C.W.P. No.4702 of 2008 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : May 28, 2010 1. C.W.P No. 3845 of 2008 Rohtash Chaudhary & another vs State of Haryana and others 2. C.W.P No. 4608 of 2008 Dilbag Singh and others vs The State of Haryana and others 3. C.W.P No. 4702 of 2008 Dwarka Dass and others vs State of Haryana and others 4. C.W.P No.4711 of 2008 Shri Guru Granth Sahib Mission vs State of Haryana and others, 5. C.W.P No. 6323 of 2008 Manish Jain and others vs The State of Haryana and others 6. C.W.P No. 8023 of 2008 Sh. Mahavir Jain vs The State of Haryana and others 7. C.W.P No. 7911 of 2009 Didar Singh vs State of Haryana and others 8. C.W.P No. 8747 of 2009 Amar Singh & others vs State of Haryana and others 9. C.W.P No. 9937 of 2009 Shri Baldev Singh & others vs The State of Haryana and others 10. C.W.P No.9939 of 2009 Sham Sunder and others vs State of Haryana and others, 11. C.W.P No.9964 of 2009 Surinder Pal Kaur and others vs State of Haryana and others, 12. C.W.P No.10496 of 2009 C.W.P. No.4702 of 2008 ::2:: Vijay Kumar and others vs State of Haryana and others, 13. C.W.P No.923 of 2010 Sudesh Kanta and another vs The State of Haryana and others. 14. C.W.P No.1007 of 2010 Om Prakash and others vs State of Haryana and others. *** CORAM : HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. G.S.Grewal, Sr. Advocate with Ms. Tanisha Peshawaria, Advocate for the petitioners in CWP Nos.3845 of 2008, 7911, 8747 of 2009. Mr. O.P.Goyal, Sr. Advocate with Mr. Parmod Goyal, Advocate for the petitioners in CWP No.4608 of 2008. Mr. Anand Chhibbar, Advocate Mr. Bhag Singh, Advocate for the petitioener(s) in CWP No. 9937 of 2009. Mr.Ashok Gupta, Advocate for the petitioner(s) in CWP Nos. 6323, 8023 of 2008. Mr.P.N.Makani, Advocate Mr.Ashwani Talwar, Advocate for the petitioner(s) in CWP Nos. 9939, 9964, and 10496 of 2009. Mr.Anshul Shahi, Advocate for the petitioner(s) in CWP No. 1007 of 2010. Mr.Nimanyu Gautam, Advocate for the petitioner(s) in CWP No.923 of 2010. Mr. Kamal Sehgal, Addl. A.G Haryana for the official respondents. Mr. Sanjeev Kaushik, Advocate for the HSAMB. Mr. Amit Kamboj, Advocate C.W.P. No.4702 of 2008 ::3:: for Mr. Arun Walia, Advocate Ms. Sheenu Sura, Advocate for the private respondents. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This order shall dispose of CWP Nos. 3845, 4608, 4702, 4711, 6323, 8023 of 2008, 7911, 8747, 9937, 9939, 9964 and 10496 of 2009, 1007 and 923 of 2010, as common questions of law and facts are involved therein. Civil Writ Petition No. 4702 of 2008 has been filed challenging the notification dated 3.4.2007 (Annexure P-14), issued under Section 4 of the Land Acquisition Act, 1894 (for short “the Act”), a subsequent notification dated 6.2.2008 (Annexure P-16), issued under Section 6 of the Act whereby the land of the petitioners is sought to be acquired for setting up of new Anaj Mandi and new Sabji Mandi in village Bahowa, Hadbast No.162, Tehsil and District Ambala. The facts in brief are that the petitioners purchased 78 kanals and 10 marlas of land in equal shares at village Bahowa, vide registered sale deed dated 29.4.1980. A mutation was sanctioned in favour of the petitioners with respect to the said land. Out of this land, 19 kanals and 12 marlas of land has already been sold and now land measuring 58 kanals 18 marlas is left. It is further averred in the petition that the petitioners set up Rice Mill, Flour Mill and Oil Mill in one portion of the land, and in another portion a banquet hall with rooms, a kitchen etc. were constructed, as per site plan (Annexure P-1). Land measuring 15 kanals and 1 marla has been C.W.P. No.4702 of 2008 ::4:: left for parking area for banquet hall and for drying of paddy/oil seeds (which has been notified in the impugned notification). It is further averred that after the notification under Section 4 of the Act, the petitioners filed objections under Section 5A of the Act wherein all the details were mentioned. Even though hearing was afforded but the objections were recorded jointly and, thus, no proper hearing was given to the petitioners. In Civil Writ Petition No.3845 of 2008, additionally the petitioners have averred that they owned land within the ceiling limit and are cultivating the same personally/through their servants. In CWP No. 9937 of 2009, challenge has been made to acquisition of land for Sector 22, HUDA Ambala City. The petitioners allege that they had purchased lands adjacent to the abadi of the village (which had been carved out more than 50 years ago), and that acquisition which would result in depriving them of the roof over their heads cannot be permitted. Another fact mentioned is