IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1048 of 2008 Date of decision: 16.12.2010 Deepak Aggarwal and others …..Petitioners 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.Hemant Sarin, Advocate for the petitioners Mr.J.S.Toor, Additional Advocate General Haryana for respondent Nos.1, 2 and 5 Mr.Kamal Sehgal, Advocate for respondent No.3 Mr.Arun Walia, Advocate for respondent No.4 Jasbir Singh, J. This order will dispose of ten writ petitions bearing CWP Nos.13, 1048, 2787, 6029, 19199, 19293, 19428 of 2008, 108, 1677, 3228 of 2009 involving similar questions of law and facts. For the purpose of dictating order, facts are being mentioned from CWP No.1048 of 2008. The petitioners, who are 64 in number, have laid challenge to a notification, issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) on 23.12.2005, proposing to acquire land measuring 278 acres 1 kanal 1 marla situated in villages Dhakola, Saha, Tepla and Jawahargarh, for a public purpose, namely, for setting up of Growth Centre Saha tehsil and district Ambala. Further challenge has been made to a declaration issued under Section 6 of the Act on 29.12.2006, notifying land measuring 274 acres 4 kanal 16 marla for final acquisition. Civil Writ Petition No.1048 of 2008 It is not in dispute that after issuance of a notification under Section 6 of the Act, land measuring 28 acres 1 kanal 10 marla was released from acquisition by invoking the provisions of Section 48 of the Act on 25.7.2008. Award was passed on 15.9.2008. At the time of arguments, it was admitted that after filing of this writ petition in this Court, many petitioners/ land owners have accepted compensation offered by the Land Acquisition Collector. It is case of the petitioners that to set up an Industrial Growth Centre at Saha, the State of Haryana had already acquired a vast track of land, way back in the year 1996. It is further stated that after lapse of more than 13 years, land acquired earlier, is not fully developed and most of it, is lying vacant. Some writ petitions challenging that acquisition are still under consideration in this Court. It is averred by the petitioners that qua the acquisition, in dispute, after issuance of notification under Section 4 of the Act on 23.12.2005, they had filed objections under Section 5-A of the Act. A copy of one such objection, filed on 28.1.2006 has been placed on record as Annexure P3. It is specific case of the petitioners that without issuance of any notice to any of the petitioners, calling them for hearing of their objections, respondent No.2 unilaterally fixed 1.4.2006 as a date for hearing of the objections. It was also stated that some of the petitioners have filed their objections through counsel, with a specific prayer that they be given personal hearing at the time of disposal of their objections. Despite that they failed to get any response from the Land Acquisition Collector. It was further stated that some of the petitioners came to know about presence of the Land Acquisition Collector (respondent No.2) in the locality on 1.4.2006, they approached him with a prayer that their land be released from acquisition. Even at that time, none of them was made aware that date was 2 Civil Writ Petition No.1048 of 2008 fixed for disposal of objections filed by them under Section 5-A of the Act. It is further stated that the staff accompanying respondent No.2 had obtained signatures of 8-9 persons, as a token of their presence, to make request to respondent No.2 to release their land. At no point of time, respondent No.2 heard any of the petitioners regarding objections raised by them to the proposed acquisition. As per admitted facts on record, more than 900 land owners had filed objections under Section 5-A of the Act. It is case of the petitioners that without looking into their request for release of their land and deciding their objections, notification under Section 6 of the Act was issued on 29.12.2006, declaring an intention to acquire land measuring 274 acres 4 kanal 16 marla. By making reference to a letter/ order dated 25.7.2008 (P8), vide which, more than 28 acres of land was released from acquisition by invoking the provisions of Section 48 of the Act, it is propagated by the petitioners that by not giving the same relief to them, the State has acted in a very discriminatory manner. It is further case of the petitioners that the impugned notifications have been issued without getting prior environmental clearance from the competent authority in terms of a notification dated 14.9.2006, issued by the Central Government under the provisions of Environment (Protection) Act 1986 and the Rules framed there under. By making reference to the objections filed by them, the petitioners urged that on their objections, no finding was given by the Land Acquisition Collector. Upon notice, reply has been filed by respondent No.2, wherein averments made by the petitioners have been refuted by stating that before giving opinion on objections, filed by the land owners under Section 5-A of the Act, respondent No.2 has given an opportunity of hearing to all the land 3 Civil Writ Petition No.1048 of 2008 owners and objections were disposed of on proper application of mind by