IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 9611 of 2009 Date of Decision: June 14, 2010 Jagtar Singh and another …Petitioners Versus State of Haryana and another …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Rahul Sharma, Advocate, for the petitioners. Mr. Kamal Sehgal, Addl. AG, Haryana, for the respondents. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. The State of Haryana desired to setup a Sewerage Treatment Plant at Village Samalkha, District Panipat. At the first instance a notification under Section 4 read with Section 17(2)(c) of the Land Acquisition Act, 1894 (for brevity, ‘the Act’) was issued on 16.11.2006 (P-1), expressing the intention to acquire land for the aforesaid public purpose comprised in specified khasra numbers, which are clear from the following table:- “District Tehsil Village Hadbast No. Rect. No. Khasra No. Area Kanal Marla 1. 2. 3. 4. 5. 6. 7. Panipat Samalkha Samalkha 77 52 20/1 1 12 CWP No. 9611 of 2009 20/2 1 17 20/3 1 14 21/1 1 19 21/2 4 14 29 5 0 61 1 6 12 9/1 1 16 9/2 6 4 10 5 16 11/2 4 18 12 8 0 19 7 3 20/1 4 2 26 0 16 Killa 15 62 3” 2. On 28.12.2006, a declaration under Section 6 read with Section 17 (1) was made with regard to the aforesaid khasra numbers stating that the land is urgently required by the Government for a public purpose of setting up a Sewerage Treatment Plant. However, the Chief Minister, Haryana, did not deem it appropriate to set up the Sewerage Treatment Plant inside the abadi area, as is evident from the letter dated 4.1.2008 (P-4), sent by the Financial Commissioner and Principal Secretary to Government Haryana, PWD (Water Supply and Sanitation). In para 2 of the said letter it has been recorded that “Hon’ble Chief Minister has seen. He is of the opinion that treatment plant inside the abadi area would not be appropriate. He has desired that some other suitable site be located by the Department for sewerage treatment plant”. Therefore, on 8.4.2008 (P-5), a notification under Section 48 of the Act was issued dropping the acquisition proceedings in respect of the land, which was sought to be acquired vide notification dated 16.11.2006 (P-1) under Section 4 read with Section 17(2)(c) of the Act and declaration dated 28.12.2006 (P-2), made under Section 6 read with Section 17 of the Act. Accordingly, the notification dated 8.4.2008 (P-5) brought an end to the 2 CWP No. 9611 of 2009 acquisition of the specified land. The de-notification in such a manner and further proceedings for acquisition may have bearing for invoking of urgency clause. 3. However, on 9.5.2008 (P-6) again a notification was issued under Section 4 read with Section 17(2)(c) of the Act for the same public purpose of setting up a Sewerage Treatment Plant at Village Samalkha, District Panipat. This time land measuring 48 Kanals 8 Marlas was sought to be acquired and the specified khasra numbers were notified. The table of khasra numbers, as shown in the notification is as under:- “Rectangle No. Khasra No. Area of Land Kanal Marla 52 21-1/1 0 12 21-2/1 2 00 61 1/1 2 00 10-2 2 00 11/1 2 00 20-1/2 2 00 21-2/1 2 00 67 1-2/1 2 00 8 8 00 9 9 10 12 8 12 13 7 01 26 0 13 48 8 Total = 6 Acres 8 Marlas” 4. The notification was published in the ‘Dainik Tribune’ on 21.5.2008. Further, a declaration under Section 6 read with Section 17(1) was made on 12.9.2008, which was published in the newspapers on 26.9.2008. The award was announced on 25.6.2009. The possession of the land was allegedly taken only on 17.7.2009 (R-2). 5. The petitioners challenged the notification dated 9.5.2008 and declaration dated 12.9.2008, issued under Sections 4 and 6 of the Act, 3 CWP No. 9611 of 2009 claiming that they are owner in possession of the land measuring approximately 33 Kanals 3 Marlas, comprised in Rect. No. 67, Khasra Nos. 8, 9, 12 and 13 in Village Samalkha, Tehsil Samalkha and District Panipat. It has also been claimed that their land is situated next to the area which was sought to be acquired earlier by issuing notification dated 16.11.2006 (P-1) and declaration dated 28.12.2006 (P-2). Consequently, it has been asserted that if the earlier land in the opinion of the Government and the Chief Minister was not suitable for setting up of a Sewerage Treatment Plant then how the land sought to be acquired later, which is adjacent to the area of the earlier proposal, would be suitable for the same public purpose. The petitioners have also claimed that their valuable right flowing from Section 5A of the Act of filing objections has been taken away without any application of mind. It has also been pointed out that there was no real urgency and 30 days time could easily be given for filing objections as the notification under Section 4 of the Act was issued on 9.5.2008 and declaration was made on 12.9.2008 after more than 4 months. It has also been claimed by the petitioners that they were not aware of the declaration made under Section 6 of the Act on 12.9.2008 (P-7) and came to know only when they received notice under Section 9 of the Act on 5.6.2009 (P-8). 6. In reply to the notice of motion, on behalf of respondent No. 1 written statement has been filed by the Executive Engineer, Public Health Engineering Division No. 2, Panipat. The broad factual position of issuing first set of notification dated 16.11.2006 and declaration dated 28.12.2006 (P-1 & P-2) under Sections 4 and 6 read with Section 17 of the Act, have been admitted. It has also not been disputed that thereafter notification dated 9.5.2008 and declaration dated 12.9.2008 under Sections 4 read with Section 4 CWP No. 9611 of 2009 17(2)(c) and Section 6 read with Section 17(1) of the Act were also issued. The respondents have further explained that the petitioner Jagtar Singh and others did not accept the amount of compensation and challenged the notifications by filing the instant petition. While issuing notice of motion for 15.9.2009, the Division Bench refused to grant stay, vide order dated 3.7.2009. It has been claimed that the possession of the land in question was taken on 17.7.2009 and the writ petitioners approached Hon’ble the Supreme Court against the order refusing to grant stay, dated 3.7.2009. Hon’ble the Supreme Court in the presence of respondents on 21.7.2009 passed an order staying the dispossession of the petitioners from the land in question. The SLP was disposed of on 22.2.2010 and it was desired that this High Court may make endeavour to dispose of the writ petition at the earliest. 7. The respondents have claimed that it is a time bound project and the State Government has found the land in question most suitable for setting up the Sewerage Treatment Plant. In para 2 of the preliminary objections to the written statement filed by respondent No. 1 it has been pleaded that the land is just touching the drain, which is needed for disposal of treated effluent water, that is to be supplied for agricultural purposes. The land is situated at a suitable distance from the abadi area and that it would not be in public interest to acquire the land ahead of the land of the petitioners because there is a running Nestle Milk Plant, which is about 250 meters away from the present land. The respondents have also pleaded other problems regarding disposal, time limit for completion of project and finance. Their categorical case is that if the State is to acquire some other site then it would increase the cost of the project and it is most suitable for establishing Sewerage Treatment Plant. 8. Respondent No. 2 has filed a separate written statement with no 5 CWP No. 9611 of 2009 additional facts. 9. In reply to the written statement filed by respondent No. 1, the petitioners have filed replication disclosing that earlier notification under Section 4 and declaration under Section 6 of the Act, dated 16.11.2006 and 28.12.2006 (P-1 & P-2 respectively) were withdrawn by letter dated 4.1.2008 (P-4). It is alleged that notification under Section 48 of the Act, dated 8.4.2008 (P-5) was issued on extraneous consideration and the non-suitability of the aforesaid land for establishing treatment plant was merely a ruse. The petitioners have obtained information under the Right to Information Act, 2005, showing that the land belonging to one Shri Dayanand, who was the owner of the earlier land, was ordered to be released from acquisition because suitable land belonging to the Gram Panchayat was available in the area. The aforesaid fact has been revealed by the noting dated 28.3.2007 made by the Chief Minister (P-10) on an application filed by earlier landlord Shri Dayanand. The noting made on behalf of the Chief Minister by his Personal Secretary reads as under:- “P.A. Circle, Karnal. Submitted before the Chief Minister. He has directed that when Panchayat land is available there, then what is the need to acquire the land of any agriculturist. He be immediately informed about the factual position. Sd/- Ram Mehar Sharma 28.3.07. Personal Secretary to Chief Minister. APSCM-II” 6 CWP No. 9611 of 2009 10. One of the principal grounds pleaded by Shri Dayanand, which appears to have prevailed upon for release of his land from acquisition, is that he had orchard on his land, which is beneficial for the environment. The aforesaid fact is clear from reading of para 4 of the application (P-10). The aforesaid ground including other grounds raised by Shri Dayanand, were found to be factually incorrect and there could not be any notification issued under Section 48 of the Act. The department, therefore, never recommended that the land of Shri Dayanand be released (P-11). 