L.P.A.No.504 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:- 28h.01.2011 L.P.A.No.504 of 2010 State of Haryana and others ....Appellant(s) vs. Tara Chand and others ....Respondent(s) L.P.A.No.1657 of 2010 State of Haryana and others ....Appellant(s) vs. Ganga Jiwan and others ....Respondent(s) L.P.A.No.1658 of 2010 State of Haryana and others ....Appellant(s) vs. Daya Ram and others ....Respondent(s) L.P.A.No.1659 of 2010 State of Haryana and others ....Appellant(s) vs. Hukam Chand and others ....Respondent(s) L.P.A.No.1660 of 2010 State of Haryana and others ....Appellant(s) vs. M/s. Kansal Industries and others ....Respondent(s) L.P.A.No.1661 of 2010 State of Haryana and others ....Appellant(s) vs. Richhpal and others ....Respondent(s) L.P.A.No.504 of 2010 -2- L.P.A.No.895 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Maman Singh and others ....Respondent(s) L.P.A.No.896 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Baljeet Singh and others ....Respondent(s) L.P.A.No.897 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Surat Singh and others ....Respondent(s) L.P.A.No.929 of 2010 HSIIDC ....Appellant(s) vs. Vineeta Trading Pvt.Ltd. and others ....Respondent(s) L.P.A.No.973 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. M/s Air Gas Engineers & others ....Respondent(s) L.P.A.No.974 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. L.P.A.No.504 of 2010 -3- Richhpal and others ....Respondent(s) L.P.A.No.975 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. M/s Kansal Industries and others ....Respondent(s) L.P.A.No.982 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Munshi Ram and others ....Respondent(s) L.P.A.No.1054 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Abhipra Trading Pvt.Ltd. and others ....Respondent(s) L.P.A.No.1059 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Tara Chand and others ....Respondent(s) L.P.A.No.1123 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Chandan Singh and others ....Respondent(s) L.P.A.No.1124 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) L.P.A.No.504 of 2010 -4- vs. Daya Ram and others ....Respondent(s) L.P.A.No.1125 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Hukum Chand and others ....Respondent(s) L.P.A.No.1126 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Ganga Jiwan and others ....Respondent(s) L.P.A.No.1138 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Ishwar Singh and others ....Respondent(s) L.P.A.No.1139 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Surinder Singh and others ....Respondent(s) L.P.A.No.1140 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Lal Singh and others ....Respondent(s) L.P.A.No.504 of 2010 -5- L.P.A.No.1142 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Dominant Web Pvt.Ltd. and others ....Respondent(s) L.P.A.No.1210 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Ajay Kumar and others ....Respondent(s) L.P.A.No.1211 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Sudhir Kumar and others ....Respondent(s) L.P.A.No.1212 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Ramesh Chander and others ....Respondent(s) L.P.A.No.1219 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Rupesh Yadav and others ....Respondent(s) L.P.A.No.1220 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. L.P.A.No.504 of 2010 -6- Mukesh Kumar and others ....Respondent(s) L.P.A.No.1391 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Lakhpat Singh and others ....Respondent(s) L.P.A.No.1392 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Billu Ram and others ....Respondent(s) L.P.A.No.1393 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Naval Singh and others ....Respondent(s) L.P.A.No.1424 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Rajinder Singh and others ....Respondent(s) L.P.A.No.1425 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Manoj Kumar and others ....Respondent(s) L.P.A.No.1426 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) L.P.A.No.504 of 2010 -7- vs. Ugersain and others ....Respondent(s) L.P.A.No.1430 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Umrao Singh and others ....Respondent(s) L.P.A.No.1431 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Hardev Singh and others ....Respondent(s) L.P.A.No.1481 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Sada Ram and others ....Respondent(s) L.P.A.No.1482 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Ashok Kumar and others ....Respondent(s) L.P.A.No.1497 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Parmanand and others ....Respondent(s) L.P.A.No.1498 of 2010 Haryana State Infrastructure Industrial L.P.A.No.504 of 2010 -8- Development Corporation ....Appellant(s) vs. Bala Ram and others ....Respondent(s) L.P.A.No.1499 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Mangal Singh and others ....Respondent(s) L.P.A.No.1513 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Mam Chand and others ....Respondent(s) L.P.A.No.1514 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Kumbhkaran and others ....Respondent(s) L.P.A.No.1544 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Sunil and others ....Respondent(s) L.P.A.No.1545 of 2010 Haryana State Infrastructure Industrial Development Corporation ....Appellant(s) vs. Antraj and others ....Respondent(s) L.P.A.No.504 of 2010 -9- C.W.P.No.1003 of 2006 Narain Singh and others ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.3574 of 2005 M/s Opera House Export Ltd. ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.17873 of 2004 Ram Pal and others ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.17836 of 2004 Ram Singh and others ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.H.S.Hooda. Advocate General, Haryana with Mr.Kamal Sehgal, Addl.A.G., Haryana, for the appellants. Sh.Arun Kumar Jain, Sr.Advocate with Sh.Nitin Goel, Advocate. Mr. M.L.Sharma, Advocate. Mr.Shailendra Jain, Advocate. Mr. Ashwani Kumar Chopra, Sr.Advocate with Mr.Ashish Chopra and Ms.Rupa Pathania, Advocates. L.P.A.No.504 of 2010 -10- Mr.Narender Sura, Advocate. Mr.C.B.Goel, Advocate. Mr.Sanjay Vij, Advocate. *** Augustine George Masih, J. By this order, we propose to decide LPA Nos.504, 1657, 1658, 1659, 1660 and 1661 of 2010 filed by the State of Haryana and LPA Nos.895, 896, 897, 929, 973, 974, 975, 982, 1054, 1059, 1123, 1124, 1125, 1126, 1138, 1139, 1140, 1142, 1210, 1211, 1212, 1219, 1220, 1391, 1392, 1393, 1424, 1425, 1426, 1430, 1431, 1481, 1482, 1497, 1498, 1499, 1513, 1514, 1544 and 1545 of 2010 filed by the Haryana State Infrastructure Industrial Corporation, wherein challenge has been posed to the judgment passed by the learned Single Judge in CWP No.17108 of 2004 (Tara Chand and others vs. State of Haryana and others) decided on 16.4.2009 vide which other similar writ petitions were also decided. Along with these Letters Patent Appeals, Civil Writ Petition Nos.1003 of 2006, 3574 of 2005, 17873 and 17836 of 2004 filed by the land owners are also being decided as notifications under challenge in these writ petitions are the same which were the subject-matter of CWP No.17108 of 2004 (Tara Chand and others) (supra). In the writ petitions, challenge was to the notifications dated 17.9.2004 issued under Section 4 read with Section 17(2)(c) of the Land Acquisition Act, 1894 (hereinafter referred to as the LA Act) and to the notification dated 27.10.2004 issued under Section 6 of the LA Act. In the notification dated 17.9.2004, it was also mentioned that the provisions of Section 5-A of the LA Act would not apply. Notices under Section 9 of L.P.A.No.504 of 2010 -11- the LA Act were issued on 21.2.2006 calling upon the land owners to file their claims and thereafter the award was pronounced on 9.3.2006. The writ petitions were primarily allowed by the learned Single Judge on the ground that the State of Haryana had failed in exercise of its powers to abide by the mandate of law and had proceeded to invoke Section 17(4) of the Act arbitrarily, without application of mind and, therefore, notifications issued under Sections 4 and 6 of the LA Act and all proceedings emanating therefrom were quashed, however, subject to a different result in some specified cases. The learned Advocate General appearing on behalf of the appellant-State of Haryana while referring the pleadings in LPA No.504 of 2010, has submitted that the learned Single Judge has failed to fully appreciate the fact that the State of Haryana had acquired land by invoking the urgency provisions in accordance with law. The State Government produced the relevant record to establish the bona fides and to prove the application of mind by the competent Authority regarding invoking of the urgency provisions and the necessity for suspending the provisions of Section 5-A of the LA Act. There were no mala fides on the part of the State but the notifications were issued in compliance to the judgment passed by the Hon'ble Supreme Court in the case of M.C.Mehta vs. Union of India and others, Writ Petition (Civil) No.4677 of 1985 and another order dated 7.5.2004 passed in an interlocutory application directing rehabilitation of industrial units displaced from Delhi. He submits that the records which were produced before the learned Single Judge fully establish the application of mind which although has been referred to in the judgment passed by the learned Single Judge yet the same has not been taken note of L.P.A.No.504 of 2010 -12- in its right perspective. He submits that in any case, the decision of the Government to invoke the urgency provisions is a subjective satisfaction which should not be interfered with by the Courts. The initiation of proposal for acquisition upto its final approval by the officers concerned clearly establishes the