IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.1510 of 2005 Date of decision: 07.07.2010 Vikram Bakshi …..Petitioner versus The State of Haryana and another ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.Shailender Jain, Advocate for the petitioner Mr.Kamal Sehgal, Addl.A.G. Haryana Jasbir Singh, J. This writ petition has been filed to lay challenge to a notification dated 8.10.2003 (P13), issued under section 4 of the Land Acquisition Act, 1894 (in short, the Act). Further challenge is to a notification dated 7.5.2004 (P19), vide which, declaration to acquire land of the petitioner was issued under section 6 of the Act. It is case of the petitioner that he is owner and in possession of 32 kanals of land comprised in Rect. No.40, Khasra No.14(7-2), 17/1(3-17), 17/2(3-17), 18/1(3-6), 23/1(7-0), 24/1(6-18), situated in the revenue estate of village Lakkarpur, Tehsil Ballabgarh, District Faridabad. It is further case of the petitioner that he has raised construction over the property in dispute, which was more than 20 years old. Respondent No.1, without appreciating the above said fact, issued notification on 8.10.2003, to acquire 172 Kanal 19 marlas of land, including land of the petitioner for public Civil Writ Petition No.1510 of 2005 purpose, namely, for ‘expansion and systematic development of Tourist Complex, Surajkund, village Lakkarpur’, tehsil and district Faridabad. The petitioner, as per provisions of section 5-A of the Act filed detailed objections (P15) on 20.11.2003. By making reference to the extent of construction made by him in the property in dispute and also its situation, it was suggested that the acquisition will harm his interest. It was further stated that sufficient land is available with respondent No.1 for the purpose for which his land was going to be acquired. As per record after receipt of objections filed by the petitioner, respondent No.2 sent a notice for spot inspection to the petitioner and another right holder on 18.12.2003 (P17). The spot was to be inspected by respondent No.2 on 18.12.2003 at 11.30 AM. Vide that notice, it was further intimated that the petitioner may come to the office of respondent No.2 on 22.12.2003 at 11.30 am to get his statement recorded. Vide authorization letter dated 20.12.2003 (P18), the petitioner authorized Mr. P. Nagesh, Advocate and Mr.Harish Sharma, as his representative to represent him before the Collector. Mr.P.Nagesh went to the office of respondent No.2 on+ 22.12.2003 and his statement was recorded wherein, it was stated that objections earlier filed under section 5-A of the Act be treated as his statement. On completion of other formalities, final declaration under section 6 of the Act was issued for acquisition of land, which was subject matter of notification under section 4 of the Act. It is necessary to mention here that it was the case of the petitioner that his land bearing khasra No.24/1 (6-18) had also been acquired. However, by filing an additional affidavit dated 1.5.2006, (in CM No.7371 of 2006), it was stated by the petitioner that in fact land falling in khasra No.24/1 (6-18) in which his residential house, consisting of four 2 Civil Writ Petition No.1510 of 2005 bedrooms, drawing, dining, sitting-room kitchen etc, swimming pool, garage, storeroom and servant quarters are situated, was not subject matter of notification under section 4 of the Act. In his above said additional affidavit, it was further stated that the petitioner needs rest of the area about 25 kanals, for beneficial enjoyment of residential house of the petitioner. In this writ petition, it is primary objection of counsel for the petitioner that before issuance of declaration under section 6 of the Act, proper opportunity of hearing was not afforded to the petitioner and as such the acquisition proceedings, under challenge, cannot be sustained. To say so, counsel for the petitioner has stated that the notice dated 18.12.2003 was not received by him in time, the same was received by his watchmen after the time fixed for inspection at the spot. It was further stated that when statement of Mr.P.Nagesh, Advocate was recorded by some official of respondent No.2, respondent No.2 was not available in his office. It was further stated that no opportunity of personal hearing was afforded to the petitioner before ordering acquisition of his land. Upon notice, reply has been filed wherein arguments, raised by counsel for the petitioner have been refuted and it has been stated that the land was acquired for a public purpose after complying with due procedure of law. It was further stated that proper opportunity of hearing was given to the petitioner before ordering acquisition of his land. For spot inspection, notice was sent to the petitioner, which was received by his watchman and thereafter representative of the petitioner Mr.P.Nagesh, Advocate also appeared in the office of respondent No.2, for personal hearing in consequent to notice dated 18.12.2003. After taking note of objections raised by the petitioner, the Collector sent his recommendation for acquisition of the land in dispute, vide his report on 1.1.2004 (R2). 