Civil Writ Petition No.18238 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.18238 of 2008(O& M) Date of Decision: 03.03.2011 Toyo Springs Limited ....petitioner Versus The State of Haryana & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUAMR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.O.P.Goyal, Senior Advocate with Mr.Varun Gupta, Advocate Mr.Shailendra Jain, Advocate Mr.Ashwani Talwar, Advocate Mr.Ashok Aggarwal, Senior Advocate with Mr.Alok Jain, Advocate and Mr.Kamal Sehgal, Advocate for HSIIDC Mr.Ashok Tyagi, Advocate Ms.Palika Monga, DAG Haryana Mr.Vikas Soni, Advocate for NHAI *** RAKESH KUMAR GARG, J.: This judgement shall dispose of four civil writ petitions bearing CWPs No.18238, 19706, 21201 of 2008 and 8853 of 2009 as acquisition of land made by the respondents vide impugned notifications Civil Writ Petition No.18238 of 2008 2 dated 17.04.2008 and 30.07.2008 issued under Sections 4 and 6 read with Section 17(2)(c) & (4) of the Land Acquisition Act, 1894(in short 'the Act'), respectively, have been challenged on similar grounds and facts. However, the facts are taken from CWP No.18238 of 2008 for convenience sake. It is the case of the petitioner that it had purchased an old running industrial concern which was constructed under the name and style of M/s Ashoka Potteries on a piece of land measuring 15K-2M comprised in khewat No.95, khatoni No.68, Rect.No.11, killa Nos.12(0-11) 11(7-18), Rect.No.10, killa No.15 min, East(6-13) situated in the revenue estate of village Badh Khalsa, Tehsil and District Sonepat, prior to the enactment of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963(in short 'the Act of 1963) vide registered sale deed dated 18.04.1982. The petitioner has also placed on record documents showing that the unauthorised construction made by the previous owner over the said land was compounded by respondent No.3 on payment of necessary composition charges. The petitioner, who required some more land, purchased another piece of adjoining land measuring 4K-4M comprised in khewat No.104, khata No.181, Rect.No.10 and 11, killa Nos.16,17, 19, 20(4-4) situated in the revenue estate of Badh Khalsa, Tehsil and District Sonepat, vide registered sale deed dated 12.11.1990. Petitioner further purchased another piece of land measuring 8 marlas on 30.11.1992 being 1/3rd share of 1K-4M comprised in Rect.No.10, killa Nos.14,15/1(1-4) situated in the aforesaid revenue estate. It is further averred that the petitioner-Company was registered under the Haryana General Sales Tax Act, 1973 and was also registered as a Small Scale Industrial Unit with the Department of Industries, Haryana. The petitioner was also registered under the VAT Act and had also been granted Factories Licence by the Chief Inspector of Factories. Civil Writ Petition No.18238 of 2008 3 The petitioner was selling its products in the local as well as foreign market and was earning foreign exchange. It was further asserted that the petitioner-Company had paid excise duty of `1718/- lacs and sales tax of `.329 lacs during the year 2007-08 and there were 370 workers and 74 staff members working in the petitioner's unit and the total turn over of the petitioner-Company during the year 2007-08 was `122 crores. Petitioner also placed on record Balance Sheet certificate issued by its authorised Chartered Accountants and profile of the Company. A site plan showing the buildings constructed over the land in question is also attached with the writ petition. Petitioner also placed on record letter dated 02.12.1991 (Annexure P-20) vide which the building plans issued by respondent No.3 were sanctioned on the basis of composition fee. The respondents vide notification dated 22.06.2006 issued under Section 4 of the Act, notified its intentions to acquire the aforesaid land of the petitioner-Company for a public purpose namely for development of Industrial Sector-38 in the revenue estates of the aforesaid villages. In pursuance of the said notification, petitioner filed objections under Section 5-A of the said Act. The land measuring 23K-10M of the petitioner-Company was released from the acquisition proceedings vide letter dated 22.06.2007(Annexure P-24) and the said land was not made the subject matter of acquisition vide declaration dated 20.06.2007 issued under Section 6 of the said Act. Thus, according to the petitioner, a conscious decision was taken by respondents to release the land of the petitioner, inasmuch as there exist a running industrial unit over the said land. It is further averred in the writ petition that just after 10 months of the said release, out of the aforesaid land of the petitioner-Company, land measuring 6K-9M comprised in Rect.No.10, killa No.15 min(0-5) 16/1 min (0-12) Rect.No.11, killa No.11, min(5-12) was again notified vide notification dated 17.04.2008 issued under Section 4 of the Act Civil Writ Petition No.18238 of 