CWP No.5065 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.5065 of 2007 (O&M) Date of decision: 18.3.2011 Surinder Singh Brar & etc. ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.6038 of 2007)(O&M) Har Krishal Lal Vij ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.5384 of 2007)(O&M) Gursher Singh etc. ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.4815 of 2007)(O&M) Gopal Fastners Pvt. Ltd. ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.5325 of 2007)(O&M) Ajay Johl ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.6733 of 2007)(O&M) Ritu Joshi ......Petitioner(s) Versus Union of India and others ......Respondent(s) CWP No.5065 of 2007 (O&M) 2 (CWP No.6734 of 2007)(O&M) Surinder Pal Singh and another ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.4577 of 2007)(O&M) S.S. Sandhu ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.4578 of 2007)(O&M) Hardyal Singh Johl and others ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.8689 of 2007)(O&M) Harvinder Pal Singh and others ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.7829 of 2007)(O&M) Mohit Pratap Singh and others ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.6431 of 2007)(O&M) Darshi Narang and others ......Petitioner(s) Versus Union of India and others ......Respondent(s) CWP No.5065 of 2007 (O&M) 3 (CWP No.6780 of 2007)(O&M) Sadhu Singh and others ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.6781 of 2007)(O&M) Rakesh Mohan Kumar ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.6784 of 2007)(O&M) Balbir Singh Malik and another ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.6785 of 2007)(O&M) Chander Sikri and another ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.11236 of 2007)(O&M) Bhupinder Pal Kaur ......Petitioner(s) Versus U.T of Chandigarh and others ......Respondent(s) (CWP No.11250 of 2007)(O&M) Vikas Mahajan and another ......Petitioner(s) Versus Union of India and others ......Respondent(s) CWP No.5065 of 2007 (O&M) 4 (CWP No.11532 of 2007)(O&M) Balwinder Singh and another ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.7820 of 2007)(O&M) Gurbrinder Kaur Brar and another ......Petitioner(s) Versus Union of India and others ......Respondent(s) (CWP No.12779 of 2004)(O&M) Milkha Singh ......Petitioner(s) Versus Union of India and others ......Respondents (CWP No.759 of 2007)(O&M) Silver City Housing and Infrastructure ......Petitioner(s) Versus Union of India and others ......Respondents (CWP No.5192 of 2008)(O&M) Gian Chand Thakur and others ......Petitioner(s) Versus U.T of Chandigarh and others ......Respondents (CWP No.9039 of 2007)(O&M) Sawaran Bal and others ......Petitioner(s) Versus UOI and others ......Respondents CWP No.5065 of 2007 (O&M) 5 (CWP No.11680 of 2006)(O&M) Ranjit Singh and others ......Petitioner(s) Versus Chandigarh Administration and others ......Respondents (CWP No.8545 of 2004)(O&M) Gurbinder Kaur Brar and another ......Petitioner(s) Versus Union of India and others ......Respondents (CWP No.11516 of 2007)(O&M) Raminder Singh Aulakh and others ......Petitioner(s) Versus Union of India and others ......Respondents (CWP No.11447 of 2007)(O&M) Krishna Devi ......Petitioner(s) Versus Union of India and others ......Respondents (CWP No.2832 of 2008)(O&M) Sohan Lal ......Petitioner(s) Versus Union of India and others ......Respondents (CWP No.5880 of 2009)(O&M) Gursher Singh and another ......Petitioner(s) Versus U. T of Chandigarh etc. ......Respondents CWP No.5065 of 2007 (O&M) 6 (CWP No.12218 of 2006)(O&M) Balraj Singh and others ......Petitioner(s) Versus State of Punjab and etc. ......Respondents (CWP No.12499 of 2006)(O&M) Mohinder Singh and others ......Petitioner(s) Versus Chandigarh Administration and others ......Respondents (CWP No.6409 of 2007)(O&M) Kuldip Singh Kahlon and another ......Petitioner(s) Versus Union of India and others ......Respondents (CWP No.5802 of 2008)(O&M) Sushil Kumari ......Petitioner(s) Versus U.T Chandigarh and others ......Respondents (CWP No.5840 of 2008)(O&M) Kanwaljit Kaur and others ......Petitioner(s) Versus U.T Chandigarh and others ......Respondents (CWP No.6077 of 2008)(O&M) Harbhajan Singh and others ......Petitioner(s) Versus Union of India and others ......Respondents CWP No.5065 of 2007 (O&M) 7 (CWP No.6316 of 2008)(O&M) Surmukh Singh and others ......Petitioner(s) Versus Union of India and others ......Respondents (CWP No.6439 of 2008)(O&M) Anup Kaur and another ......Petitioner(s) Versus U.T Chandigarh and others ......Respondents (CWP No.2295 of 2009)(O&M) Shamsher Singh ......Petitioner(s) Versus Union of India and others ......Respondents (CWP No.6906 of 2009)(O&M) Daya Singh and sons (HUF) ......Petitioner(s) Versus U.T of Chandigarh ......Respondents CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. G.S. Grewal, Senior Advocate with Ms.Tanisha Peshawaria, Advocate, Mr. Ashok Aggarwal, Sr. Advocate with Mr. Jaskirat Singh Sindhu, Advocate. Mr. Puneet Bali, Advocate and Mr. Shaurya Sharma, Advocate, Mr. Ashwani