that land of one private colonizer viz Alaska Construction Pvt Ltd was released from acquisition. The facts of the other writ petitions need not be recapitulated since the facts mentioned would cover all the arguments. The first ground taken by the petitioners is that in view of earlier still-born attempts to acquire land for the mandi, the present acquisition suffers from non application of mind. The second ground is that under 73rd and 74th amendments of the Constitution, Panchayati Raj was enforced in 1993 wherein Part IX was added to the Constitution. It is argued that more than one year having lapsed and no district level committee having been constituted as mandated by Article 243ZD of the Constitution, the present acquisition could not go through. The third C.W.P. No.4702 of 2008 ::5:: ground taken is that the objections having been recorded jointly, right of hearing has not been granted to the affected persons. The next ground taken is that the land within ceiling limit which is personally cultivated by them is protected under second proviso to Article 31A of the Constitution. It has also been argued that the declaration under Section 6 of the Act is vague as no details as to how much area is required for the Sabji Mandi and Anaj Mandi have been given. Reliance has been placed on Madhya Pradesh Housing Board vs Mohd. Shafi and others, 1992(2) SCC 168 and L.Vinayagam & Ors vs State of Tamil Nadu, 1995 LACC 200. It has also been argued that land cannot be acquired for commercial purpose. Reliance has been placed on Daulat Singh Surana and others vs First Land Acquisition Collector and others, 2007(1) SCC 641. Last but not the least reliance has been again placed on the second proviso to Article 31-A of the Constitution to canvass that freezing of price at the date on which the notification under Section 4 of the Act is issued is clearly unconstitutional. The respondents have filed their separate written statements. Respondents No.4 and 5 have defended the present acquisition by stating that the acquisition proceedings are for a public purpose. It is further stated that in 1995 a site was selected for setting up of a grain market but as the land was very low lying, the proposal was cancelled. Thereafter, in its meeting held on 28.1.1998, the Site Selection Committee proposed HUDA land along with Ghasitpur road leading to GT road for setting up of the grain market. Accordingly, the matter was taken up with the HUDA authorities who gave their nod for the entire HUDA land measuring 58 acres on payment of actual cost of the land. The Agricultural Marketing Board also sanctioned an amount of Rs.1,77,14,400/- to be paid to the HUDA C.W.P. No.4702 of 2008 ::6:: towards the price of the land, which was paid vide a cheque dated 5.5.1999 and thereafter proceedings for taking up possession of the land were initiated. It is further averred in the written statement that in the meantime the State of Haryana directed the Agricultural Marketing Board to allot 35 acres of land to the Public Health Department for setting up a water works, and as the remaining land of 25 acres was not sufficient for setting up of the grain market, therefore, the said land was surrendered to the HUDA. Thereafter, in another meeting held on 24.8.2000, the Site Selection Committee decided to acquire 75 acres of land falling on Delhi-Ambala GT road (NH-1) towards village Ghasitpur Link Road abutting village Ghasitpur. Accordingly, vide letter dated 1.12.2000, the Chief Administrator, HUDA was requested to acquire land measuring 80 acres for setting up of the new grain market. However, the HUDA issued a notification under Section 4 of the Act for setting up of a residential/commercial and industrial complex in Ambala Cantt. It is further averred in the written statement that in yet another meeting held on 19.11.2004, the Site Selection Committee identified some other land but as the HUDA developed a town park thereon, the said proposal could not be materialized. Ultimately, the Site Selection Committee in its meeting held on 24.4.2006, selected land which is under the instant acquisition. It is further averred that after considering the objections of the petitioners, the land which was built up and being utilized for the banquet hall and industry has been omitted in the impugned notification. In the written statement filed to CWP No.9937 of 2009, it has been mentioned that the notification under Section 4 of the Act was issued on 20.7.2006, the notification under Section 6 of the Act was issued on C.W.P. No.4702 of 2008 ::7:: 19.7.2007 and the award was announced on 17.7.2009. It is averred that the said writ petition (having been filed only on 6.7.2009) is barred by delay and laches. Reliance has been placed on 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. The first ground, that the notification (for Anaj Mandi/Sabji Mandi) suffers from the vice of non application of mind on account of the earlier attempts to acquire land cannot be accepted. We find that detailed reasons (as mentioned above) have been given as to why on each previous occasion the proposed notifications could not fructify. As regards reliance on Articles 243ZD and 243ZF of the Constitution of India, it would be appropriate to reproduce Articles 243ZD and 243ZF as under :- “ Article 243ZD. Committee for district planning.