IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3855 of 1982 Date of decision: 12th November, 2009 Dr. Jagdish Singh Sarkaria and others … Petitioners Versus State of Haryana and others … Respondents Civil Writ Petition No.3673 of 1983 Charan Singh and others … Petitioners Versus State of Haryana and another … Respondents Civil Writ Petition No. 3065 of 2008 Aarushi Cooperative Group Housing Society and another … Petitioners Versus Chief Administrator, HUDA and others … Respondents CORAM: HON’BLE MR. JUSTICE T.S. THAKUR HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Rajiv Atma Ram, Senior Advocate with Mr. Arjun Partap, Advocate and Mr. B.N.S. Sharma, Advocate; and Mr. M.L. Sarin, Senior Advocate with Mr. Hemant Sarin, Advocate and Mr. Suveer Sehgal, Advocate for the petitioners. Mr. Hawa Singh Hooda, Advocate General Haryana with Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 Mr. Randhir Singh, Additional Advocate General Haryana for the State. Ms. Vandana Malhotra, Advocate for HUDA. KANWALJIT SINGH AHLUWALIA, J. 1. Chandigarh, the city beautiful, was developed and created in an area spread over 114.59 square kilometers in the footsteps of Shivalik hills as new capital for the State of Punjab after partition. In the words of Jawahar Lal Nehru, Chandigarh represented vision of modern India “Unfettered by the traditions of the past, a symbol of nation’s faith in future”. In 1966, re-organization of the State of Punjab took place and Chandigarh was declared as capital for both the States of Punjab and Haryana. Chandigarh also became border city for Punjab and Haryana. Eastern Chandigarh bordered Haryana, while to the west was Punjab. The greenbelt created around Union Territory, Chandigarh to check the haphazard urban growth lost its effectiveness, as Haryana developed a new town of Panchkula, whereas Punjab developed S.A.S. Nagar, Mohali. Both, Panchkula and S.A.S. Nagar, Mohali are described as satellite towns of Chandigarh. 2. A writ petition bearing Civil Writ Petition No. 3065 of 2008 titled as ‘Aarushi Cooperative Group Housing Society and another v. Chief Administrator, HUDA and others’ came up for hearing before a Division Bench of this Court. In this writ petition, the residents of two Cooperative Societies, which are situated in Sector 20, Panchkula, invoked public interest jurisdiction of this Court by impleading the Chief Administrator, Haryana Urban Development Authority (hereinafter referred to as, ‘HUDA’); the Director, Health Services Haryana and the Chairman, Haryana State Pollution Control Board and prayed that the Chief Administrator, HUDA Complex, Panchkula be directed not to pollute and 2 Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 discharge sewerage in their locality, especially on the road in front of main gates of the petitioner societies. The petitioner societies made a grievance that HUDA has not laid down proper sewerage and storm water disposal system. Thus, sewage and contaminated polluted water accumulates in open space on the road adjoining the petitioner societies and in front of Economically Weaker Section houses and plots. According to petitioners HUDA had ignored weaker section of the society by not connecting the sewage system laid for sector 20, Panchkula with the sewage treatment plant. To support this contention, photographs were also annexed. The Division Bench of this Court, while issuing notice, observed that this petition cannot be entertained as public interest litigation, but in the larger interest of the environment and its effect on the members of the societies, it be treated as a writ petition under environmental laws. In response to a notice issued to it, HUDA filed its counter affidavit and stated therein that though the answering respondent had laid proper sewage and storm water disposal system for the petitioner societies, houses and plots of economically weaker section in Sector 20, Panchkula, because of grant of stay of dispossession by this Court, in favour of the land owners, whose land was sought to be acquired, sewerage lines cannot be laid and connected with the sewage treatment plant, and made functional. Therefore, on September 30, 2008, it was ordered by this Court that CWP No. 3673 of 1983 titled ‘Charan Singh and others v. State of Haryana and another’ be heard along with CWP No. 3065 of 2008. It was reported by the office that CWP No.3673 of 1983 was ordered to be heard along with CWP No.3855 of 1982 titled ‘Dr. Jagdish Singh Sarkaria and others v. State of Haryana and others’. Therefore, that writ petition was also listed along with CWP No.3065 of 2008. 