IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.13839 of 2008 Date of decision: 28.01.2011 Singh Raj …..Petitioner versus State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.M.L.Sarin, Senior Advocate with Mr.Avi Singh & Mr.Nitin Sarin, Advocates Mr.Shailendra Jain, Advocate Mr.D.S.Patwalia, Advocate Mr.Sanjay vashisth, Advocate for the petitioners Mr.Kamal Sehgal, Addl.A.G.Haryana Mr.Manish Bansal, Advocate for the respondents in CWP Nos.13839 & 15087 of 2008 Mr.Sidharth Batra, Advocate for the respondents in CWP Nos.18040 & 18259 of 2008 Mr.Amit Sharma, Advocate for Mr.Arun Walia, Advocate for HUDA Jasbir Singh, J. This order will dispose of 13 writ petitions bearing CWP Nos.13839, 15087, 18040, 18259 of 2008, 6809, 11362, 11459, 11464, 11736, 14198 of 2009, 2255, 5365 of 2010 and also CWP No.1912 of 2010, involving similar questions of law and facts. For the purpose of dictating order, facts are being mentioned from CWP No.13839 of 2008. The petitioner in this writ petition has laid challenge to notifications dated 24.6.2008 and 14.7.2008, issued under Sections 4 and 6 Civil Writ Petition No.13839 of 2008 of the Land Acquisition Act, 1894 (in short, the Act) read with Section 17 (1) and 17(4) of the Act, to acquire land measuring 305.25 acres for a public purpose, namely, for the development and utilization of land for sector roads for Sectors 58 to 67 at Gurgaon. It is case of the petitioner that he is owner of land measuring 17 kanals 6 marlas, comprised in khewat / Khata No.140, 184, 216, Rect. No.21, Killa Nos.21/1(3-11), Rect. No.41, Killa No.5/2 (3-4), 6/1/1(1-9), 6/2/1 (1-9), Rect. No.42, Killa No.1/1(4-0), 10/3(3-13), situated at village Ghata, Tehsil Sohna, District Gurgaon. It is his further case that in land measuring about 3 kanal 2 marla falling in khasra No.21/1(3-11), he has constructed his residential house, a smadhi with a boundary wall. He has also installed a tubewell and planted an orchard in land measuring 3 kanal 13 marlas. The petitioner acquired ownership of the land by way of a release deed dated 3.12.2007. Part of the land is also used for agricultural pursuits. It is case of the petitioner that if acquisition under challenge is allowed to be concluded, it will result into demolition of his constructed house and will also ruin his orchard etc. In this case, initially 321.47 acres of land was proposed to be acquired under Section 4 of the Act, issued on 24.6.2008, declaration was issued on 14.7.2008 for that very land, however, award was passed on 12.8.2009 only qua land measuring 305.25 acres. Notice to take possession was issued on 15.7.2009. Compensation amount was deposited with the competent officer by the respondent-State on 8.7.2009. The petitioner filed this writ petition on 6.8.2008 and vide order dated 10.12.2008 his dispossession from the land under acquisition was stayed. A reading of the paper book indicates that primary grievance of the petitioner is with regard to invocation of the provisions of Section 17 of 2 Civil Writ Petition No.13839 of 2008 the Act, dispensing with filing of objections under Section 5-A of the Act, by the land owners, whose land was going to be acquired. It is further averred that as per Government Standing Order No.28, it was not open to the respondents to acquire land under smadhi. Regarding objection to the application of the provisions of Section 17 of the Act, it was stated in paragraph Nos.11 to 16 of the writ petition that there was non-application of mind to invoke the above said provisions and further that there was no emergency which could not have brooked a delay of 30 days only to provide an opportunity to the land owners to submit objections to the proposed acquisition. It was further alleged that before ordering acquisition of land, no survey was conducted. Upon notice, reply was filed by the respondents, wherein an attempt was made to justify the acquisition of land by invoking the emergency provisions under Section 17 of the Act. It was stated that the proposal to acquire land for roads falling in Sectors 58 to 67 was forwarded to the respondents by the District Town Planner vide memo No.1434 on 12.3.2008, as per provisions of Draft Development Plan, Gurgaon Manesar Urban Complex, 2021, which was published on 22.6.2006. Final Development Plan 2021 was published on 5.2.2007. It is stated that from perusal of the said Plan, it becomes apparent that sector roads for the sectors falling towards southern part, in the immediate vicinity of the already developed sectors, was required for extending the road linkage for development of new sectors of Gurgaon. It was further stated that unless roads are constructed, the provisions of infrastructure services cannot be laid, without which development of the new sectors cannot be undertaken. It was further stated that most of the area was taken in possession and development work had already started thereon and dispute only remains 3 Civil Writ Petition No.13839 of 2008 with regard to 23.86 acres, which is pending litigation in this Court. It was further stated that land of the petitioner falls within 60 meter right of way (ROW) of sector road of sector 58 which will serve as a vital link to