IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) C.W.P. No. 19676 of 2005 Jaswant Singh and others. ....... Petitioners Versus The State of Haryana and others. ....... Respondents (2) C.W.P. No. 10690 of 2005 Lachhman and others. ....... Petitioners Versus The State of Haryana and others. ....... Respondents (3) C.W.P. No. 13404 of 2005 Phul Singh and others. ....... Petitioners Versus The State of Haryana and others. ....... Respondents (4) C.W.P. No. 16212 of 2005 Satish Kumar and others. ....... Petitioners Versus The State of Haryana and others. ....... Respondents C.W.P.No.19676 of 2005 -2- .... (5) C.W.P. No. 17031 of 2005 Ramesh and others. ....... Petitioners Versus The State of Haryana and others. ....... Respondents (6) C.W.P. No. 19741 of 2005 Balbir Singh and others. ....... Petitioners Versus The State of Haryana and others. ....... Respondents (7) C.W.P. No. 19820 of 2005 Jasmer @ Banga and others. ....... Petitioners Versus The State of Haryana and others. ....... Respondents (8) C.W.P. No. 1429 of 2006 Pritam Singh and others. ....... Petitioners Versus The State of Haryana and others. ....... Respondents C.W.P.No.19676 of 2005 -3- .... (9) C.W.P. No. 1472 of 2006 Binder Singh and others. ....... Petitioners Versus The State of Haryana and others. ....... Respondents (10) C.W.P. No. 8352 of 2006 Kabal Singh and others. ....... Petitioners Versus State of Haryana and others. ....... Respondents (11) C.W.P. No. 9297 of 2006 Jangir Ram. ....... Petitioner Versus State of Haryana and others. ....... Respondents (12) C.W.P. No. 11452 of 2006 Amarjot Singh Punnia and others. ....... Petitioner Versus State of Haryana and others. ....... Respondents C.W.P.No.19676 of 2005 -4- .... (13) C.W.P. No. 13202 of 2006 Banta Ram and others. ....... Petitioners Versus State of Haryana and others. ....... Respondents (14) C.W.P. No. 13691 of 2006 Gram Panchayat, Bibipur and others. ....... Petitioners Versus The State of Haryana and others. ....... Respondents (15) C.W.P. No. 16828 of 2006 Bhupinder Singh. ....... Petitioner Versus The State of Haryana and others. ....... Respondents Date of decision : 23.7.2007 CORAM: HON'BLE MR. JUSTICE VIJENDER JAIN, CHIEF JUSTICE HON'BLE MR.JUSTICE MAHESH GROVER Present: Shri A.K.Chopra, Senior Advocate assisted by Shri Harminder Singh, Advocate; Shri M.S.Khaira, Senior Advocate assisted by Shri Dharmender Singh; Shri Ashok Aggarwal, Senior Advocate assisted by Shri Piyush Bansal, Advocate; Shri K.S. Sidhu, Senior Advocate assisted by Shri Vikrant Oberoi, Advocat, and Sarv Shri R.S.Tacoria, J.L.Malhotra, Rajinder Nain, Rajnish Gupta, Advocates for the petitioners. C.W.P.No.19676 of 2005 -5- .... Shri H.S.Hooda, Advocate General, Haryana assisted by Shri Hem Raj Mittal,Advocate; Shri M.L.Sagar and Shri Randhir Singh, Additional Advocates General, Haryana for the State and other official functionaries. Mrs.Daya Chaudhary, Assistant Solicitor General of India assisted by Shri Vir Bhan Singla and Mrs.Kamla Malik, Advocates for Union of India and the Central Water Commission. Shri Anmol Rattan Singh, Additional Advocate General, Punjab for the State. Shri D.S.Nehra, Senior Advocate assisted by Shri N.S.Bawa and Ms.Amandeep Kaur, Advocates for Bhakra Beas Management Board. Shri R.L.Batta, Senior Advocate assisted by Ms.Geeta Sharma, Advocate for the State of Rajasthan. .... 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? .... VIJENDER JAIN, CHIEF JUSTICE This judgment of ours will dispose of the above mentioned writ petitions as common questions of law and facts are involved therein. The Government of Haryana took a decision to construct a canal to be called “Hansi - Butana Canal” with a view to take waters to the parched areas of the State and initiated steps to achieve the aforesaid objective which was sought to be stone-walled by a spate of writ petitions challenging its action on various grounds which we propose to delineate and discuss in the course of search for an answer to the controversy raised in C.W.P.No.19676 of 2005 -6- .... the said petitions. C.W.P.No.13404 of 2005 – Phul Singh and others Versus State of Haryana and others became the fountain-head petition from which other writ petitions flowed. This writ petition coupled with C.W.P.No.16212 of 2005- Satish Kumar & others Versus State of Haryana & others; C.W.P.No.19676 of 2005- Jaswant Singh and others Versus State of Haryana and others, and C.W.P. No. 13691 of 2006- Gram Panchayat, Bibipur and others Versus The State of Haryana and others, particularly, encompass in their folds the entire gamut of the controversy. While the rest of the petitions are merely clones of these writ petitions broadly reiterating the controversy in the same terms. Therefore, we deem it appropriate to extricate the facts and the essential challenge made to the action of the State