him. It is further stated that respondent No.2 gave notice to all the land owners for hearing of their objections on 1.4.2006 by making a declaration (musthri munadi) in the villages through Chowkidars on 28.3.2006, copies of the entries made in Roznamcha Waqaiti have been brought on record as Annexure R7 to R10. To get the date of hearing notified, copy of a letter written by respondent No.2 to the Naib Tehsildar Saha on 24.3.2006 has been placed on record as Annexure R5 and report dated 1.6.2006 made by respondent No.2 on objections filed by the land owners has been brought on record as Annexure R6, wherein it is stated that as many as 913 objections were received under section 5-A of the Act, 13 objections do not relate to the area under acquisition, interested land owners (151 in number) were heard on 1.4.2006 and joint statement of all the objectors was recorded, who raised similar objections. Statements of those persons, who appeared personally on 1.4.2006, who had not filed written objections within the stipulated period, were not considered. It is further denied that any land was notified for release as alleged in the writ petition. It was further averred that before the land acquisition, prior environmental clearance was not required to be obtained. In reply filed by respondent No.3, it is stated that the land which was acquired in the year 1996, is in possession of HSIIDC. The same stood developed except small pockets which are surrounded by the land under litigation. In reply filed at the instance of respondent No.1, it is admitted that on recommendation made by a Committee and after site inspection on 11.4.2007, some portion of land (28 acres 1 kanal 10 marla) was released from acquisition by invoking the provisions of Section 48 of the Act. 4 Civil Writ Petition No.1048 of 2008 By filing replication, averments made in the writ petition were reiterated. At the time of hearing on 11.2.2010, it was noted by this Court that there are some discrepancies in the replies filed by the respondents. Taking note of the same, following order was passed on that date:- “During the course of hearing, Mr. M.L.Sarin, Sr. Advocate, has inter alia contended that there are apparent contradictions in the various paragraphs of written statement filed by respondent No.2. He has substantiated his argument by referring to the averments made in paragraph 13 of the written statement and report dated 1.8.2006 (R-6). In para 13, the number of objectors mentioned was 913 who have filed the objections and the number of persons who appeared on 1.4.2006 was 154. However, in the report dated 1.8.2006 (R-6) and the accompanying document show that the number of objectors is 901 and the number of persons who have appeared on 1.4.2006 is 6. Apart from the aforesaid apparent contradictions, Mr. Sarin has placed reliance on judgments of Hon'ble the Supreme Court in Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, (2005) 7 SCC and paragraph 10 of the judgment of Hon'ble the Supreme Court in Shyam Nandan Prasad v. State of Bihar, (1993) 4 SCC 255 and argued that the grant of personal hearing is not a mere formality and it is a right 5 Civil Writ Petition No.1048 of 2008 akin to fundamental right. He has further placed reliance on the judgment of this Court in Surat Singh Engineer v. State of Punjab, 1996(3) PLR 142 and argued that the service of personal notice on the land owners is mandatory under Section 5A (2) of the Land Acquisition Act, 1894. Mr. Sarin has also submitted that the petitioners who have accepted the amount of compensation after announcement of the award would not press their claim. Mr. Bhag Singh, Advocate has also made the same statement in the connected petition.” Heard counsel for the parties. In all these writ petitions, it is common grievance of all the petitioners that before deciding their objections under Section 5-A of the Act, neither notices of hearing were given to them nor they were heard. It was argued by Mr.Sareen that disposal of objections filed under Section 5-A of the Act is not a mere formality. Right given in the above said provision is akin to the fundamental rights of a land owner, whose land is going to be acquired by the State by invoking the principle of eminent domain. Detailed objections filed by the petitioners were not considered. They were not cautioned about the date fixed for disposal of their objections. The State counsel, by making reference to the averments made in the written statement, argued that respondent No.2 wrote a letter to Tehsildar of the area, asking him to notify date of hearing of objections filed under Section 5-A of the Act on 1.4.2006, which was accordingly done by way of proclamation in the villages. To say so, reliance has been placed 6 Civil Writ Petition No.1048 of 2008 upon copies of entries made in Roznamcha Waqaiti of the Patwari (Annexure R7 to R10). State counsel prayed that the writ petitions having no substance be dismissed. Besides as above, the petitioners, to quash the impugned notifications, have raised a grouse of discrimination with them. It has been stated that more than 28 acres of land was released from acquisition after issuance of a notification under Section 6 of the Act on 25.7.2008. However, the