CWP No.7160 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.7160 of 2006 (O&M) Date of decision: 19.8.2011 Hardev Singh & Ors. ......Petitioner(s) Versus State of Punjab & Ors. ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Arun Palli, Sr. Advocate with Mr.Tushar Sharma, Advocate for the petitioner(s). Mr. Manohar Lall, Addl.A.G. Punjab. Rakesh Kumar Garg, J. This judgment shall dispose of three writ petitions i.e. CWP Nos.7160, 8155 and 17879 of 2006 as a common question of law has been raised on similar facts in all these writ petitions. The respondent-State vide notification dated 6.10.2004 issued under Section 4 of the Land Acquisition Act, 1894 (for short the 'Act') intended to acquire land measuring 240.21 acres, which was followed by a notification dated 7.3.2005 under Section 6 of the Act, acquiring land measuring 192.60 acres (including the land of the petitioners) in District Bathinda. The writ petitions have been filed by the petitioners for quashing the aforesaid notifications issued under Sections 4 and 6 of the Land Acquisition Act (Annexures P-2 and P-3) and also the notices issued under Section 9 of the Act. It is also a matter of record that during the pendency of these writ petitions, the Land Acquisition Collector had passed an award for the land in dispute and the same was also placed on CWP No.7160 of 2006 (O&M) 2 record of the writ petitions. The acquisition proceedings as aforesaid have been challenged by the petitioners raising the following grounds in the writ petition: “(i) That the impugned notifications (Annexure P-2, P-3, P- 6) are unconstitutional and void, being in violation of 2nd proviso of Article 31-A. (ii) That the acquisition proceedings have been initiated without complying with the provisions of Chapter VIII, X & XII of the Punjab Regional and Town Planning and Development Act, 1995 (in short the '1995 Act'). (iii) That in view of 73rd and 74th Amendment of the Constitution, PUDA has no jurisdiction to do urban planning within any area falling in a district. (iv) That the procedure adopted for acquisition is arbitrary, unfair, contrary to principle of natural justice and liable to be quashed and set aside, as held in R.C. Cooper case (AIR 1970 S.C. 564). (v) The procedure adopted is ab initio void because acquisition is not being done by the government for a non- governmental body. In fact, it is being done by a statutory corporation for itself which is unknown to law. (vi) Acquisition is being done in violation of Chapter IX and IXA of the Constitution of India. (vii) That non-publicity of any notice, if any, u/s 56(1) is violative of principles of natural justice and quashes the proceedings in toto. (viii) That in view of 74th amendment of the Constitution, CWP No.7160 of 2006 (O&M) 3 neither PUDA nor the board constituted under Section 3 and 4 of Punjab Regional and Town Planning and Development Act, 1995 can plan and start any development work upto district level. In fact, the state has not framed any law in accordance with Article 243 ZD and 243 ZF of the Constitution. No district level committee for development have been constituted and PUDA has become redundant after June, 1994. (ix) Since Land Acquisition Act of 1894 does not meet the requirements of Article 31-A, 2nd proviso, therefore, acquisition of the holders of permissible holding cannot be done under 1894 Act. (x) That the procedure of acquisition adopted by PUDA lays down a procedure which goes contrary to the principle of natural justice. (xi) Land is not acquired for making an urban estate. In fact, such projects are undertaken to make profits for PUDA and for the State. (xii) That land proposal for acquisition is not selected by the Board under the 1995 Act and therefore, the very selection of site is illegal.” It is also relevant to mention at this stage that the State Government vide order dated 19.9.2007 exercising its powers under Section 178 (2) of the 1995 Act, exempted the aforesaid acquired land situated in village Bathinda from operation of the provisions of Chapter VIII, X & XII of the 1995 Act. The said notification reads thus:- “DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT CWP No.7160 of 2006 (O&M) 4 ORDER The 19th September, 2007 No.8/9/2007-4HGI/7661- W8hereas to meet the challenges of urban growth and to provide for a workable frame work for comprehensive land and regulated development of regions and urban areas, a State Level Urban Planning and Development Authority was constituted by means of the Punjab Regional and Town Planning and Development Authority was constituted by means of the Punjab Regional and Town Planning and Development Act, 1995 (Punjab Act 11 of 1995). It was felt that the expeditious growth of these planned development centers by a Centralized Agency would arrest the growth of slums and unplanned growth in and around cities and highways. 2. Whereas, the State Government having been stipulated as the final authority in all matters, the Scheme of the Act envisages the Constitution of an authority with wide ranging powers to fulfill the objects of the Act by primarily acquiring, developing and regulating the growth of urban development centers with either the prior approval or direction of the State Government. 3. Whereas, there is also a Board to advice the State Government on and with respect to matters relating to planning, development and use of urban and rural land in the State for planned urban growth as and when required by the State Government. 4. Whereas to achieve the objects of the Act bestowed by it upon the Authority, the State Government acquires land under the Land Acquisition Act, 1894. However, the process of the land being sought to be acquired is being repeatedly challenged by the land owners on the ground that unless and until a Master Plan or a Regional Plan or A Town Planning Scheme is framed under the provisions of the Punjab Regional and Town Planning and Development Act, CWP No.7160 of 2006 (O&M) 5 1995, no acquisition of land can be embarked upon. They accordingly seek the stay of dispossession from their lands with a prayer to quash the Notifications issued under Sections 4 and 6 of the Land Acquisition Act, 1894 on this sole ground. 