2008 4 (Annexure P-26) for a public purpose namely for development and utilisation of land for construction of Express Highway connecting National Highway Nos.1,10,8 and 2 in villages Badh Malik, Badh Khalsa and Rasoi, Tehsil and District Sonepat. The aforesaid notification was issued invoking the provisions of 17(2)(c) read with Section 4 of the Act. According to the petitioner, its land was sought to be acquired for the purpose of constructing a slip road connecting KMP Express Highway with NH-1 through the said slip road and it had been aligned in such a way, which was effecting the industrial unit of the petitioner and was in disproportionate to the alignments of other three slip roads being constructed under the project. It is further case of the petitioner that there were possible options/alternatives, if implemented at site, shall not affect the constructed portion and which could easily be undertaken by the respondents as the land underneath the said proposed alignments is either a Panchayat land or vacant lands. According to the petitioner, a bare perusal of the aforesaid option as demonstrated in the site plans attached as Annexure P-28A, P-28B and P28C clearly shows that if there is a slight change in the alignment of the slip road, it would result in saving the industrial unit of the petitioner and the public purpose can easily be achieved by making the slight change in the alignment of the said slip road. It has been further alleged in the writ petition that before carrying out the instant acquisition proceedings, no survey was carried out by the respondents and if a survey had been carried out, the alternatives available at the site, would have been noticed and the acquisition proceedings with regard to the land of the petitioner-Company which have the effect of demolishing the entire industrial unit would not have been carried out and, thus, the selection of the site was totally without application of mind. It was further alleged in the writ petition that the urgency provisions of Section 17(2)(c) and sub-Section 4 of the Act were invoked Civil Writ Petition No.18238 of 2008 5 denying a very valuable right to the petitioner of filing objections under Section 5-A of the Act, which is akin to fundamental right of the petitioner and in case the petitioner was allowed to file the objections, it could have brought to the notice of the respondents the alternative site for making the slip roads. Not only this, from the facts of the case, it is clear that there was no urgency involved in the matter as after invoking the urgency clause, respondents had taken more than three months time to issue notification under Section 6 of the Act for acquiring the land. Further, no steps were taken to take possession of the land as notice under Section 9 of the Act was issued more than a year, thereafter. Thus, there was no application of mind while acquiring the land by involving urgency provisions at the instance of acquiring authorities, as such the acquisition proceedings are totally vitiated and illegal. It was further submitted that the very purpose of the scheme does not appear to demand such emergency action as to eliminate enquiry under Section 5 of the Act. The contemplation of the provisions require a satisfaction to be recorded by the Government concerned that along with the existence of such urgency, there was also a need for dispensing with the enquiry of Section 5 of the said Act, which is missing in the present case. There is no material on record to show that the real and genuine urgency was existing for the alleged 'public purpose' which was a long term measure for development. It is evident that the purpose of acquisition was not that emergent which could have brooked the delay of 30 days to provide an opportunity to the petitioner to file objections under Section 5-A of the said Act. It is further case of the petitioner that the respondent-authorities were simultaneously constructing EPE(Eastern Peripheral Expressway) in the area of Sonipat District of the State of Haryana for which land had been acquired under the provisions of National Highways Act, 1956 and the landowners under that acquisition have been given an opportunity of filing objections and no urgency Civil Writ Petition No.18238 of 2008 6 provisions were invoked. Thus, the respondents, herein, also ought to have adopted the same course. Moreover, the land of the petitioner was sought to be acquired for a slip road so as to connect the Express Highway and since the Express Highway has not come into existence as yet, there was no such urgency involved in the matter. It has been further averred in the writ petition that respondents have issued a policy dated 26.10.2007 to the effect that the lands where there exists any factory or commercial establishment prior to Section 4 notification, the same will be considered for release. In the present case, a construction