of the land for meagre sum of Rs. 3,91,13,751.85 paise fraudulently. The land has been sold by the respondent State to the DLF- respondent No. 4 after about a period of three years for a sum of Rs. 51,00,30,000/-. According to the learned counsel the power of compulsory acquisition could be exercised for a public purpose but it has been exercised for an oblique purpose of auctioning the land in favour of the DLF-respondent No. 4 which could not be a public purpose especially when DLF-respondent No. 4 has otherwise failed to purchase this land from Gram Panchayat. He has further submitted that the whole exercise has been done to circumvent law because the land for a Private Company like DLF-respondent No. 4 could be acquired only by following the procedure contemplated by Part-VII of the Act, which comprises of Section 38 to Section 44B. Accordingly, the land could be acquired under the aforesaid Chapter under Section 40(1) for the purposes of building houses for the workmen employed in the office or for some connected purposes. Mr. Sinhal has placed reliance on the judgment of Hon’ble the Supreme Court rendered in the case of Devinder Singh v. State of Punjab, (2008) 1 SCC 727, to argue that the procedure laid down in Part-VII of the Act is exhaustive and there are various modes and manner prescribed in which the State vis-à-vis the Company is required to proceed in accordance with the statutory rules. It involves previous consent of the appropriate Government, execution of agreement, previous inquiry before consent is accorded, publication of the agreement and significant of all is imposition of restriction on transfer. There is an injunction imposed under clause (a) of sub-section (1) of Section 40 of the Act that no land could be acquired except for the purpose of building houses for the workmen employed in the office or some other 9 CWP No. 1620 of 2010 connected purposes. Therefore, it has been submitted that the unique procedure followed by the respondent State is totally extraneous to the law of acquisition which sustains its existence from the public purpose and not from private purpose. 16. Mr. Sinhal has further argued that the DLF-respondent No. 4 had deposited a sum of Rs. 4 Crores on 22.1.2004, which showed that the land was sought to be acquired for it as the amount was deposited around the time when the award was announced on 9.2.2004 (P-4). The total amount of award is also close to the amount deposited by the DLF-respondent No. 4, namely, Rs. 3,91,13,751.85 paise. 17. Mr. Sinhal has further argued that being the residents of village Nathupur, the petitioners have interest in the land of the Gram Panchayat and a fraud has been played with the Gram Panchayat as the land had been purchased for about Rs. 4 crores which has been sold at more than Rs. 50 crores. In support of his submission, learned counsel has placed reliance on a judgment of Hon’ble the Supreme Court rendered in the case of The Vyalikaval House Building Co-op. Society v. V. Chandrappa, (2007) 9 SCC 304 and argued that the State cannot use the power of acquisition to benefit individuals and Companies who can otherwise bargain and purchase the same from the land owners. He has submitted that even negligible delay in challenging the acquisition made fraudulently would not defeat their cause and in that regard he has placed reliance on the last two paras of the judgment to argue that once the acquisition is found to be mala fide the ground of delay and acquiescence would have no substance. He has also pointed out that invoking of Swiss Challenging Route in land acquisition matter as distinguished from tenders is wholly illegal as it was not publicised in the 10 CWP No. 1620 of 2010 advertisement given in the Economic Times, dated 7.3.2006 or other newspapers (R-4/1). According to the learned counsel, it further shows the pre-determined and biased mind of the authorities who have acted with a prejudiced mind in that that the land was bound to be given to the DLF- respondent No. 4. 