CIVIL WRIT PETITION NO. 9757 of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: February 28 , 2011. Parties Name Lakhbir Singh and others ...PETITIONERS VERSUS State of Punjab etc. ...RESPONDENTS CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice Rakesh Kumar Garg PRESENT: Mr. I.P.S. Doabia, Advocate, for the petitioners Mr. A.C.Jain, Advocate, for the petitioner in CWP No.4056 of 2005. Mr. Manohar Lall, Addl. A.G., Punjab Mr. A.R.Takkar, Advocate, for respondents No. 2 and 3. Jasbir Singh, J. JUDGMENT This order will dispose of two writ petitions, i.e., Civil Writ Petitions No. 9757 of 1999 and 4056 of 2005 as common questions of law and facts are involved in both these cases. For facility of dictating order, facts are being taken from CWP No. 9757 of 1999. Vide notice dated May 17, 1999( P-1), the land owners, whose land was acquired vide notification dated August 20, 1998 (P-3) were asked CIVIL WRIT PETITION NO. 9757 of 1999 -2- by respondent No. 3 to furnish a proof of their ownership, area and compensation in terms of the provisions of Section 9 (1) and (3) and Section 10(1) & (2) of the Punjab Development of Damaged Areas Act, 1951 (in short the 1951 Act). Vide notification dated August 20, 1998, issued as per provisions of Section 5(3) of the 1951 Act, 3.7 Acres of land was finally ordered to be acquired to implement the scheme prepared under Section 3 of the 1951 Act to widen an approach road leading to Golden Temple and Bagh Jallianwala, through Ghee Mandi and Bazar Sandookan, Amritsar. The petitioners, who are the tenants/ owners of the property under acquisition, have filed this writ petition to quash the above said notices and the notification. Admittedly, the land under acquisition falls within the walled city of Amritsar and is situated near to the vicinity of Jallianwala Bagh and the Golden Temple. In the month of July, 1993, a development scheme to widen the road, mentioned above, upto 60 ft. was prepared by respondent No. 2 proposing to acquire 5.82 Acres of land by issuing a notification under Section 4 of the 1951 Act. On objections raised by occupiers/ land owners of the buildings under acquisition, that scheme was shelved and a new scheme for an area measuring 3.7 Acres to widen an approach road upto the Jallianwala Bagh and the Golden Temple of 40 feet width was published under Section 4 of the 1951 Act in the newspaper 'Tribune' on August 5, 1997 and then repeated on August 12, 1997 and August 19, 1997. In the similar manner, the scheme was published in Newspaper 'Daily Ajit' on August 8, 1997 and repeated on August 15, 1997 and August 22, 1997. Notice of the scheme was published in the official CIVIL WRIT PETITION NO. 9757 of 1999 -3- gazette on August 15, 1997 and it was repeated on August 22, 1997, and August 29, 1997. As per provisions of the 1951 Act, 187 objections were received objecting to the proposed acquisition. All those objections were heard and disposed of by passing a resolution No. 93 dated November 17, 1997. Before deciding their objections, an opportunity of personal hearing was also granted to all the land owners on the date mentioned above. Before the competent authority, demands made by all the land owners were that the land required for widening of the road may be acquired and rest of the land shall be left with them and for acquired land, compensation shall also be paid to them. It was further demanded that if the shop/ property is acquired in full, the owners be adjusted somewhere else. The objections were disposed of by observing as under: “i) That this is a very important scheme because it is regarding the provision of approach road to two monuments of National importance – Golden Temple and Jallianwala Bagh; ii)As far as the lay out of the scheme is concerned, this was shown to the objector at the time of hearing their objections. iii)Although this scheme is framed under the Punjab Development of Damaged Area Act, 1951, the main object of this scheme is to widen the approach road connecting the G.T.Road to the Golden Temple and Jallianwala Bagh and beautify the surrounding areas. Therefore, the expenditure incurred on the acquisition, demolition, execution of this scheme should be charged from the Galliara Project or a grant should be provided to the Trust since there is no CIVIL WRIT PETITION NO. 9757 of 1999 -4- possibility of the Trust earning from this scheme. iv)The layout plan of the scheme Drawuing No. DTP(A) 3401/97 dated 13.10.97 which has been supplied by the Distt. Town Planner, according to which leaving besides some properties rest all the properties whose