3 Civil Writ Petition No.1510 of 2005 Before proceeding further, it is necessity to look into contents of the report mentioned above, which reads thus: - “That the written objections of Sh.Vikram Bakshi, Devalya farm village Lakharpur, Suraj Kund road, Faridabad were received in this office on 20.11.2003 which were received within limitation. The site was inspected in this regard. The boundary wall of killa No.40/13, 17/1, 17/2, 18/1, 23/1 total 32 kanal 0 marla is constructed by stones. Main gate of the boundary wall has been installed on Main road. Within the boundary wall, a building is constructed in area measuring about 500 sq yards which consists of 4 room, kitchen, swimming pool and quarters for servants etc. There is a park/garden around the building. All construction is made up of stones. Within the boundary wall, rooms for Chowkidar and Labour etc are also constructed. All this construction is since 1975. Sh.P. Nagesh Advocate come present on behalf of Vikram Bakshi on 22.11.2003 in the office of answering respondent report who State that the written objection should be considered as his statements. Parawise answer of objections filed/given by Vikram Bakshi is as under: -- 1 That the contents of para no.1 to 3 of the preliminary objections are admitted after inspecting the spot, but no comments can be made regarding composition fees in the absence of any record. All the construction shown in the Para No.3 is about 28 years old which is constructed by big stones. 4 Civil Writ Petition No.1510 of 2005 Neither there is no policy of the government which does not allow the Govt. to acquire residential house in public interest, nor any purpose of the Govt. to make the people homeless/shed less. On site inspection it was found that the objector does not reside regularly in land, which has become subject matter of acquisition. It appears that he comes hardly two or three times in year for entertainment as the Chowkidar told that the owner of the farm house is very rich and lives in Canaught Palace, New Delhi. 2. That the contents of Para No.2 of objections are not admitted. 3. That objection made in this para are baseless/groundless because the expansion of Suraj Kund is being done as per the policy of Govt. /Tourism Department. 4. Regarding the acquisition of other numbers mentioned in Para No.4, the concerned department have to enquire about it. 5. That the contents of para No.5 are wrong and the denied because the value of land under acquisition is determined by committee constituted by the Govt. by taking into consideration the present market rate and registered sale deeds of one year. 6-7 That the contents of Para No.6-7 are not admitted. This land is required to be acquired for tourism department in public interest and it is quite adjacent to the tourist complex. There is no ground in the objections filed by 5 Civil Writ Petition No.1510 of 2005 the owner of the land under acquisition. In the site inspection of above mentioned land the details given on the points 1 and 2 are according to spot inspection and there is no religious construction in both of the areas. Therefore, there is no problem acquiring this land. On the acquisition of construction of the value/rates shall be given to the land owners after determining by XEN, PWD Department. The objections of land owners were taken in writing under section 5-A of Land Acquisition Act 1894, the site was inspected after giving notice and the notice was issued to both the land owners on 22.12.2003 for personal hearing, but only the an advocate for Vikram Bakshi Devalya Farm Village Lakkarpur appeared personally and the written statement was recorded which are on the file. After taking written objection and making site inspections and also after giving opportunity of hearing, the report is sent by D.R.O. –cum- Land Acquisition Collection under section 5-A(2), so that notification under section 6 may be issued by the Govt.. That after fulfilling our the requisite formalities, the land acquisition Collector has come on the conclusion that there is not any building or religious constructions on this land which affects the acquisition proceedings in any way meaning thereby that the land is suitable to be acquired for the tourism department in public interest and it is proper. So the land acquisition Collector, through Collector, Faridabad 6 Civil Writ Petition No.1510 of 2005 recommend to the Govt. regarding the acquisition of this land. According to section 5-A(2) the report of land acquisition Collector is of advisory nature and the Govt. is not bound to accept the same. The decision of the Govt. is final. So as per the facts and circumstances mentioned in the above noted paras it is proper to send the report to the Govt. so that the Govt. may order the concerned department & LAC to issue notification under section 6 & 7 after taking decision on the basis of this report.” Counsel for the petitioner has vehemently contended that there was non-compliance with the provisions of section 5-A of the Act. Proper opportunity of hearing was not given to the petitioner and on account of that, the acquisition proceedings