CWP NO. 7050 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: April 19, 2011 1. CWP No. 4981 of 2001 Jarnail Singh vs. State of Punjab 2. CWP No. 4982 of 2001 Gurmit Kaur vs. State of Punjab 3. CWP No. 4983 of 2001 Narata Ram vs. State of Punjab 4. CWP No. 4984 of 2001 Surmukh Singh vs. State of Punjab 5. CWP No. 4985 of 2001 Jagtar Singh vs. State of Punjab 6. CWP No. 4986 of 2001 Mohan Singh vs. State of Punjab 7. CWP No. 4987 of 2001 Varinder Singh vs. State of Punjab 8. CWP No. 4988 of 2001 Surinder Singh vs. State of Punjab 9. CWP No. 4989 of 2001 Jagdeep Singh vs. State of Punjab 10. CWP No. 3814 of 2001 Bhaliwal Sarvhitkari Arya High School vs. State of Punjab and others 11. CWP No. 6476 of 2001 Gopal lal Atri and others vs. State of Punjab and others CWP NO. 7050 of 2001 2 12. CWP No. 6604of 2001 Harminder Singh and others vs. State of Punjab and others 13. CWP No. 7156 of 2001 Jasmer Singh vs. State of Punjab and others 14. CWP No. 7108 of 2001 Sumedh Singh Saini and others vs. State of Punjab and others 15. CWP No. 5512 of 2001 Karnail Kaur etc. vs. State of Punjab and others 16. CWP No. 7050 of 2001 Jasmer Singh and others vs. State of Punjab and others 17. COCP No. 1077 of 2006 Karnail Kaur vs. Gurbux Singh and another 18. CWP No. 7337 of 2001 Jasmer Singh vs. State of Punjab 19. CWP No. 5150 of 2002 Darshan Kaur vs. State of Punjab and others 20. CWP No. 8877 of 2001 Yuvraj Sood vs. State of Punjab 21. CWP No. 8878 of 2001 Gurdeep Singh vs. State of Punjab 22.. CWP No. 8879 of 2001 Avtar Singh vs. State of Punjab 23.. CWP No. 8880 of 2001 Ashok Kumar vs. State of Punjab 24.. CWP No. 8881of 2001 CWP NO. 7050 of 2001 3 Parvar Chand Sarin vs. State of Punjab 25. CWP No. 8886 of 2001 Kehar Singh vs. State of Punjab 26. CWP No. 8887 of 2001 Raghubir Singh vs. State of Punjab 27 CWP No. 8888 of 2001 Sukhdev Singh vs. State of Punjab 28 CWP No. 8889 of 2001 Surjit Kaur vs. State of Punjab 29. CWP No. 8890 of 2001 Harbans Singh vs. State of Punjab 30 CWP No. 8891 of 2001 Kaka Singh vs. State of Punjab 31. CWP No. 8892of 2001 Anita Jindal vs. State of Punjab 32. CWP No. 7889 of 2001 Randhir Singh vs. State of Punjab 33. CWP No. 20318 of 2003 Tarsem Lal vs. State of Punjab 34. CWP No. 20356 of 2003 Swaran Singh and others vs. State of Punjab 35. CWP No. 17549 of 2001 Manjit Singh Bajwa and another vs. State of Punjab and others 36. CWP No. 17913 of 2001 Jasmer Singh vs. State of Punjab 37. CWP No. 17958 of 2001 CWP NO. 7050 of 2001 4 Rakesh Kumar and others vs. State of Punjab and others 38.. CWP No. 201 of 2002 Ram Pal and others vs. State of Punjab and others 39. CWP No.1302 of 2004 Pritam Kaur vs. State of Punjab 40. CWP No. 667 of 2004 Gurnam Singh and others vs. State of Punjab and others 41. CWP No.3298 of 2005 Jasmer Singh vs. State of Punjab 42. CWP No. 6316 of 2003 Jasmer Singh vs. State of Punjab 43. CWP No. 5572 of 2002 Jasmer Singh vs. State of Punjab 44. CWP No. 40 of 2004 Pawan Kumar Aggarwal vs. State of Punjab and others 45. CWP No. 1735 of 2002 Gurdev Singh and others vs. State of Punjab and others 46. CWP No. 2541 of 2004 Kulwant Kaur vs. State of Punjab and others 47. CWP No. 7427 of 2001 Jasmer Singh vs. State of Punjab 48. CWP No. 20386 of 2005 Jasmer Singh vs. State of Punjab 49. CWP No. 20382 of 2007 Jasmer Singh vs. State of Punjab CWP NO. 7050 of 2001 5 50. CWP No. 15287of 2001 Kissan Hit Bachao Committee vs. State of Punjab and others 51. CWP No. 10675 of 2005 Jasmer Singh vs. State of Punjab 52. CWP No. 20393 of 2005 Labh Singh vs. State of Punjab and others 53. CWP No. 8459 of 2001 Jasmer Singh vs. State of Punjab 54. CWP No. 8178 of 2001 Baldev Singh vs. State of Punjab 55. CWP No. 1340 of 2009 Sohinder Singh Walia and another. vs. State of Punjab and others 56. CWP No. 12668 of 2001 Jasmer Singh vs. State of Punjab **** Coram: Hon'ble Mr. Justice M .M. Kumar Hon'ble Mr. Justice Ajay Tewari **** Present: Mr.G.S.Grewal, Senior Advocate with Mr. J.S.Grewal, Advocate Mr. A.K.Chopra, Sr. Advocate with Ms. Shilpa Malhotra, Advocate Mr. Akshay Bhan, Advocate Mr. V. Ram Sarup, Advocate Mr. J.S. Dhaliwal, Advocate for Mr. M.L. Sharma, Advocate Mr.C.B. Goel, Advocate for the petitioners. Mr. Sanjeev Sharma, Sr. Advocate with Mr. Shekhar Verma, Advocate Mr. Suvir Sehgal, Addl. A.G., Punjab for the respondents. **** CWP NO. 7050 of 2001 6 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. At