IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 1969 of 2010 Date of Decision: March 3, 2010 Bhushan Kumar and another …Petitioners Versus State of Punjab and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. M.L. Sarin, Senior Advocate, with Mr. Hemant Sarin, Advocate, for the petitioners. Mr. Suvir Sehgal, Additional Advocate General, Punjab, for the respondents. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges notifications dated 30.1.2008 and 22.5.2008 (P-5/A & P-10), issued under Section 4 read with Section 17(1) of the Land Acquisition Act, 1894 (for brevity, ‘the Act’) and declaration dated 11.1.2010 (P-20), made under Section 6 of the Act. 2. Brief facts of the case are that land measuring 4.69 acres, comprised in Khasra Nos. 4572 min, 4573 min and 4574 min, in the revenue estate of Village Patti Jhuti, Bathinda, located on Multanian C.W.P. No. 1969 of 2010 Road, was owned by the petitioners. It has been claimed that in the year 2006, they decided to set up a resort, namely, ‘Skyland Resorts’ over the land in dispute and applied for grant of No Objection Certificate in that regard. On 23.6.2006, the District Town Planner, Bathinda, submitted his report to the Senior Town Planner, Patiala, recommending the case of the petitioners (P-1). On 19.9.2006, the Forest Department also issued a No Objection Certificate for construction of resort over the land in dispute (P-2). Similarly, on 29.9.2006 and 26.10.2006, the Punjab Pollution Control Board and PUDA also issued a No Objection Certificates respectively in favour of the petitioners (P-3 & P-4). Thereafter, the petitioners started raising construction of the proposed resort. In that regard, the petitioners have placed on record certain photographs (P-5). 3. On 30.1.2008, the State of Punjab issued a notification under Section 4 read with Section 17 of the Act showing its intention to acquire total 90 Acres, 3 Kanals and 11 Marals of Land for a public purpose, namely, for construction of Ring Road Phase-II, Development of junctions and road site amenities, connecting Malout Road to Badal Road, Tehsil and District Bathinda. Out of the total land proposed to be acquired, 80 Acres 60 Kanals and 10 Marlas of land falls in Village Patti Jhuti and 9 acres 5 Kanals and 1 Marlas of Village Behaman Diwana, Tehsil and District Bathinda (P-5/A). 4. On 11.4.2008 the petitioners submitted a representation against acquisition of a portion of land in dispute and sought a passage enabling them to access the land in dispute. The Deputy Commissioner, Bathinda, sought the report from the Sub Divisional 2 C.W.P. No. 1969 of 2010 Magistrate, Bathinda, who sent his report on 23.4.2008 (P-7) by observing as under:- “……Approx. 40% area of the resort of the applicant is being acquired for the Ring Road because of which there remains no access to the resort of the applicant. The area of the applicant falls in the junction measuring 300 ft. x 300 ft. which is going to be made at the place where the Ring Road-2 will cross Multanian Road. To give access to the resort some part of the junction to be made on Ring Road-2 and Multanian Road will have to be left out. So far as release of the area of junction is concerned it depends upon the Public Works Department (B&R-2), Punjab because that department is acquiring the land. It is relevant to mention here that a revised notification is being issued under Section 4 of the Land Acquisition Act, 1894 by the Public Works Department (B&R) because the notification dated 15.2.2008 issued earlier contained some shortcomings. ………” 5. On 23.4.2008 itself, the Deputy Commissioner, Bathinda, forwarded the report of the Sub Divisional Magistrate to the Secretary, Punjab Government, Public Works Department (B&R) Chandigarh, for necessary action. Similarly, on 16.5.2008, the Land Acquisition Collector, Bathinda, also sent a communication to the Executive Engineer, Provincial Division (B&R) Branch, Bathinda, wherein by referring to the report of the District Town Planner, 3 C.W.P. No. 1969 of 2010 Bathinda, it was pointed out that the petitioners land did not fall in the Ring Road but fell in the pocket planned next to the Ring Road. It was further stated that these pockets have been planned for round- abouts, slip roads, bus stop as well as for commercial purpose. It was also pointed out that by the acquisition there remained no access to the remaining land of the petitioners. It was also mentioned that land measuring 4.2 marlas in Khasra No. 295 min in Bhagwangarh on Sangat Kotshamir Road, has already been released vide letter No. 150, dated 8.4.2008, on account of constructed house and a corrigendum was issued. In this manner, the PWD (B&R) Department was requested to consider the case of the petitioners and to issue the corrigendum if necessary (P-8). On 21.5.2008, in reference to the application of the petitioners, the Superintending Engineer, Construction Division (B&R), Bathinda, also wrote to the Executive Engineer-respondent No. 3 that a corrigendum be got issued from the Deputy Commissioner, Bathinda (P-9). 