3. It is in the above backdrop that CWP No.3855 of 1982 titled ‘Dr. Jagdish Singh Sarkaria and others v. State of Haryana and others’; 3 Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 CWP No. 3673 of 1983 titled as ‘Charan Singh and others v. State of Haryana and another’ and CWP No.3065 of 2008 titled as ‘Aarushi Cooperative Group Housing Society and another v. Chief Administrator, HUDA and others’ were heard together and shall stand decided by the common order. Fourth writ petition, i.e. CWP No.7882 of 2007 titled as ‘Dr.O.P. Munjal and another v. State of Haryana and others’ filed by residents of Panchkula in public interest with a prayer that the Deputy Commissioner, Panchkula and Municipal Councilor, Panchkula be directed to upkeep and maintain the city of Panchkula by ensuring overall hygiene, pollution free atmosphere accompanied by basic amenities, though ordered to be heard along with these cases, shall be decided separately. 4. As noticed above, three writ petitions, viz. CWP No.3065 of 2008; CWP No.3855 of 1982 and CWP No.3673 of 1983 pertain to Sector 20, Panchkula, which before development of the city, was known as village Kundi, Hadbast No.366, Tehsil Kalka, District Ambala. For redressal of grievance raised in CWP No.3065 of 2008 that sewage system be provided, two writ petitions, viz. CWP No.3855 of 1982 and CWP No.3673 of 1983 are required to be decided, as according to the authorities, order of stay of dispossession is an impediment in ensuring overall growth and development of the Sector. Therefore, we proceed to decide these two writ petitions, in the first instance. Civil Writ Petition No.3855 of 1982 5. Ten persons, namely Dr. Jagdish Singh Sarkaria, his wife Smt.Bhupinder Kaur, his son Karanbir Singh Sarkaria, petitioners No.1, 2 and 3 representing one family; Sarabjit Singh and Smt.Swaranjit Kaur, brother sister, petitioners No.4 and 5 representing another family; Jagvinder Singh and his mother Smt.Mohinder Jaspal Singh, petitioners No. 6 and 7 representing third family; along with Jatinder Pal Singh, 4 Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 Birinder Pal Singh and their father Gurbhagat Singh, petitioners No.8, 9 and 10 representing fourth family, filed Civil Writ Petition No.3855 of 1982 with a prayer that Notification dated 24th June, 1980 issued under Section 4 (1) of the Land Acquisition Act, 1894 (hereinafter referred to as, ‘the Act’) along with two subsequent Notifications dated 17th October, 1980 and 30th July, 1982 respectively, issued under Section 6 of the Act be quashed. 6. It will be necessary for us to briefly set out the factual backdrop, in which present writ petition has been filed, so that the rival contentions and issues raised are decided by us. 7. Government of Haryana, on 24th June, 1980, issued a preliminary Notification under Section 4 of the Act declaring that a large extent of land measuring 335.39 acres situated in village Kundi, Tehsil Kalka, District Ambala was likely to be required for the purpose of development and utilization for residential, commercial and industrial area by the Haryana Development Authority Act, 1977. The total extent so notified for acquisition includes an area measuring 81.62 acres belonging to the petitioners and situated in survey number included in the preliminary Notification. A declaration under Section 6 of the Act made on 17th October, 1980 was then issued in respect of total area of 100.31 acres, out of which an extent of 11.76 acres was owned by the petitioners and the rest by other owners of the village. A second declaration under the same provision followed on 13th July, 1982 in respect of a total area of 230.37 acres, out of which an area of 58.26 acres was owned by the petitioners. 8. It was pleaded in the writ petition that the petitioners were surprised to know that notices under Section 9 of the Act have been issued in respect of land owned by them, therefore, they made enquiries and learnt that no publication, by proclamation or otherwise, had been made in the locality, of the substance of any Notification issued under Section 4 of the Act. The petitioners annexed duly translated affidavits of 16 residents 5 Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 of the locality as Annexure P-4 to P-19 to say that no munadi or proclamation through Chowkidar or any other person in respect of land was made. This writ petition was filed on 29th August, 1982. Thus, a grievance was made that due to non-publication of the Notification, petitioners have been denied valuable right vested in them under Section 5A of the Act to file objections against the proposed acquisition. To fortify this plea, it was further averred that stance of the respondents that the substance of the Notification was