Talwar, Advocate, Mr. Ashwani K. Chopra, Sr. Advocate with Ms. Garima Advocate, Mr. Arun Palli, Sr. Advocate with Mr. Tarun Vir Singh Lehal, Advocate, Mr. Deepak Sibal, Advocate, Mr. M.L.Sarin, Sr. Advocate with Mr. Hemant Sarin, Advocate, for the petitioner(s). Mr. K.K. Gupta, Additional Standing counsel for U.T. CWP No.5065 of 2007 (O&M) 8 Chandigarh and Chandigarh Housing Board. Ms. Lisa Gill, Advocate and Mr. Vishal Sodhi, Advocate, Standing counsel for U.T. Chandigarh. Mr. Akshay Bhan, Advocate, Dr. Urmila Gupta, Mrs. Kamla Malik, Advocate and Mr. Ashwani Bansal, Advocate for Union of India. Rakesh Kumar Garg, J. This judgment shall dispose of a bunch of 40 writ petitions i.e. 5065 of 2007, 8545, 12779 of 2004, 11680, 12499, 12218 of 2006, 4577, 6431, 11250, 6409, 9039, 5384, 4815, 11236, 11532, 8689, 6781, 6038, 6780, 759, 11516, 5325, 7829, 4578, 7820, 11447, 6733, 6734, 6784, 6785 of 2007, 6077, 6316, 5802, 5840, 2832, 5192, 6439 of 2008, 2295, 6906, 5880 of 2009 as acquisition of land made by the respondents vide impugned notifications issued under Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the ‘Act’) dated 2.8.2006 and 28.2.2007 respectively, (hereinafter mentioned as Phase III acquisition) and notifications dated 1.10.2002 and 29.9.2003 respectively (known as Phase-II acquisition) on similar grounds and facts. However, the facts are taken from CWP No.5065 of 2007 which has been treated as a lead case vide order dated 27.1.2011. The petitioners are the owners of agricultural land which has been acquired by the respondent-Chandigarh Administration for a public purpose i.e. “the provision of city level infrastructure, the regulated urban development of the area between Chandigarh and Manimajra, the planned development and expansion of Chandigarh Technology Park and the protection of the ecology and environment of the Sukhna Choe watershed”. For the above said purpose, Chandigarh Administration issued notification under Section 4 of the Act, dated 26.6.2006, 2.8.2006 and 1.10.2002 CWP No.5065 of 2007 (O&M) 9 declaring its intention to acquire land measuring 104.83 acres, 167.50 acres in Phase-III and land measuring 575 kanals 13 marlas for Phase-II acquisition respectively. Objections were invited under Section 5-A of the Act from the respective land owners and thereafter, impugned notifications under Section 6 of the Act were issued declaring that the land stood acquired for the aforesaid purposes. The land owners have filed these writ petitions challenging the acquisition proceedings on various grounds. Vide order dated 3.4.2007, notice was issued to the respondent-Administration and dispossession of the petitioners from the land in question was stayed. It may also be relevant to mention that during the pendency of the writ petitions, two awards were passed by the respondents on 7.3.2008 and 26.2.2009 for Phase III acquisition and thereafter, the petitioners amended their writ petitions. It is the specific case of the petitioners that they have not accepted and received the compensation as awarded by the respondent-Administration. Award was passed for the lands under Phase-II acquisition on 15.12.2004. In the writ petitions, challenge has been laid to the impugned acquisition on the grounds that the public purpose mentioned in the impugned notifications for acquisition of land is vague and in the absence of a definite plan, it was not possible for the right-holders to raise effective objections against the same and therefore, a valuable right under Section 5-A of the Act has been denied to the petitioners. The impugned acquisition has also been challenged on the ground that the same does not meet the requirement of Article 31-A of the Constitution of India and the procedure adopted by the Administration for acquisition of the land is contrary to the principles of natural justice and rule of law. A further ground CWP No.5065 of 2007 (O&M) 10 has been taken to challenge the acquisition that the same will disturb the ecological balance of the area and play havoc with the environmentally fragile area and the wildlife inhabiting the reserve forest would be rendered extinct over the time and the green cover would be lost forever. Moreover, the acquired land cannot be put to use for the said public purpose without the approval and sanction under the provisions of the Forest Act. A further ground has been raised in writ petition to challenge the acquisition that there is no proper planning as no survey plan/master plan of the area under acquisition was prepared before acquiring the land in question. Moreover, most of the area already acquired for Phase-I and Phase-II of the Acquisition was still lying vacant and has not been utilized and the respondent-Administration has failed to apply the Rehabilitation and Resettlement Policy 2007 issued by the Central Government and thus, prayer has been made in the writ petitions to set aside the impugned notifications and subsequent proceedings for acquisition of the land in question. The writ petitions have been