CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: March 7, 2011. Parties Name Martin & Harris Laboratories Limited and another ...PETITIONERS VERSUS State of Haryana and others ...RESPONDENTS CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice Rakesh Kumar Garg PRESENT: Mr. Sumeet Goel, Advocate, for the petitioners Mr. Shailendra Jain, Advocate Ms. Palika Monga, DAG, Haryana, for respondents No. 1 to 3. Mr. Kamal Sehgal, Advocate, for respondent No. 4. Jasbir Singh, J. JUDGMENT This judgment will dispose of four writ petitions, i.e., Civil Writ Petitions No. 6606 , 13866, 14717, 15566 and 9632, all of the year 2009, as common question of law and facts is involved in these cases. For facility of dictating the judgment, facts are being mentioned from Civil Writ Petition No. 6606 of 2009. Petitioners by filing this writ petition have impugned a notification issued under Section 4 of the Land Acquisition Act, 1894 (in CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -2- short the Act) on April 25, 2008, proposing to acquire 3510 Acres of land for a public purpose, namely, to set up Ch. Devi Lal Industrial Model Township to be planned as an integrated complex for industrial, commercial and other public utilities in villages Fazilwas, Kukrola, Kharkhi, Bas Lambi, Mokalwas, Seharavan, Fakharpur, tehsil and district Gurgaon. The project was to be undertaken by the Haryana State Industrial Development Corporation Limited ( respondent No. 4). Further challenge has been laid to a notification issued under Section 6 of the Act on March 9, 2009 and April 22, 2009 showing intention of the respondent – authorities to finally acquire the land measuring 2297 Acres (approximately). It is necessary to mention here that the petitioners are the owners of land measuring 31 Kanals and 5 Marlas and it was made the subject matter of notification issued under Section 4 of the Act on April 25, 2008. Vide impugned notification dated March 9, 2009, for the above said purpose, petitioners' land measuring 27 Kanals and 13 Marlas was ordered to be acquired. Rest of the land was acquired vide notification dated April 22, 2009. The latter notification was challenged before this Court by many land owners and a Division Bench of this Court disposed of those writ petitions by passing an order on February 3, 2011, in CWP 6166 of 2010 (Brahm Dutt and others v. State of Haryana and others). In view of above, so far as about 5 Kanals of land is concerned, the petitioners may get relief, if any, from the authorities as per ratio of the judgment in Brahm Dutt's case (supra). Dispute remains only with regard to 31 Kanals and 5 Marlas of land, which was ordered to be acquired vide notification dated April 25, CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -3- 2008, issued under Section 4 of the Act and notification dated March 9, 2009, issued under Section 6 of the Act. It is stated by the petitioners that they have established a pharmaceutical manufacturing unit after getting 'change of land use' certificate in the year 1995. It was specifically averred that without deciding the objections filed by the petitioners under Section 5- A of the Act, notification under Section 6 of the Act has been issued to acquire 19 Acres, 5 Kanals and 14 Marlas of land. It is further stated that earlier also, an attempt was made to acquire the running unit of the petitioner by issuing a notification under Section 4 of the Act on December 14, 2006. A declaration under Section 6 of the Act was issued on January 2, 2008. Petitioners came to this Court by filing CWP No. 6894 of 2008 and laid challenge to the above said notifications. On July 14, 2008, the above said writ petition was disposed of by taking note of a fact that a notification issued under Section 6 of the Act on January 18, 2008, had lapsed and a fresh notification had already been issued under Section 4 of the Act on May 14, 2008 to acquire the land in question. The writ petition was disposed of, giving liberty to the petitioners to lay challenge to the fresh acquisition. By making reference to various letters/ applications written to the Land Acquisition Collector demanding a copy of an order passed on objections filed by the petitioners under Section 5-A of the Act, it is stated that after giving a personal hearing, no decision was taken on objections filed by the petitioners before issuance of notification under Section 6 of the Act on March 9, 2009. When notice of motion was issued on May 1, 2009, following contention of counsel for the petitioners was noticed by this Court: CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -4- “The petitioners are aggrieved by the issuance of notifications under Section 4 and 6 of the Land Acquisition Act vide which the land of the petitioners have been acquired for setting up an industrial township at village Fazilwas, District Gurgaon. Learned counsel submits that after the issuance of notifications under Section 4 of the Land Acquisition Act, the petitioners filed objections under Section 5-A but without deciding the same, as is clear from Annexure P-15, the Notification under Section 6 of the Act has been issued. Learned counsel submits that it was incumbent upon the State to first dispose of the objections one way or the other and only thereafter could be the Notification under Section 6 of the Act have been issued.” Upon notice reply has been filed by the respondents, wherein it is specifically stated that the land, which was subject matter of the impugned notifications, is going to be used for an interchange at the crossing of Kundli Manesar Palwal (in short KMP) Express Way and National Highway No. 8. Thereafter, by filing applications and replications to the written-statements, an attempt was made by the petitioners to assail the acquisition on a ground that public purpose for which land was proposed to be acquired under