CIVIL WRIT PETITION NO. 3276 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: September 28, 2010. Parties Name M/S High-Tech Amusement & Recreation (India) Limited ...PETITIONER. VERSUS State of Haryana and others ...RESPONDENTS CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice Augustine George Masih. PRESENT: Mr. Shailender Jain, Advocate, for the petitioner. Ms. Palika Monga, D.A.G., Haryana, for respondents No. 1 and 2. Mr. Kamal Sehgal, Advocate, for respondent No. 3. JASBIR SINGH, J. JUDGMENT This judgment will dispose of two petitions, i.e., Civil Writ Petitions No. 3276 and 3267 of 2010 as common questions of facts and law are involved in both these cases. Facts are being mentioned from Civil Writ Petition No. 3276 of 2010. By filing this writ petition a prayer has been made for issuance CIVIL WRIT PETITION NO. 3276 OF 2010 -2- of a writ of certiorari to quash notifications dated March 9, 2009 and July 3, 2009, issued under Sections 4 and 6 read with Section 17(2)(c) and (4) respectively of the Land Acquisition Act, 1894 (in short the Act). It is case of the petitioner that in the year 1996, it had purchased about 11 Bighas of land in village Asaudha Todran, tehsil Bahadurgarh, district Jhajjar and established an Amusement Park, Water Park and Resort on the said land. Area was situated outside the controlled area of town Bahadurgarh, as such, no permission for change of land use was obtained from the authorities concerned. The Amusement Park was established after getting no objection certificate from the competent authority. It is also an admitted fact on record that in all, petitioner is the owner of 7 Acres of land, of which only about 2 Acres land is subject matter of acquisition in question. Record reveals that vide notification dated March 9, 2009, more than 17 Acres of land was proposed to be acquired by invoking the provisions of Section 17 of the Act for a public purpose, namely, construction of Express Highway connecting National Highway No. 1, 10, 8 and 2 in villages Asaudha Todran and Mandothi, tehsil Bahadurgarh, district Jhajjar. It is also an admitted fact that only the petitioners in these two writ petitions, who are the owners of less than 3 Acres have laid challenge to the acquisition proceedings. As per information supplied, rest of the land owners had accepted the compensation after passing of the Award. As per record, notification under Section 6 read with Section 17 of the Act was issued on July 3, 2009. Award was passed on February 19, 2010. As per admitted position, the petitioner received a notice under CIVIL WRIT PETITION NO. 3276 OF 2010 -3- Section 9 of the Act on February 19, 2009, directing him to put in appearance before the Land Acquisition Collector on that very date. It is case of the petitioner that he had received the letter late in the day. Upon notice, written-statement has been filed. The petitioner has also filed replication to the written-statement. Counsel for the parties heard. Counsel for the petitioner, by making reference to the dates on which notices under Sections 4 and 6 were issued and award was passed, has vehemently contended that it was not a case in which the respondents could not have waited for 30 days. It is his contention that the provisions of Section 17 of the Act were wrongly invoked. Option to file objections, against the proposed acquisition, could have been given to the petitioners in view of facts and circumstances of the case. It has come on record that at the proposed site, a trumpet (interconnection) is going to be constructed. It is case of the petitioner that in the initial plan, the above said interconnection was not proposed. The land was acquired for construction of Kundli Manesar Express way and during the process, interconnection in dispute was proposed to be constructed. Counsel contends that before proposing the site for acquisition of land, no survey was conducted. Viable alternative to construct the interconnection, through the vacant land was available, though suggested by the petitioner, the same was wrongly rejected. Counsel further contends that as per guidelines issued by Indian Roads Congress, interconnection could have been constructed by using lesser space and in the process, Amusement Park of the petitioner could have been saved. By arguing as above, he prayed that the notifications under challenge be quashed. CIVIL WRIT PETITION NO. 3276 OF 2010 -4- In reply to the arguments raised, Shri Sehgal has stated that the construction of Kundli-Manesar-Palwar Expressway (in short KMP) is going on under the guidance of the Hon'ble Supreme Court. The National Highway Authority of India (in short NHAI) insisted that a trumpet (interconnection) be constructed at the proposed site keeping in view the future needs to manage the traffic. Counsel further stated that the construction of interconnection is a part and parcel of construction of KMP to lessen load of traffic in Delhi in terms of various directions issued by the Hon'ble Supreme Court. The length of KMP will be around 80 Kms, 14 Kms of which falls in Haryana. Land for the said project was acquired