- (1) There shall be constituted in every State at the district level a District Planning Committee to consolidate the plans prepared by the panchayats and the Municipalities in the district and to prepare a draft development plan for the district as a whole. (2) The Legislature of a State may, by law, make provision with respect to- (a) the composition of the District Planning Committee; (b) the manner in which the seats in such committees shall be filled; Provided that not less than four-fifths of the total number of members of such Committee shall be elected by and from amongst the elected members of the C.W.P. No.4702 of 2008 ::8:: panchayat at the district level and of the Municipalities in the district in proportion to the ratio between the population of the rural areas and of the urban areas in the district. (c) the function relating to district planning which may be assigned to such committees ; (d) the manner in which the Chairpersons of such committees be chosen. (3) Every District Planning Committee shall, in preparing the draft development plan- (a) have regard to – (i) matters of common interest between the Panchayats and the Municipalities including spatial planning, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation; (ii) the extent and type of available resources whether financial or otherwise; (b) Consult such institutions and organizations as the Governor may, by order, specify. (4) The Chairperson of every District Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State. Article 243ZF. Continuance of existing laws and Municipalities.- Notwithstanding anything in this part, any provision of any law relating to Municipalities in force in a state immediately before the commencement of the Constitution (seventy-fourth amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier : Provided that all the Municipalities existing immediately before such commencement shall continue C.W.P. No.4702 of 2008 ::9:: till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that state or, in the case of a state having a Legislative Council, by each house of the Legislature of that State.” Learned counsel for the petitioners have relied upon Md. Mustaque v. State of Bihar and others, AIR 2005 Patna 73, and particularly paras 21 and 22 thereof which read as under :- “ 21. The State will be free to reconstitute Section 3, aforesaid, as compatible with local self Government given in Parts IX and IXA of the Constitution of India. In a municipality area the local content of the body cannot be less than 4/5ths from amongst the elected representatives. In a Metropolitan area it will not be less than 2/3rd. The balance 1/5th or 1/3rd, as the case may be, the Legislature will be free to bring in ex-officio members. But, such members must have an interest connected with administration of the district and it must not be the caprice of the State Government to nominate members which may be a misplaced representation in the face of the Constitution. The State Government does not have that much freedom to avoid the Constitution of India but must fall in line with it. 22. But, as it has been shown in this order there is a total overlapping of functions. It is the suggestion of the Court that such of these functions, municipal and civic in nature, should be put in a slot or a drawer separately and each of these must be transferred into the Patna Municipal Corporation Act, 1951 or The Bihar and Orissa Municipal Act, 1922. This will leave the municipalities with all their functions in the correct pattern of local self Government and in total co- ordination with the District Planning Committee so ordained by the Constitution. The conflict and confusion C.W.P. No.4702 of 2008 ::10:: is apparent on the face of the record. It is manifest. It will play havoc if all the authorities function with simultaneous functions. All three laws with parallel subjects cannot function equally so as to provide equal protection..........” It is argued that the State of Haryana has not