CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: July 06 , 2011. Parties Name Raghunath Dass and others ...PETITIONERS VERSUS State of Haryana and others ...RESPONDENTS CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice Augustine George Masih PRESENT: Mr. Arun Jain, Sr. Advocate, with Mr. Amit Jain, Advocate, for the petitioners Mr. A.K.Chopra, Sr. Adv., with Mr. Sushil Jain, Advocate, for the petitioner in CWP No. 2968 of 1994. Mr. Kamal Sehgal, Addl. A.G., Haryana; Jasbir Singh, J. JUDGMENT This judgment will dispose of three writ petitions, i.e., CW.P.s. No. 510, 512 and 2968, all of the year 1994, as common question of facts and law is involved in these cases. For facility of dictating judgment, facts are being taken from CWP No. 510 of 1994. Petitioners have filed this writ petition with a prayer to issue a writ of certiorari to quash a notification issued under Section 4 of the Land CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -2- Acquisition Act, 1894, (in short the Act) on November 23, 1992, vide which it was proposed to acquire land measuring 239.38 Acres in village Uncha Gav and land measuring 163.83 Acres in village Sihi, Tehsil Ballabgarh, district Faridabad, for a public purpose, namely, for development and utilisation of the land as residential and commercial Sector 2, Faridabad. Further challenge has been laid to a declaration issued on November 19, 1993, finally ordering acquisition of the above said land after releasing some land with construction. Petitioners are the owners in possession of land, situated in village Sihi, measuring 42 Kanals 3 Marlas. Upon publication of a notification under Section 4 of the Act, the petitioners filed objections under Section 5-A of the Act, in which it was stated that in the land falling in Khasra No. 136//26, they had constructed Shiv Mandir, a Dharamshala, a tubewell and a Samadhi of their ancestors. It was further averred that in the land falling in Khasra No. 146//3, there exists one more Samadhi. The construction is being used for the religious purposes, so it was prayed that their land be released from acquisition. It was further stated that to peg down the prices, the State authorities had been issuing successive notifications to acquire this land starting from July, 1963, followed by notifications under Section 4 of the Act in the years 1972, 1980 and on June 8, 1992. The notifications, mentioned above, were either allowed to be lapsed or withdrawn. It was contended that the land is not needed for the public purpose, for which it was ordered to be acquired. The authorities have put the land into a pool without contemplating its utilisation. By making an amendment in the writ petition, the petitioners also impugned an CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -3- Award passed on November 18, 1995. It was their further contention that before passing of an Award, the Collector had not taken prior sanction of the Government as is mandatory under the provisions of Section 11 of the Act. To strengthen their argument, as mentioned above, reliance was placed upon a judgment of a Division Bench of this Court in Suresh Chand and others v. State of Haryana and another, CWP No. 10979 of 1998, rendered on August 29, 2003, vide which at the instance of some of the land owners, whose land was also acquired vide the notifications under challenge, the Award was quashed in view of the above argument. Upon notice, reply was filed by respondents No. 1 and 3, wherein it was pleaded that the notification under Section 4 of the Act was properly published as per the mandatory provisions of the Act. Objections filed by the petitioners and other land owners were considered by the competent officer and only thereafter declaration under Section 6 of the Act was issued. It was specifically stated that at the time, when notification under Section 4 of the Act was issued, the land was lying vacant and was under cultivation. There was no construction in existence on the same. It was also so stated by Shri Raghunath Dass, petitioner No. 1, in his objection application that the land in dispute was vacant when a notification under Section 4 of the Act was issued. At the time of arguments, record maintained in the office of the Land Acquisition Collector, in the shape of an inspection report made by the Patwari and Kanungo was shown to the Court, wherein it is mentioned that the land owned by the petitioners was lying vacant. Reference was also CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -4- made to the Jamabandis on record. It was further submitted that there was no intention to peg down the prices as alleged. The notifications issued earlier, could not be acted upon some how or the other. So far as objection of the petitioners that before passing of an Award, the prior sanction of the Government was not obtained, it was stated at the time of arguments that when judgment was passed in Suresh Chand's case (supra), order passed by the competent authority on December 19, 1984, which was again reiterated on May 14, 1986, was not brought to the notice of the Court. The above order was passed in consonance with the provisions of Section 11-A of the Act. The order mandates that in cases, where compensation, to be awarded by the Collector, does not exceed more than 15% of the rates furnished by the Collector, for the land under acquisition and the total amount of such difference does not exceed Rs. 10,00,000/-, the Collector can pronounce an Award. It was prayed that the writ petition be dismissed. At the time of hearing, counsel for the parties have raised their arguments on the line of facts, as stated in earlier part of this judgment. To verify whether there exists any construction in the land owned by the petitioners, reference was made to a report of the site inspection, prepared by the Patwari, after receipt of objections of the petitioners under Section 5- A of the