of Haryana in the aforesaid writ petitions. C.W.P.No.13404 of 2005 In this petition, Phul Singh and others, by invoking the jurisdiction of this Court under Articles 226/227 of the Constitution of India, have prayed for issuance of a writ in the nature of mandamus directing the respondents therein not to take the canal which is proposed to be constructed from village Azimgarh, Tehsil Guhla, District Kaithal to village Aanta, Tehsil Safidon, District Jind through the villages Ramgarh Rorh, Tehsil Pehowa, District Kurukshetra and at a distance of less than one acre from the village abadi. The principal challenge to the action of the State is that the C.W.P.No.19676 of 2005 -7- .... scheme for digging the canal has not been published in accordance with law and its path has not been finalised by resorting to a proper survey and that no public notice has been issued to the persons, who are likely to be affected adversely. The non-publication of the scheme has been said to be against the provisions of the Haryana Canal and Drainage Act,1974 (for short, `the 1974 Act'). Even though, such a plea was not pleaded in as many words in the writ petition, yet, being a question of law, it has been vehemently put forward by the learned counsel for the petitioners during the course of arguments. It is also necessary to notice here that this writ petition was filed on 22.8.2005 and the first order passed by this Court was on 29.8.2005 noticing the contention of the counsel for the petitioners that the draft scheme was never published in accordance with the rules as neither the notice had been served upon the petitioners by affixing it at a conspicuous place in the village nor the villagers of village Ramgarh Rorh, who are vitally affected by laying down of the canal were granted opportunity of hearing. C.W.P.No.16212 of 2005 This writ petition was alleged to have been necessitated because after filing of the writ petition by Phul Singh etc., the State of Haryana and its functionaries had initiated the process of acquisition of land by issuing notifications dated 18.8.2005/23.8.2005 under Section 4 read with clause (C) of sub-section (2) of Section 17 of the Land Acquisition Act,1894 (hereinafter described as `the `1894 Act') and dated 13.9.2005 C.W.P.No.19676 of 2005 -8- .... under Section 6 of the 1894 Act, invoking the urgency provisions to acquire the lands of the petitioners for the purpose of constructing the canal. The petitioners have prayed for issuance of a writ in the nature of certiorari quashing notifications dated 18.8.2005/23.8.2005 and 13.9.2005 on the grounds that (i) the entire acquisition is the result of mala fide action on the part of the Chief Minister, Haryana, who wanted to cater to his constituency, the relevant portion of the averments is extracted below:- “The canal in question which is sought to be carved out would not be serving any purpose of irrigation and/ or would not be of any help otherwise to the villagers of the villages falling on its way. In fact, the entire exercise is being undertaken by the respondents just to take the Bhakra water to the constituency of the present Chief Minister of the State of Haryana, in District Rohtak. In the humble submission of the petitioners, the scheme of carving out the proposed canal at public expense is not only motivated for selfish cause but is flagrant abuse of the resources and as such is opposed to the public purpose”; (ii) that the invocation of the urgency provisions is mala fide and is not borne out from the records; (iii) that by the aforesaid invocation of the emergency provisions depriving the petitioners of their right to file objections under Section 5-A of the 1894 Act is arbitrary and hence, the entire exercise stands vitiated; (iv) that no conscious decision was taken by the State to dispense with the filing of objections under Section 5-A of the 1894 Act after C.W.P.No.19676 of 2005 -9- .... concluding that an urgency existed. (v) that the publication of the notifications has not been carried out in accordance with law; (vi) that the purpose of the acquisition has not been brought out in the notifications which are vague; (vii)that the acquisition is not for a public purpose. C.W.P.No.17031 of 2005 In this writ petition, apart from the over-laping plea of challenge to the acquisition on account of the urgency provisions having been invoked in a mala fide manner, re-alignment of the channel sought to be made was also brought under the scanner of this Court by the petitioners by saying that their land has been rendered useless and hopelessly fragmented. C.W.P.No.11452 of 2006 This writ petition has been filed by one Amarjot Singh Punnia particularly assailing the construction of the canal on the ground of technical feasibility and other grounds which are similar to the grounds taken in C.W.P.No.19676 