cannot be sustained. He reiterated the facts which have been mentioned in earlier part of this order. To support his contention, he has placed reliance upon judgment of the Hon’ble Supreme Court in Shri Mandir Sita Ramji v. Lt. Governor of Delhi and others, (1975) 4 Supreme Court Cases 298, Shyam Nandan Prasad and others v. State of Bihar and others (1993)4 Supreme Court Cases 255 and Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai and others, (2005) 7 Supreme Court Cases 627. It is necessary to note down provisions of section 5-A of the Act, which reads thus:- “5A. Hearing of objections. – (1) Any person interested in any land which has been notified under Section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a company may, within thirty days form the 7 Civil Writ Petition No.1510 of 2005 date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under subsection (1) shall be made to the Collector in writing and the Collector shall give the objector, an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, subsection (1), or make different reports in respect of different parcels of such land, to the appropriate Government containing his recommendations on the objections, together with the record of the proceedings held by him. for the decision of that Government. The decision of the Appropriate Government on the objections shall be final. (3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.” As per ratio of the judgments, referred to above, it is true that provisions of section 5-A of the Act are mandatory. Before ordering acquisition of land, it is incumbent upon the Collector to give an opportunity to file objections to the land owners against the proposed 8 Civil Writ Petition No.1510 of 2005 acquisition of land and hold an inquiry if some question of fact is raised. It is also necessary for the Collector to give an opportunity of hearing to the affected land owners. In the case of Shri Mandir Sita Ramji (supra), the land acquisition Collector failed to give any opportunity of hearing to the petitioners therein to prove that the land, subject matter of acquisition, was ownership of a charitable institution. No effective hearing was provided to the land owner to prove the above said fact. Similarly in the case of Shyam Nandan Prasad (supra), it was found as a matter of fact that the Collector had failed to send report of his inquiry to the government as is necessary under the provisions of the Act for ordering acquisition of land. It was further found as a matter of fact that the interested persons were not sent personal notices of the notification as was incumbent under the provisions of law. It was further noticed as a matter of fact that there was a casual observance of the procedure no proper opportunity of hearing was given to the objector to place material before the Collector. In the case of Hindustan Petroleum Corpn. Ltd (supra), their Lordships of the Hon’ble Supreme Court held that ‘Section 5-A confers a valuable and important right in favour of a person whose lands are sought to be acquired and having regard to the provisions contained in Article 300-A of the Constitution it has been held to be akin to a fundamental right. The State in exercise of its power of “eminent domain” may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.” It is clear from the provisions of section 5-A of the Act that it consists of two parts. On receipt of objections, it is necessary for the Collector to conduct further inquiry if need be and then submit a report to the Government regarding feasibility or otherwise of acquisition of land. It 9 Civil Writ Petition No.1510 of 2005 is also necessary, for the Collector to give an opportunity of hearing to the affected party and if necessary allow that party to produce material to show that acquisition of land was not justified. So far as the present case is concerned, the facts on record indicate that there was sufficient compliance with the provisions of section 5-A of the Act. At the time of arguments, it was admitted before us that on 18.12.2003, spot was inspected by the Collector. However, it has been stated that notice regarding spot inspection was received by watchman of the petitioner after the time given for inspection of the property. Be that as it may, latter part of the objection appears to be an afterthought. Besides giving information to the petitioner regarding spot inspection, it was directed that he may appear before respondent No.2 on 22.12.2003 at 11.30 AM to get his statement recorded, in regard to the acquisition of land. Vide letter dated 20.12.2003 (P18), addressed to respondent No.2, the petitioner intimated that he had nominated Mr.P.Nagesh and Mr.Harish Sharma as his representatives to make submissions, file documents and do any other act necessary for representing before respondent No.2. It has also come on record that Mr.P.Nagesh, Advocate appeared before respondent No.2 on 22.12.2003 and got recorded his statement, wherein he has stated that objections earlier filed by the petitioner under section 5-A of the Act be treated as his statement. Neither in the letter dated 20.12.2003 nor in