application of mind to the nature of the urgency and the necessity of suspending the provisions of Section 5-A of the LA Act. The decision of the Government is not justiciable and falls within the domain of the administrative powers. The reasons are not to be clearly spelt out as is required by a judicial or quasi- judicial Authority and, therefore, it being not justiciable, the Court should not have interfered with in the exercise of powers by the Government in accordance with the provisions of the LA Act. He further contends that the whole area covered by the notification is required for the planned development as one single contiguous and integrated complex. The order of the learned Single Judge dated 16.4.2009 totally upsets the planned scheme of development of this area as with the quashing of the notification qua the petitioners leaves uncleared pockets in between rendering any planned development of the area impossible. It is absolutely essential that the entire land in question is acquired and developed as per the lay out plans. In support of these contentions, he has relied upon the judgment of the Hon'ble Supreme Court in the case of Nand Kishore Gupta and others vs. State of U.P., Civil Appeal No.7468 of 2010, Sheikhar Hotels Gulmohar Enclave vs. State of U.P, (2008) 14 SCC 716, First Land Acquisition Collector and others vs. Nirodhi Prakash Gangoli and another, (2002) 4 SCC 160, Union of India and others vs. Praveen Gupta and others, (1997) 9 SCC 78, Rajasthan Housing Board and others vs. Shri Kishan and others, (1993) L.P.A.No.504 of 2010 -13- 2 SCC 84, Tika Ram and others vs. State of Uttar Pradesh, (2009) 10 SCC 689. His further contention is that even if it is accepted that the urgency provisions invoked by the State of Haryana were not justified or were without application of mind, still notification dated 17.9.2004 issued under Section 4 of the LA Act could not have been quashed by the Court as the petitioners could have been given an opportunity to file objections under Section 5-A of the LA Act so that the Government could proceed further from that stage. In support of this contention, he has relied upon the judgment of the Hon'ble Supreme Court in the case of Kanpur Development Authority vs. Mahavir Sahkari Awas Samiti Ltd., (2005) 10 SCC 320 and a Division Bench judgment of this Court passed in CWP No.1512 of 2010 decided on 4.2.2010 titled as Darshan Singh and others vs. State of Punjab and others. As regards the contention of delay in filing the appeal, the ground which has been spelt out from the application and the submission which has been made by the learned Advocate General, Haryana is that the delay of 135 days in filing the appeal has occurred on account of procedural delay. Initially, the Advocate General, Haryana, opined that the Letters Patent Appeal be filed in the Hon'ble Supreme Court against the order passed by the learned Single Judge and the Legal Remembrancer and Secretary to the Government of Haryana, Law and Legislative Department, Haryana agreed with the views of the Advocate General, Haryana and accordingly issued instructions to the Advocate General to file an appeal. During this process, the delay of 135 days in filing the appeal has occurred. The delay is not intentional and rather it is a procedural delay which L.P.A.No.504 of 2010 -14- deserves to be condoned. On the other hand, counsel for the respondents- land owners submits that the judgment passed by the learned Single Judge is based upon the facts and proper appreciation of the pleadings and the records which were produced. The judgment is in accordance with law which does not call for any interference by this Court. The only right which has been provided under the LA Act to the land owners to object to the acquisition of the land is under Section 5-A of the LA Act. Although the Act does provide for an exception i.e. non-application of the said provision but the same cannot be done arbitrarily and without application of mind. For invoking the provisions as contained under Section 17 of the LA Act, the mandate of the law has to be strictly complied with as it is of such a nature which compulsorily divests a land owner of his proprietary rights. The absolute powers conferred upon the State has necessarily to pass the test of strict compliance of the statutory right. Section 5-A of the LA Act has been held to be akin to the fundamental rights by the Hon'ble Supreme Court and, therefore, if a person is deprived of that right, it has to be done strictly in accordance with law. Although the powers of the State Government to invoke the urgency provisions are based upon the subjective satisfaction; nevertheless it is not beyond the judicial review while exercising the powers under Article 226 of the Constitution of India. The State has to discharge its onus before the Court by way of producing records to show application of mind