was raised long time before the issuance of notification under Section 4 of the said Act, despite that the same was not released which is contrary to the policy. Thus, the acquisition proceedings were liable to be quashed. In the connected writ petition, it has been further averred that the petitioners are workers who have purchased small pieces of land and have constructed the same for their shelter and in case of acquisition being upheld, they will be uprooted and the respondents have not made any arrangement for the re-settlement of such oustees. In Civil Writ Petition No.19706 of 2008, it has been also submitted that about 400 people will be affected because of the impugned acquisition proceedings and in case the alternative arrangements as suggested by the petitioner are accepted, there will be a minimum dislocation of the respondents. On the basis of the aforesaid averments, a prayer has been made in the writ petitions for setting aside the impugned notifications and subsequent proceedings of acquisition against them. The writ petitions have been contested by the respondents by filing written statement submitting that the acquisition of land is required for construction of an interchange for the proposed Western Peripheral Expressway also known as Kundli-Manesar-Palwal Expressway on Civil Writ Petition No.18238 of 2008 7 National Highway No.1. According to the respondents to decongest Delhi traffic not destined to Delhi two expressways namely WPE(Western Peripheral Expressway) and EPE(Eastern Peripheral Expressway) are being constructed around Delhi as per the directions issued by the Hon'ble Supreme Court in Writ Petition(Civil)No.13029 of 1985-M.C.Mehta vs.Union of India and ors. Respondent Haryana State Industrial and Infrastructure Development Corporation(hereinafter referred to as HSIIDC) and National Highways Authority of India(hereinafter referred to NHAI) have been made the executing agencies for construction of the aforesaid expressways. The progress of construction of both these expressways is being monitored by the Hon'ble Supreme Court of India through a Monitoring Committee under the chairmanship of Secretary, Department of Road Transport and Highways, Government of India with Chief Secretaries of Delhi, Haryana and U.P., Chairman, Environment Pollution and Control Authority and Chairman National Highways Authority of India, as members. Both the expressways are to be constructed on Built, Operate and Transfer basis. Bi-monthly progress report is being filed by the Monitoring Committee in the Hon'ble Supreme Court of India. The alignment of WPE and EPE was finalised in the meeting of Monitoring Committee. Both the expressways start at Km 36.083 at National Highway No.1(NH-1) at Rai near Kundli and terminate at Km 64.33 on NH-2 near Palwal. WPE which is also known as Kundli-Manesar-Palwal expressway, runs west of Delhi in Haryana starting from NH-1 and crosses NH-10 near Bahadurgarh, NH-8 near Manesar and terminates on NH-2 near Palwal. The length of WPE is 135.65 kms and EPE is also of around the same length which runs through east of Delhi through Haryana and U.P. It was further submitted that HSIIDC after inviting international competitive bids for the construction of 135.65 kms, 4-laned Civil Writ Petition No.18238 of 2008 8 dual carriage WPE has awarded the contract on Built-Operate-Transfer (BOT) basis to the Concessionaire M/s KMP Expressway Ltd. with a concession period of 23 years 9 months including 3 years of construction period. A concession agreement dated 31.01.2006 has also been entered into between the Concessionaire and HSIIDC. The date of start of construction of the project was 31st July, 2006 and the scheduled date of commercial operation of the project was 29th July, 2009 which has now been fixed in November 2011. The 3354 acres of land of 100 meters wide Right of Way(ROW)for the WPE has already been acquired under emergency provisions of the Act and handed over to the concessionaire. The concessionaire after site survey, has finalised the design of various interchanges including the interchange on National Highway No.1 and accordingly the Government of Haryana has notified the land in question for acquisition under urgency provisions of the Act. The land of the petitioner is required for the purpose of alignment of ramp/slip road of KMP expressway(WPE) for the traffic from Palwal side towards Panipat side. The urgency provisions of the Act were invoked because it was a time bound programme which was being monitored by the Hon'ble Supreme Court and the work for construction of expressway is already in progress. In the written statement, it was further stated that no doubt, the land of the petitioner was earlier released from acquisition, however, the land has been now been notified for altogether a different purpose which is required, essentially. The land of the petitioner could not be adjusted in