1 t 1 64 CWPNo 10512of2009 1 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CP Noe 10512 of 2009 t Ol O l I Satbir Singh aemPetitioner Versus Stateof Haryanaand others Respondents 1 CORAM2 HONBLE MR OUSTICEtls KUMAR 0 HONBLE MRJSTICE OITENDRA CHAUHAN C Presentl Mr SP Chahar Advocatefor the petitioner C Mr KamalSehgalAddl AdvocateGeneralHaryana Z 1 To be refferedto the Reporteror not 7 m 2 Whetherthe judgment shouldbe reported in the Digest7 C X M4e KUMAReOe 08 Oo W2 The who is owner of 10 Marlasof Iandfalling Z No 145 Killa No 2612which is situatedwithin the municipal Ill Iimits of JhajjarHe has this Court with a prayer seeking of Notificationdated14112008 issuedunderSection 4 readwith Section 17 and declarationissuedon 4122008 under Section 6 readwith Section17 Pl 8 P2 of the Land Act 1894or short the Ac Further a directionhas been soughtto the to releasethe constructedhouse of the petitionerThe brief facts of the are that the has purchased the Iandin question on 1091998 by a saledeed and thus constructedthis house on the above mentionedIand afterobtainingnecessary from the Municipal Committee Jhajjar Parkash Om 2014.04.02 14: 50 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 65 CWP No 10512of2009 2 J He obtainedwater connection in May 2006 and a copy of the water bill has been placedon record P4 and P5 Likewisethe billshavealso beenplaced on record P6 and P7 In the written statementlled byLand Nos l and 2 the factumof issuanceof NotificationunderSection4 readwith Section17 of the Act and declarationissuedunderSection 6 readwith Section 17 1 of the Act has not been disputedIt has been explained that now the 0 notificationand declarationwere published in the newspaperand their 0 substance was alsonotifiedbybeatof drumin the IocalilyThe allegation of C the petitionerthat there is a discriminationin acquiringhis housewhile Ieavingthe adjoininghousefrom has been denied It has been Z assertedin Para 90f the written statement that the whole Iand of the petitionerfalls in the alignmentof the dividingroad as per approved X demarcationplan It hasalso assertedthat the road hasnot been divened 06 with the objectof avoiding of other housesbut becausethere f wasa templewhich the authority do not want to acquire W2 Z Mr S P Chahar IearnedCounsel for the petitioner hasargued tl that discriminationis writ Iargeinasmuch as the houseof the petitionerhas been subjected to acquisitionwhereasthe adjoininghouse belonging to other persons have not been acquiredHe has drawn our altention to at AnnexuresP8 and P9 Preferring to the Orst at Annexure P9 iearnedCounselhas submittedthat the house adjoining the templehas been Ieft out whereas house belonging to the petitionerhas beenacquiredThe other submissionmadebythe IearnedCounsel is that no urgencyexistedto invoke provisionsof Section 17 of the Act while issuingnotification under Section 4 and declarationunder Section 60f the Acte He has that it is onlyobliquemotive of depriving the Parkash Om 2014.04.02 14: 50 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 66 105120f2009 3 i from filingobjectionunder Section5A of the Act and grantof hearing especially when the policyof theState is to excludethe constructed area from Ivl SehgalIearnedStateCounselhas howeversubmittedthat no househasbeenexcludedfromthe which fell in the alignment of the road He placedrelianceon the averments madein para90f the m writtenstatement Oled by the Land Collectorand arguedthat 0 the allegationabout existence of a house or releasethereof have been C denied Mr Sehgalfurthersubmitsthat for of Iand C urgency can be invokedin the enquiryunderSection l of the Act can be dispensed with Z He has produced recordbefore us showingthe procedure for a 0 of the Iand Havingheard the IearnedCounselwe are of the considered O8 View thatthis petitiondeservesto succeed A perusalof the recordsshows ao that there is no instant of mind bythe competentauthority at W2 Z anystageenquiryunderSection54 of theAct bedispensed with We have Ll perused the recordsandthe notingof the Oledoesnot even show whether theIandhas beenacquiredbyinvokingurgencyprovisions under Section17 of the Act Once there is no conscious of mind withregardto dispensing withenquiryunderSection 54 of theAct then the Iaid down by the Honble SupremeCourt in