which in the present case the State has miserably failed to discharge and, therefore, the findings recorded by the learned Single Judge being in accordance with law, do not call for any interference. As regards the contention of the counsel for the appellant that L.P.A.No.504 of 2010 -15- the notification issued under Section 4 of the LA Act could not have been quashed by the learned Single Judge, it is submitted by the counsel for the respondents that now notification under Section 6 of the LA Act cannot be issued as the same had to be mandatorily issued within one year of the issuance of the notification under Section 4 of the LA Act. In this case, notification under Section 4 of the LA Act was issued on 17.9.2004 and, therefore, the notification under Section 6 could have been issued on or before 16.9.2005 which period has since expired and, therefore, notification under Section 6 at this stage cannot be issued and, thus, it would be a futile exercise even if Section 4 notification is upheld by this Court. As regards the application for condonation of delay in filing the appeal is concerned, counsel for the respondents has submitted that no details with regard to the delay of 135 days in filing the appeal have been given. Day to day delay is required to be explained in filing the appeal which in the present case has not been done and, therefore, the application for condonation of delay deserves to be dismissed as also the appeal which has been preferred by the State of Haryana. We have heard counsel for the parties and with their able assistance, have gone through the pleadings and records of the case. Arguments were primarily addressed by the counsel in LPA No.504 of 2010 as the same was treated as the lead case. LPA No.504 of 2010 came up for hearing before a Division Bench of this Court on 28.4.2010 and while admitting the appeal the Court observed in paras 8 to 11 in its order as follows:- “xxx xxx xxx xxx 8. We have heard learned Advocate General, Haryana, L.P.A.No.504 of 2010 -16- who submits that invocation of urgency was based on subjective satisfaction and was not vitiated. Alternatively, there was no ground to quash Section 4 Notification and the State should have been given liberty to proceed afresh from the stage of Section 4 Notification. 9. Although, we do not see any substance in the submission that subjective satisfaction for invocation of urgency was not vitiated, we are of the view that contention with regard to modifying the impugned order of learned Single Judge regarding Section 4 Notification will require consideration. 10. Admitted, subject to condonation of delay. 11. In the meanwhile, there will be stay of direction quashing Section 4 Notification and the State will be at liberty to proceed afresh from the stage of the said notification in accordance with law, subject to further orders.” A perusal of para 9 of the above order would show that the Division Bench did not see any substance in the appeal, with regard to the submission of the Learned Advocate General, Haryana that the subjective satisfaction for invocation of urgency was not vitiated. The appeal was admitted subject to condonation of delay and to the limited extent that there was no ground to quash Section 4 notification. It further shows that during the pendency of the appeal, the direction quashing Section 4 notification by the learned Single Judge was stayed and the State was given liberty to L.P.A.No.504 of 2010 -17- proceed afresh from the stage of the said notification in accordance with law. Despite the above order, we have proceeded to hear the counsel for the parties on the merits of the case as well as on the alternative plea which has been raised by the learned Advocate General at the time of hearing of appeal when the order dated 28.4.2010 was passed. A great emphasis has been laid by the learned Advocate General on the point that the State Government had acted upon the order issued by the Hon'ble Supreme Court dated 7.5.2004 in M.C.Mehta's case (supra) vide which time-bound directions for closing down and stoppage of operation of all industrial units which had come up in the residential/non- conforming areas of Delhi on or after 1.8.1990 were issued and the State of Haryana and other States falling in the National Capital Region were directed to extend full cooperation in re-location of the industry. He has taken us through the said order to justify the invocation of the urgency provisions while issuing notification under Section 4 of the LA Act. He has submitted that the land had to be acquired urgently with an intention to comply with the directions issued by the Hon'ble Supreme Court. Apart from that, it was in the interest of the State of Haryana to make available the land so that the industries could be established in the State of Haryana which would have not only brought in revenue but would have created a large number