IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: January 18, 2010 CWP No. 16832 of 2003 Bhopu and others ..Petitioners Versus State of Haryana and others ...Respondents CWP No. 17279 of 2003 Ram Pat and others ...Petitioners Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Shailendra Jain, Advocate, for the petitioners. Mr. Kamal Sehgal, Addl. AG, Haryana. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This order shall dispose of two petitions, namely, CWP Nos. 16832 & 17279 of 2003 because notifications acquiring the land in both cases are the same. However, facts are being referred from CWP No. 16832 of 2003. The challenge in this petition filed under Article 226 of the Constitution is to the notification dated 25.6.2002 (P-7), issued under Section 4 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’); land acquisition notices, dated CWP No. 16832 of 2003 29.6.2002 and 1.7.2002 (P-8 & P-11); Rapat Rojnamcha for the year 2001-02 (P-9 & P-12); and declaration under Section 6 of the Act, dated 26.6.2002 (P-10). 2. Facts may first be noticed. The petitioners are co-owners of the land situated in the revenue estate of Village Amarheri, Tehsil and District Jind. It is claimed that on 7.7.1989, petitioner No. 1 has purchased the land in question vide registered sale deed No. 1467 and built up four houses, which abut a road leading to Jind from the village. In the aforementioned houses four sons of petitioner No. 1 and their families are residing separately. Three site plans of the houses have been placed on record (P-4 to P-6). It has further been stated that the houses are assessed to house tax by the Municipal Council, Jind and house tax is being deposited regularly by the petitioners. Besides this, electricity connections have also been provided in the said houses and in one house there is also a telephone connection. 3. A notification under Section 4 of the Act for acquiring 20.27 acres of land was issued by the respondent State on 25.6.2002 for a public purpose, namely, Water Works, Sector 6, Jind, in the area of village Amerheri, Hadbast No. 80, Tehsil and District Jind and village Jind, Hadbast No. 79, Tehsil and District Jind. Since the aforementioned land was urgently required, therefore, the provisions of Sub-Section (1) of Section 17 of the Act were invoked and the requirement of filing of objections under Section 5A of the Act was dispensed with (P-7). As per the requirement of Section 4 of the Act, the aforementioned notification was also published in the two daily newspapers, namely, ‘Danik Pathak Paksh’ (Hindi), dated 29.6.2002 (P-8) and ‘the Indian Express’ (English), dated 28.6.2002. On 1.7.2002, the substance of the notification was also entered in the Rapat Rojnamcha (P-9). 4. The petitioners have asserted that as per the provisions of Sub- 2 CWP No. 16832 of 2003 section (4) of Section 17 of the Act, a declaration under Section 6 of the Act could only be made only after the last date of publication of notification under Section 4(1) of the Act. However, in the present case without waiting for the publication of the notification under Section 4(1) of the Act either in the two newspapers circulating in the locality or the Collector giving cause public notice of the substance of the notification to be given at convenient places in the locality, declaration under Section 6 of the Act has been issued on 26.6.2002, which was published in the Haryana Government Gazette Extraordinary on the same date (P-10). In this manner, the land of the petitioners has been acquired under the said acquisition. On 1.7.2002, in terms of Section 6(2), the declaration under Section 6 of the Act was published in one newspaper i.e. ‘Dainik Pathak Paksh’ dated 1.7.2002 (P-11). The substance of the declaration under Section 6 by public notice at the convenient places in the locality was caused by the Collector-respondent No. 2 on 2.7.2002. An entry in the Rapat Rojnamcha was also entered at Sr. No. 398 (P-12). 5. It has further been alleged by the petitioners that after about 9 months, notices dated 9.4.2003 were issued by the Collector to all the interested persons including the petitioners under Section 9 of the Act requiring them to appear before him on 9.5.2003 at 11 a.m. at PWD Rest House, Jind, either in person or through authorised representative to state if the name/share/khasra number etc. are not as per the record and if so, then produce a copy of jamabandi/mutation etc. so that record could be corrected (P-13 to P-16). In para 14 of the petition, the petitioners have asserted that after issuance of notice under Section 9, the Collector kept mum and no award under Section 11 of the Act was made by him. In the backdrop of the aforementioned factual position, the petitioners have filed these petitions challenging the acquisition proceedings. 