6. However, on 22.5.2008, another notification under Section 4 read with Section 17(1) of the Act was issued seeking to acquire 90 Acres 7 Kanals and 16 Marlas of land for the same public purpose (P-10). Under this notification, land measuring 23 Kanals 4 Marlas belonging to the petitioners was included for acquisition. It has been claimed by the petitioners that the portion of the land sought to be acquired touches Multanian Road and leaves the remaining land with no access. 7. On 9.6.2008, the Sub Divisional Engineer, Provincial Sub Division (B&R), Bathinda, informed the Executive Engineer- 4 C.W.P. No. 1969 of 2010 respondent No. 3 that the petitioners started construction of resort prior to the start of the planning work of the Ring road and the passage to the resort fell in a pocket. It was further reported that if the passage is left out there would be no hurdle in the construction of the road. It was suggested that if the passage is left out then apart from the proposed land of Ring Road another pocket of 100’ can be made. In this manner, the request of the petitioners was found to be genuine and their case was recommended (P-12). The Executive Engineer-respondent No. 3 in turn sent his recommendation to the Land Acquisition Collector, Bathinda, for providing of passage to the petitioners, vide letter dated 9.6.2008 (P-13). Thereafter, on 13.6.2008, the Land Acquisition Collector-respondent No. 2 made the following recommendation to the Additional Secretary, Punjab Government, PWD (B&R), Chandigarh (P-14):- “ On the subject noted above, as per the applicants a resort (marriage palace) is being constructed near the land being acquired for Ring Road Phase-2 (Malout road to Badal Road). As per the applicants a considerable portion of their land falls in the pocket planned next to road. As per the applicant there is no passage/access to the remaining land of the applicant from the road. In this regard, Executive Engineer, Provincial Division (B&R) Branch) Bathinda has written letter no. 1493 dated 9.6.2008 (photo copy attached) that the applicant had started the construction of the marriage palace after 5 C.W.P. No. 1969 of 2010 obtaining NOCs from the concerned departments. The area of the applicant which goes from the main road to the marriage palace falls in the pocket which is being made on the Ring Road due to which there remains no passage/access to the resort of the applicant. No interference is caused in the construction of the road by releasing the passage/access and the area of the pocket next to the road remains 100 ft. As such, the request of the applicant is justified. Therefore, keeping in mind public interest it is recommended that apart from the pocket marked ABCD in the plan attached, the passage of the applicant be released so that no much loss is caused to the applicant and no obstruction is caused in construction of the Ring Road. So keeping in view the report of Executive Engineer, Provincial Division, (B&R Branch) Bathinda recommendation is made to leave/release the passage/access to the palace of the applicant (for the remaining area). Proper orders may kindly be issued in this regard. This may be treated as extremely urgent.” 8. Despite the aforementioned, a declaration under Section 6 of the Act was made on 6.6.2008, which was published in the daily newspaper ‘The Tribune’ on 8.6.2008. The petitioners challenged notifications dated 30.1.2008, 22.5.2008 and 6/8.6.2008 by filing 6 C.W.P. No. 1969 of 2010 C.W.P. No. 11612 of 2008. Various other land owners also filed C.W.P. Nos. 10879, 11777 and 12469 of 2008 challenging the aforementioned notifications. On 9.3.2009, a Division Bench of this Court allowed the aforementioned writ petitions and quashed the notifications dated 30.1.2008, 22.5.2008 and 6.6.2008. Thereafter, the respondent State of Punjab filed review applications bearing RA No. 273 of 2009 in CWP No. 10879 of 2008 (Seema Rani and others v. State of Punjab and others) and RA No. 269 of 2009 in CWP No. 11612 of 2008 (Bhushan Kumar and another v. State of Punjab and others), seeking review of the order dated 9.3.2009. On 18.9.2009, the review applications finally came up for hearing before a Division Bench of this Court, which were allowed and the order dated 9.3.2009 was modified to the extent that the notification under Section 4 of the Act, will not be treated to have been set aside (P-15). However, in the order dated 18.9.2009 it has been specifically mentioned that the benefit of judgment would be applicable to the petitioners only. 9. On 29.9.2009, the Land Acquisition Collector- respondent No. 3 issued notices to the petitioners inviting objections under Section 5-A of the Act. On 27.10.2009, the petitioners filed comprehensive objections under Section 5-A of the Act (P-16). The Land Acquisition Collector-respondent No. 2 after affording opportunity of hearing to the petitioners and while endorsing release of the land in dispute for the passage leading to the resort, however, left the final decision to be taken by the State Government (P-17). 