CWP No. 10622 of 1999 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision: November 09, 2009. 1) CWP No. 10622 of 1999 & CM No. 18707 of 2006 Smt. Usha Arora and others ..Petitioners Versus State of Punjab and others ..Respondents ------ 2) CWP No. 10623 of 1999 & C.M. No. 18565 of 2006 Jawahar Lal Khanna and others ..Petitioners Versus State of Punjab and others ..Respondents. ------ 3) CWP No. 10624 of 1999 & CM No. 18714 of 2006 Rajesh Kumar Seth ..Petitioner Versus State of Punjab and others ..Respondents. ------ CWP No. 10622 of 1999 [2] 4.) CWP No. 10625 of 1999 & CM No. 18705 of 2006 M/s Vinod Textile Mill and others. ..Petitioners Versus State of Punjab and others ..Respondents. 5) CWP No. 18029 of 2008 M/s R.P.Empires Pvt. Ltd. ..Petitioner Versus The State of Punjab and others ..Respondents. 6) CWP No. 893 of 2007 & CM No. 14508 of 2009 Bikramjit Singh ...Petitioner Versus State of Punjab and others ..Respondents CORAM:HON'BLE MR. JUSTICE T.S.THAKUR,CHIEF JUSTICE HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : None for the petitioners in CWP Nos. 10622, 10623, 10624 and 10625 of 1999. Mr. A.K.Chopra, Senior Advocate with Ms. Sabhya Sood and Ms. Shivani Sehgal, Advocates, for the applicant, namely, M/s R.P.Empires Pvt. Ltd. in CM No. 18707 of 2006 in CWP No. 10622 of 1999; C.M. No. 18565 of 2006 in CWP No. 10623 of 1999; CM No. 18714 of 2006 in CWP No. 10624 of 1999 and CM No. 18705 of 2006 in CWP No. 10625 of 1999 and for petitioner in CWP No. 18029 of 2008 and also for respondent No. 3 in CWP No. 893 of 2007. CWP No. 10622 of 1999 [3] Mr. Parminder Singh, Advocate, for the petitioner in CWP No. 893 of 2007. Mr. Rupinder Khosla, Addl. Advocate General, Punjab for respondent No.1-State of Punjab in CWP Nos. 10622, 10623, 10624, 10625 of 1999, for respondents No. 1 and 4 in CWP No. 18029 of 2008, and for respondents No.1 and 5 in CWP No. 893 of 2007. Mr. J.S.Toor, Advocate for respondents No. 2 and 3 in CWP Nos. 10622, 10623, 10624, 10625 of 1999, for respondent No. 3 in CWP No. 18029 of 2008 and for respondent No. 4 in CWP No. 893 of 2007. Mr. R.D.Bawa, Advocate for respondent No.2 in CWP No. 18029 of 2008. _____ T.S.Thakur, C.J. Common questions of law arise for consideration in this bunch of six petitions, four out of which assail the validity of an improvement scheme and consequent acquisition proceedings nearly 27 years after the scheme was sanctioned by the State Government. What adds an interesting dimension to the controversy is that during the intervening period, the State Government has permitted 'Change of Land Use' qua a portion of the land covered by the scheme which change has been assailed by the petitioner in Writ Petition No. 893 of 2007 filed in public interest on the ground that the same is fraudulent and an abuse of the powers vested in the authorities concerned. The said petition accordingly assails not only the validity of orders passed by the authorities permitting 'Change of Land Use' but even the relaxation of the Building Bye-Laws granted in favour of M/s R.P.Empires Pvt. Ltd. who claims to have acquired a piece of land measuring 19 Kanals out of a total of 51 Kanals and 14 Marlas in Khasra No. 447 Min admittedly owned by Akhara Braham Buta, one CWP No. 10622 of 1999 [4] of the respondents. The said company has in turn challenged the orders passed by the respondents by which the 'Change of Land Use' earlier granted has been cancelled apart from challenging the recall of the sanction to the Building plans for the building which the company proposed to construct over the site in question. The entire controversy regarding validity of the scheme and the multiple rounds of litigation regarding its implementation has a chequered history which needs to be briefly set out before we formulate the propositions that fall for consideration and advert to the rival contentions urged before us by learned counsel for the parties. Improvement Trust Amritsar prepared what was known as 'Ajnala Road Development Scheme' under Section 36 of the Punjab Town Improvement Act, 1922, (for short 'the Act' )as early as on 04.05.1962. Approval to the said scheme was granted by the State Government under Sections 41 and 42 of the Act aforementioned on 24.02.1964. The scheme comprised a large area including an area measuring 51 Kanals 14 Marlas situate in Khasra No. 447 Min, Inner Circular Road, Amritsar, owned by respondent-Akhara Braham Buta. An award for the acquisition of the aforementioned area was announced by the Land Acquisition Collector on 29.03.1965. Aggrieved by