the very outset it is pertinent to mention here that out of the aforesaid bunch of petitions, CWP Nos. 7337 of 2001, CWP No. 5150 of 2002, CWP No. 8877 of 2001, CWP No. 8878 of 2001, CWP No. 8879 of 2001, CWP No. 8880 of 2001, CWP No. 8881of 2001, CWP No. 8886 of 2001, CWP No. 8887 of 2001,CWP No. 8888 of 2001, CWP No. 8889 of 2001, CWP No. 8890 of 2001, CWP No. 8891 of 2001, CWP No. 8892of 2001, CWP No. 7889 of 2001, CWP No. 20318 of 2003, CWP No. 20356 of 2003, CWP No. 17549 of 2001, CWP No. 17913 of 2001, CWP No. 17958 of 2001, CWP No. 201 of 2002, CWP No.1302 of 2004,CWP No. 667 of 2004, CWP No.3298 of 2005, CWP No. 6316 of 2003, CWP No. 5572 of 2002, CWP No. 40 of 2004, CWP No. 1735 of 2002, CWP No. 2541 of 2004, CWP No. 7427 of 2001, CWP No. 20386 of 2005, CWP No. 20382 of 2007, CWP No. 15287of 2001, CWP No. 10675 of 2005, CWP No. 20393 of 2005, CWP No. 8459 of 2001, CWP No. 8178 of 2001, CWP No. 1340 of 2009, CWP No. 12668 of 2001, have been filed after the passing of the award. In CWP No. 1460 of 2010, Suresh Kumar and others v. State of Haryana and others, a Division Bench of this Court on 29.01.2010 held as follows:- “Having heard learned counsel for the petitioners at a considerable length and perusing the paper book with his able assistance we are of the view that the instant petition lacks merit. It is conceded position on record that the award in the present case was announced on 27.6.2008 (P-7) and the instant petition has been filed on 27.1.2010. Even a supplementary award was also announced on 26.9.2008 (P-14). There is inordinate and un- explained delay in approaching the Court. There is a catena of judgments of Hon’ble the Supreme Court laying down the principle that no petition would be competent after announcement of award against the acquisition proceedings. Hon’ble the Supreme Court in para 29 of the judgment rendered in the case of Municipal Corporation of Greater Bombay v. Industrial Development and Investment Company (P) Limited, CWP NO. 7050 of 2001 7 (1996) 11 SCC 501, has observed as under:- “29. It is thus well settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loathe to quash the notifications. The High Court has, no doubt, discretionary powers to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference. The Division Bench of High Court was not right in interfering with the discretion exercised by the learned single Judge dismissing the writ petition on the ground of laches.” (emphasis added) 8. Considering the issue of maintainability of the writ petition after declaration under Section 6 of the Act and passing of the award, Hon’ble the Supreme Court in the case of Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48, in para 17 has held that after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder....................................................................... .......................................................................................................... .......................................................................................................... ... .......................................................................................................... 9. Reliance may also be placed on the judgments of Hon’ble the Supreme Court rendered in the cases of Star Wire (India) Ltd. v. State of Haryana, (1996) 11 SCC 698; M/s Swaika Properties Pvt. Ltd. v. State of Rajasthan, JT 2008 (2) SC 280. It is, thus, well settled that no writ petition would be competent after passing of award because possession of land is taken and it is deemed to vest in the State Government free from all encumbrances. Therefore, in view of the aforesaid decision, the Writ petitions filed after award are dismissed. This order shall dispose of Civil Writ petitions bearing bearing Nos. 4981 to 4989 of 2001, CWP No. 3814 of 2001, CWP No.7476 of 2001, CWP No. 6604 of 2001, 7156 of 2001, 7108 of 2001, 5512 of 2001, 7050 of 2001 as common questions of law and facts are involved therein. Facts are being taken from CWP No.7050 of 2001. CWP NO. 7050 of 2001 8 The petitioners are owners of 90 acres of land in village Sohana in District Ropar. The respondent No.1 issued notification under Section 4 of the Land Acquisition Act(hereinafter referred to as 'the Act') on 21.2.2000 for the purpose of setting up a residential urban estate in the area of revenue estate