10. It has been submitted that on 8.12.2009, the Additional 7 C.W.P. No. 1969 of 2010 Secretary, Department of Public Works (B&R) put up a note to the Secretary, Department of Public Works (B&R) that the Land Acquisition Collector-respondent No. 2 had recommended release of 9B-9B of the land in dispute out of 13B-3B. On 9.12.2009, the said note was endorsed by the Secretary, Department of Public works (B&R) and the file was placed before the concerned Minister. On 11.12.2009, the concerned Minister noted that the report of respondent No. 2 was not clear and he be asked to specify his recommendations. It has further been alleged that this time respondent No. 2 took a somersault and sent a new report to the State Government on the objections filed by the petitioners and recommended that the objections of the petitioners be rejected. It was mentioned in the report that the petitioners had not submitted any proof that they had a running business and that they had obtained CLU Certificate and NOC from the Chief Town Planner, Punjab (P- 18). On the basis of the said report, the concerned Minister approved rejection of the objections filed by the petitioners under Section 5-A of the Act, vide his order dated 3.1.2010. Thereafter, on 11.1.2010, declaration under Section 6 of the Act has been issued acquiring 81 Acres 2 Kanals 15 Marlas of land in Village Patti Jhuti and 9 Acres 5 Kanals 1 Marlas of land in Village Behman Diwana (P-19). The land in question belonging to the petitioners has also been acquired. On 8.2.2010, notices under Section 9 of the Act have also been issued to the petitioners calling upon them to file their claims before the Collector-respondent No. 2. 11. Feeling aggrieved the petitioners filed the instant petition 8 C.W.P. No. 1969 of 2010 on 4.2.2010 and on 5.2.2010 the following order was passed by us:- “ We have heard the learned counsel for the parties at length. The matter was adjourned to enable Mr. Suvir Sehgal, Addl. Advocate General, Punjab to seek instructions. After seeking instructions, he has stated that with regard to the grievance of the petitioners for access to their land, suitable passage shall be given. Notice of motion for 8.2.2010.” 12. At the hearing, learned State counsel has placed on record a short affidavit of Shri Surjit Singh Dhiman, Under Secretary to the Government of Punjab, Department of Public Works (B&R), Chandigarh, on behalf of respondent No. 1. In para 3 of the affidavit it has been stated that after examining the matter, a decision was taken by the Government that a passage of 18 feet wide (approximately equivalent to the width of a link road) would be provided to the land of the petitioners from the proposed Ring Road, Phase-II, Bhatinda. It has further been pointed out that the width of metalled portion of link road all over the State is 10 feet. 13. Mr. M.L. Sarin, learned Senior counsel for the petitioners has vehemently argued that notification dated 11.1.2010, issued under Section 6 of the Act (P-20) is beyond the period of limitation of one year prescribed by proviso to Section 6 of the Act and, thus, the same is liable to be set aside. According to the learned counsel, at no stage the action or proceedings in pursuance of notification issued under Section 4 of the Act have been stayed by this Court during the 9 C.W.P. No. 1969 of 2010 pendency of the earlier petition filed by them, namely, CWP No. 11612 of 2008. Learned counsel has pointed out that as an interim measure only dispossession of the petitioners was stayed and, therefore, the notification issued under Section 4 of the Act on 22.5.2008 (P-10) would constitute a valid basis for counting one year, which has come to an end on 21.5.2009. Mr. Sarin has further submitted that at best the period staying dispossession of the petitioners could be excluded and even then the issuance of notification under Section 6 would be beyond one year. Learned counsel has drawn our attention to interim orders issued by this Court at various stages in various writ petitions. However, the substance of the argument is that interim orders cannot be deemed to have operated for the whole