of 2005. It is also to be noticed here that this writ petition was filed subsequent to the filing of C.W.P.No.11095 of 2006 filed by Gurbant Singh Punnia, father of Amarjot Singh Punnia, which was disposed of by this Court on 17.5.2007 with the following observations:- “We cannot go into the question about the technical feasibility of providing syphons between village Chabha and Daba as that is in the domain of the experts. However, in view of the C.W.P.No.19676 of 2005 -10- .... assurance given by the respondents as noticed above, we direct the respondents to ensure that the aforesaid assurance is carried out in letter and spirit and that all efforts be taken so as to ensure that no flooding is caused in the said villages.” C.W.P.No.13691 of 2006 This writ petition has been preferred by a number of petitioners and the sole challenge made by them to the action of the State of Haryana is that prior clearance from the Central Government was not taken in accordance with the provisions of the Environment Protection Act,1986. Specific reliance has been placed on notification dated 27.1.1994 in support of this assertion to say that prior permission not having been taken would not only render the entire action of the State bad in the eyes of law, but would also render them liable to criminal prosecution. C.W.P.No.19676 of 2005 In this petition, the petitioners have tried to don colours of a public interest litigation and have prayed for issuance of a writ in the nature of certiorari “quashing the scheme/ decision and the notifications dated 18.8.2005/23.8.2005 and 13.9.2005 (Annexures P6 and P7 with the writ petition )”. In short, apart from the challenges which have been made in C.W.P.Nos. 11452 and 13691 of 2006, having been reflected in this petition, the additional grounds taken by the petitioners are as under:- (1)The construction of the canal is not feasible as the Bhakra Canal for irrigation purpose has already been linked to Yamuna Canal to carry the water of Bhakra Canal to C.W.P.No.19676 of 2005 -11- .... Yamuna Canal. The canal in question is proposed to originate from the Main Bhakra Canal at RD 340300-L near Azimgarh village and more water is proposed to be carried out to Hansi Branch and Butana Branch near Aanta village. Apart from this, the canal would cross 9 main drains and the water would flow from west to east in the opposite direction which is likely to increase the floods in the State. (2) The Satluj Yamuna Link Canal has already been constructed at the cost of Rs.800 Crores and this canal, therefore, will not serve any purpose. (3) A slope gradient of .12 per 1000 ft. is required to be provided in a canal whereas in the canal in question the said gradient is kept at .05 per 1000 ft. which is the lowest in the State and with such a low slope the velocity would be very low and the flow of water would be at a negligible speed. (4) The technical aspect of the canal was also stated to be faulty on number of counts. (5) Every scheme of the Irrigation Department has been financed by NABARD. In the current budget, an amount of Rs.75 Crores has been sanctioned whereas the proposed canal is stated to be costing more than Rs.750 Crores. (6) No environmental clearance has been taken from the Central Government. (7) No permission from the Central Water Commission has been taken. C.W.P.No.19676 of 2005 -12- .... (8) No permission has been taken from the Railway Department before finalising the scheme. (9) No notice or opportunity of hearing has been given to the petitioners, who are likely to be affected by the scheme/ decision to carve out the canal. (10) There is a political angle to the construction of the canal. (11) The permission of the Pollution Department of the State has not been taken. (12) The entire acquisition and resorting to the emergency provisions is a mala fide action. Even though, this petition was filed as a public interest litigation, yet, at the time of motion hearing on 19.12.2005, learned counsel for the petitioners categorically stated that the petition had been wrongly styled as public interest litigation and the error be rectified and it be heard along with C.W.P.No.13404 of 2005, which was stated to be pending. During the course of proceedings of this petition, an application was moved by the petitioners to implead Bhakra Beas Management Board, Union of India, State of Punjab, State of Rajasthan and Central Water Commission and this Court had permitted the said parties to be impleaded as respondents vide order dated 21.2.2006, the relevant and operative part of which is reproduced below:- “We are of the considered opinion that the State of Haryana has itself referred the matter for opinion/ permission of BBMB for utilisation of the drop available on BML to examine the power generation potential for the benefit of the State of