separately and the construction work was in progress. If the urgency provisions were not invoked, the entire project would have been delayed, which would have resulted into escalation of costs worth many crores. He further argued that before proposing the land in dispute for acquisition, a survey was conducted and as per the technical advice given, interconnection was proposed. Alternative routes suggested by the petitioners are not technically viable as it will increase the cost of the project and also will lead to wastage of fuel by the commuters for generation together. He further argued that this writ petition having been filed after passing of the award cannot be entertained. He also brought it to the notice of the Court that total land under acquisition is more than 17 Acres. Petitioners in both the writ petitions are owners of about 3 Acres of land only. Other right holders are satisfied with the award passed and have not laid challenge to the acquisition of their land. He prays that the writ petitions having no substance be dismissed. After hearing counsel for the parties, we are not inclined to CIVIL WRIT PETITION NO. 3276 OF 2010 -5- interfere at the instance of the petitioners. Counsel for the petitioner by making reference to various site plans placed on record has tried to impress upon us that the interconnection could have been constructed at the alternative site suggested by the petitioner. We are of the view that in such like technical matters, the Courts cannot substitute their opinion to the opinion formed by the Experts. Where trumpet is to be constructed, how much area will be used and what will be its length, shape and direction are to be decided by the Experts. The Courts can interfere only in cases where it appears that the advice has been given on account of some malafide or is totally absurd. In the present case, situation is not the same. In the written-statement, respondents have specifically stated that as per the Experts, the alternative suggested by the petitioner is practically not feasible. It has also come on record that the NHAI has suggested construction of the interconnection. Thereafter, as per record, many meetings were held between the high officials of the State of Haryana and NHAI and only thereafter proposed site was selected for acquisition. It is not in dispute that the land is going to be acquired for a public purpose. In such like situation, interest of one or two individuals may suffer, but for overall development of infrastructure in the State, that can be tolerated. In Nand Kishore Gupta & Ors. v. State of U.P. & Ors., Civil Appeal No. 7468 of 2010, decided on September 8, 2010, the owners, whose land was going to be acquired, agitated that their land could have been saved by changing alignment of the road. It was further alleged by them that if the proposed road, in that case, was allowed to be constructed, they will have to demolish their buildings. To deal with above said CIVIL WRIT PETITION NO. 3276 OF 2010 -6- argument, their lordships of the Supreme Court observed as under: “22. The High Court has refuted all these contentions by giving good reasons. We will not go into these individual cases once the High Court has decided not to entertain these plea and, in our opinion, correctly. After all, this was an acquisition for building up a highway and the above mentioned Writ Petitions pertained to the land required for interchange. It is obvious that the alignment of the highway cannot be changed, as its design has been prepared after consideration of so many factors by the experts in building the road. Its direction or alignment, therefore, cannot be changed, with the result, the area which is required for interchange, also cannot be changed. This is a typical example of the individual having to sacrifice his land for the public good. There can be no dispute that this road would add to the betterment of the citizens of the East Yamuna area in particular and Uttar Pradesh in general. This is apart from the fact that the majority of the persons whose lands have been acquired, have either not objected to it or have accepted the compensation without any demur. It will, therefore, not be possible for us to go into these individual grievances, which have been rightly rejected by the High Court. In fact, in Balbir Singh's case , it was pointed out that out of the 12,315 affected farmers in 133 villages over the total area of 1638 hectares of the Expressway, 11387 have already received compensation and only 142 farmers have raised the issues. The High Court has rightly held that the private interest is always affected to CIVIL WRIT PETITION NO. 3276 OF 2010 -7- some extent in such large schemes requiring the acquisition of land. The High Court has rightly held that a holistic view had to be taken to look for an all round development without forgetting about our heritage, culture and traditions. We also, therefore, would not entertain the objections, feebly raised before us, individually. Same is the situation in this case. The petitioners in these writ petitions have stated that by shifting alignment