3 CWP No. 16832 of 2003 6. In the written statement filed on behalf of respondent Nos. 1 and 2 the broad factual position has not been controverted. However, there seems to be some difference of dates of publication of declaration under Section 6 of the Act in the daily newspapers because as per the averments made in para 10 the petition it was published in the newspapers on 1.7.2002 whereas in para 2 of the preliminary objections, the respondents have asserted that notification under Section 6 was published in the daily news papers in Hindi and English, namely ‘Danik Pathak Paksh’ dated 29.6.2002 (Hindi) and ‘The Indian Express’ dated 28.6.2002 (English). On the contrary in the reply on merits to para 10 of the petition, it has been submitted by the respondents that declaration under Section 6 was published in the English daily ‘The Indian Express’ on 28.6.2002 whereas in the Hindi Daily ‘Dainik Pathak Paksh’ it was published on 1.7.2002. 7. In preliminary objection No. 3, the respondents have tried to explain the delay which has occurred in issuance of notices under Section 9 of the Act and in that of announcement of the award. This being one of the main ground of challenge in the writ petitions, it would be profitable to reproduce para 3 of the preliminary objections: “3. That the powers for acquisition of the land U/S-7 of the L.A. Act was delegated to the answering respondent by the Govt. on 30.7.2002. Instead of above the answering respondent also will have to collect the revenue record from the concerned revenue patwaries for issuing the notices U/S-9 of the Land Acquisition Act. Which also took some time and the same was collected in the month of September and October 2002. The notices U/S-9 were issued on 9.4.2003 accordingly, the land owners were invited for submitting their claims in pursuance of the said notices on 21.5.2003. 4 CWP No. 16832 of 2003 The market rates of the land under acquisition was also to be collected from the Deputy Commissioner Jind for which he was requested on 8-7-2002, which were received on 22.8.2002. The respondent No. 3 was also requested to send the amount of award on 26.9.2002. The authorization of demanded compensation was received on 16.10.2003, in the name of Union Bank of India payable at par at Jind for Rs. 1.65 Crore. There was no branch of above said bank at Jind, as such the land owners could not get the compensation awarded by the Land Acquisition Collector at Jind. Due to above reason the respondent No. 3 was again requested for changing the authorization in the name of other Bank which has branch at Jind and same was changed accordingly by the respondent No. 3 vide his letter No. 37703 dated 16.12.2003 in the name of Oriental Bank of Commerce for releasing the amount of award. Thereafter answering respondent has announced the award on 22.1.2004 and the possession of the acquired land has been taken over on the same day except the land in dispute. Hence the delay in issuing the notices U/S-9 and announcing the award is procedural and is not intentional on the part of answering respondent. Besides this, it is also pointed out that there is a shortage of staff and very much load of work of the seven districts, regarding acquisition and court cases in the office of answering respondent. The land in dispute has been acquired as per provisions of the Land Acquisition Act and the civil writ petition is liable to be dismissed.” 5 CWP No. 16832 of 2003 8. It has also been highlighted in the written statement that the land in question has been acquired in accordance with the provisions of the Act. The purpose of acquiring the land is fully justified, inasmuch as, the land is needed for public purpose for Water Works Sector 6, Jind, which is necessary and urgent in nature. It is only because urgency is involved, therefore, the provisions of sub-section (1) of Section 17 of the Act have been invoked in the present case. 9. In para 2 of the reply on merits it has been pointed out that all the petitioners (in CWP No. 16832 of 2003) are not co-owners of the land in question. Only petitioner No. 1 is co-owner in the disputed land as per jamabandi for the year 2000-2001. The houses constructed over the disputed land falls within the municipal limits of Municipal Committee, Jind. However, no building plans were got sanctioned from the Municipal Committee, Jind, before raising the construction of houses. The houses are being used for residential, cattle and fodder storing purpose etc. 10. It is worthwhile to point out that while issuing notice of motion, a Division Bench of this Court stayed dispossession of the petitioners, vide order dated 31.10.2003. On 13.5.2004, the writ petition was admitted and the interim order was ordered to continue. 11. Mr. Shailendra Jain, learned counsel for the petitioners has argued that Section 17 of the Act could not have been invoked if the possession of the land has been taken after more than one year. According to the learned counsel, there was no justification for invoking urgency clause, which in fact was only to defeat the rights of the land owners to file objections under Section 5-A of the Act and deprive them of their right of hearing. 