contested by the respondent- Chandigarh Administration by filing written statement submitting that the land was being acquired for a public purpose i.e. the planned development. It has been further submitted that for any planned development, land acquisition is an essential feature without which proper planning cannot take place further and to achieve this object, the land was being acquired for the public purposes as mentioned in the impugned notifications. It is further submitted in the written statement that the development of Phase-I and Phase-II of the Chandigarh Technology Park would provide a direct employment to more than 30,000 professionals and an equivalent number of professionals would be recruited in Phase-III of Chandigarh Technology Park for which purpose the present land was acquired to set up the IT CWP No.5065 of 2007 (O&M) 11 Industry to uplift the socio-economic profile of the region. The above figure of direct employment shall be further augmented by three times as each IT job creates three indirect jobs. The total investment for the Chandigarh Technology Park was close to ` 6,000 crores and Software export from the IT companies would touch to ` 4500/- crores by the end of year 2010. The project would provide better opportunities to unemployed youths, provide international standards of jobs, create new business opportunities and also improve the living standard of the people of area. With the setting up of this project, the entire region would also be benefited with the inflow of funds, taxes and revenue etc. which shall boost the socio-economic profile of the entire area. As per the written statement, the Chandigarh Administration has acquired the land measuring 104.83 acres and 167.50 acres of land falling in Hadbast No.375 in revenue estate of village Manimajra by issuing two notifications dated 26.6.2006 and 2.8.2006 under Section 4 of the Land Acquisition Act for public purposes namely:- a) For the provision of City level infrastructure; b) The regulated development between Chandigarh and Manimajra; and c) For the planned development and expansion of Chandigarh Technology Park. d) For the protection of the ecological and environment of the Sukhna Choe watershed. and that the present acquisition is in continuation of ongoing process and the present land has been acquired for the expansion of the Chandigarh Technology Park. Out of total 270 acres of land acquired under both the aforesaid notifications for Phase III, 76 acres of land will go towards open spaces, road and other common infrastructure. The acquired land would be developed with the help of Engineering Department of the Administration which will lay the access roads, internal roads, street lighting, sewerage, CWP No.5065 of 2007 (O&M) 12 drainage, public health utilities, water supply and power supply etc. for the city. The remaining land will be used exclusively for IT Industries and there would be no malls, hotels, habitat area etc. as the same have been provided in Phase-I and Phase-II of the acquisition. The challenge to the acquisition on the basis of National Rehabilitation and Resettlement Policy 2007 is misconceived as the said Policy is not applicable to the present acquisition which was initiated much prior to the issuance of the aforesaid Policy vide notification dated 31.10.2007. The entire acquisition process has been completed by issuance of notification under Section 6 of the Act on 28.2.2007 and with the passing of award dated 7.3.2008 for land measuring 104.83 acres and award dated 26.2.2009 for land measuring 167.50 acres. However, the minimum benefit of alternate accommodation to all the eligible persons whose land has been acquired in the present acquisition would be given under the scheme of Oustees framed by the Chandigarh Administration called “Chandigarh Allotment of Dwelling Units to the Oustees of Chandigarh, Scheme of 1996. It was further stated that the notifications under Section 4 of the Land Acquisition Act were duly published as per the mandatory provisions of law and thereafter, the objections filed by the land owners under Section 5-A of the Act were considered and full opportunity was granted to them to put forth their case and the objections were decided in accordance with law and thereafter, the declarations under Section 6 of the Act were issued and the awards were passed. It was also submitted that 67 objections were received. Those who filed objections, 41 of them had constructed farm houses, out of which 38 were illegal and were constructed in violation of the Periphery Act of 1952. It was also mentioned in the written statement that in one of the civil writ petition i.e. 759 of 2007 titled as 'Silver City Housing and Infrastructure Ltd. v. Union of India and others, CWP No.5065 of 2007 (O&M) 13 the petitioner has pleaded that he proposed to invest ` 100 crores for setting up the Silver City IT Park including Information Technology Mall and Multi-cum-Entertainment Centre which also includes Restaurants, Technology College, Food Courts, Two