of the proposed interconnection, their built up property can be saved. As per Expert's advice, if alternative suggested by the petitioner is not feasible, this Court will not direct the authorities concerned to change alignment of the interconnection. Next contention of counsel for the petitioner that invoking of the urgency clause (Section 17 of the Act) was not justified, is also liable to be rejected. The total cost of the KMP project was assessed at Rs. 2039 Crores in the year 2001. Due to procedural delays, it may have escalated many a times. It is apparent from the records that initially the interconnection in dispute was not suggested in the proposed plan of KMP. The NHAI insisted for construction of this interconnection keeping in view future requirement of traffic needs. High level meetings were convened between the officials of State of Haryana and NHAI and it was only on May 5, 2008, it was proposed that interconnection be constructed at the proposed site. Notification under Section 4 read with Section 17 of the Act was issued on March 9, 2009. Notification under Section 6 of the Act was published on July 3, 2009. Award was passed on February 19, 2010. It is contention of counsel for the petitioners that in the process, the respondents CIVIL WRIT PETITION NO. 3276 OF 2010 -8- have consumed more than ten months. Out of the period so consumed, 30 days could have been given to the petitioner to file objections under Section 5-A of the Act. It is not in dispute that KMP project is mammoth one, having more than 88 Kms of stretch of road and will be completed by spending more than 2000 crores of rupees. NHAI and many other contractors are involved in the completion of the project, which is going on under direct guidance of the Hon'ble Supreme Court. Detail as to how the project was conceived, processed and what handicaps were suffered by it are disclosed in written-statement filed by the respondents. After discussing everything, in paragraph No. 33 of the written-statement on behalf of respondent No. 3, it was stated as under: “33. That from the sequence of events given above, it is clear that: i) That a decision for construction of the said Expressway, being a paramount requirement, was deliberated at the highest level in the State, i.e., at the level of the Chief Minister, Haryana, in the meeting held on 09.04.2004; ii)That acquisition of land in a strip form running along a distance of 135 Kms was an extremely difficult task involving putting together the alignment of the Expressway with the Sajra maps of all the revenue estates falling along this ROW. Keeping in view the complexity involved in acquisition of land and the priority accorded to the Project at the level of the State Government, the Government of India and the Hon'ble Supreme Court, it had been decided in the meeting held on 09.04-2004 under the Chairmanship of the CIVIL WRIT PETITION NO. 3276 OF 2010 -9- then Chief Minister of Haryana to invoke provisions of Section 17 for acquisition of land for the Project. Thus, there was complete application of mind before invocation of the urgency provisions.” Regarding the interconnection in dispute, it was further stated as under: “35. That the concept plan of the interchange of the Kundli- Manesar-Palwal Expressway was developed by the Concessionaire and after discussion and finalizing with HSIIDC, it was submitted to NHAI for their approval by HSIIDC vide letter dated 1.3.2007. NHAI vide their letter dated 18.4.2007 desired some information which was provided to them vide letter dated 27.4.2007 and further NHAI raised some observations which were also replied. NHAI vide their letter dated 12.9.2007 asked HSIIDC to provide an additional trumpet interchange for the entry and exit road to the Expressway from NH-10 to make it signal free in view of 4/6 laning Project of NHAI. Although, HSIIDC had objected the same vide their letter dated 4.10.2007 and requested NHAI not to insist for additional trumpet interchange in view of requirement of traffic as per IRC-92. However, the land acquisition process for land measuring 43 acre 7 kanal and 15 marla was started under emergency provisions of Land Acquisition Act, 1894. The notification under Sections 4 & 6 read with clause © of sub section (2) of Section 17 of Land Acquisition Act, 1894 were published on 30/04/2008 & on CIVIL WRIT PETITION NO. 3276 OF 2010 -10- 14.08.2008 respectively. The matter was taken up with NHAI through Monitoring Committee and Chief Secretary, Haryana, when in the meeting dated 5.5.2008 of Secretary Road Transport and Highways, Government of India with Chief Secretary, Haryana when it was decided that additional trumpet interchange as per requirement of NHAI would be provided and sharing of cost of this trumpet interchange would be decided in the forth coming Monitoring Committee meeting. In the Monitoring Committee meeting dated 2.9.2008, it was decided that additional cost of this trumpet interchange would be shared in the ratio of 50:50 between NHAI and HSIIDC. Accordingly, the concept plan of the interchange including the additional trumpet interchange of