Letters Patent Appeal No. 340 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No. 340 of 2009 Date of decision: 04.08.2009 *** Vinod Kumar Ghai ...Appellant Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE J.S.KHEHAR. HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. Arun Jain, Senior Advocate with Mr. Vishal Goyal, Advocate for the appellant Mr. H.S.Mattewal, Senior Advocate with Ms. A.P.S.Mann, Advocate for the respondent-Caveator. ***** S.D.ANAND, J. For purpose of construction of 132 KV Sub Station at Kahanpur in the area of village Dhogri (District Jalandhar), land comprised in Khasra Nos. 92//16, 17, 24 and 25 measuring 26 kanals 3 Marlas was acquired. The appellant is owner of 1/6th share therein. The process of acquisition was effected by issuance of a notification dated 6.4.2000 under Section 4 of the Land Acquisition Act., 1894 (hereinafter referred to as “the Act”) which was followed by a notification under Section 6 of the Act. The aforesaid acquisition was subject of challenge in Civil Writ Petition No.12194 of 2001 filed by the appellant. That acquisition came to be invalidated for want of grant of an award within statutory period of two years in terms of Section 11-A of the Act. This Court, however, granted Letters Patent Appeal No. 340 of 2009 -2- liberty to the competent authority to proceed afresh in the matter. Thereafter, notification dated 25.2.2004 under Section 4 of the Act came to be issued. The appellant filed objections thereto before respondent no.3 (The Land Acquisition Collector, Punjab State Electricity Board) who obtained comments on the objections from the beneficiary department and, on receipt thereof, forwarded the same to the respondent no.1. The objections did not elicit favourable response from respondent no.1and the process of acquisition of the land under reference culminated. The appellant filed Civil Writ Petition No.6015 of 2005 to obtain invalidation of the impugned notification. Even before the learned Single Judge, the grievance of the appellant was that no opportunity of hearing, as envisioned in terms of Section 5-A of the Act, had been afforded to him. In that very context, the further averment made was that the State Government rejected the objections without having before it any report from the Collector, in terms of Section 5-A of the Act. It was also the contention of the appellant that the acquisition was a wasteful exercise. In order to draw sustenance for that averment, a reference was made to a communication dated 9.8.2005 which the Chief Engineer (Operations) had addressed to the Member (Distribution), PSEB, Patiala wherein a similar observation had been made. Reliance, in support of that very averment, was also placed upon another communication dated 11.1.2005 addressed by the Engineer-in-Chief, PSEB to the Secretary of PSEB intimating that there was no requirement for the proposed 132 KV Sub Station at Kahanpur in the area of village Dhogri. On that premise, the plea raised before the learned Single Judge was that the impugned acquisition was not bonafide and that it had been gone through with an ulterior motive. Letters Patent Appeal No. 340 of 2009 -3- The learned Single Judge noticed that the Land Acquisition Collector had forwarded the objections to the State Government which only was competent to exercise the adjudicatory powers under sub Section 2 of Section 5-A of the Act. The learned Single Judge also noticed that there appeared to be difference of opinion between Engineering Officers of the Board in the context of the requirement of having 132 KV Sub Station at Kahanpur in the area of village Dhogri but brushed that fact aside by observing that the State Government, after consideration of the recommendations aforementioned had, taken a conscious decision that the impugned acquisition was for a public purpose. Insofar as the need for construction of 132 KV Sub Station at Kahanpur in the area of village Dhogri is concerned, it was held that the matter had to be left to be decided by the State Government and the Court should not take upon itself the power to go into that aspect. The appellant is in appeal against the impugned order dated 15.12.2008 of the learned Single Judge. Before us too, the above quoted contentions have been reiterated with absolute vehemence. The learned Senior Counsel appearing on behalf of the appellant, argues that the very fact that a previous endeavour made bythe respondents to acquire this land had been negatived by this Court is a factor which would go a long way to prove that the present endeavour for acquisition of that very land is a colourable exercise. We have not been able to persuade ourselves to agree. It would be pertinent to notice, in the context of the above plea, that the earlier endeavour for acquisition of this land was invalidated by this Court only Letters Patent Appeal No. 340 of 2009 -4- for want of compliance with