period because the interim orders were ‘in the meanwhile’ or ‘till the next date of hearing’. In support of his submission, learned counsel has placed reliance on a judgment of Hon’ble the Supreme Court rendered in the case of Ashok Kumar v. State of Haryana, (2007) 3 SCC 470, and argued that if interim orders have not been continued then such order could not be deemed to be in operation. Mr. Sarin has also attacked the purpose of acquisition. According to him, the commercial purpose of developing six junctions, Malls and Restaurants cannot be regarded as ‘public purpose’. The so called road amenities sought to be provided by acquisition of land are beyond the competence of the State and no land for the aforesaid purpose could be acquired. 14. Another submission made by Mr. Sarin is that passage of 10 C.W.P. No. 1969 of 2010 18 feet width, which is proposed to be given to the petitioners from the proposed Ring Road Phase-II is wholly impracticable. It has been pointed out that the petitioners are developing their land for the purpose of Skyland Resort and No Objection Certificate for construction of resort has been issued on 19.9.2006 by the Forest Department (P-2). Likewise, Pollution Control Board and PUDA have also issued No Objection Certificates on 29.9.2006 and 26.10.2006 (P-3 & P-4). Thereafter the petitioners have started raising construction. Mr. Sarin suggests that providing of 18 feet passage would completely jeopardise the plans of the petitioners to develop and set up their dream project i.e. ‘Skyland Resort’. 15. The last submission made by Mr. Sarin is that the recommendations of the Sub Divisional Engineer on 9.6.2008 were in favour of the petitioners (P-12), which were sent by the Executive Engineer-respondent No. 3 to the Land Acquisition Collector, Bathinda, for providing of passage to the petitioners. On 13.6.2008, the Land Acquisition Collector-respondent No. 2 forwarded his recommendation to the State Government (P-14) to the effect that a passage to the petitioners be released so that no loss is caused to them. Accordingly it was recommended in the concluding para to release the passage to the resort of the petitioners. 16. Referring to the record Mr. Sarin has submitted that the Secretary, Department of Public Works (B&R), on 9.12.2009 endorsed the recommendation and file was placed before the Minister concerned. The Minister on 11.12.2009 noted that the report of the Land Acquisition Collector-respondent No. 2 was not clear. 11 C.W.P. No. 1969 of 2010 Accordingly, clarifications were sought with regard to the said recommendation. The Land Acquisition Collector while clarifying the recommendation observed that the land of the petitioners could not be released from acquisition because they have remained unable to show any running business on the spot along with other reasons. The argument of Mr. Sarin is that once the recommendation has been made from the Sub Divisional engineer up to the Secretary to the Government then under the garb of clarification the Land Acquisition Collector could not have withdrawn his earlier recommendation. In any case, an opportunity of hearing should have been afforded to the petitioners before withdrawing a favourable recommendation in their favour. 17. Mr. Suvir Sehgal, learned State counsel has opposed the submissions and reiterated the arguments, which he had advanced in CWP No. 1512 of 2010 (Darshan Singh and others v. State of Punjab and others), dismissed on 4.2.2010. It is pertinent to notice here that in the said petition also challenge was made to the same notifications which are subject matter of present case. He has submitted that once interim order has been granted even in one case, it was to apply to the others. Referring to the interim orders passed in CWP Nos. 10879, 11612, 11777 and 12469 of 2008, Mr. Sehgal has submitted that interim orders have been continued, which eventually resulted in quashing of notifications issued under Sections 4 and 6 of the Act initially but on review, Section 6 notification was kept intact. Therefore, to say that the orders were not operating is highly improbable proposition. Moreover, once the notifications are 12 C.W.P. No. 1969 of 2010 quashed then there is no possibility to include the period of interim stay and it would in fact wiped out both the notifications from its initiation. In support of his submission, learned counsel has placed reliance on the judgments of Hon’ble the Supreme Court rendered in the cases of State of Kerala v. Antony Fernandez, (1998) 3 SCC 556; N. Narasimhaiah v. State of Karnataka, (1996) 3 SCC 88 and Abhey Ram v. Union of India, (1997) 5 SCC 421. 