the scheme and the consequent acquisition, Akhara Braham Buta filed Civil Writ Petition No. 2053 of 1965 in this Court, inter-alia, challenging the validity of the scheme on the ground that the area owned by it did not fall within the municipal limits of Amritsar and could not, therefore, be included in the scheme. On 26/27.03.1965, an agreement was arrived at between CWP No. 10622 of 1999 [5] Akhara Braham Buta and the Improvement Trust with regard to the acquisition of the land aforementioned. According to the agreement, the Improvement Trust agreed to exempt 12 Kanals of land out of total land acquired under the scheme in consideration of Akhara Braham Buta agreeing to accept compensation for the remaining extent of land at the rate of Rs. 2/- per Sq. yard, which agreement was given effect to by the Land Acquisition Collector in his award dated 29.03.1965. Writ Petition No. 2053 of 1965 challenging the scheme and the acquisition was finally allowed by this Court on 3.1.1966 which decision was upheld in appeal on 17.11.1971. The result was that the entire process starting with formulation of the scheme stood obliterated. The Improvement Trust however formulated a fresh scheme covering an area measuring 323 acres including 51 Kanals 14 Marlas of land owned by Akhara Braham Buta situate in Khasra No. 447 Min mentioned earlier, notified under Section 41 of the Act on 18.12.1972. Akhara Braham Buta once again raised objection to the acquisition of the land and sought exclusion of 12 kanals of land covered by agreement dated 26/27.03.1965 from the purview of the scheme. In the alternative, compensation at the rate of Rs. 150/- per Sq. yard was also prayed for. The Land Acquisition Collector, however, turned down both these objections and published his award on 03.10.1973 for the entire extent of land determining compensation at the rate of Rs. 8/- per Sq. yard. The award made by the Collector was then challenged by Akhara Braham Buta in Civil Writ Petition No. 4229 of 1973 in which CWP No. 10622 of 1999 [6] a Single Judge of this Court following the decision in The Atam Nagar Co-operative House Building Society Limited, Ludhiana Vs. State of Punjab and others, 1979 PLJ 472, directed the Trust to give effect to the agreement dated 26/27.03.1965. Representations filed by Akhara Braham Buta for implementation of the said direction having proved abortive, contempt petition No. 150 of 1979 was filed against the Improvement Trust which was dismissed by R.N.Mittal, J. vide order dated 06.12.1979 in the following words:- “Mr. Matewal has stated that the Trust wants to comply with the order dated 7.3.1979 passed by Bains J. and it has written a letter to the petitioner to select 12 kanals of land out of the acquired land and in accordance with the agreement the counsel requests for an adjournment to finalise the matter. Adjourned to 5.2.1980. At this stage, Mr. Palli states that in view of the statement of Mr. Matewal, he does not press the petition. It is consequently dismissed as such.” No action despite the above directions/order appears to have been taken by the Trust. A representation was then made by the Akhara to the State Government which too did not evoke any response. Contempt Petition No. 68 of 1980 was therefore filed against the Improvement Trust and the State of Punjab in which the Court was informed that the State Government had considered the matter and by its order dated 28.01.1981 decided not to exempt 12 Kanals of land from the operation of the scheme. Contempt Petition was on that basis dismissed and the Rule discharged holding that the Trust had done what it was required to do both under agreement dated 26/27.03.1965 CWP No. 10622 of 1999 [7] as also in terms of the order of this Court dated 7.3.1979. No contempt, it was held, was committed by the State Government as no mandate or direction was ever issued against it. It was in the above back drop, that Writ Petition No. 1300 of 1982 was filed in this Court by Akhara Braham Buta challenging order dated 28.01.1981 passed by the State Government in which the Government had decided not to exempt any land acquired under “Ajnala Road Development Scheme”. The challenge was primarily founded on the premise that agreement dated 26/27.03.1965 was binding upon the respondents. It was argued on behalf of Akhara Braham Buta that since the authority competent to grant the exemption was the Trust, it was incumbent upon the Trust to give effect to the agreement executed between the parties keeping in view the direction issued by this Court in Civil