Haryana. C.W.P.No.19676 of 2005 -13- .... Even when there would be no consumption of water from BML but the advantage is to be taken of the drop for rotating the turbine, the sanction of BBMB is being asked for in principle. The matter which is pending before us, the State of Haryana is proposing to have an off take from BML, which prima facie looks to be tinkering with the interest of parties, which are primarily connected with the BML directly or indirectly. Thus, we are of the considered opinion that the parties mentioned in para 3 of the application, i.e., (a) Bhakra Beas Management Board, Sector 19-B, Madhya Marg, Chandigarh through its Secretary; (b) the State of Punjab through the Principal Secretary to the Government of Punjab, Irrigation Department, Punjab Mini Secretariat, Sector-9, Chandigarh; © The State of Rajasthan through the Secretary to Government of Rajasthan, Irrigation Department, Rajasthan Sachivalaya, Jaipur; (d) Union of India through the Secretary to Government of India, Ministry of Water Resources, Sharam Shakti Bhawan, Rafi Marg, New Delhi; and (e) Central Water Commission, Sewa Bhawan R.K.Puram, New Delhi through its Chairman, would be proper parties if not necessary parties. Resultantly, the application is allowed and the aforestated are ordered to be impleaded as respondents. Registry is directed to carry out necessary corrections in the memo of parties.” As a direct fall-out of the aforesaid order, the petitioners moved an application under Order 6 Rule 17 of the C.P.C. seeking to amend the C.W.P.No.19676 of 2005 -14- .... writ petition, which was disallowed vide order dated 18.5.2006, the relevant extracts of which are as under:- “In the original petition the petitioners had only sought to challenge the feasibility and viability of the project and the scheme of the acquisition proceedings being mala fide and not in public interest. The amendments which the petitioners now seek to incorporate a completely new twist to the controversy. A new case is now sought to be set up in which the rights of the affected States, the impact of the Bhakra Nangal Agreement, the effect of the Punjab Reorganization Act,1956, rights of the parties under the Bhakra Nangal Agreement as also water sharing between the affected States is sought to be raked up by way of these amendments. What seemed to be a petition of a simple concern of small landowners regarding the acquisition of their lands has suddenly threatened to turn into a monster problem of multi- headed dimensions which encroaches upon the rights of the States and the sharing of waters by those States. xx xx xx xx xx xx xx xx xx Although prima facie we feel that the amendments that the petitioners wish to incorporate does raise questions of inter- State disputes but we are refraining from commenting upon our jurisdiction to entertain such a question for the simple reason that one has to cross the bridge when one comes to it. We could have adjudicated on the question of jurisdiction only after the C.W.P.No.19676 of 2005 -15- .... decision of the application for amendment of the pleadings.” In so far as other writ petitions are concerned, they contain more or less the same grounds of challenge and, therefore, we do not feel it necessary to extract the averments of the petitioners in detail. The State of Haryana, on its part while appearing as respondent in the writ petitions, has categorically denied the averments made in the writ petitions. It has been averred that the action for digging the canal is not mala fide. Rather, the necessity for constructing the canal has been demonstrated by stating that it will cater to the needs of Southern Haryana and the water will be carried to Delhi as well. The acquisition was sought to be defended by showing the urgency for construction of the canal and by showing the compliance of the relevant provisions of law. The feasibility of the canal on technical grounds was also defended. In response to C.W.P.No.17031 of 2005, the State of Haryana produced sketch plan showing the alignment of the canal, proposed as well as actual and also pleaded that thousands of feet in terms of length has been saved on account of re-alignment. While responding to C.W.P. No.13691 of 2006, besides controverting other averments of the petitioners, the State of Haryana specifically stated that necessary clearance from the Ministry of Environment and Forests has been taken. Having, thus, extricated the controversy from its deep mires and having particularly delineated the contours of the same, we now propose to examine the contentions raised by the learned counsel for the parties. C.W.P.No.19676 of 2005 -16- .... Shri A.K.Chopra, learned Senior Advocate appearing for some of the petitioners, contended that the action of the State of Haryana to carry out the construction of the canal in question