part is required for the road has been taken, the rest of the properties are adjusted as per the scheme hereunder. “Buildings accommodated wholly or partly” Apart from this in the lay out plan of the scheme, there is a total of 62 shops/ booths and the persons whose properties are almost covered under the scheme for the road, they may be adjusted in some other alternate shops/ booths as per the rules. The residential properties which are covered under this scheme, they may be adjusted in other residential schemes of the Trust. As regards the giving of compensation for the land acquired, the same would be awarded as per award of the Land Acquisition Collector. As regards the proposal of leaving out the land of Akhara Mahan Dass and that regarding Ramanand proposal and other who had come with written objections in this regard, the same is not accepted and the lay out plan of the scheme which is approved by the Chief Town Planner, action would be taken accordingly.” Thereafter a notification (Annexure P-3) was issued on August 20, 1998, i.e., within one year from the date of last publication of the CIVIL WRIT PETITION NO. 9757 of 1999 -5- scheme in the official gazette on August 29, 1997. In this writ petition, it is primary grievance of the petitioners that at the site under acquisition, beautifully constructed shops/ buildings are in existence and those cannot be acquired by invoking the provisions of the 1951 Act. No damaged building is existing at the spot, for which reconstruction/ planning is needed. It was further stated that the publication of the notices, to acquire the land through a scheme was not done as per provisions of the 1951 Act. Upon notice, reply has been filed, wherein averments made by the petitioners were refuted. It was pleaded that taking note of the objections filed by the land-owners, earlier scheme floated in the year 1993 to widen the road in question upto 60 ft. was dropped and new scheme was published to acquire lesser area and to widen the road upto 40 ft. It was further pleaded that before framing of the scheme, a meeting of the State level Site Inspection Committee was conducted in the month of May, 1997. All benefits of the scheme and further details were discussed and only thereafter, notification under Section 4 of the 1951 Act was issued and after hearing objections, filed by the land owners, a final notification was issued under the provisions of the 1951 Act. Heard counsel for the parties. Shri Doabia, counsel for the petitioners, has vehemently contended that invocation of the provisions of the 1951 Act to acquire land of the petitioners was not justified. By doing so, they have been discriminated. If need be, the land should have been acquired by invoking the provisions of the Land Acquisition Act, 1894 (in short the 1894 Act). CIVIL WRIT PETITION NO. 9757 of 1999 -6- He further argued that if acquisition is maintained, the petitioners will get less compensation as compared to the compensation, which would have been available to them if the provisions of the 1894 Act would have been invoked. He further argued that the provisions of Sections 4 and 5 of the 1951 Act are akin to the provisions of Sections 4 and 6 of the 1894 Act and the final notification under Section 5 of the 1951 Act in this case having been issued beyond period of one year from the date of first publication in the official gazette on August 15, 1997, cannot be sustained. In the alternative, he argued that rehabilitation package be provided as the petitioners/ land owners are going to be uprooted. To say so, he has placed reliance upon paragraphs No. 11 and 12 of the judgment of the Hon'ble Supreme Court in Bachan Singh and others v. State of Punjab and others, AIR 1971 Supreme Court 2164. He prayed that the writ petition be allowed and the impugned notices and the notifications Annexures P-1 to P-3 be quashed. Prayer made has vehemently been opposed by Shri A.R.Takkar, Advocate, who has put in appearance on behalf of respondent No. 2. By making reference to the ratio of the judgment in the case of Bachan Singh's case (supra), he contended that all the contentions raised by the petitioners were covered against them vide the findings given by the Hon'ble Supreme Court in the above mentioned case. He further argued that though there is no requirement under the provisions of the 1951 Act, yet final notification under Section 5 of the 1951 Act was issued within one year from the date of last publication of the notification in the official gazette, i.e., on August 29, 1997. He further argued that no discrimination CIVIL WRIT PETITION