Section 4 of the Act on April 25, 2008, was changed when notification under Section 6 of the Act was issued on March 9, 2009. It is contention of counsel for the petitioners that such a change was not permissible and on account of that, acquisition cannot be sustained. It was also claimed by the petitioners through the above said applications CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -5- that a similar treatment, which was given to the other Industrial Units by allotting alternatives sites/ land, be also extended to them. In response to the averments made by the petitioners, it has been pleaded by the respondents that the land, which is the subject matter of dispute in this case is going to be used for the purpose for which it was proposed to be acquired when a notification was issued under Section 4 of the Act and the public purpose was not changed, as alleged by the petitioners. It was further stated that due to some inadvertent mistake committed by the Public Information Officer, it was wrongly stated that a decision has not been taken on objections filed by the petitioners under Section 5-A of the Act before issuance of a notification under Section 6 of the Act on March 9, 2009. By placing reliance upon the site plan Annexure R4/1, an attempt is made to show that the land owned by the petitioners falls in the road alignment and an inter-section is to be constructed at the crossing of KMP Express Way and National Highway No. 8. Heard counsel for the parties. Counsel for the petitioners has vehemently contended that before issuance of a notification under Section 6 of the Act on March 9, 2009, no decision was taken on objections filed by the petitioners under Section 5-A of the Act. To say so, reference has been made to a letter dated March 26, 2009, wherein SPIO -cum- Chief Town Planner in response to an application written by the petitioner under the Right to Information Act, 2005, has stated that no decision has yet been taken on objections filed by the petitioner. It is an admitted fact that on receipt of objections under Section CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -6- 5-A of the Act, an opportunity of personal hearing was granted to the petitioners. In reply filed on behalf of respondent No. 3, it is stated as under: “As a matter of fact, inadvertently, the State Public Information Officer in the office of respondent – Corporation had supplied incorrect information to the petitioners, otherwise the objections filed against the notification dated 25.4.2008 on behalf of the petitioner – company under section 5A of the Act had been decided prior to issuance of notification dated 9.3.2009 under section 6 of the Act. The error on the part of State Public Information Officer in the office of respondent – Corporation had crept in due to a communication gap, while processing the request on behalf of the petitioner – company for information under the Right to Information Act.” Thus we do not agree with the averment made by the petitioners that decision was not taken on objections filed by them before issuance of a notification under Section 6 of the Act. Further contention of counsel for the petitioners is that when notification under Section 6 of the Act was issued, the public purpose was changed. Therefore, the acquisition is liable to be set aside. To say so, reference was made to the contents of a notification issued under Section 4 of the Act, wherein it is mentioned that the land was proposed to be acquired for setting up of Ch. Devi Lal Industrial Model Township whereas land is going to be used for an interchange/ right of way to be constructed at the crossing of KMP Express Way and National CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -7- Highway No. 8. We are of the view that the argument raised is not justified. In declaration issued on March 9, 2009, it is mentioned that the land is going to be acquired for a public purpose for setting up Ch. Devi Lal Industrial Model Township to be planned as “an Integrated Complex for Industrial, Commercial and other Public Utilities” in several villages of district Gurgaon. Same was the purpose when a notification was issued under Section 4 of the Act. In the reply filed by respondent No. 3, it is specifically stated that 27 Kanals and 13 Marlas of land is needed for construction of an inter-change on KMP Express Way and National Highway No. 8. How and under what circumstances construction of KMP Express Way conceptualized, it was stated as under: “(a) That in order to decongest Delhi of the traffic, which is not destined for Delhi, the Western and Eastern Peripheral Expressways (WPE & EPE) around Delhi are being constructed as per the direction passed by the Hon'ble Supreme Court in Writ Petition (Civil) No. 13029 of 1985 – M.C. Mehta v/s Union of India and others. (b) That the progress of construction of these expressways is being monitored by Hon'ble Supreme Court of India through a Monitoring Committee under the Chairmanship of Secretary, Department of Road Transport & Highways, Government of India with Chief Secretaries of Delhi, Haryana & U.P., Chairman, Environment Pollution & Control Authority (EPCA) & Chairman, National Highways Authority of India as CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -8- members. Monitoring Committee meetings are being held regularly and bimonthly progress report is being filed by monitoring committee in the Hon'ble Supreme Court of India. (c ) That the respondent – Corporation has been made executive agency for construction of WPE and NHAI has been made executing agency for EPE. Both the expressways are to be constructed on Built, Operate and Transfer (BOT) basis. (d) That as per the order dated 18.8.2005 passed by the Hon'ble Supreme Court of India, in IA No. 182 in CWP © No. 13029/1985, the Monitoring Committee is to take all the decisions in the technical or financial