published in the locality by beat of drum and a report to this effect was recorded, should be discarded as report so made, is a fictitious and fabricated document. The report made by the Patwari, bearing report No.349, was annexed with the writ petition as Annexure P-20. To assert that the report No.349 was ante-dated and a fabricated document, affidavits of Hardit Singh and Rabbi, two Chowkidars, were attached to say that the Chowkidars, who, according to the respondent, could have made munadi by way of beat of drum/tin (pipa), have solemnly affirmed that they had never done so. It will be apposite here to reproduce another significant averment made in the writ petition, which reads as under: “7. That there has been a complete violation of Section 4 of the Act inasmuch as the Notification was not issued from the printing press on the date it bears for publication. The Haryana Government Printing Press and for that matter every Govt. Press has an Issuing Branch wherefrom after printing every Notification is issued and it is only after such issuing the public can be supposed to be aware of it and get the copy thereof. The Notification under Section 4(1) though purported to have been printed in the Haryana Govt. Gazette (Extraordinary) dated 24.6.1980 was not sent to the Publication/ Issuing Branch of the Press before 21.7.1980. Mere printing a Notification in the Gazette and getting the printed mater confined to the printing Branch does not amount to its publication/ issuing within the meaning of Section 4(1) of the Act. The publication/ issuing means 6 Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 communication to the public or at least making available to the public. In the instant case since it was sent to the Publication Branch about a month after its printing, the requirement of 30 clear days’ period, to be given after publication amounts to a clear denial of opportunity of being heard and preferring objections under Section 5-A of the Act, which opportunity the petitioners have been denied.” 9. Therefore, the present writ petition challenges the validity of the Notification on two precise grounds. Firstly, it is alleged by the petitioners that the preliminary notification under Section 4 of the Act was never published in the locality as was mandatory under the provisions of the Act. Secondly, it is alleged that the publication of the Notification in question even in the official gazette was ante-dated on 24th June, 1980, as the Notification was forwarded to the Government press much after the said date. 10. This writ petition came up for hearing on 1st November, 1982. A Division Bench of this Court issued notice and stayed dispossession of the petitioners. The Land Acquisition Collector, Urban Estate, Panchkula filed reply and reiterated that the substance of Notification under Section 4 of the Act was duly published in the concerned locality by way of loud voice and beat of empty tin, by Rabbi Chowkidar. An entry to this effect was made in Daily Rapat Roznamcha Wakiati of the Halka Patwari at Sr. No.349 on 25th June, 1980. The written statement denied the averment that no publication was made in response to the publication of the substance of Notification. It stated that 29 land owners had filed their objections under Section 5A of the Act. In the course of arguments, it was urged that if on account of same publication, 29 land owners could file objections, it does not lie in the mouth of the petitioners to plead that no such publication had taken place. It was further stated in the reply that 7 Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 petitioners No.4, 5, 6, 7 and 10 had filed their claims under Section 9 of the Act. In support of this contention, affidavits of Rabbi Chowkidar and Kanhaiya Lal Patwari were annexed with the reply as Annexures R-1 and R-2. After the written statement was filed by the State of Haryana, on 17th November, 1982 this Court ordered that the original record be produced on 30th November, 1982 and the presence of Patwari be also ensured on that day. On 30th November, 1982, when Patwari was present along with the original record, a Division Bench of this Court proceeded to record statement of Kanhaiya Lal Patwari. It will be necessary to reproduce the statement so recorded, as both sides have advanced arguments touching the statement recorded by the Court. The statement of Kanhaiya Lal Patwari recorded on 30th November, 1982 reads as under: “Statement of Kanhya Lal, Patwari Halqa Madalpur, Tehsil Kalka, District Ambala, on S.A.:- I have seen the original report entered in the Roznamcha Waqiati. The Report at Serial No.349 has not been made by me. The entire entry has