18. After hearing learned counsel for the parties, perusal of the original record and bestowing our deep consideration to the aforesaid issues, we are of the view that the arguments in sum and substance are the same, which were advanced in CWP No. 1512 of 2010. In that case same notifications on similar grounds were challenged. We have declined some of the submissions, which are common in the instant case as well, by observing as under:- “12. Even otherwise, public purpose in common parlance has to be regarded something which is for the benefit and use of public in general as against conferring benefit on an individual. The provision of developing junctions and providing road side amenities is of course for the use and benefit of public at large and not for any individual or group of individuals. The public purpose varies with the times and the prevailing conditions in localities. What may be considered as a public purpose in a Metropolitan City may not be so in a small Mufsil Town. In that regard reliance may be placed on the view expressed by a Constitution Bench of Hon’ble the 13 C.W.P. No. 1969 of 2010 Supreme Court in the case of Arnold Rodricks v. State of Maharashtra, AIR 1966 SC 1788. The aforesaid view has been followed and applied recently in the case of Sooraram Pratap Reddy v. District Collector, Ranga Reddy District, (2008) 9 SCC 552. It has been held that public purpose must be decided in each case examining closely all the facts and circumstances of the case. The concept is not static but changes with the passage of time. It is because of the aforesaid reason that the legislature has left it to the Government to say what is a public purpose and also to declare the need of giving a public purpose. If the acquisition of land in question is considered in the light of the aforesaid observation then even the ancillary purpose of providing road side amenities and developing junctions would be covered by the expression ‘public purpose’. 13. In the instant case, the land was initially acquired by issuance of a notification under Section 4 read with Section 17 of the Act on 30.1.2008. However, on account of inadvertent mistake some portion of a Gurdwara and its compound along with residential house constructed in the compound of Gurdwara was also included in the acquisition for construction of ring road. The mistake had occurred because there was no Nishan Sahib in existence in the compound of the Gurdwara, which was pointed out by the residents later on. In order 14 C.W.P. No. 1969 of 2010 to avoid any resentment amongst the people attached to the Gurdwara, an amendment was proposed and a revised notification under Section 4 read with Section 17 of the Act was issued on 22.5.2008 (P-2). Thereafter, a declaration was made under Section 6 of the Act on 6.6.2008. Various land owners including the petitioners approached this Court and challenged the acquisition proceedings by filing four writ petitions, namely, CWP Nos. 10879, 11612, 11777 and 12469 of 2008. The Division Bench of this Court issued interim orders staying dispossession of the petitioners in those cases. It is appropriate to mention that dispossession of the petitioners was stayed in CWP No. 10879 of 2008 on 9.7.2008 in the meanwhile. The interim order granted on that date reads “In the meanwhile dispossession of the petitioners shall remain stayed till the next date of hearing. It is also clarified that the petitioners shall not raise any construction till further orders”. On 21.7.2008, 26.8.2008 and 24.9.2008 the interim directions were ordered to be continued. On 30.9.2008 there was no order of continuation of the interim direction. Similarly, in CWP No. 11612 of 2008, interim directions were granted on 9.7.2008, staying dispossession of the petitioners till the next date of hearing. The interim direction was ordered to be 15 C.W.P. No. 1969 of 2010 continued on 21.7.2008. On 26.8.2008 and 24.9.2008 the said writ petition was ordered to be listed along with C.W.P. No. 10879 of 2008 and there was no interim direction. On 30.9.2008, it was simply adjourned and on 3.10.2008 arguments were heard and order was reserved. In CWP No. 11777 of 2008, the interim directions were issued on 14.7.2008 and the order stated “In the meantime, status quo re: possession be maintained”. On 21.7.2008, this petition was ordered to be listed along with CWP No. 10879 of 2008 and in the meanwhile, interim directions were to continue. On 26.8.2008, no order continuing the interim directions was passed, however, again on 24.9.2008 it was ordered that interim directions to continue. On 30.9.2008, this petition was ordered to be listed along with CWP No. 11612 of 2008 and no order continuing interim directions was passed. Eventually on 3.10.2008 arguments were heard and orders were reserved. In CWP No. 12469 of 2008, the interim direction was issued