CWP No.11533 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.11533 of 2010 (O&M) Date of decision: 24.5.2011 Jaspal Kaur and others ......Petitioner(s) Versus State of Punjab etc. ......Respondent(s) CWP No.15492 of 2010 (O&M) Nirmal Singh & others ......Petitioner(s) Versus State of Punjab and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. G.S. Grewal, Sr. Advocate with Mr. H.S. Grewal, Advocate for the petitioners in CWP No.11533 of 2010. Mr. A.K. Chopra, Sr. Advocate with Mr. Aashish Chopra, Advocate for the petitioners in CWP No.15492 of 2010. Mr. Manohar Lall, Additional Advocate General, Punjab. Mr. Sanjeev Sharma, Sr. Advocate with Mr. Shekhar Verma, Advocate for the GMADA. Mr. B.S. Mangat, Advocate for respondent No.2. Rakesh Kumar Garg, J. Challenge in these two writ petitions i.e CWP No.15492 and 11533 of 2010 is to the notifications dated 10.11.2009 and 10.5.2010 issued under Sections 4 and 6 respectively, of the Land Acquisition Act, 1894 (hereinafter referred to as the “1894 Act”). A further challenge has been laid to a notification dated 24.11.2006 issued under Section 56 of the Punjab Regional and Town Planning and Development Act, 1995 CWP No.11533 of 2010 (O&M) 2 (hereinafter called the '1995 Act'). A further prayer has been made in CWP No.15492 of 2010 prohibiting the State of Punjab for acquiring the land in dispute and also for a direction to implement the National Rehabilitation and Resettlement Policy, 2007. In CWP No.11533 of 2010, a declaration has also been sought that Punjab Urban Planning and Development Authority/Greater Mohali Area Development Authority, has no jurisdiction to do any development work, assigned to the District Planning Committees according to Article 243ZD and Article 243ZF and Punjab Act No.22 of 2005. As per the averments made in CWP No.11533 of 2010, the petitioners are residents of village Mullanpur, Tehsil SAS Nagar, District Mohali where they own some property in the form of shops and residential houses and are doing various kinds of business for the last more than 25 to 30 years. The detail of their properties has been given in Annexure P-1 in a tabulated form, however, no documents have been attached with the aforesaid details to give the further details regarding ownership, constructions, business etc. Similarly in CWP No.15492 of 2010, the petitioners alleged themselves to be the owners of the land measuring 1028 bighas 1 biswa as per Annexures P-1 and P-2. It is the case of the petitioners that respondent No.1 issued notification dated 10.11.2009 under Section 4 of the 1894 Act seeking to acquire land measuring 447.34 acres situated in village Mullanpur, Ratwara, Ferozepur, Bharonjian and Devinagar, Tehsil SAS Nagar, District Mohali for a public purpose, namely, for establishment of “Residential Urban Estate, Mullanpur” in the area of Tehsil SAS Nagar, District Mohali. On coming to know about the notification under Section 4 of the 1894 Act, the petitioners filed objections under Section 5-A of the 1894 Act, however, no hearing was granted on the date fixed and without making any further CWP No.11533 of 2010 (O&M) 3 enquiry as envisaged under Section 5-A of the 1894 Act, the respondents issued notification dated 10.5.2010 under Section 6 of the 1894 Act declaring that land measuring 419.9519 acres is needed for the establishment of “Residential Urban Estates, Mullanpur' in the area of revenue Estate Tehsil Kharar, District SAS Nagar. It is further case of the petitioners that declaration under Section 6 of the 1894 Act has been made without application of mind and their objections were not considered and had just been brushed aside. No report of the Collector after making an enquiry was sent to the Government and as such, the Government had no material to consider and issue the declaration. It has been further averred that the master plan of the area does not indicate if any part of it is to be acquired under the 1894 Act and after deletion of Section 71(3)(f) of 1995 Act by the amending Act of 2006 (i.e. Act No.33 of 2006), there is no provision to make 1894 Act applicable under the Punjab Act of 1995 and as such, no land can be acquired. It is the further case of the petitioners that to acquire land under the 1995 Act, “public purpose” has to be as per the provisions of the 1995 Act and not under the 1894 Act. According to the petitioners, the acquisition will benefit the higher classes of the Society and being purely a commercial transaction, no public purpose is even remotely connected with this and the petitioners shall be deprived of their property for the said so-called public purpose which is violative of Article 300-A of the Constitution of India. The petitioners have further laid challenge to the notification dated 24.11.2006 issued under Section 56 