said relief was not granted to the petitioners despite objections raised by them. It was further urged that prior environmental clearance was not obtained before issuance of the impugned notifications, which runs contrary to a notification issued by the Central Government on 14.9.2006 (P8). Above said arguments have also been controverted by the State counsel. However, we feel that before dealing with these two contentions, it will be desirable to decide first, an objection of the petitioners regarding non-complying with the provisions of Section 5-A of the Act by the respondent No.2. As per Scheme of the Act, after issuance of a notification under Section 4 of the Act, a right has been given to a land owner, as per provisions of Section 5-A of the Act, whose land is under acquisition, to raise objection to the same. Provisions read thus:- “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 7 Civil Writ Petition No.1048 of 2008 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 be deemed to be in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.” Section 5-A contemplates that any person, who is interested in the land under acquisition, within a stipulated period, can object to the same by putting in a written representation before the Collector. A mandate has been issued to the Land Acquisition Collector to provide an opportunity of 8 Civil Writ Petition No.1048 of 2008 hearing to the concerned land owner and if need be after making further enquiry, the Land Acquisition Collector has been asked to submit his report recommending acquisition of land or otherwise. 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 the fundamental rights. Their Lordships of the Supreme Court in Essco Fabs Pvt. Ltd. & another v. State of Haryana and another, (2009) 2 Supreme Court Cases 377 when dealing with a similar situation, 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 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.” Similarly, in the case of Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai and others, AIR 2005 Supreme Court 3520(1), it was observed by the Supreme Court that right given to a land owner under Section 5-A of the Act is very valuable. It was stated thus:- “7. It is not in dispute that Section 5-A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in 9 Civil Writ Petition No.1048 of 2008 Article 300A of the Constitution of India, the State in exercise of its power of 'eminent domain' may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.” It was further stated that hearing contemplated under Section 5- A of the Act, is not a mere formality. It must be an effective one. Formation of opinion with regard to public purpose, as also, suitability of land thereof must be preceded by application of mind as regard consideration of relevant factors and rejection of irrelevant ones. When an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. For the said purpose, Sections 4, 5A and 6 of the Act must be read conjointly. When it is detected that there is a total non-compliance with the provisions of Section 5-A of the Act, the Courts must give relief to the aggrieved land owner. No doubt, declaration under Section 6 is a conclusive evidence of a fact that land is required for a public purpose, however, when decision making process itself is in question, it is open to the Court to exercise its power of judicial review and if it is found that the order, under challenge, suffers from illegality, irrationality and procedural impropriety, it is must for a Court to interfere. Under the Land Acquisition Act, the state has vast powers to deprive the land owners of its property. Such enormous power is required to be exercised in a fair and reasonable manner. The Court, by making reference to the observations made by the Supreme Court in the case of Union of India v. Mukesh Hans, (2004) 8 SCC 14 observed that a right given to a land owner/ person interested, under Section 5-A of the Act, to object to the acquisition proceedings is not empty formality. It is a substantive right 10 Civil Writ Petition No.1048 of 2008 which can be taken away only for good and valid reason after complying with the provisions of Section 5-A of the Act. Similarly, in the case of Munshil Singh v. Union of India, AIR 1973 SC 1150, while discussing a similar matter, the Hon’ble Supreme Court observed thus:- "7. Section 5-A embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be made. ... The legislature has, therefore, made complete provisions for the persons interested to file objections against the proposed acquisition and for the disposal of their objections. It is only in cases of urgency that special powers have been conferred on the appropriate Government to dispense with the provisions of Section 5-A:" A Division Bench of this Court in CWP No.18821 of 2009 titled as Anil Garg v. State of Haryana and others , decided on 7.4.2010 , has stressed upon importance of the rights given to a land owner/ interested person, under Section 5-A of the Act, by observing as under:- “12. It is equally well settled that the right of hearing contemplated by Section 5-A is akin to fundamental rights and it is not an empty formality, as has been held by Hon’ble the Supreme