connect two major 90 meter wide roads. Invocation of emergency provision was justified by stating as above. Mr.Shailendra Jain, Advocate has vehemently contended that right given to the land owners under Section 5-A of the Act is akin to the fundamental rights, it cannot be taken away unless there exists real emergency/ urgency to acquire the land. To take away that right, conscious decision is required to be taken. By making reference to the provisions of Section 17 of the Act, he further argued that there is a need of application of mind at two stages i.e. firstly, to invoke the provisions of Section 17(1) of the Act and thereafter, to take away right conferred upon the land owner under Section 5-A of the Act, to invoke the provisions of Section 17(4) of the Act. It is his case that at no point, mind was applied by the authorities to invoke the above said provisions. It is his further case that before issuance of this notification, to develop sectors 58 to 67, not a single inch of land was acquired by the respondents and also there was no plan for sectoral development in that area. Besides as above, Mr.M.L.Sarin, Senior Advocate, who has put in appearance in CWP No.6809 of 2009, on behalf of the petitioner, has argued that before start of acquisition, environmental clearance has not been taken from the competent authority and as such, acquisition is vitiated. It was his further case that acquisition has been made to favour a developer. Mr.D.S.Patwalia, Advocate, who has put in appearance for the petitioner in CWP No.5635 of 2010, argued that there was non-application of mind by the Collector when ordering acquisition of the land, the 4 Civil Writ Petition No.13839 of 2008 petitioner in that case had constructed building in the year 1994, after getting a change of land use certificate, occupation certificate was granted in the year 1995, however, in the alleged survey report, it is mentioned that land of the petitioner was lying vacant. By stating as above, a prayer has been made that the notifications under challenge be quashed. In CWP No.1912 of 2010, Final Development Plan 2021 AD for Gurgaon Manesar Urban Complex is under challenge. Mr.Sareen, appearing for the petitioner has vehemently contended that the Master Plan has been prepared without conducting a proper survey. It was not khasra no. based. Detail of the land of each individual land owner was not given. It was specifically stated by Mr.Sareen, at the time of arguments, that he has no objection to the procedure adopted regarding publication etc. of the master plan, however, the petitioner failed to file objections because description of his land was not given when draft master plan was published in the year 2006, which led to the all confusion. The petitioner came to know about publication of the master plan when reply was filed by the respondents in CWP No.13939 of 2008 which was filed by the petitioner to assail acquisition of his land for the sector roads. In reply, Mr.Sehgal has stated that invocation of emergency provisions, to acquire the land was real and it was done with a view to ensure fast development of sectors 58 to 67. Infrastructure was to be provided first, only then development of rest of the area was possible. He further stated that on most of the acquired land work to provide roads is near completion, the petitioners are owners of only fraction of the total land under acquisition, as such, at this stage no relief can be given to them. To oppose objections of the petitioner to the master plan, it was argued that as the petitioner has not filed any objection to the draft master plan. Challenge 5 Civil Writ Petition No.13839 of 2008 at this stage is a delayed one, and appears to have been made, only with a view to support case of the petitioner for quashing of acquisition, it is prayed that the writ petition be dismissed. Before proceeding further to decide points in issue, it is necessary to note down relevant provisions of Sections 5-A and 17 of the Act. The same reproduced as under:- 5A. Hearing of objections. – (1) Any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days form the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under subsection (1) shall be made to the Collector in writing and the Collector shall give the objector, an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, subsection (1), or make different reports in respect of different parcels of such land, to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him. for the decision of that Government. The decision of the Appropriate Government on the objections shall be final. (3)For the purposes of this section, a person shall he deemed to be interested in land who would be entitled to claim an 6 Civil Writ Petition No.13839 of 2008 interest in compensation if the land were acquired under this Act. 17. Special powers in cases of urgency. - (1) In cases of urgency, whenever the Appropriate Government so directs, the Collector, through no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, sub-section (1), 1[take possession of any land needed for a public purpose] Such land shall thereupon vest absolutely in the Government, free from all encumbrances. (2) Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes necessary for any Railway administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river-side or ghat station, or of providing convenient connection with or access to any such station, 1[or the appropriate Government considers it necessary to acquire the immediate possession of any land for the purpose of maintaining any structure or system pertaining to irrigation, water supply, drainage, road communication or electricity,] the Collector may, immediately after the publication of the notice mentioned in sub-section (1) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances. 