is contrary to the provisions of the 1974 Act as the scheme for doing so was never prepared and published in compliance of Sections 17 and 18 thereof. He further contended that the acquisition of land of the petitioners by resorting to the emergency provisions was a colourable exercise of power and that no proper procedure regarding publication of the notifications was followed. Besides, the public purpose so stated in the notifications can hardly be termed to be a public purpose and even if, it is assumed that it is a public purpose, the same stands already served with the existence of Satluj Yamuna Link Canal. He argued that there was no urgency in the project which could justify the acquisition on emergent basis. Learned counsel contended that Section 5-A of the 1894 Act is akin to fundamental right and it cannot be dealt with so lightly so as to warrant it being dispensed with by resorting to the provisions of Section 17. Lastly, learned counsel urged that no permission from the Central Government, Central Water Commission, Railway authorities and other such affected authorities, as also the environmental clearance, was taken before initiating the process. In support of his contentions, learned counsel placed reliance on the following judgments:- (i)Narayan Govind Gavate etc. Versus State of Maharajsthra and others, AIR 1977 S.C. 183. (ii)The State of Punjab and another Versus Gurdial Singh and others, AIR 1980 S.C. 319. (iii)Uday Kaushisk Versus The Land Acquisition Collector and C.W.P.No.19676 of 2005 -17- .... others, AIR 1988 Delhi 101. (iv)Gurdev Singh and others Versus State of Punjab and others, 1995 P.L.J. 432. (v) Deepak Bhardwaj and others Versus Union of India and others, 2001(2) L.A.C.C. 482. (vi)Union of India and others Versus Mukesh Hans, 2004(8) S.C.C. 14. (vii)Hindustan Petroleum Corp.Ltd. Versus Darius Shapur Chenai and others, 2005(7) S.C.C. 627. Learned counsel for the petitioners in C.W.P.No.13691 of 2006 also contended that the project of this nature necessarily involves the clearance from the Central Government and that the construction of the canal is likely to cause a serious hazard to the entire environment in the region. Learned counsel appearing for other petitioners adopted the arguments advanced before us and noticed hereinabove. The contentions of the learned counsel for the petitioners were stoutly resisted by Shri H.S.Hooda, learned Advocate General, Haryana appearing for the State and its functionaries. He contended that the petitioners are guilty of concealment of facts as C.W.P.No.13404 of 2005 was filed challenging only the non-publication of the scheme. The said writ petition was filed on 22.8.2005 when the notification under Section 4 of the 1894 Act had already been published in the official gazette on 18.8.2005. The factum of acquisition was known to the petitioners, which can be inferred from the averments made in para 6 of that writ petition where they C.W.P.No.19676 of 2005 -18- .... talk about the impending acquisition by averring that “while issuing notification under Section 4 of the Land Acquisition Act,1894, approximately three acres of land at that point would be notified.” In any eventuality, the notification having been published was in the knowledge of the petitioners and further the writ petition came up for hearing for the first time before this Court on 29.8.2005 and by that time, the publication of the notification under Section 4 of the 1894 Act had already been made on 18.8.2005/23.8.2005 in two leading newspapers, i.e., The Indian Express and The Daily Tribune and the contents of the notification had also been affixed in the local affected area and munadi also done as a measure of compliance of the requirement of law. The factum of acquisition being known to them and the same having not been challenged in the first instance when C.W.P.No.13404 of 2005 was filed, the petitioners in the subsequent writ petition, i.e., C.W.P.No.16212 of 2005 in which Phul Singh is also a petitioner (and in fact, all the petitioners were the same), were precluded from laying a challenge to the notifications. The petitioners could have amended the first writ petition, but could not have filed a second writ petition. It was then pointed out by the learned Advocate General that from amongst all the petitioners in the aforesaid three writ petitions, except one Pritam Singh son of Hardev Singh, have accepted the compensation and have, thus, acquiesced to the acquisition. In C.W.P.No.19676 of 2005, eight of the nine petitioners have already accepted the compensation, whereas the sole petitioner in C.W.P.No.9297 of 2006 has also received the compensation for his acquired land. Thus, they have no right to challenge C.W.P.No.19676 of 2005 -19- .... the acquisition. He also pointed out that C.W.P.No.19820 of 2005 was originally filed