the planning as per the release policy(Annexure P- 30). Hence the plea of the petitioner that the respondents are not implementing release policy is without any basis. It has been further mentioned in the written statement that though alternatives suggested by the petitioner were technically feasible, however, there were many other factors which were considered according to which it was not possible, as Civil Writ Petition No.18238 of 2008 9 while finalising the plan, apart from the existing residential colonies in the area, the public safety was also duly considered. The alternatives proposed by the petitioner involves a high risk form the traffic point of view, because in such a situation, the traffic from the proposed ramp connecting the expressways from Palwal side on National Highway No.-1 will directly interfere with the traffic from Jatheri Road meeting National Highway-1 at Biswa Mill Chowk(Junction) and the exit of the traffic from Expressway on National Highway-1 will be abruptly on the junction and thus will involve the possibility of causing accidents. In the end, a prayer has been made for dismissal of the present writ petition. Mr.O.P.Goyal, Senior Advocate, learned counsel appearing on behalf of the petitioner by referring to the facts as noticed above has vehemently argued that while issuing the impugned notifications, there was no application of mind as there was no urgency of dispensing with the filing of objections by the petitioners. According to the learned counsel for the petitioners, it was established on record that after invoking urgency provisions while issuing notification dated 17.04.2008, under Section 4 of the Act, no further action was taken by the respondents inasmuch as they took three and a half months to issue further declaration under Section 6 of the Act declaring the acquisition of land. Not only, this, the notice under Section 9 were issued on 04.08.2009 i.e.after a lapse of about more than one year and in view of the aforesaid facts there was no need of invoking Section 17 of the Act as there was no urgency as is clearly established on record. According to the learned counsel for the petitioner, in fact, there was no application of mind by the respondent- authorities and even otherwise, the acquisition proceedings for the expressways had started in the year 2005 which was not complete till today and the instant land which is the subject matter of impugned notifications was required for constructing an interchange to connect the Civil Writ Petition No.18238 of 2008 10 National Highway No-1 with the KMP which has not yet been completed. It is further argued that urgency was not of such a kind which could not brook the delay of 30 days, denying the opportunity to the petitioner to file objections. Had the petitioner been given an opportunity to file objections they could have brought to the notice of the respondent-authorities the alternatives for construction of interchange loops which would have saved the petitioner's factory and houses. Learned counsel for the petitioner has further argued that before invoking urgency provisions, the respondent- authorities have not recorded their satisfaction to the effect that there was a need to dispense with the filing of objections under Section 5-A of the Act and in this way a very valuable right of the petitioner which is akin to its fundamental right has been violated and even otherwise there was no need for invoking the said urgency provisions as the land was being acquired for the interchange facility after three years of the issuance of notification acquiring land for the Western Peripheral Expressway. Learned counsel for the petitioner has relied upon the judgement in Siri Ram Sahni & Ors. vs.State of Punjab & Ors. 2008(4) RCR(Civil) 193 and LPA No.504 of 2010 titled as State of Haryana & Ors. vs.Tara Chand & Ors. decided on 28.01.2011 to support his plea and argued that the impugned acquisition proceedings are liable to be set aside. Reliance has also been placed on the judgements of Hon'ble the Supreme Court of India in Essco Fabs Pvt.Ltd.& anr.vs.State of Haryana & anr. 2009(2)SCC 377, Mahender Pal & Ors.vs.State of Haryana & ors.AIR 2009 SC 3220, Union of India & ors.vs.Mukesh Hans etc.2004(8) SCC 14, Union of India vs.Krishan Lal Arneja & ors. 2004(8)SCC 453, Hindustan Petroleum Corpn.Ltd.vs.Darius Shapur Chenai and Ors.2005(7) SCC 627, Devinder Singh & ors.vs.State of Punjab & Ors.2008(1) SCC 728, City Montessori School vs.State of Uttar Pradesh & Ors.2009(2) SCALE 740. Civil Writ Petition No.18238 of 2008 11 Mr.Shailendra Jain, learned counsel appearing on behalf of the petitioner in CWP No. 19706 of 2008, in addition to the aforesaid arguments has further argued that neither survey was conducted by the respondent-authorities before acquiring the land, nor any steps were taken for rehabilitation of the displaced persons. It was further argued