12. Mr. Jain has maintained that according to the language of Section 17(4) of the Act, it is imperative for the State Government to apply its mind to the necessity of dispensing with holding of inquiry under Section 5-A, which 6 CWP No. 16832 of 2003 provides for filing of objections and granting of opportunity of hearing. In respect of his submissions, learned counsel has placed reliance on the judgment of Hon'ble the Supreme Court in the case of Union of India v. Mukesh Hans, (2004) 8 SCC 14, wherein the provisions of Section 17(4) of the Act have been interpreted to mean that it is the State Government which may direct that the provisions of Section 5-A of the Act were not to apply. According to the learned counsel, there is nothing on record which may suggests the independent application of mind with regard to arriving at a conclusion of dispensing with the provisions of Section 5-A of the Act. He has further placed reliance on the judgment of Hon'ble the Supreme Court rendered in the case of Essco Fabs Private Limited v. State of Haryana, (2009) 2 SCC 377, while following and applying the principle laid down in the case of Mukesh Hans's case (supra). 13. Mr. Kamal Sehgal, learned Additional Advocate General, Haryana, for the respondents has produced the record and has maintained that once the notification itself states that Section 5-A of the Act is dispensed with then there is no further requirement to take any independent decision by the Government for dispensing with the requirement of Section 5-A of the Act. He has pointed out that in the whole acquisition only these two petitions have challenged the acquisition, whereas the other land owners have felt satisfied and have not raised any objections. He has then submitted that in case this Court reaches the conclusion that the requirement of Section 5-A of the Act is mandatory then the declaration made under Section 6 of the Act on 29.6.2002 (P-8) alone may be quashed granting liberty to the respondent State to invite objections under Section 5-A of the Act instead of quashing the notification issued under Section 4 of the Act. On our asking original record has been produced by him for our perusal. 14. After hearing learned counsel for the parties, perusing the paper 7 CWP No. 16832 of 2003 book with their able assistance and examination of the original record, we have reached the conclusion that both the petitions deserve to succeed. It is trite to mention that law concerning compulsory acquisition of land has to be considered strictly as it is an expropriatory legislation. In that regard, reliance may be placed on the judgments of Hon'ble the Supreme Court in the cases of Devinder Singh v. State of Punjab, (2008) 1 SCC 728 and Hindustan Petroleum Corporation Limited v. Darius Shapur Chenal, (2005) 7 SCC 627. It follows that the provisions of Section 17 of the Act have to be examined in the light of the aforesaid principle of construction laid down by Hon'ble the Supreme Court. Section 17(4) of the Act reads thus:- “17(4). In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub- section (2) are applicable, the appropriate government may direct that the provisions of Section 5-A shall not apply, and if it does do direct, a declaration may be made under Section 6 in respect of the land at any time after the date of the publication of the notification under Section 4 sub-section (1).” 15. The aforesaid provision clearly spells out that the appropriate Government is under an obligation to take an express and a conscious decision that provisions of Section 5-A are not to apply and it is thereafter that declaration under Section 6 could be issued at any time after the publication of the notification under Section 4(1) of the Act. The aforesaid provision came up interpretation of their Lordships of Hon'ble the Supreme Court in the case of Mukesh Hans (supra). The principle enunciated by their Lordships’ is discernible from para 32 of the judgment, which reads thus:- “32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated under the Act shows 8 CWP No. 16832 of 2003 mere existence of urgency or unforeseen emergency though is a condition precedent for invoking Section 17(4) that by itself is not sufficient to direct the dispensation of 5A inquiry. It requires an opinion to be formed by the concerned government that along with the existence of such urgency or unforeseen emergency there is also a need for dispensing with 5A inquiry which indicates that the Legislature intended that the appropriate government to apply its mind before dispensing with 5A inquiry. It also indicates the mere existence of an urgency under Section 17(1) or unforeseen emergency under Section 17(2) would not by themselves be sufficient for dispensing with 5A inquiry. If that was not the intention of the Legislature then the