NO. 9757 of 1999 -7- was done to the petitioners, as per the decision taken and conveyed to this Court through an affidavit of Shri M.P.Arora, Land Acquisition Collector, dated July 13, 2010, that the compensation shall be assessed as per the provisions of Sections 23 and 24 of the 1894 Act and Standing Order No. 28 of the Financial Commissioner (Revenue), State of Punjab. Besides as above, the land owners shall also get 30% solatium on the basic price of land to be paid to them. He further stated that it is not possible to rehabilitate the petitioners, a conscious decision has been taken in that regard. During pendency of this writ petition, as per directions issued by this Court, the matter was reconsidered by the Deputy Commissioner, Amritsar, and vide meeting note dated August 25, 2009, it was decided to acquire the land in question. It is mentioned that the shopkeepers/ land owners may separately move to the State Government for their re-settlement on compassionate grounds. He prayed that the writ petition having no substance be dismissed. Before proceeding to decide issues in this case, it is necessary to note down relevant provisions of the 1951 Act: “4. Publication of schemes.-(1) When a scheme has been framed or deemed to have been framed under this Act, the Trust shall publish a notice in the Official Gazette and two newspapers, one at least with a circulation in both India and Pakistan- unless the entry into Pakistan of the newspapers published in India is banned, in which case both papers shall be such as have circulation in India, stating: (a) the fact that the schemes has been framed; CIVIL WRIT PETITION NO. 9757 of 1999 -8- (b) the boundaries of the locality comprised in the scheme; and (c ) the place where and the time when details of the scheme, including a statement of the land proposed to be acquired and a general map of the locality comprised in the scheme, may be inspected. (2) Such notice shall also prescribe the period during which objections to the scheme will be received 5.Decision of objections and publication of the sanctioned scheme.- (1) After considering the objections, if any, which may be received by the Trust during the period prescribed, the Trust may approve the scheme with or without modifications. (2)As soon as the scheme has been approved by the Trust, it shall submit the scheme and a statement of objections received to the State Government and the State Government may modify the scheme, if necessary. (3)The State Government shall then notify the Scheme , either in original or as modified by it and the scheme so published shall be deemed to be the sanctioned scheme. (4)The publication under sub-section (3) shall be conclusive evidence that a scheme has been duly framed and sanctioned. (5)The provisions of the Punjab Town Improvement Act, 1922 (Punjab Act IV of 1922), shall apply, to the extent they are applicable to all schemes framed and sanctioned under this Act in so far as they do not conflict with or are not inconsistent with the provisions of this Act. CIVIL WRIT PETITION NO. 9757 of 1999 -9- 6. Acquisition of damaged area through the Collector. (1)The Trust shall within three months from the date of publication of the scheme under sub-section (3) of section 5, apply to the Collector for the acquisition of any damaged area comprised in the scheme and, if considered necessary, for the immediate delivery of the possession of the whole or any part of such area to the Trust. (2) Notwithstanding anything contained in any other law for the time being in force, the Collector may accept the application made to him under the foregoing sub-section and forthwith deliver or cause to be delivered, to the Trust possession of the damaged area for which the application has been made, and on such order being made, the area shall thenceforth vest absolutely in the Trust free from all encumbrances but subject to the payment in due course of compensation by the Trust in accordance with the provisions of this Act: Provided that possession of any building or part of a building shall not be taken unless its occupier has been given at least two weeks' notice, or such longer notice as is considered reasonably sufficient to enable him to remove his movable property from such building without unnecessary inconvenience to himself.” It is not in dispute that the land under acquisition falls within the territory of walled city of Amritsar. It is also an admitted fact that at an earlier point of time, the area falling within the walled city was declared a CIVIL WRIT PETITION NO. 9757 of 1999 -10- damaged area as per