of the 1995 Act. Vide this notification an area comprising of 14805 acres of land was declared to be a local planning area, Mullanpur. Challenge has been laid to the aforesaid declaration of local planning area on the various grounds as under:- CWP No.11533 of 2010 (O&M) 4 (i) The Notification under Section 56(1) of the 1995 Act was not published in the manner prescribed. (ii) The Planning Board had no jurisdiction to select the planning area after 20.10.2006 i.e. the date on which the 1995 Act was amended vide Act No.33 of 2006 whereby selection of area for acquisition could only be done by the State Government and not by the Board. The acquisition proceedings have been challenged further submitting that: (I) After the approval of the master plan before making acquisition under 1894 Act, the Authorities were supposed to have made a scheme in accordance with the master plan and thereafter, such a scheme could have been executed by the Greater Mohali Area Development Authority after complying with the provisions of Chapter XII of the 1995 Act. The Punjab Government has enacted the Punjab District Planning Committees Act 2005 (Punjab Act 22 of 2005) with effect from 28.11.2005. However, no such Committees have been elected/nominated. (II) The acquisition has been of “land” only. The shops/houses and other fixtures are not land and they do not come within the definition of the expression of “land” and thus, the same cannot be acquired. (III) That according to the 73rd and 74th Amendment of the Constitution, the boundaries of the rural area have been identified/specified and the same are governed by the Local Gram Panchayat and thus, the boundaries of the Gram Panchayat cannot be reduced without prior notice to the concerned Gram Panchayat and its residents, as if the area is to be reduced, it will affect the civil CWP No.11533 of 2010 (O&M) 5 rights of the Gram Panchayat and its residents. Before issuing notification under Section 4 of the 1894 Act, the Gram Panchayat of the village which is strongly opposing the acquisition was not consulted at all. An additional point has been raised in CWP No.15492 of 2010 to the effect that the Town and Country Planning Department, Punjab/Chief Town Planning, Punjab has been notified as Planning Agency for the Local Planning Area as declared vide notification dated 24.11.2006 by the Planning Board whereas it is the State Government which is authorized to designate the Planning Agency for the Local Planning Area and on that account, the process of notifying the Final Master Plan, Mullanpur is vitiated and moreover, the final master plan is based on the declaration of the Local Planning Area by the Board by issuing notification dated 24.11.2006 whereas as per the amended provisions it is required to be issued by the State Government and thus, the procedure adopted at the whims and fancies of the Authorities cannot be said to be legal and valid. It has been also averred in this writ petition that the petitioners have been deprived from developing their land as envisaged under Section 81 of the 1995 Act, as there is no competent Authority under the Act to whom such an application could be made. A further grievance has been raised in the said writ petition that no environmental clearance has been obtained from the Central Agency which was necessary. It has also been submitted that Section 11 and 23(1) of the 1894 Act are violative of the provisions of second proviso to Article 31-A of the Constitution of India as Section 11 provides for fixing amount of compensation on the date of publication of the notification under Section 4 of the 1894 Act and not on the date of taking possession of the land and further Section 23(1) does not provide for fixing compensation “at not less than market price”, as on the date of the CWP No.11533 of 2010 (O&M) 6 acquisition and therefore, the aforesaid provisions of the 1894 Act are violative of the Constitution of India and land of the petitioners cannot be acquired. The petitioners have also claimed implementation of the National Rehabilitation and Resettlement Policy, 2007 and absence of the same according to them has vitiated the acquisition proceedings. A grievance has also been raised for not implementing the Land Pooling Scheme for the owners of the acquired land. On the basis of the averments made as above, the following law points have been raised in CWP No.11533 of 2010: “i) Whether the notifications u/s 4 & 6 are void and illegal, due to the fact that in the name of land, constructed area having shops, small industries and residential houses are being acquired which is not a part of the notification? ii) Whether the acquisition proceedings are void in toto in view of the amendment of the 1995 Act which came into force on 20.10.2006 and the notification