11. The petitioners also raised another issue that notification under Section 4 of the Act, dated 9.5.2008, which is challenged in the instant petition, was published in the ‘Dainik Tribune’ on 21.5.2008 and it has never been published in any other vernacular newspaper, which is mandatory under Section 4 of the Act. The public notice by way of munadi was published on 19.8.2008 and it has not been made within a reasonable time. A true copy of the Rapat Roznamcha making entry of munadi on 19.8.2008, has been placed on record (P-12). Likewise, the public notice with regard to declaration made under Section 6 on 12.9.2008, was published by way of munadi in the local area on 9.5.2009. It has been categorically denied that the possession of the land belonging to the petitioners was taken on 17.7.2009, especially when their dispossession has been stayed by Hon’ble the Supreme Court on 21.7.2009 (P-13), despite the claim made by the respondents regarding their dispossession. The petitioners have pleaded the following facts to show that the possession of the land in question is still with them:- (i) On 23.7.2009, the petitioners submitted a representation to the Tehsildar, Samalkha, to call for a report about the status of the crop sown on the fields belonging to them. On 24.7.2009, the 7 CWP No. 9611 of 2009 Tehsildar gave the report that there were standing crops on the field of the petitioners (P-14). (ii) On 22.7.2009, the President, Municipal Committee, Samalkha, made a statement to the effect that the petitioners were in possession of the land in question as on 22.7.2009. A similar statement was also made by the Vice-President of the Municipal Committee, Samalkha (P-15 Colly). (iii) The petitioners have also placed on record photographs of the land in question along with the bill of the Photographer, which were taken on 22.7.2009 and 22.10.2009 (P16 and P-17 Colly). (iv) In the award dated 25.6.2009 (P-18) it has been mentioned that the possession of the land of the petitioners was to be delivered to the respondents after the harvesting of the crop of Khariff 2009. 12. The petitioners also controverted various averments made in the preliminary submissions and claimed that shamlat land was available, as is shown in Annexure R-3. Once the land of Shri Dayanand has not been found to be suitable how the land belonging to another agriculturist like the petitioners, which is adjacent the land of Shri Dayanand as per site plan Annexure R-3, could be considered suitable. 13. We have heard learned counsel for the parties. 14. Mr. Rahul Sharma, learned counsel for the petitioners has firstly submitted that there is no urgency shown by the Government in acquisition of land. According to the learned counsel once there is a delay of more than four months between the notification issued under Section 4 read with Section 17 (2)(c) and declaration under Section 6 read with Section 17(1) of the Act then 30 days time could have easily been granted for holding an inquiry into 8 CWP No. 9611 of 2009 objections filed under Section 5A of the Act. He has also pointed out that munadi of notification issued under section 4 read with Section 17(2)(c) of the Act was made on 19.8.2008 and then munadi in respect of declaration made on 12.9.2008 was made after about 8 months on 9.5.2009. Mr. Sharma has further argued that right to file objections under Section 5A of the Act cannot be taken away automatically by merely issuing notification under Section 4 read with Section 17(2)(c) of the Act. According to the learned counsel there has to be independent and objective application of mind by the competent authority that there is such an urgency, which would not brook delay of even 30 days. Learned counsel has maintained that no such satisfaction or objective analysis has been made by the respondent Government. 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. 