IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 3998 of 2009 Date of Decision: 24.05.2010 Chaman Lal 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. M.L. Sharma, Advocate for the petitioners. Mr. S.S. Pattar, Senior DAG, Haryana for respondent Nos. 1 and 2. Mr. Anil Rathee, Addl. C.G.S.C. for respondent No. 3. 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 petition filed under Article 226 of the Constitution challenges acquisition proceedings initiated by issuance of notification under Section 4 read with Section 17(2)(c) of the Land Acquisition Act, 1894 (for brevity, ‘the Act’), dated 14.3.2008 (P-4) and declaration made under Section 6 read with Section 17(2)(c) of the Act, dated 8.8.2008. CWP No. 3998 of 2009 2. Brief facts of the case are that on the request of the Union of India represented through respondent No. 3, the respondent State of Haryana issued a notification under Section 4 read with 17(2) (c) of the Act, expressing the intention to acquire the land for a public purpose, namely, for construction of Border Security Force Battalion Head Quarter for AI Role Battalion of Jammu Frontier. A declaration under Section 6 read with Section 17(2)(c) of the Act, was issued on 8.8.2008 (P-5). 3. The land belonging to the petitioners, measuring 15 Kanals 11 Marlas, comprised in Khasra No. 9//12/1, 19/1, situated in village Tabar, Tehsil Barwala, District Panchkula, has been acquired under the aforementioned acquisition proceedings. On 10.3.2009, the petitioners filed the instant petition with the grievance that in the present case urgency clause has been invoked without application of mind which is evident from the fact that declaration under Section 6 of the Act has been issued after about five months after notification under Section 4 and possession has not been taken till that date though a period of one year has passed. 4. On 16.3.2009, a Division Bench of this Court issued notice of motion, however, no interim order was granted in favour of the petitioners because no notice under Section 9 of the Act had then been issued. On 6.7.2009, a notice under Section 9 of the Act was issued and a Civil Misc. Application No. 11739 of 2009 was filed by the petitioners for staying their dispossession. Accordingly interim directions were granted on 4.8.2009, staying dispossession of the petitioners. 5. It is conceded position that no award has been announced 2 CWP No. 3998 of 2009 till date after a period of more than 2 years from the date of issuance of notification under Section 4 read with Section 17(2)(c) of the Act. The dispute inter se the State of Haryana and the Union of India appears to have arisen due to non-deposit of the amount of 80% of the estimated compensation, which was supposed to have been deposited and disbursed to the owners of the land under Section 17(3A)(a) of the Act by the Union of India in order to obtain possession of the whole land. On the ground that compensation is on higher side, the Union of India represented by respondent No. 3 did not deposit the compensation resulting into the huge delay in the acquisition proceedings. The aforesaid delay has to be viewed in the light of the fact that urgency provision has been invoked and market price of the land was freezed on the date of issuance of notification under Section 4 read with Section 17(2)(c) of the Act on 14.03.2008. 6. During the course of arguments, the petitioners confined their prayer to challenge the invocation of urgency provisions because the gap between notification under Section 4 and declaration made under Section 6 of the Act is about five months and inquiry under Section 5A of the Act could have easily been undertaken, inasmuch as, only a period of 30 days was required. In support of their claim, learned counsel for the petitioners has placed reliance on the judgments of Hon’ble the Supreme Court rendered in the cases of Union of India v. Mukesh Hans, (2004) 8 SCC 14 and Essco Fabs Private Limited v. State of Haryana, (2009) 2 SCC 377. On the basis of the law laid down by Hon’ble the Supreme Court, it has been argued that there is totally non-application of mind for dispensing 3 CWP No. 3998 of 2009 with enquiry under Section 5A of the Act. Learned counsel for the petitioners has vehemently argued that invocation of urgency/emergency would not ipso facto result in dispensing with inquiry contemplated by Section 5-A of the Act. According to the learned counsel even in cases where Section 17 is invoked, inquiry under Section 5-A is possible and in case the urgency is of such a nature that it cannot brook delay even of 30 days then the record must speak for such a hurry. It is contended that mere invoking of urgency/emergency provisions of Section 17 of the Act does not automatically result in dispensing with enquiry under Section 5A of the Act. Moreover, in the present case even the respondent Union of India has failed to deposit 80% amount of the estimated compensation and till date no award has been passed by the Collector. Even the possession of the land in question has not been taken by the respondents. 7. According to Mr. Anil Rathee, learned counsel for respondent No. 3, the amount of the estimated compensation worked out by the State of Haryana in respect of the land in question is very high and, therefore, no amount was deposited, which has resulted in the huge delay. 8. On the other hand, learned State counsel has argued that in cases of urgency/emergency, there is no specific requirement of recording reasons for dispensing with inquiry contemplated by Section 5A of the Act. He has maintained that once Section 17 of the Act has been invoked then urgency is presumed to exist and the procedural detail in finalising the acquisition proceedings would not 4 CWP No. 3998 of 2009 adversely affect legally invoked urgency provisions of Section 17 of the Act. 9. Having heard learned counsel for the parties, we are of the considered view that apathy adopted by the Union of India, represented by respondent No. 3, has defeated the invocation of urgency clause, although the obvious public purpose is of urgent nature and fully justified. It is true that mere a delay in announcement of award for taking of possession may not by itself constitute a valid ground to set aside a notification issued under Section 4 and declaration made under Section 6 of the Act. However, in the present case there is no material on record to justify such a huge delay between notification under Section 4 and 6, which were issued on 14.3.2008 and 8.8.2008. Respondent No. 3 who is the beneficiary of acquisition of land has considered the price of the land too high and refused to deposit 80% of the amount of estimated compensation. It is appropriate to mention that Section 17(3A)(a) of the Act mandates that 80% of the compensation as estimated by the Collector has to be disbursed to the persons interested, namely, the land owners and others. There appears to be a deadlock between respondent Nos. 1 and 2 on the one hand and respondent No. 3 on the other hand with regard to quantum of compensation. The aforesaid explanation for delay cannot constitute a valid basis to condone the delay. It is in these circumstances that invocation of urgency has been rendered totally unjustified. In that regard, reliance may be placed on a judgment of Hon’ble the Supreme Court in the case of Om Parkash v. State of U.P., (1998) 6 SCC 1. 5 CWP No. 3998 of 2009 10. There is another aspect of the matter. 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).” 11. 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 6 CWP No. 3998 of 2009 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 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 7 CWP No. 3998 of 2009 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 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) 12. 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 8 CWP No. 3998 of 2009 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 cases of Punita Chaudhary and others v. State of Haryana (CWP No. 3129 of 2008, decided on 8.12.2008) and Bhopu and others v. State of Haryana and others (CWP No. 16832 of 2003, decided on 18.1.2010), has also followed the aforesaid decision. 13. When the aforesaid principles are applied to the facts of present case, it becomes evident that there is complete lack of application of mind in invoking the urgency provisions of Section 17 of the Act as required by the principle laid down in Mukesh Hans's case (supra). In the absence of any such decision dispensing with Section 5-A enquiry, Section 17(4) of the Act could not alone be invoked to defeat the vital rights of hearing and filing objections by the land owners. 14. As a sequel to the above discussion, the instant petition succeed. The impugned notification under Section 4 of the Act, dated 14.3.2008 (P-4) and declaration under Section 6 of the Act, dated 8.8.2008 (P-5) or any other proceedings pursuance to such declaration are hereby quashed. (M.M. KUMAR) JUDGE 9 CWP No. 3998 of 2009 (JITENDRA CHAUHAN) May 24, 2010 JUDGE Pkapoor 10