of job opportunities, besides developing the area as an industrial hub. He has referred to the photocopies of the records which have been produced herein and the notings to impress upon the Court that there was due application of mind from the very initiation of the process of acquisition till the issuance of the notification. About six thousand L.P.A.No.504 of 2010 -18- industrial units were required to be allotted plots immediately as per the directions of the Hon'ble Supreme Court dated 7.5.2004 and the development of the industrial plots was required for accommodating these units. The land acquisition and development of industrial infrastructure is a time consuming process. While the time taken in the development of infrastructure cannot be reduced, the process of land acquisition can be reduced if the same is carried out under the urgency provisions as contained under Section 17 of the LA Act. Prior to the issuance of the order dated 7.5.2004, all National Capital Region States, namely, Uttar Pradesh, Rajasthan and Haryana were associated with the National Capital Region Planning Board where the Hon'ble Supreme Court was informed that the State of Haryana had some industrial plots for shifting the units from Delhi. Accordingly, additional land was to be acquired for development so that other industrial units and entrepreneurs shifting out of Delhi State could be accommodated. The demand of the industrial infrastructure in Gurgaon district due to its locational advantage had to be exploited and accordingly, the land was identified for the said purpose. HSIIDC was identified for the development of the industrial infrastructure. HSIIDC proposed acquisition of land measuring 956 acres 5 kanals 18 marlas for expansion of Industrial Model Township Manesar ( IMT Manesar) which had already been developed accordingly. Notification under Section 4 read with clause (C ) of sub-section (2) of Section 17 of the LA Act was issued on 17.9.2004 for acquisition of the above-mentioned land falling in villages Nabada Fatehpur, Naurangpur, Manesar, Lakhnoula, Naharpur Kasan and Shikopur, Tehsil and District Gurgaon. The land was urgently needed by the Government on public expenses for a public purpose, namely, for L.P.A.No.504 of 2010 -19- setting up of Chaudhary Devi Lal Industrial Model Township, Phase-V, Manesar to be planned and developed as an integrated complex for industrial, institutional, commercial, recreational and other public utilities. Notification under Section 6 read with clause (c ) of sub-section (2) of Section 17 of the LA Act was issued by the State Government on 27.10.2004. As a subsequent event, the Hon'ble Apex Court was pleased to extend the period of shifting of industrial units from Delhi and the emergent situation for entrepreneurs existing in the National Capital Territory of Delhi did not remain so pressing. Accordingly, the delay in announcement of the award occurred. Notice under Section 9 was issued on 21.2.2006 and the award was announced by the Land Acquisition Collector on 9.3.2006. A large number of land owners accepted compensation and even preferred reference under Sections 18 and 30 of the LA Act. The possession of the land measuring 475 acres was taken by the State of Haryana vide Rapat No.654 dated 9.3.2006 but due to the stay granted by this Court vide order dated 2.11.2004, possession of the remaining land could not be taken. The land involved in the present Letters Patent Appeals wherein the writ petitions have been allowed, is scattered and the total land measuring therein is 290 acres. The purpose for which the acquisition has been made would be frustrated if the present acquisition is not upheld. The quashing of the notification qua the petitioners by the learned Single Judge would not only disturb the planning of the entire area but would also thwart the efforts of the appellant-State to expand an existing industrial township in a planned and coordinate manner. He, on this basis, has prayed for setting aside the order passed by the learned Single Judge. Despite the efforts which have been put in by the learned L.P.A.No.504 of 2010 -20- Advocate General to persuade us to accept his contention with regard to the proper application of mind for invoking the urgency provisions as contained under Section 17 of the LA Act, we are unable to accept the same. The learned Single Judge after considering the relevant provisions of the Statute, has referred and quoted from the judgments of the Hon'ble Supreme Court in the case of Nandeshwar Prasad and another vs. State of Uttar Pradesh and others, (1964) 3 SCR 425, Narain vs. State of Maharashtra, AIR 1977 SC 183, State of Punjab vs. Gurdial Singh 1980 (2) SCC 471, Om Parkash and another vs. State of U.P. and others, 1998 (6) SCC 1, Union of India and others vs. Krishan Lal Arneja, AIR 2004 SC 3582, Union of India and others vs. Mukesh Hans, (2004) 8 SCC