by him that on the land of the petitioner measuring 2K-14M more than 400 persons were living and in case the acquisition is upheld, they will be dislocated, whereas if the proposed alternative as suggested by them is accepted a minimum dislocation of petitioners will be resulted and therefore it was in the equity and interest of justice to accept to re-align the interchange facility as proposed by the petitioners. Mr.Ashwani Talwar, appearing on behalf of the petitioner in CWP No.21201 of 2008 and 8853 of 2009 has submitted that shelters of people who are having their built up houses in the acquired land will be dislocated and no provision has been made for their rehabilitation and therefore the writ petitions deserve to be allowed. On the other hand, Mr.Kamal Sehgal, learned counsel appearing on behalf of the respondents has vehemently refuted the arguments raised by learned counsel for the petitioner. By referring to the various affidavits filed on behalf of respondents, Mr.Sehgal has argued that work on EPE and WPE is being monitored by the Hon'ble Supreme Court of India and the aforesaid highways was being constructed to decongest the traffic in Delhi under the directions of the Hon'ble Supreme Court of India. The agreement for construction of the said Expressways was entered into with the concessionaire on 31.01.2006. The construction on the Expressway started on 31st July, 2006 on 135.65 kms long Expressway. The total project involves expenditure of ` 1200/- crores. The date of completion of the aforesaid project was 29th July,2009. However, till date 58.5% physical work has been completed and 65% financial Civil Writ Petition No.18238 of 2008 12 progress has been made by spending `850 crores and according to the estimates, now the Expressway will be ready by 1st November, 2011. Mr.Sehgal has further brought to the notice of this Court that vide impugned notifications around 22 acres of land was acquired out of which only 2.5 acres of land is under challenge by way of these writ petitions. Learned counsel for the respondents has further shown photographs to the Court showing constructions of pillars of Western Peripheral Expressway to which the interchange facility shall be connected. Mr.Sehgal has further pointed out by referring to the site plan Annxure R-1 that the proposed alignments by the petitioner were not practical due to other risk and economic factors. Mr.Sehgal has further referred to Para No.10 and 11 of affidavit of Mr. Y.S.Malik, Financial Commissioner and Principal Secretary to Government Haryana, Industries and Commerce Department,which reads as under: That while the petitioner is also aware of the necessity of acquisition of land for this project, he is trying to save his land by suggesting various alternative alignments. It is respectfully submitted here that initially an alignment was proposed for the said slip road which could save his land from acquisition but then it was found that a number of residential houses were coming in this alignment. Moreover, the NHAI found the proposed radius of the slip road as inadequate keeping in view the requirements for fast traffic. The petitioner appears to be suggesting still another alignment which goes over and above his existing land saving his factory premises conveniently ignoring that the alignment proposed by him (i) would create an accident spot as it converges near the 20- mile chowk where a state road, under widening to 10-meters width, is joining the National Highway, and (ii) a number of Civil Writ Petition No.18238 of 2008 13 constructed structures in the form of shops located on this chowk and alongwith the Rai-Jatheri road would have to be done away with. Thus, his proposals are motivated by self- interest and not based on objective assessment of the situation. A copy of the layout plan, as approved by the NHAI, as also indicating the alternative alignment proposed by the petitioner is enclosed as Annex R-1 to clarify the matter. The State Government has to be guided by the HSIIDC's proposal which itself is based on the technical inputs from (i) their engineering wing, (ii) the consultant, (iii) the NHAI, (iv) the State PWD and (v) the Concessionaire. The State Government is not in a position to further question the collective wisdom of all these agencies and has, accordingly, proceeded with the proposed acquisition. He has further argued that keeping in view the necessity of constructing the expressways to decongest the traffic in Delhi as per the directions of the Hon'ble Supreme Court of India, there was an urgency in the matter and, thus, urgency provisions were invoked correctly. Mr. Sehgal has relied upon a judgement of Hon'ble Supreme Court of India in the case of Anand Singh & anr.vs.State of Uttar Pradesh & Ors.2010 (4)RCR(Civil) 33 to contend that even if there was no justification in invoking the urgency provisions, keeping in view the progress of