u/s 56(1) dated 24.11.2006 where local area is selected by the Board and not by the State? iii) Whether the acquisition is bad in view of no publicity given to the notification u/s 56(1) as it was not published in any daily or local newspaper neither it was pasted in any conspicuous place in the village? iv) Whether, in view of 73rd and 74th Amendment Act, any authority other than the District Planning Committees can do any work of development up to the District level? v) Whether entry 18 list II of 7th Schedule of the Constitution word LAND include the constructed area also? vi) Whether the Special Act No.22 of 2005 supersedes the General Act of 1995 to the extent it deals with the development of Panchayat area? CWP No.11533 of 2010 (O&M) 7 vii) Whether running business can be acquired under the 1894 Act? viii) Whether any property can be acquired under 1894 Act without framing the necessary rules for the same? ix) Whether notification u/s 4 can be issued without doing proper survey of the proposed area? x) Whether without proper legislation or prior consent of the Panchayats, the boundaries of the village can be reduced? xi) Whether non agricultural assets can be included in the definition of word “LAND” as used in Entry 18, List II Schedule VII? Xii) Whether the respondents can acquire the land belonging to the petitioner without any talks and prior approval of the Gram Panchayat of the village? Similarly, the following law points have been raised in CWP No.15492 of 2010: “A) Whether the impugned notifications, Annexures P/3 and P/5, being not in consonance with each other, are liable to be quashed on this short ground alone? B) Whether the provisions of the 1995 Act were mandatorily required to be followed for defining the public purpose before proceeding to issue the notification under Section 4 of the 1894 Act? C) Whether in light of the fact that the acquisition of the land in question for setting up a new town having been quashed by this Hon'ble Court and the judgment having been upheld by the Hon'ble Supreme Court for non compliance of the mandatory provisions of the 1995 Act and for not obtaining the environmental clearance and clearance of the Defence Ministry, the present acquisition which suffers from the same defect can be allowed to be sustained? D) Whether non compliance of the mandatory provisions of Section 4, 5-A and 6 of the 1894 Act CWP No.11533 of 2010 (O&M) 8 renders the impugned notifications and the consequent proceedings are illegal, null and void? E) Whether the impugned notifications as also the impugned action of the respondents in proceeding to acquire the property in question is hit by the provisions of Constitution of India more specifically by the provisions contained under Article 14, 19(1)(g), 21, 31A and 300A? F) Whether the impugned notifications can be legally sustained in light of the fact that the public purpose mentioned in the impugned notifications is vague? G) Whether in view of 73rd and 74th Amendment of the Constitution of India, the urban planning of the area falling within a District can be carried out without adopting the method and the manner envisaged under the said provisions? H) Whether Section 11 and Section 23 of the 1894 Act are violative/ultra vires of Second proviso of Article 31A of the Constitution of India? I) Whether the respondents are under legal obligation to follow the policy framed by the Government of India, Annexure P/10? J) Whether in absence of Constitution of the Committees as per the provisions of The Punjab District Development Committee Act, 2005, the respondent authorities could proceed to acquire the land for the alleged public purpose? K) Whether in light of the submissions made in the writ petition and the documents annexed with the writ petition, the respondent authorities are required to be prohibited from acquiring the land of the petitioners for the alleged public purpose? L) Whether the impugned notifications as also Section 11 and 23(1) of the 1894 Act are liable to be quashed being illegal, arbitrary and ultra vires in light of the detailed facts and the grounds mentioned in the writ petition? CWP No.11533 of 2010 (O&M) 9 M) Whether the Final Master Plan purported to have been notified under the provisions of the Amending Act, 2006, being in contravention of the provisions of the 1995 Act, is opposed to the principles of natural justice and suffering from material irregularities, can be legally sustained? N) Whether the respondent authorities having deprived the petitioners of their right envisaged under Section 81 of the 1995 Act, can be legally allowed to proceed with the acquisition? O) Whether the non approval of the plan of Mullanpur Urban Estates renders the scheme, as envisaged under Chapter XII of the 1995 Act, as illegal and void? P) Whether