5. Whereas the procedure prescribed for the framing of the Regional Plan or a Mater Plan is a lengthy and cumbersome process and takes years to finalize, thereby defeating the basic objects of rapid planned urban development and growth as envisaged by the Act. 6. Whereas because of enormous pressure of demographic shift of population from Rural to Urban areas in the State of Punjab, there is an immediate and considerable increase in the demand for urban housing. Due to the lengthy and cumbersome process for framing the Regional and Master Plans, the authority is not being able to fulfill its, avowed objects of catering of this rapid shift in the demographic profile. This had led to the mushrooming of haphazard, ramshackle and unplanned growth of slums in and around cities and around highways, thereby defeating the basic objects of the Act. 7. Whereas due to these circumstances the development works and objects bestowed upon the Authority under the Act are stalled and the public at large is also suffering in the absence of planned development required to be undertaken by the Authority constituted under the Punjab Regional and Town Planning and Development Act, 1995. The State Government is accordingly under enormous pressure to ensure that the Authority optimally function to fulfill the objects for which it was constituted. 8. Whereas the Government of Punjab to achieve the above said objective has initiated proceedings to acquire 240.20 acre of land situated in village Bathinda, Tehsil and District Bathinda under the provisions of Land Acquisition Act, 1894, through Collector, Land CWP No.7160 of 2006 (O&M) 6 Acquisition, Bathinda and Notification under Sections 4 and 6 of the Act has been issued on 6th October, 2004 and 7th March, 2005 respectively for public purpose namely for setting up of Urban Estate Phases 4 and 5, Bathinda. 9. And whereas on the basis of the material placed before the Government of Punjab, the Government is of the opinion that the provisions contained in Section 14 and consequently provisions of Chapters VIII, X and XII i.e. Sections 56 to 60, 70 to 78 and 91 to 138 of the Punjab Regional and Town Planning and Development Act, 1995 are likely to cause undue hardship in making available well planned and well developed residential and commercial sites to the prospective allottees and to the general public for the reasons stated above and the Government of Punjab is of the opinion that the circumstances exist which render it expedient to exempt the areas measuring 240.20 acres falling in village Bathinda, Tehsil and District Bathinda (as notified under Sections 4 and 6 of the Land Acquisition Act, 1894) from the operation of Section 14 and consequently provisions contained in Chapters VIII, X and XII i.e. Sections 56 to 60, 70 to 78 and 91 to 138 of the Punjab Regional and Town Planning and Development Act, 1995, in the larger public interest as the compliance of the said provisions are time consuming process and requires a lot of resources and manpower which is likely to cause considerable delay in the development of this Urban Estate, Phases 4 and 5 of village Bathinda. Now, therefore, in exercise of the powers conferred upon the State Government under Section 178(2) of the Punjab Regional and Town Planning and Development Act, 1995 and keeping in view the larger public interest and need all requirement of planned development of the area, the State Government hereby exempts the above mentioned area measuring 240.20 acres of village Bathinda, Tehsil and District Bathinda CWP No.7160 of 2006 (O&M) 7 from the operation of uncomplied provisions of Section 14 and consequently of the uncomplied provisions contained in Chapters VII, X, XIII i.e. Sections 56 to 60, 70 to 78 and 91 to 138 of the Punjab Regional and Town Planning and Development Act, 1995. ARUN GOEL, Secretary to Govt. of Punjab Department of Housing and Urban Development, Punjab, Chandigarh.” Admittedly, the petitioners had also filed CWP Nos.16104, 16110 and 16111 of 2008 challenging the aforesaid order dated 19.9.2007 passed by the Government exercising the powers under Section 178(2) of the 1995 Act. It is also a matter of fact that the aforesaid CWPs were withdrawn by the petitioners in view of the Division Bench judgment of this Court passed in CWP No.29 of 2004 titled as Jasmer Singh vs. State of Punjab and anr. decided on 26.9.2007 wherein similar exemption granted by the State Government by invoking the provisions of Section 178(2) of the 1995 Act for the land acquired for residential sectors of SAS Nagar Mohali, was upheld. The review application filed by the petitioners against the aforesaid order of withdrawal of writ petitions also stand dismissed. At the outset, it is relevant to mention that during the course of hearing, the challenge in these writ petitions to the acquisition proceedings has been made only on the ground that provisions of Chapter VIII, X & XII of 1995 Act have not been complied with before acquiring the land. However, it is matter of fact that by invoking the provisions of Section 178 (2) of the 1995 Act, the State Government has granted exemption from the rigour of Chapter VIII, X & XII of 1995 Act for the acquisition of land under the impugned notification. The challenge of the petitioners to the aforesaid exercise of powers by the respondent-Authorities under Section CWP No.7160 of 2006 (O&M) 8 178(2) of the Act has remained unsuccessful as CWP Nos.16104, 16110 and 16111 of 2008 challenging the aforesaid exemption order dated 19.9.2007 have been ordered to be dismissed as withdrawn. Once grant of exemption to the respondent-Authorities from the rigour of the provisions of Chapter VIII, X & XII of 1995 Act has been upheld or not challenged, the argument of the petitioner that the acquisition under challenge is bad for non-compliance of the aforesaid provisions, cannot be sustained. In fact, in view of the dismissal of the writ petitions filed by the petitioners challenging the exemption order dated 19.9.1997, learned counsel for the petitioner could not make any meaningful argument in these writ petitions. No other point has been raised. Thus, we find no merit in these writ petitions and the same are hereby dismissed. (JASBIR SINGH) (RAKESH KUMAR GARG) JUDGE JUDGE August 19, 2011 ps