the provisions of Section 2(d) of the 1951 Act. Contention of Shri Doabia that notification dated August 20, 1998 (P-3) having been issued beyond a period of one year from the date of first publication of the scheme in the official gazette on August 15, 1997, deserves to be rejected. As per the established law, last date of the publication is to be seen while calculating the period of limitation to issue a final declaration to acquire any land. In the present case, admittedly within one year from the last date of publication of the scheme in the official gazette , i.e., August 29, 1997, the final declaration under the 1951 Act was issued on August 20, 1998. As such it was published within one year. Even otherwise, there exists no such mandatory condition as per the provisions of Sections 4 and 5 of the 1951 Act. To calculate the period of limitation, the provisions of Sections 4 and 6 of the 1894 Act cannot be read in this case. Further contention of Shri Doabia is that as no damaged buildings in the area are available, as such no scheme can be formulated to develop the area and consequently acquire the land. To say so, he has made reference to some photographs showing existence of shops and residential houses in the proposed scheme. Similar question in the case of acquisition of land under the provisions of 1951 Act in Amritsar city came up before a Constitution Bench of the Hon'ble Supreme Court in Bachan Singh's case (supra). A similar objection to the acquisition regarding discrimination in not acquiring the land by invoking the provisions of 1894 Act and also existence of newly constructed buildings came up for consideration before their lordships of the CIVIL WRIT PETITION NO. 9757 of 1999 -11- Supreme Court in that case (supra), wherein it was observed as under: “10. It is then contended that some buildings in these areas are newly built or that some of them are not damaged and hence the restriction is unreasonable but in our view this alone does not in any way justify an impediment being placed for a scheme which is designed to achieve a social purpose and is for the public good. The compensation payable under the Act is also determined on principles similar to those under the Land Acquisition Act or the Punjab Town Improvement Act. There is however, no justification in the submission that option is given to acquire the area either under the Act or under the Punjab Town Improvement Act according to the discretion of the Trust which is without guidelines and arbitrary. This argument is devoid of force because what Section 3 empowers is that the Trust in framing a scheme may provide for all or any of the matters mentioned in Section 28 of the Punjab Town Improvement Act. It further declares that any scheme already framed under the Punjab Town Improvement Act is deemed to have been framed under the Act. This is far from saying that a discretion is given to the Trust to frame a Scheme either under the provisions of the Act or under the provisions of the Punjab Town Improvement Act or that the provisions of the latter Act are more advantageous in the matter of compensation or in respect of any other matter. The section merely incorporates by reference to some of the provisions of the other Act and is also CIVIL WRIT PETITION NO. 9757 of 1999 -12- an enabling one. There is also no validity in the contention that compensation is not payable for the buildings but only for the land because the definition of land under the Act is similar to that under Section 3(a) of the Land Acquisition Act and is comprehensive enough to include buildings also.” In the present case also, this Court is of the opinion that there is no question of any loss being caused to the petitioners. It makes no difference to them if their land is acquired under the provisions of the 1951 Act or the 1894 Act, if they are going to get the same amount of compensation. By filing an affidavit of Shri M.P.Arora, Land Acquisition Collector, Amritswar, dated July 13, 2010, it was undertaken as under: “3. That the payment of the acquired land will be made in accordance with the Section 23 and 24 of Land Acquisition Act, 1894 and Standing Order No. 28 issued by the Financial Commission (Revenue), Punjab, Chandigarh. 