been made by Om Raj, Patwari, Land Acquisition. I have seen the original affidavit, Annexure R-2 attached with the written statement. The verification, as well as the affidavit bear my signatures in Urdu. Question: In para 2 of the affidavit, you have specifically stated that “An entry to this effect has been entered by me in the daily Report Roznamcha Waqiati at Serial No. 349 on 25th June, 1980.” What have you to say? Answer: What is stated in para 2 and reproduced above in the question, is not correct. What I have stated now in the Court on oath is correct. I myself got this affidavit attested from Shri S.S. Rana, Advocate, Oath Commissioner, Chandigarh. Entry at Serial No.350 is in my hand. That entry has nothing to do with the report entered at Serial No.349. The portion encircled in red pertains to Entry 350 and has nothing to do with Entry No.349. The thumb-impression of Babu Ram is a 8 Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 part of Entry 350 and has no concern with Entry 349. The report at Sr.No.349 does not bear signatures or thumb- impression of any person. Hardit Chaukidar has not put any signature on the Report entered at Serial No.350. I do not know English, and, hence, I cannot say as to how in my affidavit it has been written that the thumb impression to be of Hardit Chaukidar related to Entry No.350. I have seen the certified copy, Ex.P.20 at Page 53 Part B of the file. I had prepared this copy correctly from the original Report Roznamcha. It bears my signatures. In this copy, I have mentioned “Nishan Angootha Hardit Chaukidar”. I have also certified the copy to be a true copy of the original. It is correct that I had copied out the copy from the original. The witness has been confronted with the original report Roznamcha, wherein the thumb-impression of Hardit Chaukidar does not appear. On this, the witness states that he had inadvertently mentioned in the true copy- the thumb-impression of Hardit Chaukidar. I did not get the substance of notification under Section 4 published in the concerned locality through Rabi Chaukidar. I have wrongly stated in para 2 of my affidavit, Annexure R-2, that I got the substance of notification published through Rabi Chaukidar. Again said, that the publication was made by Rabi Chaukidar. It is correct that whatever is stated in my affidavit, Annexure R-2, is incorrect. But I do not know English.” We are informed that Kanhaiya Lal Patwari has died. A perusal of his statement shows that no opportunity was given to the State of Haryana to cross-examine this witness. 11. From 1982 (when the writ petition was filed) till 2009 (when it was taken up for final disposal), within the span of 27 years, many developments and events have taken place, which are required to be noticed, as they were brought on the case file by filing numerous Misc. Applications and additional affidavits. It will be necessary to detail these developments and events briefly, so that the entire spectrum and the whole conspectus of the case is put on record: 9 Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 (i) In pursuance of the Notification (Annexure P-1) issued under Section 4 of the Act and Notifications (Annexures P-2 and P- 3) issued under Section 6 of the Act, final award was announced on 17th September, 1986 in respect of 9.23 acres of land. Since there was stay of dispossession in respect of the land of the petitioners to the three writ petitions, the matter had not proceeded ahead qua the land of the petitioners. However, on 29th January, 1990, a fresh Notification under Section 4 of the Act was issued to acquire 134.39 acres of land of village Kundi, which earlier formed part of the Notifications (Annexures P-1 to P-3). In this Notification, only one No.9//22/1 (3 Kanal 18 Marlas) was notified belonging to the land of petitioner No.6 Jagvinder Singh. Further on 25th January, 1991, Notification under Section 6 was issued for 132.38 acres of land and only the same No.9//22/1 was notified in this Notification from the land of petitioner No.6 Jagvinder Singh. In pursuance of Notification dated 29th January, 1990 issued under Section 4 of the Act and Notification dated 25th January, 1991 issued under Section 6 of the Act, the final award was announced on 21st January, 1993 for 132.10 acres of land and in this award, No.9//22/1 belonging to land of petitioner No.6 was not included. (ii) On 26th April, 1995, another fresh Notification under Section 4 of the Act was issued in respect of 119.36 acres of land of village Kundi. This land was included in earlier Notifications (Annexures P-1 to P-3). In this Notification, a total area of 38.20 acres of land of all the petitioners to CWP