15. The other submission of the learned counsel is that the acquisition has been made on extraneous consideration. According to Mr. Sharma, if the land belonging to Shri Dayanand, as depicted in site plan Annexure R-3, has been released by issuing notification under Section 48 of the Act (P-5), which is adjacent to the land of the petitioners, on the ground that it is not suitable for setting up a Sewerage Treatment Plant then how the next parcel of land belonging to the petitioners would be suitable as their land is also in abadi. He has substantiated his argument by submitting that as a matter of fact the land belonging to Shri Dayanand was released by the order of the Chief Minister on 28.3.2007 stating that the Panchayat land was available and, therefore, no land 9 CWP No. 9611 of 2009 belonging to the agriculturist should have been acquired. Mr. Sharma states that it is most arbitrary and violative of Article 14 of the Constitution. 16. Mr. Kamal Sehgal, learned State counsel has submitted that setting up of Sewerage Treatment Plant is a public purpose which would justify invoking of urgency provision as contemplated by Section 17(2)(c) of the Act. Controveting the arguments of the petitioners, Mr. Sehgal has submitted that the judgments of Hon’ble the Supreme Court rendered in the case of Mukesh Hans (supra) and Essco Fabs Private Limited (supra) would not apply in cases where the public purpose is of urgency. He has placed reliance on a judgment of Hon’ble the Supreme Court rendered in the case of Sheikhar Hotels Gulmohar Enclave v. State of Uttar Pradesh, (2008) 14 SCC 716, where the public purpose of construction of road was in question and their Lordships’ has upheld the notification issued under Section 4 read with Section 17(4) and Section 6 read with Section 17(1) of the Act. Learned counsel has also submitted that symbolic or notional possession are sufficient without there being physical possession, as has been held by Hon’ble the Supreme Court in the case of Sita Ram Bhandar Society, New Delhi v. Lieutenant Governor, Government of NCT, Delhi, (2009) 10 SCC 501. 17. In so far as the allegations of extraneous considerations are concerned, Mr. Sehgal has argued that mala fide could arise on two counts – (i) it is for the petitioners to show that the impugned action has been taken with the object of damaging interest of aggrieved party; and (ii) such action is aimed at helping another party. According to the learned counsel mere allegations of mala fide are not enough by merely stating that the original location of the proposed construction was deliberately changed to help important person whose land would have been otherwise acquired under the 10 CWP No. 9611 of 2009 original proposal, especially when the de-notified land belongs to a person who has no position or power. In that regard, learned counsel has placed reliance on the judgment of Hon’ble the Supreme Court rendered in the case of Girias Investment Private Limited v. State of Karnataka, (2008) 7 SCC 53. 18. We have summoned the original record and perused the same. 19. Having heard learned counsel for the parties at a considerable length and perusal of record with their able assistance, we feel that it would be first necessary to analyse why the land sought to be acquired by notification dated 16.11.2006 (P-1) and declaration dated 28.12.2006 (P-2) was de-notified under Section 48 of the Act, vide notification dated 8.4.2008 (P-5). It is evident from letter dated 4.1.2008 (P-4), that the Chief Minister was of the opinion that treatment plant inside the abadi area was not an appropriate option and he had desired that other suitable site be located by the department for setting up of Sewerage Treatment Plant. The other reason disclosed by the petitioners in their replication is evident from the noting dated 28.3.2007 made on behalf of the Chief Minister on the application of Shri Dayanand. According to the aforesaid note, the Panchayat land was available and no land belonging to any agriculturist was needed to acquire. The note is signed by Shri Ram Mehar Sharma, Personal Secretary to Chief Minister, which was received by the petitioners under the Right to Information Act, 2005. 20. A close analysis of these two reasons leads us to conclude that the land falling in abadi area was not to be acquired and the land known as ‘shamlat deh’ belonging to the Gram Panchayat was available, which should have been acquired. However, the respondents in contradiction of both the reasons proceeded to acquire the adjacent land belonging to the petitioners. It 11 CWP No. 9611 of 2009 is appropriate to mention that the land belonging to the petitioners is comprised in Rect. No. 67, Khasra Nos. 8, 9, 12 and 13, whereas the earlier proposal was for acquisition of land comprised in Rect. Nos. 52 and 61. A glance at the site plan Annexure R-3 would show that the land proposed to be acquired earlier belonging to Shri Dayanand is adjacent to the land belonging to the petitioners, which is sought to be acquired now. Both the parcels of land are in abadi area and there is no explanation except higher expenditure and timing of the project. The shamlat land that could have been acquired is also shown in the site plan (R-3). 