7 Civil Writ Petition No.13839 of 2008 Provided that the Collector shall not take possession on any building or part of a building under this sub-section without giving to the occupier thereof at least forty-eight hours’ notice of his intention so to do, or such longer notice as may be reasonably sufficient to enable such occupier to remove his movable property from such bundling without unnecessary inconvenience. (3) In every case under either of the proceeding subsections the Collector shall at the time of taking possession offer to the persons interested, compensation for the standing crops and trees (if any) on such land and for any other damage sustained by them caused by such sudden dispossession and not excepted in Section 24; and, in case such offer is not accepted, the value of such crops and trees and the amount of such other damage, shall be allowed for in awarding compensation for the land under the provisions herein contained, [(3A) Before taking possession of any land under sub-section (1) or sub-section (2), the Collector shall, without prejudice to the provisions of sub-section (3), - (a) Tender payment of eight per centum of the compensation for such land as estimated by him to the persons interested entitled thereto, and (b) Pay it to them, unless prevented by some one or more of the contingencies mentioned in Section 31, sub-section (2), and where the Collector is so prevented, the provisions of Section 31, subsection (2), (except the second proviso thereto), shall 8 Civil Writ Petition No.13839 of 2008 apply as they apply to the payment of compensation under that section. (3-B) The amount paid or deposited under sub-section (3A), shall be taken into account for determining the amount of compensation required to be tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under Section II, the excess may, unless refunded within three months from the date of the Collector’s award, be recovered as an arrear of land revenue.] (4) In the cases of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1), or subsection (2) are applicable, the appropriate Government may direct that the provisions of Section 5A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time [after the date of the publication of the notification] under Section 4 subsection (1) Section 5-A provides that any person who is interested in land under acquisition, within a stipulated period can object to the same by filing written representation before the Land Acquisition Collector, who is under an obligation to provide an opportunity of hearing to the person concerned and if need be to make a further enquiry to submit a report to the competent government regarding feasibility of acquisition of land or otherwise. Decision of the government on the recommendation made is final. Provision of Section 17 is an exception to the right of a land owner provided under Section 5-A of the Act. It confers special power on the government to 9 Civil Writ Petition No.13839 of 2008 acquire land in a case of an emergency. The cases, in which, the power can be exercised, are given in sub-section 2 of Section 17. Before taking possession, it is mandatory to offer compensation for the standing crop and payment of 80% of the compensation assessed for the land under acquisition. Sub-section 4 of Section 17 provides that in cases where emergency provision has been invoked, the government may direct that the provisions of Section 5-A shall not apply. By adopting that procedure, declaration under Section 6 of the Act to acquire the land can be issued at any time after the date of publication of the notification under Section 4 sub-section 1 of the Act. As per established law, right given to a land owner under Section 5-A of the Act, is very important and it has been held to have the flavour of fundamental rights. We are of the opinion that unless there is a real emergency, this right can not be taken away on the basis of presumption alone. Their Lordships of the Hon’ble Supreme Court in Essco Fabs Pvt. Ltd. & another v. State of Haryana and another, (2009) 2 Supreme Court Cases 377 were dealing with a similar situation and it was observed as under:- “39. It is in exercise of power of eminent domain that a sovereign may acquire property which does not belong to him. In the circumstances, as a general rule, before exercise of power of eminent domain, law must provide an opportunity of hearing against the proposed acquisition. Even without a specific provision to that effect, general law requires raising of objections by and 10 Civil Writ Petition No.13839 