C.W.P. No. 16112 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 16112 of 2009 Date of Decision 27.05.2010 Varinder Kumar -----Petitioner Versus Union Territory, Chandigarh and others ---Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Puneet Bali, Advocate with Mr. Shaurya Sharma, Advocate for the petitioner. Mr. Sanjay Kaushal, Advocate Sr. Standing Panel Counsel for U.T. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. Kumar, J. The instant petition filed under Article 226 of the Constitution prays for quashing notification dated 03.12.2008 issued under Section 4 of the Land Acquisition Act, 1894 (for brevity 'the Act'), intending to acquire land measuring three marlas comprising in Khasra No. 70//38/1 for the public purpose of development of C.W.P. No. 16112 of 2009 2 commercial and residential scheme No.3, Pocket No. 11 in left out area. Further prayer for quashing the declaration dated 31.07.2009 (wrongly mentioned as 08.07.2009) published under Section 6 of the Act has also been made with a direction to the respondents not to acquire the land of the petitioner without any public purpose. On 20.5.2010, the petitioner has made an offer that if he is accommodated in the adjoining area then he would give up his challenge to the notification acquiring his land. Mr. Sanjay Kaushal, learned counsel for the U.T. Chandigarh has sought time to obtain instructions in this regard. However, he has stated today that no such adjustment could be made and the petitioner cannot be given plot in any developed area. Brief facts of the case are that on 09.08.1990 a notification under Section 4 in respect of scheme No.3, Pocket No. 11 was issued. However, the land belonging to the petitioner comprised in Khasra No. Khasra No. 70//38/1 was not included. A declaration under Section 6 was published on 08.08.1991 which included the aforesaid Khasra number belonging to petitioner. The petitioner challenged the inclusion of his land in declaration made under Section 6 by filing C.W.P. No. 2064 of 1993. A Division Bench of this Court vide order dated 19.08.1993 (Annexure P2) set aside the acquisition as there was no notification issued in respect of the land of petitioner under Section 4 of the Act. It is pertinent to extract the short order allowing petition on 19.08.1993, which reads as under: “The notification under Section 4 of the Land C.W.P. No. 16112 of 2009 3 Acquisition Act does not bear the particulars of any land owned by the petitioner. Mentioned of the land of the petitioner occurs only in the notification under Section 6 of the Act. On this ground, the impugned notification under Section 6 in respect of the land of the petitioner, cannot be sustained and is accordingly hereby quashed. This writ petition is thus accepted; It is however, clarified that it would be open to the respondents to issue fresh notification under Section 4 and 6 of the Acquisition Act regarding the land of the petitioner in accordance with law if so advised.” The land of the petitioner was not acquired for considerable time. However, in 2001 respondent sought opinion of the Legal Remembrancer for acquiring land belonging to the petitioner, who opined against the acquisition. His opinion dated 04.06.2001 also makes interesting reading which is as under: “The High Court has passed the order dated 19.08.1993 thereby quashing the impugned Notification under Section 6 in respect of the land of the petitioner with a direction that it would be open to the respondents to issue a fresh notification under Section 4 & 6 of the Land Acquisition Act regarding the land of the petitioner in accordance with the law, if so advised. However, no action was taken by the Administrative Department, even after lapse of more than eight years. The land of the C.W.P. No. 16112 of 2009 4 petitioner is just three marlas and this land can be acquired only for public purpose. Before acquiring the land of the petitioner, the A.D. has to satisfy with regard to the public purpose for which the land is required to be acquired under Section viz-a-viz the public purpose for which the adjoining land was acquired in the year 1993. The public purpose for acquiring the adjoining land in 1993 might be different. The land of the petitioner being three marlas may not serve any public purpose after afflux of period of eight years from the date of initial notification. In case the AD proceeds to acquire the land, then, such acquisition is not likely to sustain in the scrutiny of law. Sd/- A.L.R. 4.6.2001” A perusal of aforesaid opinion of the Legal Remembrancer shows that it was absolutely against any acquisition for reasons of efflux of time and three marlas was not to serve any public purpose. Despite opinion of the L.R., on 03.12.2008 a notification under Section 4 was again issued for acquiring the land for a public purpose of development of commercial and residential scheme No. 3, Pocket No. 11 in left out area. Objections were invited and the petitioner filed objections under Section 5A of the Act on 12.01.2009 (Annexure P5). The principal objection was that the whole scheme notified in 1991 stood developed, there is huge delay in acquiring the C.W.P. No. 16112 of 2009 5 land and no development would be possible on such a small piece of land. It was further submitted that the petitioner has construction on the small area, which is sought to be acquired and therefore, land deserved to be released. The objections filed by the petitioner were rejected on 10.07.2009 (Annexure P6). It is pertinent to notice that draft notification under Section 6 of the Act was prepared on 08.07.2009, although it was notified on 31.07.2009. Mr. Puneet Bali, learned counsel for the petitioner has vehemently argued that the public purpose of developing the land for residential and commercial purpose cannot be achieved by acquiring 75 yards of land and it is not possible to conceive any development on such a small area. He has submitted that the petitioner has raised construction and no constructed area should be subjected to acquisition. Another argument raised by Mr. Puneet Bali is that although this Court has permitted the administration on 19.08.1993 to acquire the land, if so advised but that could have been done only within a reasonable time. Hence