No.3855 of 1982 was included. To be precise, the Notification issued on 26th April, 1995 included 15.29 acres of land of petitioners 10 Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 No.4 and 5 and 22.73 acres of land of petitioners No.8 to 10 to CWP No.3855 of 1982. (iii) Another writ petition, viz. CWP No. 3477 of 1983 was preferred by Ishwar Chand Aggarwal and others assailing the Notifications of acquisition issued under Sections 4 and 6 of the Act, which have been impugned in present CWP No.3855 of 1982. Thus, out of the total area of 335.69 acres, sought to be acquired by way of Notification under Section 4 of the Act, 124.16 acre land was subject matter of three writ petitions, viz. CWP No.3855 of 1982 (81.62 acres), CWP No.3673 of 1983 (105 kanal 15 marlas) and CWP No.3477 of 1982 (21.75 acres). CWP 3477 of 1982 was rendered infructuous on 19th April, 2006, as the Director, Town and Country Planning Haryana, Panchkula, vide his letter dated 24th November, 2005 addressed to the Administrator, HUDA, Panchkula, stated that the Government had agreed to release the land of the petitioners to Civil Writ Petition No.3477 of 1983, Ishwar Chand Aggarwal and others v. State of Haryana. (iv) Jagvinder Singh petitioner No.6, who owned 3.93 acres of land, during the pendency of the writ petition, sold the same to Sham Sunder Sardana. Sham Sunder Sardana filed Civil Misc. application No.15832 of 1998 in this Court for being impleaded as petitioner. The application was allowed and he was impleaded as petitioner No.11 vide order dated 24th August, 1998 passed in CM application No.15832 of 1998. (v) Petitioner No.7 Smt. Mohinder Jaspal Singh, who owned 5.81 acres of land, sold the same during the pendency of the writ petition to Mrs. Santosh Kaur, Paramveer Singh, Harmeet Singh, Ms. Harbinder Kaur and Mrs.Rita. They filed Civil Misc. 11 Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 application No. 29183 of 2001 to be impleaded as petitioners, as successors in interest to Smt. Mohinder Jaspal Singh. (vi) During the pendency of writ petition, petitioner No.1 Dr. Jagdish Singh Sarkaria expired and his legal representatives were brought on record. (vii) Petitioner No.2, Smt. Bhupinder Kaur also died and her legal representatives were also brought on record, however, Government of Haryana decided to release 27.337 acres of land owned by petitioner No.1, 2 and 3. The writ petition qua petitioners No.1 and 2 was ordered to be dismissed as withdrawn on 31st July, 2006. Since land of petitioner No.3 has also been released, according to the State Counsel, the present writ petition qua him has been rendered infructuous. (viii) Petitioner No.8, 9 and 10, who owned 27.22 acres of land, entered into collaboration agreement with M/s Amar Nath Aggarwal Investments Pvt. Ltd. and Civil Misc. application No.2199 of 2006 was filed with a prayer that Kulbhushan Goyal, Managing Director of M/s Amar Nath Aggarwal Investments Pvt. Ltd. be also impleaded as petitioner. Collaboration agreement between the parties has not been placed on record. (ix) Civil Misc. No.10913 and 10914 of 2006 were filed in CWP No.3855 of 1982 with a prayer that since the Government had decided to release the land belonging to petitioners No.1, 2 and 3, directions be given to the Government to release the land vested in other owners, as the action of the respondent State Government is discriminatory, and they cannot adopt pick and chose policy in releasing the land, sought to be acquired under the impugned Notification qua some land 12 Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 owners. Instance of releasing land to Ishwar Chand Aggarwal and others, petitioners to CWP No.3477 of 1983 (which was dismissed as infructuous) was also cited. (x) Civil Misc. No.15193 of 2006 was also filed on behalf of petitioner No.8 to 10, wherein it was urged that they have entered into an agreement of collaboration with M/s Amar Nath Aggarwal Investments Pvt. Ltd. and that the land belonging to them be also released, as it has been done in the case of petitioner No.1, 2 and 3 to the present writ petition and in case of Ishwar Chand Aggarwal and others, petitioners to CWP No.3477 of 1983. (xi) Civil Misc. No.11795 of 2009 was filed by M/s Samar Estates Pvt. Ltd. through its Managing Director to be impleaded as petitioner to the writ petition, on the ground that they had entered into an agreement of collaboration during the pendency of the writ petition with Petitioners No.4 and 5 to CWP No. 3855 of 1982. Petitioners No.4 and 5 owned 6.92 acres of land out of the land sought to be acquired. The agreement of collaboration has been attached with Civil Misc. No.11796 of 2009. One