the indicated provisions of Act. It is to state the obvious that the bureaucratic functioning is impersonal in character. We are clear in our mind that the mere invalidation of earlier notification, just on account of non compliance with a mandatory provision would not at all give rise to an inference that there is any malafide content on the part of the respondents in the relevant behalf. The learned counsel for the appellant would also appear to be reading much into the opinion of some of the officers of the PSEB qua the requirement or otherwise of the construction of 132 KV Sub Station at Kahanpur in the area of village Dhogri. Be that as it may, there can possibly be no dispute with the proposition that it is the State Government which is the custodian of all public interest. In the absence of any material to prove want of bonafides, we must trust the wisdom of the State Government for having taken a conscious decision to construct a 132 KV Sub Station at Kahanpur in the area of village Dhogri. In a welfare State, it is the State which is repository of the faith of the general public and whatever recommendations may be made by the officers at various hierarchical levels, those would continue to be only recommendations in character and those recommended cannot, by any stretch of interpretation, be said to be sufficient to impede the discretion of the State Government in forming an opinion about whether a particular act on its part would be in public interest or otherwise. The learned Senior Counsel has not been able to invite our attention to any material persuade us to hold the contrary. The averment that the appellant was not afforded an opportunity of a personal hearing proceeds on a factual incorrect premise. A perusal of the provisions of Section 5-A of the Act would indicate that a Letters Patent Appeal No. 340 of 2009 -5- Land Acquisition Collector is ordained to forward the objections to the State Government which only would be competent to take a decision in the context either way. This is what the respondent no.3 had done in this case. In order to buttress the plea of want of hearing, the learned Senior Counsel for the appellant invites out attention to letter dated 8.2.2005 (Annexure P-7) vide which the Land Acquisition Collector had informed the appellant that the objections filed by the latter in terms of Section 5-A of the Act had been forwarded to “the Secretary/Govt. Punjab, Power Department (Energy Wing), Chandigarh for decision. However, Secretary/Govt. Punjab, Power Department (Energy Wing), Chandigarh vide his endorsement No.5/3/2000-EB-6/2356 dated 8.2.05 has rejected the objections under Section 5-A.” It is argued that the tenor of the latter is a clear pointer to the effect that the Land Acquisition Collector did not afford an opportunity of hearing to the appellant and all that he did was to forward the objections raised by the appellant to the Government. The plea is oblivious of a precise averment made in the course of the counter (filed by the respondents in the writ petition) to the effect that the appellant had been heard in the context of the objections which were otherwise rejected. In this context, it may be noticed that it was in the course of paras 6 and 7 of the Civil Writ Petition that the appellant had made a precise averment regarding denial of opportunity of hearing, however, it is in the course of corresponding paras of the counter that the respondents made an equally precise averment that an opportunity of a hearing had been afforded to the appellant. It is not even the averment on behalf of the appellant that any rejoinder to the averment aforementioned had been filed by him. Letters Patent Appeal No. 340 of 2009 -6- Faced with the predicament aforementioned of not having been able to convince us on the legal front, the learned Senior Counsel for the appellant argues that the land acquired is far in excess of the area required for construction of a 132 KV Sub Station. The learned Senior Counsel for the appellant is not a firmer footing when he raises the above plea. We are of the considered view that even the decision with regard to adequacy or otherwise of the area required for a public purpose has to be left to the unfettered discretion of the State Government. A petitioning party could assail that discretion only by inviting attention of the Court to any material which would indicate that it is all a colourable exercise on the part of the State Government. As already noticed in an earlier part of this order, we have held that there is complete want of material on the file to prove that the State Government had acted in the matter in a malafide manner. On the contrary, the State Government has been proved to have acted in a manner subservient to public interest. We find no merit in this Letters Patent Appeal which is ordered to be dismissed. (S.D.ANAND) JUDGE August 04, 2009 (J.S.KHEHAR) Pka JUDGE