it has been argued that there is delay for more than 15 years in issuance of notification under Section 4 of the Act. He has also submitted that petitioner has not been given a fair deal inasmuch as his objections were rejected on 10.07.2009 which shows that there is total non-application of mind because draft notification under Section 6 was prepared on 08.07.2009. According to the learned counsel, the right of hearing and consideration of C.W.P. No. 16112 of 2009 6 objections is akin to fundamental right as has been held by Hon'ble the Supreme Court in the case of Shri Mandir Sita Ramji v. Governor of Delhi and others, AIR 1974 Supreme Court 1868; Farid Ahmed Abdul Samad and another v. The Municipal Corporation of the City of Ahmedabad and another AIR 1976 Supreme Court 2095; State of Tamil Nadu and another v. A. Mohammed Yousef and others (1991) 4 Supreme Court Cases 224; Madhya Pradesh Housing Board v. Mohd. Shafi and others, (1992) 2 Supreme Court Cases 168. Mr. Sanjay Kaushal, learned counsel for respondents has however, argued that three marlas of land is left out land which is needed to develop the area already acquired. He has argued that delay in requisition is not fatal. Having heard learned counsel for the parties, the first issue which requires consideration is whether public purpose of development of commercial and residential scheme no. 3 pocket no. 11 could be achieved by acquiring 3 marlas of land comprised in khasra No. 70//38/1 in village Manimajra, Hadbast No. 375. According to the notification issued under Section 4 of the Act the land is needed for a 'public purpose of development of commercial cum residential Scheme No.3 Pocket No. 11 (left out area) in Manimajra. Moreover, the petitioner has constructed 4 shops over the land in question and is earning his livelihood from its rental income The land was earlier sought to be acquired in the year 1991 C.W.P. No. 16112 of 2009 7 and the petitioner had approached this Court by filing CWP No.2064 of 1993. The writ petition was allowed on 19.8.1993 with liberty to the respondents to issue fresh notification for acquisition of the land in accordance with law, if so advised. However, the respondents have taken more than 15 years in issuing the notification for acquiring the land once again. Naturally, the petitioner raised construction over the land in question and could not have waited endlessly. There is another aspect of the matter. The petitioner had filed objections under Section 5A of the Act on 12.1.2009 (P.5). Those objections were rejected on 10.07.2009 and the draft notification under Section 6 of the Act was already prepared on 08.7.2009. There is hardly any application of mind to the objections filed by the petitioner. It is pertinent to notice that in the objections filed under Section 5 A of the Act, the petitioner has categorically raised the issue of construction in para 9. The notification did not show acquisition of structure alongwith the land. Therefore, the consideration of objections has not been in accordance with law because right of hearing objections under Section 5 A of the Act is considered to be akin to fundamental right in the case of Hindustan Petroleum Corp. Ltd v. Darius Shapur Chenaia and others (2005) 7 SCC 627. The views of Hon'ble the Supreme Court in the aforesaid judgement are discernible from the following observations made in paras 6 to 9: “6. It is not in dispute that Section 5-A of the Act confers C.W.P. No. 16112 of 2009 8 a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300A of the Constitution, 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. 7. Indisputably, the definition of public purpose is of wide amplitude and takes within its sweep the acquisition of land for a corporation owned or controlled by the State, as envisaged under Sub-clause (iv) of Clause (f) of Section 3 of the Act. But the same would not mean that the State is the sole judge therefor and no judicial review shall lie. [See Jilubhai Nanbhai Khachar and Others vs. State of Gujarat and Another - 1995 Supp (1) SCC 596]. 8. 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, 5-A and 6 of the Act must be read conjointly. The court in a case, where there has been total non-compliance or substantial non-compliance of the provisions of Section 5- A of the Act, cannot fold its hands and refuse to grant a relief to the writ petitioner. Sub-section (3) of Section 6 of the Act renders a declaration to be a conclusive evidence. But when the decision meaning process itself is C.W.P. No. 16112 of 2009 9 in question, the power of judicial review can be exercised by the court in the event the order impugned suffers from well-known principles, viz., illegality, irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power it must be done in a fair and reasonable manner.” 9. It is trite that hearing given to a person must be an effective one and not a mere formality. Formation of opinion as regards the public purpose as also suitability thereof must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. The State in its decision-making process must not commit any misdirection in law. It is also not in dispute that Section 5-A of the Act confers a valuable important right and having regard to the provisions contained in Article 300-A of the Constitution it has been held to be akin to a fundamental right. In view of the aforesaid observation, we are of the view that the objections raised by the petitioner have not been given consideration which they deserved. Before rejecting objections on 10.07.2009 the respondents have already prepared the draft notification on 08.07.2009. It does not require any imagination about the nature of application of mind by respondents. It was simply an empty formality. Still further the construction has been completed long ago and it was unlikely to achieve public purpose of acquiring C.W.P. No. 16112 of 2009 10 the land. Therefore, in the totality of facts and circumstances of case, we are of the view that the impugned notifications are liable to be quashed. Therefore, the matter is being disposed of on merit. For the reasons stated above, this petition succeeds and the same is allowed. (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) May 27, 2010 JUDGE Atul