Court in the case of Hindustan Petroleum Corporation Limited v. Darius Shapur Chenai, (2005) 7 SCC 627. The filing of objection is one thing. Thereafter, 11 Civil Writ Petition No.1048 of 2008 issuance of notice of hearing and then affording of an opportunity of hearing either to the objector in person or through his counsel are mandatory stages implicit in Section 5-A of the Act. It is admitted in the instant case that as the objections were time barred no notice of hearing could be issued to the petitioner. The views of Hon’ble the Supreme Court are clear from judgments rendered in the cases of Shri Mandir Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298 and Farid Ahmed Abdul Samad v. Municipal Corporation of the City of Ahmedabad, (1976) 3 SCC 719. The question regarding issuance of notice for hearing and affording of opportunity have been squarely answered in para 10 of the judgment in the case of Shyam Nandan Prasad v. State of Bihar, (1993) 4 SCC 255, which reads thus:- “10. ……That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That at the time of the enquiry, for which prior notice shall be essential, the objector has the right to appear in person or through pleader and substantiate his objection by evidence and argument. And lastly, since the decision of the Collector may turn out to be final, unless interfered with by the Government, suo motu or on application, the Collector’s decision is that of a quasi- judicial authority, arrived at by quashi-judicial methods.” (emphasis added) 12 Civil Writ Petition No.1048 of 2008 As per established law, provisions of Section 5-A of the Act are mandatory. Before disposal of objections under Section 5-A of the Act filed by a land owner, it is incumbent for the Land Acquisition Collector to put the land owner to a notice who has a right to appear in person or through a pleader before the Land Acquisition Collector. Their Lordships of the Hon’ble Supreme Court in Shyam Nandan Prasad and others v. State of Bihar and others, (1993) 4 SCC 255, observed as under:- “10. At the pre-Section 6 stage, besides the mode of publications at various places where the land is situated, personal service of the copy of the notification is prominently required to be made on the person interested so that he can make objections in writing to the Collector, and on objections being made, the Collector is obliged to give to the objector opportunity of being heard either in person or by pleader. The Collector is further obliged to hear all such individual objections, make such further enquiries as necessary and then required to make an appropriate decision reporting the same to the Government. The decision of the Collector is supposedly final unless the appropriate Government chooses to interfere therein and cause affectation, suo motu or on the application of any person interested in the land. These requirements obviously lead to the positive conclusion that the proceeding before the Collector is a blend of public and individual enquiry. The person interested, or known to be interested, in the land is to be served personally of the notification, giving him the opportunity of objecting to the acquisition and awakening him to such right. That the objection is to be in 13 Civil Writ Petition No.1048 of 2008 writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That at the time of the enquiry, for which prior notice shall be essential, the objector has the right to appear in person or through pleader and substantiate his objection by evidence and argument. And lastly, since the decision of the Collector may turn out to be final, unless interfered with by the Government, suo motu or on application, the Collector's decision is that of a quasi-judicial authority, arrived at by quasi-judicial methods. 11. That the compliance of provisions of Section 5-A is mandatory, is beyond dispute. See in this connection, Shri Mandir Sita Ramji v. Lt. Governor of Delhi{(1975) 4 SCC 298} and Farid Ahmed Abdul Samad v. Municipal Corpn. of the City of Ahmed a bad{(1976) 3 SCC 719}. Affording of opportunity of being heard to the objector is a must. The provision embodies a just and wholesome principle that a person whose property is being, or is intended to be, acquired should have the occasion to persuade the authorities concerned that his property be not touched for acquisition. This right is not absolute, however, if the appropriate Government, in its discretion, chooses to dispense with its applicability by invoking urgency provisions of Section 17 of the Act. But once Section 5-A is kept applicable, there is no cause to treat its provisions lightly or casually.” To state that before disposal of objections under Section 5-A of the Act, the land owner is entitled to a notice, reliance has also been placed 14 Civil Writ Petition No.1048 of 2008 upon the provisions of para 19A of the Financial Commissioner’s Standing Order No.28. That provision reads thus:- “(i) When the Collector receives an objection he shall fix a date for hearing it and give notice of the date to the objector and to the officer of the Department or the local body, on whose application the notification under section 4 has been issued. It will generally be convenient to hear all