or any other matter in relation to the projects. The operative part of the said order of the Hon'ble Supreme Court is reproduced hereunder for kind perusal of this Hon'ble Court: “...........having regard to the nature of the project and the desirability of its completion within the stipulated period, we deem it expedient to appoint a Monitoring Committee to take all decisions whether be it in respect of technical or financial matter or any other matter in relation to the projects in question. The Monitoring Committee shall comprise of Secretary of the concerned Ministry dealing with construction of Highways as its Chairperson with Chief Secretaries of U.P., Haryana and Delhi and Chairman, NHAI and Chairman, EPCA, Mr. Bhure Lal, as members of the Committee. We leave it to the Chairman of the Committee to appoint an appropriate officer to act as CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -9- member Secretary of the Monitoring Committee. The Monitoring Committee shall file progress report giving upto date status in this Court every six weeks. The decisions taken by the Monitoring Committee shall be acted upon by all concerned States or agencies in connection with the projects under construction. We give liberty to the Monitoring Committee to seek further direction from this Court, if need be....” (e) That alignment of WPE & EPE has been finalized in the monitoring committee. Both the expressways start at km 36.083 on National Highway No. 1 (NH-1) at Rai near Kundli, Distt. Sonipat and terminate at km 64.33 on NH-2 near Palwal. This runs west of Delhi in Haryana starting from NH-1, 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. It runs east of Delhi through Haryana and U.P. (f) That the work of WPE has already been awarded to the Concessionaire with a concession period of 23 years 9 months including 3 years of construction period. The date of start was 31st July, 2006. The scheduled date of commercial operation was 29th July, 2009, which is to be further extended. The work is in progress and the concessionaire has already achieved a progress of 25% at site. (g) That as per concession agreement with the Concessionaire CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -10- the land for construction of Expressway including interchanges is to be handed over to the concessionaire by the respondent – Corporation free of cost. The 3354 acres land of 100 meters wide Right of Way (ROW) for the WPE has already been acquired under emergency provisions of Land Acquisition Act, 1894 and handed over to the concessionaire. The land acquisition process of about 500 acres for construction of various interchanges (structures for changing of traffic from/to existing highways to expressway) is in progress after finalization of concept design of these interchanges with concerned authorities. The Hon'ble Supreme Court vide order dated 11.3.2005, has also observed that after identification of the alignments it may be necessary to issue further directions to ensure uninterrupted land acquisition process.” A reading of the contents of the reply, mentioned above, clearly indicates that the construction of KMP Express Way was thought of to remove congestion from Delhi. The work is going on under the direct supervision of Hon'ble the Supreme Court. It is nobody's case that to harm interest of the petitioners and to benefit anybody else, alignment of the road was changed. The development is going on under supervision of a Committee constituted by the Hon'ble Supreme Court. In the notifications issued under Sections 4 and 6 of the Act, it is clearly mentioned that the land was proposed to be acquired to set up an Industrial Model Township, which is to be planned as an integrated complex for industrial and CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -11- commercial purposes. It is also coming out from the notifications that the land was acquired to use it for other public utilities, which definitely include construction of a road, i.e., KMP Express Way to facilitate development of an industrial township by making its access very convenient. Once it has come on record that the land was also acquired for the purpose of other public utilities other than to use it for an Industrial Model Township, contention raised by the counsel for the petitioners is liable to be rejected. Be that as it may, without accepting any averment made by the counsel for the petitioners, for the sake of arguments, even if it is admitted to the contrary, no relief can be given to the petitioner as a change in the public purpose mentioned in Section 4 of the Act while issuing notification under Section 6 of the Act is permissible as per judgment of the Hon'ble Supreme Court in D,Hanumanth Sa and others v. State of Karnataka and others, (2010) 10 Supreme Court Cases 656. Relevant paragraphs of the judgment read thus: “9.The counsel appearing for the appellants submitted that the notification issued by the respondent under Section 4 was vague and the purpose for which the land was sought to be acquired as disclosed from the entire records of the proposed acquisition including the said notification was different than what was sought to be stated in the notification under Section 6. It was also submitted that the Government had failed to give detailed reasons for issuing the said notifications to satisfy that the land was required for public purpose, particularly when the Land Acquisition Officer had given his reasons to indicate that CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -12- the purpose for which the land is sought to be acquired was not justified in the facts and circumstances of the case. 10. In order to appreciate the aforesaid contentions raised, we have considered all the notifications relevant to the facts and circumstances of the case and also relevant records useful for our purpose. 