of village Sohana. The petitioners who are original residents of that village and have their houses along with their land which constitute a portion of the notification under Section 4, raised objections(Annexure P-3) under section 5A of the Act challenging the acquisition and alleged that in the year 1996 Punjab Government had framed a scheme called “Farmers Friendly and land Pooling Exchange Scheme”as per the contents of which for every acre of land transferred by the land owner to PUDA he will be given back approximately 1000 square yards after development and land owners were further advised not to sell their land. Therefore, the acquisition was violative of the principles of estoppel. Those objections were not decided and on 2.2.2001 a notification under Section 6 of the Act was issued and now steps are being taken to issue notice under Section 9. It was further averred that residential urban estates can only be made in accordance with The Punjab Regional and Town Planning and Development Act, 1995( 'the Act of 1995' for short). The Act of 1995 provides for a powerful body known as Board to select the area for development and then special authority viz. Punjab Urban Planning and Development Authority(PUDA) is provided to implement the project under the guidance and advice of the Board but unfortunately the respondent No.1 has started acquiring the land without complying with the provisions of the Act of 1995. PUDA has not complied with the provisions of Section 56 which was mandatory. As per Chapter II of the Act, Section 3 provides establishment of a board and section4 provides constitution of the Board. Even no master plan has been made by PUDA before issuance of the notification The notifications also do not disclose as to what was the public necessity which CWP NO. 7050 of 2001 9 would be fulfilled for establishing urban estate for the extension of Mohali. It has been alleged that by doing this PUDA wants to achieve its commercial objective. It is also pertinent to mention here that the area covered by the impugned notifications falls in the New Capital Periphery Act, therefore, the sale transactions in this area were nil. Govt. has fixed compensation at the rate of Rs. 8 lacs per acre which is very low and while determining the same, no committee comprising member of Parliament, local MLA or Sarpanch of the village was constituted. It is further averred that the said notifications have already been challenged in various writ petitions, one of them being CWP No. 5512 of 2001 and status quo has been ordered to be maintained qua possession in that writ petition. It was further averred that though notification under Section 6 was issued on 06.12.2000 yet even before that date, on 27.11.2000 respondent PUDA made an advertisement in the press for sale of plots in the land sought to be acquired. In reply to the petition, the respondents filed separate written statements. It has been averred therein that in order to ensure orderly growth and development of this periphery area, in the immediate vicinity of Chandigarh, the planning and development of SAS Nagar project as phase 2 of Chandigarh in the Punjab area was taken up in the year 1967-68. This project was basically conceived as an urban estate and the master plan of SAS Nagar covering an area of 5500 acres approximately spread over sectors 48 to 73 was prepared by the State Government. Even before the Act of 1995 came into force, expansion of Mohali was already contemplated as is evident from Annexures R-1 and R-1/T. Thereafter the Department of Town and Country Planning marked out the Sectors 76 to 80 and prepared a map. Based upon these proposals a decision was taken in a meeting that took place on 25.8.1995 to expand the existing township by adding sectors 76 to 80. Thus, the development of sectors 76 to 80 of SAS Nagar by the PUDA formed a CWP NO. 7050 of 2001 10 part of the residential sectors as conceived in the Draft Outline Master Plan proposal. In any case it also formed a part of the initial planning of the area that was carried out even prior to coming into force of the 1995 Act. It has been further averred that in the year 1991 the Government of Punjab in the Department of Housing and Urban Development with the approval of the Governor in Council issued orders dated 29.04.1991 vide which all the assets and liabilities of the urban estate in Punjab