18. Mr. Sinhal has further submitted that superfluous litigation at the instance of Gram Panchayat was filed being CWP No. 4905 of 2006. He has argued that the fraud of filing a writ petition at the instance of Gram Panchayat would come to the fore on a bare perusal of order dated 6.4.2006 (R-4/3), when on the same date a statement was made on behalf of the Gram Panchayat that being the owner of the land they have challenged the notifications issued under Sections 4 and 6 of the Act and since possession of the land had been taken and award has been passed, they would pursue the remedy of seeking compensation before the Land Acquisition Collector or any other forum. The writ petition was disposed of on the same date and even the counsel for the DLF-respondent No. 4 were present as a caveator. According to the learned counsel, the whole object of filing the aforesaid petition was to prevent any effort on the part of the residents of the village to challenge the acquisition proceedings as well as to facilitate execution of the conveyance deed on 4.8.2006 (P-5). 19. Mr. Narender Hooda, learned State counsel appearing for respondent Nos. 1 to 3 has rebutted the argument of the counsel for the petitioners. He has submitted that the respondent State has been very keen to establish a Cyber City. In that regard the Council of Ministers in its meeting held on 29.9.2000 had taken a policy decision that a Cyber City/Technology/IT Park may be permitted to be established and the minimum 11 CWP No. 1620 of 2010 area fixed was 100 acres. According to the learned State counsel the limit of 100 acres was revised to 50 acres vide notification dated 2.9.2002 and it made the DLF-respondent No. 4 eligible because under the earlier policy they had proposed to earmark 72.823 acres out of their total area of 85.823 acres. According to the learned counsel, a notification and declaration under Sections 4 and 6 of the Act were issued on 3.1.2003 and 12.6.2003, which culminated in the announcement of award on 9.2.2004 (P-2 to P-4). In that regard he has made a reference to the meeting of the High Powered Committee held on 4.4.2001, under the Chairmanship of the Chief Minister, Haryana, for setting up of Cyber City at Gurgaon on 85.98 acres by the DLF-respondent No. 4, and has maintained that the Cyber City project would certainly enhance the prestige of the State and would open new opportunities for the people. Therefore, the Government welcomed such a project. He has also referred to the site plan (R-1/2) showing the proposed site of Cyber City in Sector 24, 25 and 25A, Gurgaon. He has then submitted that various efforts were made to utilise the land measuring 19.5 acres, which was acquired, in the best possible way available. In that regard he has referred to the minutes of the proceedings of a meeting held by the High Powered Committee on 4.4.2001 (R-1/1), which shows that the only way left with the State Government was to take the land measuring 19.5 acres from the Panchayat Department by way of allotment. He has maintained that it was in the aforesaid circumstances that the land was eventually acquired in 2003 and vide meeting held on 4.1.2006 (R-1/3) it was decided that the interested parties would be asked to bid for this land through Swiss Challenge Route. The award was announced on 9.2.2004 (P-4). He has further submitted that after the land vested in the State, all the three State agencies, namely, Haryana Urban Development Authority (HUDA), Haryana 12 CWP No. 1620 of 2010 State Infrastructure and Industrial Development Corporation (HSIIDC) and Haryana State Electronics Development Corporation Limited (HARTRON) were consulted to ascertain whether any one of the three State agencies was interested in development of this land for residential, industrial or for establishing an IT Park. All the three agencies expressed the view that major portion of this land is in the shape of a strip and was not suitable for development of a project of worthwhile size. Accordingly, after discussion the reserve price of Rs. 40 crores was fixed, which was lateron increased to Rs. 50 crores and interested parties were asked to bid for this land through Swiss Challenging Route. Learned counsel has further submitted that in the Economic Times, Hindustan Times and Business Standard, dated 7.3.2006, an advertisement was published giving wide publicity for auction of this land. He has also submitted that despite a petition having been filed by the Gram Panchayat challenging the acquisition, no relief was granted by this Court and the present petition in the shape of Public Interest Litigation, would not be maintainable. According to Mr. Hooda, the whole transaction is bona fide and there is nothing in the petition to substantiate the allegation of mala fide. In that regard he has placed reliance on a judgment of Hon’ble the Supreme Court rendered in the case of Netai Bag v. State of West Bengal, (2000) 8 SCC 262. 20. Mr. S. Ganesh, learned Senior counsel for the DLF-respondent No. 4 has, however, submitted that the Gram Panchayat, Nathupur, is a