Kundli-Manesar-Palwal Expressway was got prepared from the Concessionaire and after finalization with Independent Consultant, was sent to NHAI for approval by HSIIDC. This was finally approved by NHAI vide their letter dated 2.9.2008. The concept plan of this interchange so approved by NHAI is enclosed as Annexure R-7. After this, the instant land acquisition process for additional trumpet interchange was started.” After hearing counsel for the parties, we are satisfied with the explanation given to invoke urgency provisions of Section 17 of the Act to acquire the land. The completion of KMP project is an ambitious project as it will ease out traffic from Delhi and smoothen transportation of passengers and goods to various parts of the country. A similar matter came up for CIVIL WRIT PETITION NO. 3276 OF 2010 -11- consideration before the Hon'ble Supreme Court in Nand Kishore Gupta's case (supra), in which challenge was laid to the acquisition of the land going to be acquired by invoking the provisions of Section 17 of the Act. Their lordships of the Supreme Court observed as under: “We have deliberately quoted the above part of the High Court judgment only to show the meticulous care taken by the High Court in examining as to whether there was material before the State Government to dispense with the enquiry under Section 5A of the Act. We are completely convinced that there was necessity in this Project considering the various reasons like enormousness of the Project, likelihood of the encroachments, number of appellants who would have required to be heard and the time taken for that purpose, and the fact that the Project had lingered already from 2001 till 2008. We do not see any reason why we should take a different view than what is taken by the High Court. The law on this subject was thoroughly discussed in Tika Ram & Ors. etc. etc. vs. State of U.P. & Ors. etc. etc. (2009(10) SCC 689), to which one of us (V.S. Sirpurkar) was a party. In that decision also, we had reiterated that the satisfaction required on the part of Executive in dispensing with the enquiry under Section 5A is a matter subject to satisfaction and can be assailed only on the ground that there was no sufficient material to dispense with the enquiry or that the order suffered from malice. It was also found on facts in Tika Ram & Ors. etc. etc. Vs. State of U.P. & Ors. etc. etc. (cited supra) that there was no charge of malafide levelled against CIVIL WRIT PETITION NO. 3276 OF 2010 -12- the exercise of power and there was material available in support of the satisfaction on the part of the Executive justifying the invocation of the provisions of Section 17. The position is no different in the present case. The High Court in the present matter went a step ahead and examined the bulky original record itself to find that there was full material available.” In CWP No. 3267 of 2010, Shri Jain stated that the petitioner therein deals in sale and purchase of chemicals, petroleum products etc. and if its land is allowed to be acquired, it will not be possible for it to shift the material to any other site without getting a licence from the competent authorities. He further argued that let directions be issued to the authorities to allot alternative plot to the petitioner as has been done in the case of a neighbour, namely, Shiva Industries. After going through the letter issued in favour of Shiv Industries dated September 30, 2009 (Annexure P-21), we are not convinced with the argument raised. Vide that letter, no commitment in favour of Shiv Industries to allot a plot is made. Only procedure to move an application for allotment of a plot has been suggested. Counsel for the petitioner has failed to show us any policy on the basis of which petitioner can claim an alternate plot. Not only this, possibly this writ petition at the instance of the petitioners cannot be entertained at this stage. Notification under Section 4 of the Act was issued on March 9, 2009. Declaration under Section 6 of the Act was issued on July 3, 2009. Award was passed on February 19, 2010. CIVIL WRIT PETITION NO. 3276 OF 2010 -13- Admittedly, notice under Section 9 of the Act was received by the petitioner on February 19, 2010. It kept mum, allowed the grass to grow under its feet and came to this Court only thereafter. In view of the ratio of the judgments of the Hon'ble Supreme Court rendered in the cases of Municipal Corporation of Greater Bombay v. Industrial Development and Investment Company (P) Limited , (1996) 11 SCC 501; Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48; C.Padma v. Deputy Secretary to the Government of Tamil Nadu, (1997) 2 SCC 627; Star Wire (India) Ltd. v. State of Haryana, (1996) 11 SCC 698; and M/S Swaika Properties Pvt. Ltd. v. State of Rajasthan, JT 2008(2) SC 280: AIR 2010 SC 1664, writ petition at its instance cannot be entertained at this stage. In view of facts, mentioned above, no case is made out to interfere at the instance of the petitioners. Consequently, these writ petitions are dismissed. ( JASBIR SINGH ) JUDGE (AUGUSTINE GEORGE MASIH) JUDGE September 28, 2010. DKC