constituted the Regional Development Committee even though a period of one year has elapsed and, thus, the present acquisition is ex-facie illegal. It must be kept in mind that Article 243ZD of the Constitution deals with a subject which essentially falls within the State list at entry No.6 and that is why it stipulates a discretion in the State to legislate for the purposes mentioned therein. In Shanti G. Patel and others vs State of Maharashtra and others, (2006) 2 SCC 505, the Hon'ble Supreme Court held as follows :- “ 9. Article 243-W whereupon great emphasis has been laid by the petitioners herein provides for an enabling clause so as to enable the State to endow by law the municipality with such powers and authority, as may be necessary, to enable the State to make, by law, by endowing the municipalities to function as institutions of self-government which may contain provisions for the devolution of powers and responsibilities subject to the conditions which may be specified in the Twelfth Schedule. The Twelfth Schedule of the Constitution referable to Article 243-W, inter alia, provides for urban planning including town planning, regulation of land-use and construction of buildings. Thus, Article 243-W contains merely an enabling provision, and it does not mean that the State is obligated to provide for such a statute. The Constitution (Seventy-fourth Amendment) Act, in any event, does not envisage that the existing laws would become non-operative or a vacuum would be C.W.P. No.4702 of 2008 ::11:: created in the matter of enforcement of existing laws relating to urban planning and/or regulation of land-use and construction of buildings, etc.” In yet another later decision in Bondu Ramaswamy v. Bangalore Development Authority and others, Civil Appeal No.4097 of 2010 decided on 5.5.2010, the Hon'ble Supreme Court was considering the question of acquisition of certain land on the ground that it was invalid with reference to Parts IX and IXA of the Constitution. The Hon'ble Supreme Court held as follows :- “ 12. Part IX and IX-A of the Constitution, relating to Panchayats and Municipalities were inserted by the Constitution (Seventy-third Amendment) Act, 1992 and Constitution (Seventy-fourth Amendment) Act, 1992. Part IX and IX-A came into force on 24.4.1993 and 1.6.1993 respectively. The object of Part-IX was to introduce the Panchayat system at grass root revel. As Panchayat systems were based on state legislations and their functioning was unsatisfactory, the amendment to the Constitution sought to strengthen the Panchayat system by giving a uniform constitutional base so that the Panchayats become vibrant units of administration in the rural area by establishing strong, effective and democractic local administration so that there can be rapid implementation of rural development programmes. The object of Part-IX as stated in the Statement of Objects and Reasons is extracted below :- ` In many States, local bodies have become weak C.W.P. No.4702 of 2008 ::12:: and ineffective on account of variety of reasons, including the failure to hold regular elections, prolonged supersessions and inadequate devolution of powers and functions. As a result, urban local bodies are not able to perform effectively as vibrant democratic units of self- Government. Having regard to these inadequacies, it is considered necessary that provisions relating to urban local bodies are incorporated in the Constitution, particularly for- (i) putting on a firmer footing the relationship between the State Government and the Urban Local Bodies with respect to :- (a) the functions and taxation powers, and (b) arrangements for revenue sharing. (ii) ensuring regular conduct of elections. (iii) ensuring timely elections in the case of supersession; and (iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women.' xx xx xx xx 22. To enable the municipalities (that is municipal corporations, municipal councils and Nagar Panchayats) to function as institutions of self-government, Article C.W.P. No.4702 of 2008 ::13:: 243W authorizes the legislature of a state to endow to the municipalities, such powers and authority as may be necessary, by law. Such law made by the state legislature may contain provision for the devolution of powers and responsibilities upon municipalities, with respect to the following : (i) The preparation of plans for economic development and social justice; and (ii) The performance of functions and implementation of schemes as may be entrusted to them including those in relation to the following matters (earmarked in the twelfth schedule) : 1. Urban planning including town planning. 2. Regulation of land-use and construction of buildings. 