the respondent authorities are under legal obligation to associate the petitioners and other land owners with the modalities of the Land Pooling Scheme and to afford them an opportunity to file objections/suggestions so as to enable them to understand the scheme and thereby exercise their right to get proportionate share in the developed residential, commercial as also institutional area?” It may also be relevant to mention at this stage that the petitioners in CWP No.11533 of 2010 have relied upon CWP No.13601 of 2009 in support of their case. Para No.19 of the aforesaid writ petition reads thus:- “That the similar notifications u/s 4 & 6 for acquiring land in this village for broadening a road which acquires shops etc. have been challenged in CWP No.13601 of 2009 on these very grounds in which Notice of Motion has been issued and dispossession of the petitioners has been stayed.” It is also a matter of record that on various dates, the present writ petition was ordered to be listed along with CWP No.13601 of 2009. CWP No.11533 of 2010 (O&M) 10 Upon notice issued in both these petitions, the respondents have filed their respective written statements. In the written statements filed on behalf of the respondent- State in CWP No.11533 of 2010, the averments made in the writ petition have been denied by raising preliminary submissions which read as follows: “1. The contention sought to be raised by the petitioners that after 73rd and 74th amendment of the Constitution of India, the task of planning and development of an area no longer vests with the specialized State Development Agencies and vests only with the District Planning Committee, is misconceived as this proposition has been rejected by the Hon'ble Supreme in Bondu Ramaswamy Vs. Bangalore Development Authority SCC (2010) 7 page 164. The Hon'ble Supreme Court has specifically held that the development authorities do not become inoperative on coming into force of Parts IX and IX-A of the Constitution after 73rd and 74th amendment of the Constitution of India. 2. That the petitioners did not raise an objection against the declaration of Local Planning Area Mullanpur and its Master Plan under Punjab Regional Town Planning and Development Act, 1995. The competent authority invited objections at two different stages before finalization of the Master Plan, but the petitioners chose not to raise objection. Therefore, at this stage, they are estopped in law from challenging notification under section 4 and declaration under section 6 of the Land Acquisition Act, 1894 on the ground that initial planning under Punjab Regional Town Planning and Development Act was not in accordance with law. 3. That if the petitioners are found to be eligible under the prevalent rehabilitation policy applicable in the State of Punjab, they shall be given benefit of “Land CWP No.11533 of 2010 (O&M) 11 Pooling Scheme” and all such other benefits as are available to oustees. 4. That the construction raised by the petitioners is in violation of Punjab New Capital (Periphery) Control Act, 1952.” It has been further submitted in para No.7 of the written statement filed in CWP No.11533 of 2010 which reads as under: “I. The objections were invited vide notification dated 14.8.2006 and not 24.11.2006 and it is relevant to mention here that process of finalizing local planning area Mullanpur had already been initiated under the un- amended PRTPD Act, 1995 and objections were invited. The petitioners never raised any objection and therefore, at this stage they are estopped from challenging the declaration of the Local Planning Area, Mullanpur and subsequent notification for development of the Mullanpur area. Copy of the notification dated 14.8.2006 is annexed herewith as Annexure R-1. II. The petitioners have laid challenge to the proposed acquisition for Urban Estate Mullanpur situated in District SAS Nagar, Mohali, inter-alia on the ground that the PRTPD Act, 1995 was amended on 20th October, 2006 and by virtue of this amendment, the Punjab Regional and Town Planning Board could not have issued impugned notification dated 24.11.2006 at Annexure P-6 as after amendment, it was only the State Government which could have issued notification under section 56 of the PRTPD Act, 1995. III. It is respectfully submitted that on 14.8.2006, i.e. even before amendment of the PRTPD Act, 1995, the process of identifying and declaring “Local Planning Area” of Mullanpur had already been initiated under the un-amended Act and objections were invited from the affected persons. Since the filing of objections was a vested and substantive right of the affected persons, the amendment of the PRTPD Act, 1995 carried out on 20th CWP No.11533 of 2010 (O&M) 12 October, 2006 was given prospective effect. The objection of one Gram