the case of Mukesh HansV Union of India 2004 8 SCC 14 would become applicableIt IS to mention that in the MukeshHanss lpra case Honble the Court has taken the view that the scheme of the LandAcquisition Act doesnot permitdispensing with enquiry bySection 54 of the Act whenever provisions of Section 17 or Section 17 Parkash Om 2014.04.02 14: 50 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 67 CWPNo 10512of2009 4 P 4 of the Act are invoked There has to be a consciousdecisiontakenby theGovernmentwhetherto dispence with enquiryunderSection 5A or not Theview of their Iordships is discernablefrom para321 A carefulperusal of this provision whichis an to the normal mode of under the Act shows that mere m t existence of urgencyor foreseenemergencythough 0 is a condition for invokingSection 17 C that by itself is not sufficient to direct the C of the Section 541inquiryIt requires an opinion to be formedbythe Governmentconcerned Z that alongwith the existence of such urgency or unforeseenemergency there is also a need for with Section 54 inquirywhich indicates 06 that the intended the QO Governmentto applyits mindbeforedispensing with me3 Section54I inquiryIt also indicatesthat mere Q existence of an urgency under Section 17 or unforeseenemergencyunder Section 17 would not byitselfbe suftlcientfor dispensing with Section 5A inquiry If that was not the intention of the then the Iatter part of subesection of Section 17 would not have been necessary and the in Sections 17 and itself could have that in such situation of existence of urgencyor unforeseen emergency automatically Section 5I inquirywill be dispensed with But then Parkash Om 2014.04.02 14: 50 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 68 7 5 1 that is not the Ianguage of the section which in our opinionrequiresthe Governmentto furtherconsiderthe needfor dispensing with Section A inquiryin spiteof the existence of unforeseen This of ours as to the of an of mind by the l Government while dispensingwith 0 Section5A inquirydoesnot mean that in each and CA0 every case when there is an urgency C under Section 17 and unforeseen emergency underSection 17 existsthat byitself Z would not contain the need for dispensingwith n C Section54I inquiryIt is possible Ill a givencase the Z urgencynoticed by the Government O6 under Section 17 or the unforeseenemergency CO underSection 17 itself may be of such degree 3 that it could requirethe Government on that very basisto dispensewith the inquiryunder Section5A but then there is a needfor of mind by the Government that such an urgencyfor of the Section 51 inquiryIS inherentin the two typesof urgencies underSections17 and of the Act The aforesaidobservationmadebyHonble the SupremeCourt hasalsobeen followedand appliedbyHoble the Supreme Court in a recent renderedin the case of Essco Fabs Ltd V State of Haryana 2009 2 SCC 377 The view takenin the case of Mukesh Hans supra has Parkash Om 2014.04.02 14: 50 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 1 69 6 1 4Y 1 beenreiteratedfollowedand appliedTherefore the notif2ation Iiableto be set asideon thisshoit ground The has followedan act of releasing housefrom whichhavebeenconstructedbeforethe notiOcation issuedunderSection40f the Act In that regardwe may referto the State policyd8ted 27102007 Accordingto Clause 2 of the policy the m area hasto be excludedfrom we hold l 0 mark A that the constructedhouseof the petitioner could not havebeen 4 especially when it has not been deniedthat the constructionis C5 beforeissuanceof the notificationunderSection 4 readwith Section17 of the Act Therefore on that groundalso the writ petitiondeservesto be Z allowede m In the reasons aforementionedthispetitionsucceedsThe area of 10 Marlasfallingin Rectangle No 145 KillaNo 2612situatedwithinthe 06 Iimits of Jhajjarshall be excluded from and the Q0 notificationdated 14112008 and 4122008 to that extent are mm Z The petitioner shallbe entitledto his cost which are assessedto be Rs 100001 A draft of Rs 10000 be prepared in the nameof the and sent to him under postwithin a periodof one monthfromthe receiptof a copyof thisorder 44 MM Kumar Oudge IS 10 Chauhan Y 1 oudge 1 K e0 1 5 l 11 Parkash Om 2014.04.02 14: 50 True Scanned Copy Of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document