Writ Petition No. 4229 of 1973. That contention was repelled by a Division Bench of this Court. The Court held that the power to sanction a scheme with or without modifications vested entirely with the State Government who could refuse to sanction the same or return the scheme for reconsideration. The Improvement Trust was not vested with any authority to modify the scheme on its own. It was under Section 40 of the Act simply entitled to apply to the State Government for sanction of the scheme with such modifications as it may deem appropriate. The Court further held that the Trust was empowered to abandon the scheme but after the addition of proviso to Section 40 by Punjab Act 7 of 1974, even that power could be exercised only with the prior approval of the State Government. The Trust was not, therefore, competent to exempt any CWP No. 10622 of 1999 [8] part of the land of the petitioner falling within the scheme from operation thereof. All that the Trust could do and indeed did, was to apply to the State Government to modify the scheme so as to exclude 12 Kanals of land of the petitioner from the operation of the scheme and in doing so the Trust had carried out the direction issued to it by the order of this Court in Civil Writ Petition No. 4229 of 1973. The following passage from the decision of this Court is in this regard apposite:- “The Act clearly provides, by virtue of the provisions of Section 41 thereof, that the power to sanction a scheme, whether with or without modifications vests entirely with the State Government. Indeed, the State Government may refuse to sanction it or may return the scheme for reconsideration. The Trust, on the other hand, is not invested with any such authority. The power conferred upon the Trust by Section 40 of the Act, being merely to apply to the State Government for sanction of the scheme with such modifications, if any, as it may deem appropriate. The Trust is, however, empowered to abandon the scheme, but now, after the proviso added to Section 40 by Punjab Act 7 of 1974, that too can be done only with the prior approval of the State Government. There can thus be no manner of doubt that the Trust was not competent to exempt any part of the land of the petitioner falling within the Scheme from the operation thereof. All that the Trust could do and did infact do, was to apply to the State Government to modify the Scheme framed so as to exclude the said 12 Kanals of land of the petitioner from operation of CWP No. 10622 of 1999 [9] the Scheme and in doing so, the Trust also carried out the direction imposed upon it by the order of this Court in Civil Writ Petition No. 4229 of 1979 (Annexure P-2).” The Court also rejected the argument that the State Government being party to Writ Petition No. 4229 of 1973 was also bound by the directions contained therein and held that the direction contained in the order passed by this Court in Civil Writ Petition No. 4229 of 1973 was exclusive to the Trust and did not require any implementation by the State Government. The challenge to the validity of the scheme also similarly failed and was repelled by the Court observing that the implementation of the scheme was no doubt delayed but the circumstances in which the delay had occurred did not constitute or imply any colourable exercise of power or lack of bonafides to warrant interference. With the dismissal of the writ petition aforementioned, the Land Acquisition Collector took possession of 32 Kanals 14 Marlas of land out of khasra No. 447 Min. The possession of the remaining 19 Kanals could not, however, be taken as the area had been built upon. Akhara Braham Buta in the meantime filed Special Leave Petition/Civil Appeal No. 10543 of 1983 in the Supreme Court against the judgment delivered by this Court in Civil Writ Petition No. 1300 of 1982. The said appeal was finally disposed of by their Lordships of the Supreme Court on 24.08.1992 on the basis of a statement made on behalf of the appellant in the said appeal that the appellant would accept compensation for the entire land to be calculated at the market rate prevailing as on 19.04.1983 instead of seeking release of any CWP No. 10622 of 1999 [10] portion of land from the acquisition proceedings. Their Lordships considered the said offer to be fair and accordingly directed that no part of the land being acquired from Akhara Braham Buta would be given back to it. Compensation for the entire area shall, however, be paid to the appellant/owner at the market rate prevailing on 19.04.1983, the date on which the Writ Petition No. 1300 of 1982 was dismissed. The valuation of the land was directed to be fixed by the Civil Court in the same manner as is done in a reference under Section 18 of the Land Acquisition Act. The following passage contained in the order of their Lordships is in this regard apposite:- “The learned counsel for the Improvement Trust, Amritsar has stated that houses have already been constructed on the acquired land in accordance with the scheme and it will be against the public interest to disturb the position now. The counsel for the appellant, after taking instruction, indicated the willingness of the appellant to accept only compensation for the entire land to be calculated at the market rate prevailing on April 19, 1983. We have considered the relevant circumstances and we are of the view that the stand taken by the appellant is fair. Accordingly, we direct that no part of the land in question shall be given back to the appellant but the compensation for the entire area shall be paid at the market rate prevailing on April 19, 1983, the date on which the present writ petition was dismissed by the High Court. The valuation will be fixed by the Civil Court in the same manner as it is done on reference under Section 18 of the Land Acquisition Act. Let the High Court pass necessary orders sending the matter to the Civil CWP No. 10622 of 1999 [11] Court for fixing the valuation without delay and let the civil court determine the valuation as expeditiously as may be possible. The appellant will be paid the compensation within a period of three months from the final determination of the valuation. The appeal is allowed in the above terms. There will be no order as to costs.” Dismissal of the appeal filed by Akhara Braham Buta on the above terms left the Improvement Trust free to take possession of the remaining area measuring 19 Kanals acquired in terms of the scheme. Improvement Trust did not however take any further action till 1999 when a request was made to the Land Acquisition Collector to deliver possession of the said area who in turn fixed 23.07.1999 as the date for doing the needful. It was at this stage that four different civil suits came to be filed against the Improvement Trust as well as the Collector for injunction restraining them from interfering with their possession over the said extent of the land. The case of the plaintiffs in the said suits was that they were in possession of the land as transferees for consideration and no notice about any acquisition of land had been served upon them. In the reply filed by Improvement Trust, the Improvement Trust pointed out that the prayer for exemption of land situate in Khasra No. 447 Min from acquisition had been rejected by the Government and the acquisition proceedings upheld by the Supreme Court in terms of the order extracted earlier. It was also stated that the status of the plaintiffs was no better than that of lessee(s) of the land and that since the true owner of the land had raised no objection to the framing of the scheme, neither a lessee nor a transferee from CWP No. 10622 of 1999 [12] them could do so. The proceedings of the Civil Court were according to the Improvement Trust an abuse of the process of law and an attempt to scuttle the implementation of the judgment of the Supreme Court. Upon consideration of the rival contentions, the Civil Court dismissed the application for ad-interim injunction filed before it on 27.07.1999 holding that the plaintiffs had no locus-standi to file the suits. Shortly thereafter, the suits were also dismissed as withdrawn at the request of the plaintiffs ostensibly because the issue regarding validity of the acquisition had been brought up for determination before this Court in Civil Writ Petitions No. 10622 to 10625 of 1999 in which this Court had stayed dispossession of the petitioners from the property in question which order has continued ever since. The sum total of the above narrative is that the petitioners in Writ Petitions No. 10622 to 10625 of 1999 assail the validity of a scheme framed more than 26 years before filing of the writ petitions, no matter, the challenge to the scheme by Akhara Braham Buta stood repelled by this Court and eventually by the Supreme Court in terms of the order to which we have referred earlier. We shall presently examine the effect of this inordinate delay on the maintainability of the challenge to the validity of the scheme but before we do so we may complete the narration of the factual matrix to get a fuller view of the developments that have