of 2008 affording opportunity of hearing to the owner of the property. The Land Acquisition (Amendment) Act, 1923 (Act 38 of 1923), however, expressly made such provision by inserting Section 5A in the Act. 40. It is, therefore, clear that after issuance of preliminary notification under Section 4 before and final notification under Section 6 of the Act, the Appropriate Government is enjoined to hear persons interested in the property before he is deprived of his ownership rights. But then there may be cases of `urgency' or `unforeseen emergency' which may brook no delay for acquisition of such property in larger public interest. The Legislature, therefore, thought it appropriate to deal with such cases of exceptional nature and in its wisdom enacted Section 17.” It was then observed that Section 17 deals with cases of urgency which covers the cases of sudden change in the channel of any navigable river or other unforeseen emergency. It was further held that even in such like cases of emergency or unforeseen emergency, enquiry contemplated under Section 5-A of the Act, cannot be dispensed with except otherwise on an application of mind to the facts of each case. In the case of Essco Fabs Pvt. Ltd. (supra), it was further observed as under:- “42. Sub-section (4) of Section 17 is an enabling provision and it declares that if in the opinion of the appropriate Government, the provisions of sub-section (1) or (2) are applicable, it may direct that the provisions of Section 5-A would not apply. It is, therefore, clear 11 Civil Writ Petition No.13839 of 2008 that the Legislature has contemplated that there may be `urgencies' or `unforeseen emergencies' and in such cases, private properties may be acquired. But, it was also of the view that normally even in such cases, i.e. cases of urgencies or unforeseen emergencies, the owner of property should not be deprived of his right to property and possession thereof without following proper procedure of law as contemplated by Section 5-A of the Act unless the urgency or emergency is of such a nature that the Government is convinced that holding of enquiry or hearing of objections may be detrimental to public interest.” The Hon’ble Supreme Court in Mahender Pal and others v. State of Haryana and others, AIR 2009 Supreme Court 3220, was also dealing with the invocation of the provisions of Section 17 of the Act i.e. when emergency clause can be invoked by the State authorities to acquire land of a citizen. After discussing the provisions of Section 5-A and Section 17 of the Act, it was observed as under:- “14. As an extraordinary power has been conferred upon the Appropriate Government in terms whereof the normal procedure laid down under Section 5-A of the Act could be dispensed with, the High Court, in our opinion, should have entered into the merit of the matter. [See Mahadevappa Lachappa Kinagi and Others v. State of Karnataka and Others (2008) 12 SCC 418] In Union of India and Others v. Mukesh Hans [(2004) 8 SCC 14], this Court held: 12 Civil Writ Petition No.13839 of 2008 "32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows that mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation of the Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with Section 5-A inquiry which indicates that the legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It also indicates that mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by itself be sufficient for dispensing with Section 5-A inquiry. If that was not the intention of the legislature then the latter part of sub-section (4) of Section 17 would not have been necessary and the legislature in Sections 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically Section 5-A inquiry will be dispensed with. But then that is not the language of the section which in our opinion requires the appropriate Government to further consider the need for dispensing with Section 5-A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to 13 Civil Writ Petition No.13839 of 2008 the requirement of an application of mind by the appropriate Government while dispensing with Section 5-A inquiry does not mean that in each and every case when there is an urgency contemplated under Section 17 (1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with Section 5-A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5-A but then there is a need for application of mind by the appropriate Government that such an urgency for dispensation of the Section 5-A inquiry is inherent in the two types of urgencies contemplated under Sections 17(1) and (2) of the Act." 15. In Union of India and Others v. Krishan Lal Arneja and Others [(2004) 8 SCC 453], this Court held: "16. Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the Government to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, 14 Civil Writ Petition No.13839 of 2008 however, laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a land owner of his right in relation to immoveable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The Authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the land owners and the inquiry under Section 5A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally