CWP No.12383 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.12383 of 2010 (O&M) Date of decision: 18.4.2011 Dr. M.P.S Bhatia and 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. A.K. Chopra, Sr. Advocate with Ms. Shilpa Malhotra and Mr. V.M. Gupta Advocate for the petitioner(s). Mr. Manohar Lall, Additional Advocate General, Punjab. Rakesh Kumar Garg, J. By way of present writ petition, the petitioners have challenged the notifications dated 23.11.2009 (Annexure P-10) and 24.5.2010 (Annexure P-20) issued under Section 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') and all the consequential acquisition proceedings qua the plots/houses/shops/religious places owned and possessed by them alleging that the entire acquisition process is an exercise to take away the land owned by the petitioners under the guise of public purpose, namely, “to give Wider Access Road from Footbal Chowk to Central Jail, Jalandhar” and was abuse and misuse of the process of law especially in view of the fact that inmates of the Central Jail were being shifted to newly constructed Modern Jail, at Kapurthala road, Jalandhar and the area of existing jail had been transferred to respondent No.5- Punjab Infrastructure Development Board (in short the 'PIDB') for commercial complex. A further prayer has been made in the writ petition for issuance of a writ in the nature of prohibition restraining the CWP No.12383 of 2010 (O&M) 2 respondents from acquiring the properties of the petitioners as the alleged purpose was vague, mala fide and for extraneous reasons. Lastly, it has also been prayed that the respondents be directed to adhere to the National Resettlement and Rehabilitation Policy, 2007 in its letter and spirit. As per the averments made, the petitioners are the owners in possession of small pieces of land having their residential houses, shops and religious places as mentioned in para No.3 of the writ petition. The case of petitioner No.1 regarding the change of land use was considered in the meeting dated 13.3.2008 by the Land Use Change Committee of Municipal Corporation, Jalandhar and approval was accorded and the case was forwarded to the Government subject to deposit of charges. The Department of Local Self Government, Punjab, vide notification dated 29.7.2009 (Annexure P-2) granted sanction for the change of land use in respect of plot of petitioner No.1 and in compliance of the said notification, he deposited a sum of ` 2,91,469/- and ` 12,355/- as charges for the change of land use. Similar sanction was accorded with regard to plot No.185 belonging to petitioner No.6 who also deposited the necessary charges. It is the further case of the petitioners that proceedings for transfer of proprietary rights in the land and building of the Central Jail, Jalandhar in favour of respondent No.5 i.e. Punjab Infrastructure Development Board, were simultaneously going on with a view that PIDB shall be able to make optimal use of vacant/un-utilized lands, buildings, etc. of the State Government and raise substantial revenue for the infrastructure development and ultimately vide letter dated 6.6.2008, the Govt. decided that the property measuring 22 acres 1 kanal 17 marlas of the Central Jail, Jalandhar be got mutated in favour of PIDB because the Central Jail, Jalandhar had been decided to be shifted at the Kapurthala road. CWP No.12383 of 2010 (O&M) 3 According to the petitioners, though the Government had already decided to transfer the land/property of Central Jail Jalandhar to PIDB and had also decided to shift the Central Jail, Jalandhar from its existing site to Kapurthala Road yet the respondents issued notification dated 23.11.2009 under Section 4 of the Land Acquisition Act proposing to acquire the piece of land including the plots, houses, shops, lands of the petitioners for an alleged public purpose, namely, “to give wider access road from Footbal Chowk to Central Jail, Jalandhar”. The petitioners filed their objections under Section 5-A of the Act . However, the respondents without providing an opportunity of effective hearing and without considering and deciding the objections filed by the petitioners, issued notification dated 24.5.2010 under Section 6 of the Act declaring the acquisition of the land. The writ petition has been contested by the respondents and the averments have been denied and it has been asserted that acquisition is for a public purpose. Though, it has been averred in the writ petition that the aforesaid proceedings are liable to be quashed for violation of provisions of Sections 4 and 5-A of the Land Acquisition Act, however, no argument has been addressed in this regard. The only other grievance of the petitioners in the present writ petition is that the acquisition process is an excuse to take away their land/plot/house/shop under the guise of the Land Acquisition Act by misuse and abuse of provisions of law which have been adopted to make the sale of the jail land, more attractive to potential buyers/MNC's and to earn huge profits as the area of existing Central Jail has been transferred to respondent No.5 for the purpose of commercial complex, rather, than to provide wider access to the Jail, which is being shifted to the newly constructed modern jail at Kapurthala road and, as CWP No.12383 of 2010 (O&M) 4 such, there is no public purpose involved in the acquisition. To support the aforesaid plea, counsel for the petitioners has referred to written statement filed on behalf of respondent No.5 wherein it has been admitted that under Optimum Utilization of Vacant Government Lands scheme (hereinafter referred to as 'OUVGL Scheme') the acquisition in question is just and necessary to provide wider access to road of proposed construction and development for the land of existing jail for commercial use. It has been further submitted by the petitioners that by saying that the land under acquisition is needed for wider access road from Footbal Chowk to Central Jail, Jalandhar is in fact a misrepresentation on the part of the respondent-Authorities as in the written statement, respondent No.1 has clearly admitted that the acquisition of land is needed for the widening of road so that the traffic problem faced by the people of Jalandhar is redressed. Learned counsel for the petitioners has further argued that the petitioners are having residential houses, shops and religious places which are sought to be acquired and they are being displaced only to give benefit to some other persons/MNC to earn huge profit and thus, the respondents cannot be permitted to act with malice and as per their own whims and fancies and violate the fundamental rights of the petitioners. It has been also argued that the land sought to be acquired for the alleged public purpose as aforesaid, is misleading as the respondents admittedly had already started proceedings to transfer the Central Jail from its existing site and the acquisition proceedings were started by concealing these facts. The respondents have acquired the land in question only to allow respondent No.5 to auction the area of Jail at higher price. Moreover, the area of the petitioners had already been declared as commercial and respondent No.5 was going to raise construction of commercial complex over the jail premises and in such situation, no public purpose was involved CWP No.12383 of 2010 (O&M) 5 in the present acquisition. Counsel for the petitioners has also relied upon a fact that petitioner No.1 was granted land use change of his property from residential to commercial and therefore, the respondents could not have acquired the said land. In the end, it was argued that the property under the Church/religious place has also been acquired which was illegal. On the basis of the aforesaid submissions, it has been argued that the impugned notifications and subsequent proceedings are liable to be quashed. On the other hand, learned counsel appearing on behalf of the respondents have vehemently opposed the argument raised by the learned counsel for the petitioners. On behalf of the respondents, it has been submitted that there is no concealment/misleading of facts on their behalf as the land has been acquired for a public purpose, namely, to “give Wider Access Road from Foobtal Chowk to Central Jail, Jalandhar and even in the written statement filed on behalf of the respondents, it has been stated that the acquisition of land is “for widening of road“, so that the traffic problem faced by the people of Jalandhar can be redressed and thus, there was no mis-statement of facts. Not only this, respondent No.5 in its reply has very clearly divulged the object to be achieved under the OUVGL Scheme under which the competent Authority keeping in view the need as well as responsibility of the State Government to construct modern prisons which should conform to the present living conditions of the Society and which may further solve the problem of congestion and of deplorable living conditions in the jails, has sanctioned the scheme as identified by respondent No.5 to modernise all 26 prisons in the State of Punjab. It was felt that there was an urgent need to relocate the Central Jail on the outskirts of the cities. The construction of new Jails needs huge piece of land and a great financial assistance to construct along with all modern CWP No.12383 of 2010 (O&M) 6 facilities. On the other hand, the leftover jails at the existing place which shall be vacant have a great potential for optimum utilization as commercial complex. The OUVGL scheme seeks to relocate such jails on the outskirts of the cities and to construct spacious modern jails keeping in view the projected expansion in the number of prisoners in future which requires lot of funds and can only be generated by putting to the optimum utilization of vacant or under utilized area of existing jails so as to generate funds to meet the cost and repayment liabilities of the new modern prisons and thus, in pursuance of the aforesaid decision of the Government, respondent No.5 was developing the project at Jalandhar in public-private- partnership mode by leasing out or auction of such properties, the ownership of which is legally transferred in the name of respondent No.5 by following the due process of law. Learned counsel appearing on behalf of the respondents have also referred to the site plan and the averments in para Nos.9 and 10 of the written statement to state that the existing jail premises is situated within the heart of the city of Jalandhar and is surrounded by locality having high density of population both residential as well as commercial. Para Nos.9 and 10 of the written statement read thus: “9. That, at present the existing jail premises is situated within the heart of the city of Jalandhar. It is surrounded by locality having high density of population both residential as well as commercial. The main gate of the existing jail premises is situated on the old GT Road on the Eastern side of the land. The said GT Road consists of Fire Station, Small Retail Shops and residential area. On the Western Side of the land, the boundaries of Mission Compound, Batra Hospital, Shakti Nagar and Adarsh Nagar colonies are situated. The road leading to the Mission Compound, Batra Hospital, Shakti Nagar and Adarsh Nagar Colonies are too narrow so as to cater the needs of the public at large. However, CWP No.12383 of 2010 (O&M) 7 with the increase of flow of traffic on these roads, it would lead to congestion on the roads and the difficulties are being faced by the nearby habitants. On the Southern side of the locality there lies the Commercial as well as residential habitation which is mainly situated on a road leading from Footbal Chowk to bastian Chowk, popularly known as Bastian Road. The said roads are not so wide enough so as to cater the needs of the Public at large. On the Northern side, the land is juxtaposed with jail link road which further connects to GT Road. Even the said road is not so wide so as to cater the needs of the Public at large. Primarily all these roads leading to the land, where at present Central Jail Jalandhar is situated, is not more than 7-7.5 meters in width, which are not enough for the optimum utilisation of the land. It may also be pertinent to mention here that one road leading from Patel Chowk from the Northern Side of the land passes through a dense populated area where both residential as well as commercial activities is situated. The length of this road from Patel Chowk to the outer boundary of the central Jail Jalandhar is approximately 206 meters. On account of high density of population situated on this road, it is not possible to widen this road. Moreover, the public purpose would not be served by widening the said road vis-a- vis, if the land of the petitioners is acquired under the Land Acquisition Act, 1894 as more people would be effected, if the land adjoining to road leading from Patel Chowk to Central Jail is acquired, in comparison where less number of people would be effected with the present acquisition. Further, the total length of the road to be constructed after the acquisition in question, would be 303 meters, out of which 125 meters of land would be covered, under the land to be acquired belonging to the petitioners, where some construction exists and rest 178 meters of land would be covered, under the land to be acquired belonging to the petitioners, which is lying CWP No.12383 of 2010 (O&M) 8 vacant. 10. That, the existing jail premises shall be used to cater the facilities of eminent public use by converting the existing jail premises into a commercially potential hub. Such commercial hub would include the office complex, shop-cum-offices, hotels, malls, etc. which would cater to the daily needs of the public at large. In the middle of the commercial complex there would be a very big open plaza where the pubic at large could visit.” The allegations of misuse and abuse of process of law have been specifically denied by the respondents. It has been also argued that the land of petitioners No.2 to 5 which is alleged to be the land of religious acquisition (i.e. Church) is lying vacant and no part of the constructed Church has been acquired. It has been further submitted that simply because petitioner No.1 was allowed commercial use of a part of his residential property will not ipso facto make him entitle for release of his land and moreover, the land was being acquired for infrastructural use i.e. Providing a wider access from Footbal Chowk to Central Jail, Jalandhar. The allegation that the acquisition is being made mala fidely to give benefit to the MNCs has been denied being frivolous and baseless. In the end, it has been submitted that the writ petition is without any merit and the same is liable to be dismissed. We have heard learned counsel for the parties and have perused the pleadings and the documents placed on record of this case. There is no dispute that the land in question is being acquired for a public purpose i.e “to give Wider Access Road from Footbal Chowk to the area of existing Central Jail”. Simply because the respondents have mentioned public purpose as to give wider access road from Footbal Chowk to Central Jail Jalandhar will not mean that there is mis- CWP No.12383 of 2010 (O&M) 9 statement/misleading of facts on the ground that the Central Jail was being shifted to some other place. The public purpose has been clearly culled out i.e to give wider access road between two areas (from Footbal Chowk to Central Jail, Jalandhar). Whether respondent No.5 could develop the area under existing Central Jail for commercial complex or not, is not a question to be decided in this case. The only question before this Court in the present writ petition is whether giving wider access road from one point to another i.e from Fooball Chowk to Central Jail, Jalandhar is a public purpose or not. Whether Central Jail is to remain there or is to be developed as a commercial complex is meaningless. In fact, the Central Jail, Jalandhar has been mentioned only to describe the length/extent of wider access Road starting from Footbal Chowk upto the end point i.e. Central Jail which is a public purpose. It is nobody's case that the respondents have tried to misrepresent that the wider access road was being given to Central Jail. Therefore, the argument raised by the learned counsel for the petitioners is not sustainable. Even otherwise from the written statement filed on behalf of the respondents, it is crystal clear that the area of existing Central Jail is within the heart of the city having high density of population. It has also been established on record that now under the OUVGL Scheme which has been approved by the Government, respondent No.5 has undertaken to complete the project of construction of modern jail on Kapurthala road and the cost of such modern jail is to be recovered by developing the existing area of Central Jail by making its optimum use as a commercial complex. It is nobody's case that the area under the existing Central Jail is being given to an MNC or a private person for development for his benefit. The area is to be developed by the PIDB i.e. Respondent No.5 by way of auction or lease under public-private- partnership mode. Whether a point to which wider access road is being CWP No.12383 of 2010 (O&M) 10 given, is commercial or a Central Jail, is meaningless. The real purpose to be seen is whether the wider access road is necessary or not. Learned counsel for the petitioners is not able to refute the submissions made on behalf of the respondents that the proposed wider access road from Footbal Chowk to Central Jail Jalandhar is required and therefore, is a public purpose. Paras 13 to 15 of the written statement filed on behalf