3. Planning for economic and social development. 4. Roads and bridges. 5. Water supply for domestic, industrial and commercial purposes. 6. Public health, sanitation conservancy and solid waste management. 7. Fire services. 8. Urban forestry, protection of the environment and promotion of ecological aspects. 9. Safeguarding the interests of weaker C.W.P. No.4702 of 2008 ::14:: sections of society, including the handicapped and mentally retarded. 10. Slum improvement and upgradation. 11. Urban poverty alleviation. 12. Provision of urban amenities and facilities such as parks, gardens, playgrounds. 13. Promotion of cultural, educational and aesthetic aspects. 14. Burials and burial grounds; cremations, cremation grounds; and electric crematoriums. 15. Cattle pounds; prevention of cruelty to animals. 16. Vital statistics including registration of births and deaths. 17. Public amenities including street lighting, parking lots, bus stops and public conveniences. 18. Regulation of slaughter houses and tanneries. The aforesaid powers and authority (enumerated in the twelfth Schedule) may also be endowed to the Ward Committees which are required to be constituted, by Article 243S xx xx xx xx xx. 23. On the other hand, the purpose and object of the BDA is to act as a development authority for the development of the city of Bangalore and areas adjacent thereto. The Preamble of BDA Act describes it as `an C.W.P. No.4702 of 2008 ::15:: Act to provide for the establishment of a Development Authority for the development of the city of Bangalore and areas adjacent thereto and for matters connected therewith. The development contemplated by the BDA Act is “carrying out of building, engineering or other operations in or over or under land or the making of any material change in any building or land and includes redevelopment” (vide Section 2(j) of BDA Act. Therefore, the purpose is to make lay outs, construct buildings or carry out other operations in regard to land. Municipalities are not concerned with nor entrusted with functions similar to those entrusted to BDA under the BDA Act, that is building, engineering or other operations by forming layout of plots with all amenities, construction of houses and apartments, as a part of any scheme to develop a city. Municipalities are concerned with the overall economic development providing social justice (urban poverty alleviation and slum improvement) regulating land use and constructions, providing amenities (roads, bridges, water supply, fire services, street lighting, parking, bus stops, public conveniences), promoting education and culture etc. Neither urban town planning nor regulation of land use and construction, is similar to the `development' as contemplated in BDA Act, that is carrying out building, engineering operations in or over or under land. It would thus be seen that the C.W.P. No.4702 of 2008 ::16:: object and functions of a Municipal Corporation are completely different from the object and purpose of a development authority like BDA, BDA is not a municipality. Therefore, it cannot be said that mere existence of Municipal Corporations Act, duly amended to bring it in conformity with Part IX-A of the Constitution, will nullify or render redundant, the BDA Act. Xx xx xx xx 26. The appellants submitted that the powers, authority and responsibilities to be endowed by the State Legislature upon the Municipalities are enumerated in Article 243W read with Twelfth Schedule; that Articles 243ZD and 243ZE require the state government to constitute a District Planning Committee at District Level and a Metropolitan Planning Committee for every Metropolitan Area; that such Metropolitan Planning Committee is required to prepare a draft development plan for the Metropolitan Area as a whole. It was contended that the BDA Act was a Legislation which related to some of the responsibilities and functions of Municipalities, enumerated in the Twelfth Schedule to the Constitution read with Article 243W and that its provisions, in particular, sections 15 to 19 were inconsistent with the provisions of Part IXA of the Constitution; that no law can entrust powers and C.W.P. No.4702 of 2008 ::17:: responsibilities referred to in Article 243W including those relating to matters listed in Twelfth Schedule to an authority other than an authority having popular mandate; and that therefore the BDA Act entrusting such powers and responsibilities to a non-elected authority ceases to be in force. 27. While it is true that BDA is not an elected body like the municipality, it has several elected representatives as members. Section 3 relates to the Constitution of the Authority and