11. In the notification issued under Section 4(1) which is dated 14.10.1992, it is specifically stated that the State of Karnataka required the land under acquisition for a specific public purpose, viz., for the benefit of Karnataka State Road Transport Corporation. The part of the notification invoking the provisions of Section 17(4), viz applying the urgency requirement of the Government was set aside by the writ court which became final and binding and we are not required to address the aforesaid issue. But, so far as the requirement of the land for public purpose is concerned, the same was necessarily for a public purpose, viz., for the benefit of Karnataka State Road Transport Corporation. 12. The counsel appearing for the appellants however drew our attention to the proceedings regarding acquisition of 7 acres 15 guntas of land. We have perused the said copies of the proceedings also. In the said proceedings, it was stated that in order to meet the increasing traffic in the surrounding area of Bangalore city, and also with a view to provide better transport service to the public, it is proposed by the Government to CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -13- establish a large workshop and city bus depot in the said land and also for establishment of residences to workers, training centre and others are also proposed to be undertaken and in order to construct/form the road the said land is required. The said proceedings on careful analysis would also indicate that the land which was sought to be acquired also figured in a comprehensive plan for construction of a road as also workshop and residential building of the staff of KSRTC. The said fact also came to be reiterated by the State Government by filing an affidavit wherein it is stated that the entire land in dispute is in fact required not only for making an approach road but also for building a workshop and staff residential quarters. 13.The aforesaid reasons and the purpose for which the land was sought to be acquired is definitely of a public character and therefore, the respondent-State Government, in our considered opinion, is fully competent to issue such a notification under Section 4 as also under Section 6 of the Land Acquisition Act. In view of ratio of the above judgment, no benefit can be given to the petitioners even on that count. Further contention of counsel for the petitioners is that respondent No. 4 as per provisions of its Memorandum of Association, cannot do any commercial activity, including work to construct a road. To say so, reference has been made to sub-clause 19 of clause III-A of the above said memorandum, which reads thus: CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -14- “To acquire lands for integrated industrial, housing and related social, institutional, recreational and commercial infrastructure or any other infrastructure essential for promotion and growth of industry in the State of Haryana and develop them suitably by providing communication, power supply, water supply and other facilities at places determined by the Company and make them available on such terms and conditions as may be agreed upon to by any individual, firm, company, association or concern for the purpose of establishing a new industrial undertaking or for the purpose of shifting an existing industrial undertaking from any congested area.” A reading of the provision, mentioned above, clearly indicates that it is permissible to respondent No. 4 to undertake activities to develop an integrated industrial, housing infrastructure and other related subjects for the promotion and growth of industries in the State of Haryana. Respondent No. 4 is permitted to provide facilities for communication, power supply, water supply etc. If that is so, we feel that in order to facilitate development of Model Industrial Township, construction of a road is must and it was open to respondent No. 4 to undertake that activity. Not only as above, it is apparent from the records that the land was not acquired by respondent No. 4. Rather development of Industrial Model Township is a State project and Respondent No. 4 is only to execute the work in question. If that is so, we feel that the objection raised is incorrect and is liable to be rejected. CIVIL WRIT PETITION NO. 6606 OF 2009(O&M) -15- Besides as above, it is apparent from the records that initially when notice of motion was issued on May 1, 2009, dispossession of the petitioners from the land in dispute was stayed. However, on December 15, 2009, interim order was modified as under: “Stay to continue. It is made clear that if any part of land proposed to be acquired is covered by KMP express way, stay will not debar the State from proceeding further to that extent.” Thereafter, when work on the project was started, petitioners moved applications to get an interim stay. Vide order dated February 18, 2010, those applications were dismissed. The respondents by filing their reply have specifically stated that the possession of the land was taken thereafter and it was handed over to the Concessionaire for construction of a road and the work is in progress. If that is so, at this stage, this Court feels that no interference is possible. Further contention of counsel for the petitioners is that they shall be given the same treatment which was given to the petitioners in CWPs No. 8004 of 2008 and 12165 of 2009 on May 29, 2010. Taking note of the relief granted to the petitioners in those writ petitions, vide order dated August 24, 2010, the respondents were directed to file an affidavit as to why the same relief cannot be granted to the petitioners in this case. In response thereto an affidavit dated September 6, 2010, was filed in CWP No. 9079 of 2009, copy of which has been placed on the record of the case, wherein it is stated that concession in writ petitions, mentioned above, was CIVIL WRIT PETITION