21. It is now well settled that if the land belonging to a similar situated person is released in preference to the land of another citizen then it is imperative for the Courts to interfere lest the citizen are left with the impression that those who have close connection could succeed in getting their land released, which has been found to be violative of Article 14 of the Constitution. In that regard reliance may be placed on a recent judgment of Hon’ble the Supreme Court rendered in the case of Hari Ram v. State of Haryana, (2010) 3 SCC 621. After adverting to some instances where the land was released and similar situated owner was not granted the relief, their Lordships’ of Hon’ble the Supreme Court has indicted the respondent State of Haryana in severest terms as under:- “26. ……The policy articulated in the Letter dated 26.6.1991, thus, hardly helps the respondents. Rather it is seen that neither the aforesaid policy nor any other policy has been followed by the State Government while releasing land of various landowners whose lands have been acquired in the same acquisition proceedings. As a matter of fact, the only policy that seems to 12 CWP No. 9611 of 2009 have been followed is: “you show me the face and I’ll show you the rule”. (emphasis added) 22. The matter does not end there. Hon’ble the Supreme Court also recorded its concern in respect of those land owners who have not been granted relief, by observing in the following words:- “43. It is unfair on the part of the State Government in not considering representations of the appellants by applying the same standards which were applied to other landowners while withdrawing from acquisition of their land under the same acquisition proceedings. If this Court does not correct the wrong action of the State Government, it may leave citizens with the belief that what counts for the citizens is right contacts with right persons in the State Government and that judicial proceedings are not efficacious. The action of State Government in treating the present appellants differently although they are situated similar to the landowners whose lands have been released can not be countenanced and has to be declared bad in law.” (emphasis added) 23. We are further of the view that once shamlat deh land belonging to the Gram Panchayat was available as per the observation of the Chief Minister in his note dated 28.3.2007 then there was no justification for acquiring the agricultural land, which has standing crops. It appears to be well settled that once Banjar Quadim land or any other land of non-fertile nature is available then agricultural land belonging to the agriculturist should not be ordinarily acquired. 24. We also feel persuaded by the other argument raised by Mr. 13 CWP No. 9611 of 2009 Sharma that there is no independent application of mind by the competent authority to acquire the land by dispensing with inquiry under Section 5A of the Act. A perusal of the original record (in loose pages) produced before us does not show any decision of the Government to dispense with the enquiry contemplated by Section 5-A of the Act. It is well known that the right of hearing contemplated by Section 5A of the Act is a right akin to fundamental right, as has been held by Hon’ble the Supreme Court in the case of Hindustan Petroleum Corporation Limited v. Darius Shapur Chenal, (2005) 7 SCC 627. It is equally well settled that the Land Acquisition Act, which is an expropriatory legislation, has to be construed strictly. In the aforesaid background the argument concerning lack of application of mind by the competent authority for dispensing with Section 5A of the Act needs to be examined. It would be appropriate to analyse the provisions of Section 17(4) of the Act, which reads thus:- “17(4). In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub- section (2) are applicable, the appropriate government may direct that the provisions of Section 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).” 25. The aforesaid provision clearly spells out that the appropriate Government is under an obligation to