Multiplex Theater Complex and a Night club. Not only this, the said petitioner has placed on record a Memorandum of Understanding signed by it with private owners of the land in CWP Nos.11127 of 2006, 4578 of 2007 and 10177 of 2007. Thus, the petitioners who themselves wanted to set up their own IT Mall in the periphery of Chandigarh cannot challenge the acquisition made by the respondents. The apprehension of the petitioners that project would cause environment degradation is wholly misconceived as for maintaining equilibrium and pollution free atmosphere, the area of the project was being preserved by taking strenuous efforts by the respondents. Out of the total acquired land in Phase-III of the acquisition, the respondents have reserved 41.71 acres of land for developing the same as greenbelt. Thus, buffer zone on the outer periphery of the project is sufficient to maintain the area as 'Green Belt' for preservation of the land and for the development of social forestry. Apart from this, the Administration has undertaken meticulous planning for the harmonious blending of the trees and other landscape elements with the buildings. Even the Forest Survey of India has reported an increase in the forest cover from 23.5% in 1997 to 35.7% in the year 2007. Apart from enhancing the green cover, the Administration has also undertaken soil conservation and habitat improvement in Sukhna Lake over an area of 25.42 sq. kms as Sukhna Wildlife Sanctuary in the catchment area. The Administration has carried out soil conservation measures like control of inflow of silt to Sukhna Lake, construction of silt retention dams and development of waterbodies, check dams, gully plugging, choe training works, spurs and grade stabilizers and due to CWP No.5065 of 2007 (O&M) 14 tremendous improvement in the natural habitat for the wildlife, there is a proliferation of wildlife in the sanctuary. The massive afforestation supplemented with the soil conservation measures in the Sukhna catchment area have resulted in sharp decrease in the flow of silt to Sukhna Lake. The land in question is a 'Controlled Area' and was kept reserved for the future development of the city Chandigarh and the same does not attract any violation of the Article 243-P to 243-ZG of the Constitution of India for the purpose of performing functions to carry out Urban Planning including Town Planning as provided. The challenge to the acquisition on the ground of violation of Article 31-A read with second proviso of the Constitution of India is also refuted in the written statement as the rights and interest of the land owners with regard to any increase in the value of acquired land between the period from the date of publication of notification under Section 4 of the Act and to the date of taking over the possession of the land were protected by making a provision under the Land Acquisition Act, 1894, by awarding an interest. It was further submitted that the writ petitions which were filed earlier against the acquisition of land for the proposed project of Rajiv Gandhi Chandigarh Technology Park, were dismissed by this Court vide its judgment reported as Sampuran Singh and others v. U.T. Chandigarh and others 2007 (1) PLR 349, which was upheld by the Hon’ble Supreme Court. It was also submitted that the development of Phase-I and Phase-II of the RGCTP was at an advanced stage and thus, it was submitted that the writ petitions were liable to be dismissed. It may also be relevant to mention at this stage that the petitioners have also relied upon the Report on Special Audit of Chandigarh Administration conducted between 25.5.2009 to 5.6.2009 and 15.6.2009 to 22.5.2009 by the Government of India and National CWP No.5065 of 2007 (O&M) 15 Rehabilitation Policy to lay challenge to the present acquisition pointing out that the Government of India has found that there were violations in the utilization of the land acquired under Phase-I and Phase-II of the acquisition. The Union of India has also filed its reply wherein it has been submitted that an enquiry has been ordered to fix the responsibility of the erring officials of the Chandigarh Administration. The terms of reference of Inquiry are as under: “. To examine the role and extent of involvement of various officers of Chandigarh Administration in the cases of irregularities as pointed out in the Report of Special Audit conducted by a team headed by Chief Controller of Accounts(Home); . To identify the officers who were/are responsible for the irregularities pointed out in the Report of Special Audit and the lapses on their part; . To examine whether the lapses attributed to the various officers were intentional and/or clearly in excess or in violation of their entrusted responsibilities.” However, an affidavit dated 24.9.2010 has been filed by the Sh. Pradip Mehra, Advisor to the U.T. Administration Chandigarh submitting that the acquisition in question has not been considered by the Ministry of Home Affairs and neither has any such observation been forwarded to the