latter part of sub-section (4) of Section 17 would not have been necessary and the Legislature in Section 17(1) and (2) itself could have incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5A inquiry will be dispensed with. But then that is not language of the Section which in our opinion requires the appropriate Government to further consider the need for dispensing with 5A inquiry in spite of the existence of unforeseen emergency. This understanding of ours as to the requirement of an application of mind by the appropriate Government while dispensing with 5A inquiry does not mean that in and every case when there is an urgency contemplated under Section 17(1) and unforeseen emergency contemplated under Section 17(2) exists that by itself would not contain the need for dispensing with 5A inquiry. It is possible in a given case the urgency noticed by the appropriate Government under Section 17(1) or the unforeseen emergency 9 CWP No. 16832 of 2003 under Section 17(2) itself may be of such degree that it could require the appropriate Government on that very basis to dispense with the inquiry under Section 5A but then there is a need for application for mind by the appropriate Government that such an urgency for dispensation of the 5A inquiry is inherent in the two types of urgencies contemplated under Section 17(1) and (2) of the Act.” (emphasis added) 16. A perusal of the aforesaid para shows that an opinion is required to be formed by the State Government that along with the existence of urgency or unforeseen emergency contemplated by Section 17(1) and Section 17(2) respectively, there is also a need for dispensing with Section 5-A inquiry. The aforesaid provision indicates that the Legislature intended the appropriate Government to apply its mind before dispensing with Section 5-A inquiry. It has further been pointed out that mere existence or unforeseen emergency would not by itself be sufficient for dispensing with Section 5-A inquiry. It means, even in cases of urgency or emergency right to file objections and grant of an opportunity to hearing under Section 5A of the Act may still be kept intact. The decision of Mukesh Hans's case (supra) has been followed and applied in the case of Essco Fab (supra). Furthermore, this Court while deciding the case of Punita Chaudhary and others v. State of Haryana (CWP No. 3129 of 2008, decided on 8.12.2008), to which one of us (M.M. Kumar, J.) is a member, has also followed the aforesaid decision. 17. When the aforesaid principles are applied to the facts of present case, it becomes evident from the perusal of the original record that there is no decision with regard to dispensing with inquiry under Section 5-A of the Act. An office note dated 3.5.2002 would show that the Department of Urban Development, Jind, had proposed the acquisition of 29.53 acres of land by 10 CWP No. 16832 of 2003 invoking urgency clause and the matter was processed through the Financial Commissioner (Revenue) and put up before the Chief Minister, who had approved the office note on 30.5.2002. There is no whisper with regard to dispensing with inquiry under Section 5-A of the Act what to talk of taking any decision for dispensing with such an inquiry showing that there is complete lack of application of mind as required by the principle laid down in Mukesh Hans's case (supra). We are further of the view that Section 17(4) of the Act was invoked only to defeat the vital rights of hearing and filing objections by the land owners. 18. The contention of the learned State counsel that declaration made under Section 6 of the Act alone be quashed by upholding the notification issued under Section 4 of the Act, has failed to impress us. Such a course cannot be followed because the petitioners have filed these petitions on 23.10.2003, which was after more than one year of issuance of notification dated 25.6.2002 published under Section 4 of the Act. There is no possibility of compliance with Section 6 of the notification as the gap between both the notifications could by no means would be less than one year. Moreover, there is violation of mandatory provision which would go to the roots. The petitioners’ right to avail the new rates of land would be advanced, if the respondents still takes a decision to acquire their land. Therefore, we have no hesitation to reject the submission made by the learned counsel. 19. As a sequel to the above discussion, both the petitions succeed and the impugned notification under Section 4 of the Act, dated 25.6.2002, and declaration, dated 29.6.2002, or any other proceedings pursuance to such declaration are hereby quashed qua the petitioners. The respondent State, however, is not debarred from acquiring the land in question in accordance with law. 11 CWP No. 16832 of 2003 A photocopy of this order be placed on the file of the connected case. (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) January 18, 2010 JUDGE Pkapoor 12