taken place on different fronts during this period. One of the significant developments that we must at this stage refer to is the determination of the amount of compensation by the Civil Court at Amritsar pursuant to the direction issued by their Lordships of the Supreme Court. A reference to the Addl. District CWP No. 10622 of 1999 [13] Judge, Amritsar having been made in obedience to the directions issued by the Apex Court, Akhara Braham Buta filed a claim before the said Court in which it demanded a sum of Rs. 2,58,50,000/- at the rate of Rs. 1000/- per sq. yard for the entire extent of 51 Kanals 14 Marlas equivalent to 25,850 sq. yards. In para No. 4 of the said claim before the Civil Court, Akhara Braham Buta stated-: “that the present controversy pertains to 51 Kanals 14 Marlas of land which comes to 25,850 sq. yards and the market value thus comes to Rs. 2,58,50,000/- ( Two crores, fifty eight lacs and fifty thousand only) at the rate of Rs. 1000/- per sq. yard.” By an order dated 24.10.2005, Addl. District Judge, Amritsar awarded compensation to Akhara Braham Buta at the rate of Rs. 288/- per sq. yard for the entire extent of 51 kanals and 14 marlas together with statutory benefits of solatium at the rate of 15% and interest at the rate of 6% per annum on the enhanced amount and the solatium from the date of taking over the possession till actual payment. The operative portion of order dated 24.10.2005 passed by the learned Addl. District Judge, Amritsar, reads as follows:- “ In view of my findings on issue No.1 above, the market rate of the acquired land which was prevailing as on April 19, 1983, is worked out to be Rs. 288/- per sq. yard, to which the petitioners are held entitled. In addition to the value of the acquired land, the petitioners are also held entitled to solatium @ 15% on the market value on account of compulsory nature of acquisition and interest @ 6% p.a. on the enhanced amount of compensation inclusive of CWP No. 10622 of 1999 [14] solatium from the date of taking over the possession till the actual payment. The reference is answered accordingly. Memo of cots be prepared. File be consigned to the records. ” Aggrieved by the above determination, the owners and the Improvement Trust both filed Writ Petitions No. 2282 and 4989 of 2006 in this Court, one for seeking enhancement of compensation while the other seeking reduction thereof. The said two writ petitions are pending disposal before this Court in which this Court has vide an interim order dated 25.04.2006 directed payment of 50% of the amount to Akhara Braham Buta while the balance 50% to be paid upon its furnishing security to the satisfaction of the Executing Court. While the matter was still pending before the Civil Court, one Shri R.K.Sharma filed an application before the Commissioner, Municipal Corporation, Amritsar on 14.10.2005 seeking 'change of land use' of land measuring 19 Kanals falling in khasra No. 447 Min at old Jail Road, Amritsar, which as noticed above was at all points of time a part of the scheme framed by the Improvement Trust. This application alleged that the applicant was the General Power of Attorney holder of the 'nominees of the original owners' and that the disputed extent of 19 kanals was exempted from the scheme formulated by Improvement Trust, Amritsar. It was alleged that the area in question is surrounded by residential and commercial properties, and therefore prayed for change of land use for construction of a Multiplex/hotel over the same. Nearly 10 days later, Municipal Corporation, Amritsar made a recommendation on that application to the Principal Secretary of Department of Local Government, Punjab, CWP No. 10622 of 1999 [15] for change of land use of the property mentioned above, in which it was inter-alia stated that since a factory building stood over the area in question, the same could not be used for construction of roads, parks and residential plots under the scheme and that since the applicant proposed to construct a hotel/multiplex over the entire plot of land after demolishing the factory, change of land use of this plot was necessary by an amendment of the scheme under Section 43 of the Punjab Town & Improvement Act, 1922. The above recommendation was taken up for consideration in a meeting held under the chairmanship of Principal, Secretary Local Government on 16.11.2005. The minutes of the meeting suggest that the applicant, namely, Shri R.K.Sharma was running a highly polluting industry on the above parcel of land, and that since the area was surrounded by