of respondent No.5 reads as thus: “13. That, the assertions made by the petitioner in the present writ petition with regard to the acquisition of the land where church is situated are wrong and hence denied. It may be pertinent to mention here that the said Church is situated at a distance of 145 meters away from the outer boundary of the land to be acquired. In this regard, the answering-respondent is placing on record, printouts showing the aerial view of the land in question and its surrounding which would reflect the actual position as it exists at present, alongwith site plan which are appended herewith as Annexures R-5/1 to R- 5/3 respectively. A perusal of Annexure R-5/1 would reveal the boundaries of the existing Jail premises in blue ink, the Church building (red building) as per Arial view encircled in red ink and the proposed construction of new road, which is the subject matter of the acquisition (in question) in yellow ink. The said Annexure R-5/1 would also reveal the density of population as it exists on the other side of the land in question. Annexure R-5/2 would reveal a close lookout of the Arial view of the existing Jail premises. 14. That, as the less number of people would be effected from the acquisition in question, in this regard the answering-respondent is placing on record the photographs as Annexure R-5/4 (Colly) These photographs would reveal the nature and type of construction raised by the petitioners which are sought to be acquired and which would prove that the said CWP No.12383 of 2010 (O&M) 11 acquisition would be in public interest vis-a-vis the private interest of the petitioners and therefore, the said acquisition is for public purposes. 15. That, it may be pertinent to mention here that the acquisition sought from the land of the petitioners is for public purpose and the entire compensation is to be paid from the funds of answering-respondent. The acquisition in question is not a colourable exercise of power so as to take away the properties of the petitioner in aid of the acquisition proceedings under the Act. The land is acquired in order to provide wider access of roads for the development of commercial complex, on the land where at present Central Jail, Jalandhar is situated. Therefore, acquisition of land for establishment of commercial complex would be a public purpose. Even if the scheme was that the commercial complex would be let out to the companies or to the individuals for the purpose of commercial activities, even then it cannot be contended that the land for commercial area was not being acquired for a public purpose The establishment of commercial complex would directly benefit the public and therefore, would be for public purpose. With the construction and development of the commercial complex, it would add to the comfort and convenience of the public living there. Further, in order to plan a proper development, if land is sought to be acquired for providing wider access of roads to such area, then such action could not be said to be illegal, unlawful or in colourable exercise of power. The said project provides for the development of infrastructure in public private partnership, which requires the support of the government. The intention behind the integrated project was to establish a commercial complex which would benefit to the public at large. It also adds to the development of infrastructure in the State of Punjab. In order to provide rapid infrastructure development in the State of Punjab, the answering-respondent has been CWP No.12383 of 2010 (O&M) 12 established under the Act. It provides for development of infrastructure on public private partnership. Such type of technique to develop infrastructure provides comprehensive legislation for reducing administrative and procedural delay, identifying generic project risk and detailing the various incentives, project delivery process etc. Further, in order to generate capital for development of other infrastructure in the State of Punjab, as mentioned above, the establishment of such commercial complex is necessitated. The funds generated from the present project would be utilized for the construction of other Modern Jails in the State of Punjab. Therefore, the present project, for which acquisition is sought in order to provide wider access of roads to the project is a integrated and indivisible project. The project has to be taken as a whole and if judged as a comprehensive project, it is in larger public interest. The said project cannot be split into different components and to consider whether each and every component of such project would serve public purpose or not. If the project is taken as a whole in order to establish a commercial complex so as to generate foreign exchange, generating employment opportunities, securing economic benefits to the State and the public at large, such project would serve the public purpose and therefore, the acquisition is for public purpose as defined under the Act. Even the Act provide that if a land is acquired for planned development of land from public funds, in pursuance to any scheme or policy of the government, its subsequent disposal or assignment of rights to other party, with the object of securing further development as planned would be acquisition for public purpose.” It has been clearly established on record that the proposed wider access road is the shortest and there is no other possible alternate and least number of people will be affected by this acquisition for a public CWP No.12383 of 2010 (O&M) 13 purpose of giving wider access road. In view of the aforesaid discussion, it cannot be said that the subsequent proceedings are an abuse/misuse of process of law. The impugned notifications and subsequent proceedings are being taken in accordance with law. It is needless to say that the petitioners shall be given adequate compensation for the land in question and they have a remedy