his statement made before respondent No.2 on 20.12.2003 by Mr.P.Nagesh, Advocate, it was mentioned that inspection was done at the back of the petitioner or that notice was received late, as has been now argued before this Court. This aspect was touched by the petitioner only in the year 2002 when he thought of filing this writ petition. Otherwise also, we are convinced with fairness of the proceedings conducted, as is apparent from 10 Civil Writ Petition No.1510 of 2005 the report made by the Collector land acquisition Collector (R2). Respondent No.2 has considered all the objections raised by the petitioner. It was mentioned in the report that the petitioner did not reside regularly in the property in question. This fact was also not refuted before us at the time of arguments. To say that notice of inspection was received late, affidavit of the watchman has not been put on record. At the time of inspection of petitioner’s property, it was found that the house of the petitioner exists over a small portion of the total land and rest of the land is lying vacant. This fact is clear from perusal of the site plan and photographs put on record. Furthermore in his additional affidavit dated 1.5.2006, filed by the attorney of the petitioner, as mentioned earlier, in paragraph 3, it was averred as under: - “That the aforesaid Khasra No.24/1 (6-18) is a part and parcel of bigger chunk of land measuring 32 kanals, as detailed above. It is Khasra No.24/1 (6-18) over which the residential house of the petitioner consisting of four bedrooms, having attached toilets, drawing room, dining room, sitting room, kitchen, pantry, lobby, swimming pool, garages, store rooms, servant quarters, chowkidar rooms, biogasplant, cattle sheds etc with some portion of elevated front and back lawns attached with the same, existed. The entire construction is super “A” class in nature and the same was completed the way back in 1975 i.e., much prior to the purchase of the said the land in question by the petitioner, as stated in para No.7 of the writ petition. The said residential house is being shown in the yellow colour in a site plan annexed herewith as Annexure P- 24. Apart from this, the area which has been kept within the 11 Civil Writ Petition No.1510 of 2005 purview of the acquisition vide the impugned notifications is to be required for the alleged public purpose, is also being shown in the said site plan. It may be mentioned here that a perusal of the site plan, Annexure P-24 shows that the entire remaining area is a part and parcel of the said residential house of the petitioner which has been kept in the purview of the instant acquisition and the same needed for the beneficial enjoyment of the said residential house of the petitioner.” As per averments made in the above said affidavit, the main construction exists in Khasra No.24/1. It has come on record that when notification under section 4 of the Act was issued, out of 32 kanals of land, land measuring 6 kanals 18 marlas falling in khasra No.24/1 was not proposed for acquisition. From day one, the area under construction, was left out of the acquisition proceedings. We have seen the photographs, upon rest of the area, there is only a small scattered construction, which has rightly been ordered to be acquired for the public purpose, namely, ‘expansion and systematic development of Tourist Complex, Surajkund, village Lakkarpur’. Regarding the nature of public interest/purpose, no argument has been raised before this Court. It has only been stated that sufficient land is available with the respondents to use it for the above said purpose, however, except making averments in the writ petition, no evidence has been brought on record. Respondents are the best Judge to look into requirement of additional land required for Surajkund Tourist Complex for its extension. We have looked into the site plans annexed with record which makes it evident that land of the petitioner is situated next to the already existing complex and it can very easily be amalgamated with the complex at the time of extension. Petitioner’s interest has been protected by 12 Civil Writ Petition No.1510 of 2005 leaving 6 kanals 18 marlas of land, out of the purview of the land acquisition proceedings. Contention of counsel for the petitioner that, land under acquisition is needed for beneficial use of the house of the petitioner, has failed to attract us. From the photographs it is apparent that besides the main building, which has been left out of the purview of the acquisition proceedings, rest of the land only lawn tennis court, passages, garden are in existence. At the time of acquisition of land, the respondent State may deem it necessary not to acquire constructed portion of property of the land owner and it is not supposed to see that whether the said property can be used in luxurious manner or not. We are satisfied that 6 kanals 18 marlas of land is sufficient to enjoy and use house of the petitioner in a very comfortable manner. No other point was argued. No case is made out for interference. Dismissed. (Jasbir Singh) Judge 07.07.2010 (Augustine George Masih) gk Judge 13