Chandigarh Administration by the Ministry of Home Affairs to indicate that there is any infirmity in the acquisition of land in question. An affidavit of Sh. Rajiv Attri, Under Secretary to the Government of India, Ministry of Home Affairs, New Delhi has also been filed on behalf of the Union of India through the Ministry of Home Affairs. CWP No.5065 of 2007 (O&M) 16 The relevant paragraph of the aforesaid affidavit reads as under: “1. That I am competent to swear this Affidavit on oath and am well conversant with the facts of the case. I further state that I have read the contents of the present Affidavit and the same has been drafted under my instructions. The contents of this affidavit are true and correct to the best of my knowledge derived from the records and from legal advice received. 2. That the Hon'ble Court vide order dated 28.9.2010 was pleased to direct the Union of India to file an affidavit to state whether the Union of India wished the UT Administration to continue with the project/acquisition under challenge or to shelve it. Copy of the aforesaid order dated 28.9.2010 is annexed hereto as Annexure A-1. 3. The matter was thereafter taken up on 12.10.2010 whereby a short reply was filed by the Senior Standing Counsel on behalf of Union of India. The Court directed the Union of India to file a proper affidavit before the next date of listing. Copy of the aforesaid order dated 12.10.2010 is annexed hereto as Annexure A-2. 4. That pursuant to the said order, the Government of India Ministry of Home Affairs, wrote to the Adviser to the Administrator, UT Administration, UT Secretariat, Chandigarh apprising the said Adviser about the observations/conclusions of the Inquiry Officer. 5. It was further communicated to the Adviser that the Inquiry Officer's Report had been considered by the Home Ministry and in view of the observations made by the Inquiry Officer, a decision was arrived at with the approval of the Union Home Minister, that the acquisition of land for IT Park, Phase III was to be put on hold. 6. The UT Administration was further advised to develop a plan of the periphery and get it approved by the Competent Authority and also approach the Ministry of Environment & Forests to carry out prior Environment Impact Assessment in accordance with the development CWP No.5065 of 2007 (O&M) 17 plan, for any future acquisition. Copy of the communication dated 11.10.2010 is annexed hereto as Annexure A-3. 7. The land Acquisition Act, 1894, empowers the appropriate Government to take necessary action in respect of acquisition proceedings. In terms of Section 5 (ee) of the Land Acquisition Act, 1894, the expression “appropriate Government” means, in relation to acquisition of land for the purposes of the Union, the Central Government, and, in relation to acquisition of land for any other purposes, the State Government. 8. Under Notification No.SO.642(E) dated 14.8.1989, the power and functions of the appropriate Government in relation to a Union Territory have been delegated to the Administrator of a Union Territory, within the respective Union Territory under:- i) the Land Acquisition Act, 1894 (1 of 1894) except the functions exercisable by the Central Government under the proviso to sub-section(1) of section 55 of the said Act; and ii) the Land Acquisition ( Companies) Rules, 1963. The copy of the aforesaid notification is annexed hereto as Annexure A-4. 9. Notifications under Section 4(1) of the Land Acquisition Act, 1894 were issued in June-August, 2006 by the concerned officers of Chandigarh Administration with the approval of the competent authority in the UT Administration. Similarly, action under Section 5-A was taken and declarations under Section 6 of the Land Acquisition Act, 1894 were issued by the concerned officers of Chandigarh Administration. 10. The requirement of the land to be acquired for IT Park Phase-III had been worked out by the Administrator, UT of Chandigarh, who has been delegated powers of the “appropriate Government” under The Land Acquisition Act, 1894. 11. A decision to continue with this acquisition or otherwise CWP No.5065 of 2007 (O&M) 18 has to be taken by Administrator, UT of Chandigarh only who has been delegated powers of the Appropriate Government under the Land Acquisition Act, 1894 and who had taken a decision to acquire land for this purpose. The Ministry of Home Affairs (with the approval of the Home Minister) advised the Administrator, vide communication dated 11.10.2010 to put the acquisition on hold. However, the Ministry of Home Affairs cannot issue any directions to the Administrator, UT Chandigarh, on this issue.” It may be pertinent to mention at this stage that for Phase-II Rajiv Gandhi Chandigarh Technology Park land measuring 447 kanals 12 marlas was acquired vide notifications dated 1.10.2002 and 29.9.2003 issued under Sections 4 and 6 of the Act respectively and award was passed on 15.12.2004 for the same public purpose as in Phase-III acquisition. The present writ petition i.e. CWP No.5065 of 2007 in