4. That in this regard the rate is to be fixed by the District Land Price Fixation Committee constituted under para No. 13 of Standing order No. 28. Apart from the rate fixed by the District Land Price Fixation Committee 12% increase on the price fixed by District Land Price Fixation Committee from the date of first Notification and 30% solatium on the basic price is to be paid.” CIVIL WRIT PETITION NO. 9757 of 1999 -13- Not only as above, with a view to see that the matter is amicably settled, this Court on August 20, 2009, passed the following order: “Three matters of the nature in hand bearing Civil Writ Petition Nos. 11467 of 1999, 17451 of 1999 and 17591 of 1999, came to be amicably settled. Learned counsel for the Improvement Trust, Amritsar, states that the Improvement Trust is ready and willing to effect settlements in the connected cases, including the present writ petition. Learned counsel for the petitioners states, that the petitioners are also ready and willing to probe the possibility of a settlement. In view of the above, the petitioners are directed to appear, either in person or through authorised counsel, before the Deputy Commissioner, Amritsar, in his office on 25.8.2009 at 10.00 AM.” In response thereto, all the petitioners were heard by the Deputy Commissioner and the report made by him reads thus: “Acquisition of property for widening of road from Ghee Mandi Chowk to Jallianwala Bagh Amritsar – CWP No. 9757/1999 and CWP No. 4056/2005. As per directions of the Hon'ble High Court in Civil Writ Petition No. 9757 /1999 and 4056/2005 titled as Sh. Lakhbir Singh and others vs. State of Punjab and others and Madan Lal Aggarwal Vs. State of Punjab and others respectively affected CIVIL WRIT PETITION NO. 9757 of 1999 -14- persons or their representatives appeared in my office on 25-9- 09 (copy of the attendance role is attached). On behalf of Madan Lal (Petitioner in CWP No. 4056/2005) his brother Sh. Rakesh Aggarwal came and stated that his complete shop is acquired vide notification and he should be given an alternative shop in lieu of this acquisition of the shop. In the Civil Writ Petition of Lakhbir Singh and Others (CWP No. 9757/1999) Sh. Mohan Singh came present and stated that after the acquisition of shops, they be allotted shops by way of creating similar shops in the set back. Sh. Jaswant Singh stated that his complete shop is acquired and demanded alternative shop. Sh. Raj Kumar suggested that instead of acquiring the area in the proposed plan, the plan altogether should be altered and should be diverted towards the post office chowk. Sh. Puneet Gupta suggested that as the elevated road is being constructed there is no need to widen this street by acquisitions. Sh. Ganga Ram stated that he is tenant of Mahants and he should be given the area of the shop from the remaining land of Mahants so that he may construct his shop in the area. Sh. Prithpal Singh stated that this scheme should not be implemented and the widening of road project should be diverted toward post office chowk and in case land is to be acquired then owners should be given appropriate compensation and the shops keeper should also be adjusted on CIVIL WRIT PETITION NO. 9757 of 1999 -15- the principle of set back. I have gone through the notification and Executive Officer Improvement Trust, Amritsar produced the map of the area with detailed marking of the properties under dispute. The perusal of the map and the total area of each disputed shop in CWP No. 9757/1999 to be acquired show the following detail:- Area in Sq. Feet Sr. No. Name Total area of the shops` Acquired Area Left Area 1 Lakhbir Singh 439.92 201 238.92 2 Raj Kumar 263.37 215 48.37 3 Amar Singh 444,58 215.62 228.96 4 Krishan Kumar 507.35 222.28 285.07 5 KrishanChand/ Dina Nath 295.18 295.18 Nil 6 Sujjan Singh and sons 380 167.5 212.5 7 Karam Singh/ Nirmal Singh 586.39 274.87 311.52 8 Satish Kumar 679 220.75 458.25 9 Satinder Singh/ Mohan Singh 197.77 197.77 Nil The above perusal of the documents reveals that out of the 9 writ petitioners, there are only 2 writ petitioners, namely, Krishan Chand/ Dina Nath and Satinder Singh/ Mohan Singh, whose complete shops are being acquired and in case of other petitioners only part of the shops are being acquired and other part is being left as such in which they can run their business. In case of Sh. Madan Lal (Petitioner) in CWP No. 4056/2005, the executive officer Improvement Trust stated that the petitioner is occupying a big godown and after acquisition CIVIL WRIT PETITION NO. 9757 of 1999 -16- of 385 Sq. feet area, he shall be left with adequate space for his business. Sh. Jatinder Singh, Executive Officer, Amritsar Improvement Trust, Amritsar have stated that owners are being compensated for the acquired land where as there is no policy of the Trust to allot shops to the tenants. All the petitioners in these two writ petitions are the tenants. In fact there are 87 properties which are to