were transferred to the Punjab Housing Development Board. In compliance with the above said orders the Government of Punjab enacted the Act of 1995 and under Section 17(1) of this Act, PUDA has been established vide notification dated 30.06.1995. With the enactment of this Act, 1st meeting of the Board was held on 12.7.95 wherein it was decided that the planning agency for preparation of master/regional plan would be the Town and Planning Wing of the Department of Housing and Urban Development. In its 4th meeting held on 22.1.1996 the Planning and Design Committee considered the proposal with regard to the extension of SAS Nagar and the same was approved in principle. Thereafter the matter was considered in the Project Approval Committee in its meeting held on 9.4.1997 and the matter with regard to acquisition of 1250 acres of land for the new sectors i.e. Sector 76 to 80 of SAS Nagar was approved by the said Committee. It has been further averred that in order to commence the process of notifying planning areas and preparing outline master plans a proposal for notifying the Local Planning Area of SAS Nagar was discussed in the 2nd meeting of the Punjab Regional and Town Planning and Development Board held on 2.2.1996 wherein it was decided that the Local Planning Area of SAS Nagar be notified under section 56(1) of the Act of 1995 so that the outline master plan for future growth and development of SAS Nagar could be prepared. Objections were also invited CWP NO. 7050 of 2001 11 form the affected persons. The plan that was prepared for calling for objections already had the grid pattern for sectors 76 to 80 on the same. The objections and suggestions received from the public were discussed in the 5th meeting of the Board held on 15.11.1999 in which decision to notify the area was taken taking into consideration all aspects. It has been averred that 102 acres of land under litigation is not in one block and is spread out all over the area under acquisition. Due to the stay orders granted by this Court the development could not be completed leading to the situation that the areas which are not under litigation cannot be put to any proper use. On merits most of the contents of the petition have been denied. It is also stated that out of 1264 acres of land about Rs.100 Crores have already been spent towards acquisition and the remaining area which is in dispute in the present writ petition only comes to the tune of 102 acres in which Rs. 13 Crores are required to be paid to the landowners who are litigating in the various writ petitions. On merits the contents of the petition have been denied After notice of motion was issued in this petition, stay of dispossession was ordered. It would also be pertinent to mention here that during the pendency of this petition, the Punjab Government passed an order dated 19.05.2003 exercising its power under Section 178(2) of the Act seeking to exempt the process of development of the aforesaid sectors from the provisions contained in Chapters VIII, X and XII of the 1995 Act. Petitioner Jasmer Singh had filed another petition bearing CWP No. 29 of 2004 decided by a Division Bench of this Court on 26.09.2007 whereby the exemptions granted by the State government under Section 178(2) of the Act of 1995 were challenged on the ground that resorting to the provisions of Section 178 CWP NO. 7050 of 2001 12 (2) of the 1995 Act in order to circumvent the statutory provisions as contained in Chapters VIII, X and XII of the Act is a result of mala fide action of the respondents who have not only tried to defeat the provisions of law but have also sought to defeat the orders of this Court whereby dispossession of the petitioner had been stayed when a challenge to the acquisition proceedings was made. That writ petition was dismissed on 26.09.2007. It is also noteworthy that the judgment itself refers to the present group of writ petitions and traces linkage between that petition and the present group of writ petitions. In the present writ petitions also some of the important grounds on which the impugned notifications are being challenged are those relating to the non-compliance of the Punjab Housing Board Development Act, 1972 ('the Act of 1972' for short), the Act of 1995 and allegations of arbitrariness, mala fide and falsification of record. Thus a detailed reference to the said judgment