Panchayat Raihmanpur (Hadbast No.172) was accepted and as requested by it, this Gram Panchayat was included in the planning area. IV. As per the Amended PRTPD Act, 1995, the affected persons do not have any right to file objections against proposed planning area therefore, the petitioners have not suffered any prejudice with the issuance of the impugned notification at Annexure P-6 by the Punjab Regional and Town Planning Board and rather they were given benefit of filing their objections. V. After issuance of impugned notification at Annexure P-6, the State Government continued the process initiated by the Board and issued notification under Section 70 of the amended PRTPD Act, (2006), and once again invited objections from General Public and all other interested persons but no objection was received. VI. Thereafter, it also sanctioned master plan of the Mullanpur Planning Area in accordance with law. Therefore, with the State Government accepting the impugned notifications dated 14.8.2006 at Annexure R-8 and 24.11.2006 at Annexure P-6, it ratified all the actions taken by the Board. The petitioners have failed to establish any prejudice being suffered by them and in absence thereof the allegations of alleged non- compliance of procedure under PRTPD Act, 1995 are merely academic and that too wrong. Copy of the Mullanpur Planning Area is annexed herewith as Annexure R-2. VII. It is worthwhile to mention here that on 29th January, 2008, the State Government, Punjab in order to meet challenges of the rapid growth of the S.A.S. Nagar, Mohali notified a “Regional Planning Area” under Section 56(1) of the PRTPD (Amended Act), 2006 and even the earlier notified area of the entire Local Planning Area of Mullanpur merged in it. Copy of the notification CWP No.11533 of 2010 (O&M) 13 dated 29.1.2008 is annexed herewith as Annexure R-3. VIII The petitioners chose not to raise any objection at the relevant stages and they cannot now challenge the process under the Land Acquisition Act, 1894 on the ground that there were allegedly certain discrepancies while declaration of Local Planning area Mullanpur and notification of Master Plan.” Para No.13 of the aforesaid written statement further reads as under: “That the contents of paragraph No.13 are admitted as a matter of record. The contentions sought to be raised by the petitioners already stand answered against the proposition being championed by the petitioner in a recent judgment by the Hon'ble Supreme Court in Bondu Ramaswamy Vs. Banglore Development Authority SCC (2010) 7 page 164. The Hon'ble Supreme Court has specifically held that provision of development authority does not become inoperative on coming into force of Parts IX and IX-A of the Constitution coming into force. It is submitted that the District Planning Committee for District SAS Nagar was duly notified on 22.9.2009. Contrary to the contentions sought to be promoted by the petitioners, once an area has been declared as a planning area, it is only the provisions contained in the PRTPD Act, 1995 which are applicable. Therefore, it is GMADA and other agencies under the PRTPD Act, 1995 as well as the State Government in its concerned department which are to carry out development within the planning area. Once a particular area has been declared as a planning area in accordance with section 56, the land use is to be fixed accordingly. Development is to be done as per the planning proposed under the 1995 Act. No Gram Panchayat is a party in the present case. Only one objection was received by Gram Panchayat Raihmanpur (Hadbast 172) in response to notification dated 14.8.2006 under section 56(1) of the CWP No.11533 of 2010 (O&M) 14 PRTPD Act, 1995 and it was duly considered and accepted and village Raihmanpur was also included in the Mullanpur Planning Area. The District Level Planning Committees have a limited role to play and the present matter relating to planned development of the planning area is outside the scope of District Planning Committees.” Similar defence has taken up in CWP No.15492 of 2010. Sh. G.S. Grewal, learned Senior Advocate appearing on behalf of the writ petitioners in CWP No.11533 of 2010 has vehemently argued that the provisions of Section 56 of the PUDA Act, being mandatory, have not been complied with in the present case, as on the date of notification i.e 24.11.2006, issued by the Punjab Regional & Town Planning and Development Board, the Board was not competent to issue such a notification as per the provisions of the 1995 Act, since the said Act stood amended w.e.f. 20.10.2006. According to the amended provisions, it was only the State Government which could declare a Local Planning Area and thus, the instant notification dated 24.11.2006 declaring the Local Planning Area of Mullanpur which has been