would be appropriate. The said judgment noticed that SAS Nagar (Mohali) was conceptualized to include Sectors 53 to 81 out of which Sectors 53 to 75 were developed in the first phase and the planning for developing Sectors 76 to 80 is only a continuation of the existing Sectors with a view to expand the township of SAS Nagar (Mohali) in order to meet the future housing and other needs. Further that the present expansion was conceived as a development of Phase-III of the City of Chandigarh so as to meet the burgeoning demand of housing to satiate the need of the people for being accommodated in the wake of the saturation achieved by Chandgiarh City. The plan for expansion was prepared on 15.07.1994, which was approved on 15.06.1995 culminating into a decision on 25.08.1995, whereas the 1995 Act came into existence on 1.7.1995. Thus, the seeds of development plan were conceitedly sown prior to the coming into force of he 1995 Act. The said conceptualization; the ultimate acquisition, and the exemption under Section 178(2) of the 1995 Act formed an umbilical cord between the two i.e. the existing township CWP NO. 7050 of 2001 13 of SAS Nagar(Mohali) and the present extension; the severance of which have rendered the present project as being sill born. The Bench held as follows:- “Adverting to the impugned order, we notice that it makes into consideration various difficulties being faced by the respondents which propelled them to resort to the exercise of power under Section 178(2) of the 1995 Act. Amongst the reasons, the few major considerations were the challenge to the acquisition qua 10% of the said land as against 90% which was already available and for which the acquisition was complete; approximately a sum of Rs. 100 Crores having been disbursed to the land-owners,whereas the writ petitions who had challenged the acquisition were entitled to only Rs. 14 Crores approximately as compensation which would have paid to them, had they accepted the acquisition. One important aspect,which has to be borne in mind was the fact that out of a total about 1264 acres, which was proposed to be acquired, about 1162 acres already stood acquired and only 102 acres was under litigation. As 90% of the land being available for development and 10% left over land was under litigation. As 90% of the land being available for development and 10% left over land was under litigation made it impossible to develop 90% of the land as developed and approximately utilized as 10% of the land under litigation was scattered all over Sectors 76 to 80 in small, different pockets which was proving to be a major obstacle for development of the land including laying of road network and sewage. The township of SAS Nagar (Mohali) recorded the highest rate of growth of population necessitating to urgency to take up a planned development and to prevent haphazard growth and the city of SAS Nagar (Mohali) is a satellite town of Chandigarh which had already achieved saturation of sorts with no room to take in anything more even after it had extended its wings to the limits. In our opinion, the reasons which has gone into the exercise of the power under Section 178(2) of the 1995 Act is sufficiently plausible which reflects the adequate concern and the on-going process of achieving the object of development o the extension of the existing CWP NO. 7050 of 2001 14 township of SAS Nagar (Mohali)and does not seem to be, in any manner, a decision which is seeped in irrationality and arbitrations or being a deliverance of a malicious and colourable exercise of power. The second limb of the argument of the learned counsel for the petitioner that exemption having been given subsequent to the acquisition notifications under Sections 4 and 6 of the 1894 Act imply a retrospective operation does no stand the scrutiny of law. Section 178(2) of the 1995 Act contemplates that “'if the State Government is of the opinion that the operation of any provision of this Act causes any undue hardship or circumstances exist which render it expedient so to do, it may,subject to such terms and conditions as it may impose, by general or special order, exempt class of persons or areas, from all or any of the provisions of this Act.” In view of this, the power of the State Government to grant exemption under Section 178(2) cannot be doubted and the said power can be exercised at any