Act. In that report, it is specifically stated by the Patwari and Kanungo that the land owned by the petitioners was lying vacant. It is further stated in the report that to the contrary, in the objection application, wrongly,the land owners had said that the construction was in existence. To ascertain factum of construction in the land under acquisition, even a Joint Site Inspection Committee was constituted. However, the said Committee CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -5- recommended that the whole of the land be acquired and even the land under construction be not released from acquisition. The said recommendation was not accepted and the Land Acquisition Collector decided to release the land, in which construction was in existence when notification under Section 4 of the Act was issued. Petitioners are the owners of land measuring 42 Kanals 3 Marlas. As per Jamabandis starting from 1963-64 upto 1978-79, in the land falling in Khasra No. 136//26 (3-8), existence of a Dharamshala has been shown. Whether that construction continued to exist, to show that fact, latest Jamabandi was not brought on record. The notification under Section 4 of the Act was issued on November 23, 1992. There is nothing on record to show that Dharamshala etc. continued to exist as alleged by the petitioners. In all the Jamabandis put on record, i.e., except one entry of some construction in Khasra No. 136//26, in rest of the land, existence of any construction has not been shown. There is nothing on record to show that the report made by the Patwari, that the land was lying vacant, was not correct. Furthermore, petitioner No. 1 in his objection application filed under Section 5-A of the Act has categorically admitted that the land was lying vacant when notification under Section 4 of the Act was issued. Further there is nothing on record to show that the acquisition is not bonafide. It is specifically stated by the respondents that the land is being acquired for a public purpose, i.e., to use it for residential and commercial purposes , Sector 2, Faridabad. At the time of arguments and in the pleadings also, it is stated that when earlier notifications were issued, the acquisition could not be completed because of one or the other reason. It is CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -6- also stated that at one point of time, the land owners came to this Court and on account of some technical difficulty, the notification issued in the year 1982 was withdrawn by the authorities. The petitioners have failed to show any malice at the part of the respondents in acquiring their land. Not only land of the petitioners, land of many other land owners was also acquired. It is not asserted by the petitioners that the land was acquired at the instance of some influential person or to give benefit to any individual. Otherwise also, a Full Bench of this Court inGhansham Dass Goyal and others v. State of Haryana and another, AIR 1986 Punjab and Haryana 2007, has observed as under: “13. Further, the theory that successive notifications cannot be issued with regard to a particular land and that this fact alone would go a long way in proving the colourable exercise of power by the State cannot be accepted. The power of the State to issue successive notifications under S. 4 in a locality is well recognised. In the State of Madhya Pradesh v. Vishnu Prasad Sharma, AIR 1966 SC 1593, it has been observed thus:-- "It is urged however that where the land is required for a small project and the area is not large the government may be able to make up its mind once for all what land it needs, but where as in the present case, land is required for a large project requiring a large area of land government may not be able to make up its nothing to prevent the Government from issuing another notification under S. 4 followed by a notification under S. 6. As we have said before, the government's power to acquire land in a particular locality is not exhausted by issuing one notification CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -7- under S. 6. The interpretation which has commended itself to us therefore does not deprive the government of the power to acquire more land from the same locality if later on it thinks that more land than what has been declared under S. 6 is needed. It can proceed to do so by a fresh notification under S. 4(1) and a fresh declaration under S. 6. Such a procedure would in our opinion be fair to all concerned; be fair to government where the prices have fallen and it will be fair to those whose land is being acquired where the prices have risen. Therefore as we read these three sections we are of opinion that they are integrally and intimately connected and the intention of the legislature was that one notification under S. 4(1) should be followed by survey under S. 4(2) and objections under S. 5A and thereafter one declaration under S. 6. There is nothing in Ss. 4,5A and 6 which supports the construction urged on behalf of the appellant and in any case it seems to us that the construction which commends itself to use and which has been accepted by the High Court is a fair construction keeping in view the background to which we have referred. Even if two constructions were possible, which we think is not so, we would be inclined to the construction which has commended itself to we because that construction does not restrict the power of the government to acquire land at any time it deems fir to do and at the same time words fairly towards persons whose land is to be acquired compulsorily." 14. There is no gainsaying as it has been authoritatively held in CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -8- Vishnu Prasad Sharma's case (AIR 1966 SC 1593) (supra) that it is always open to the Government to rescind a notification under S. 4 or under S. 6 by virtue of the provisions of S. 21 of the General Clauses Act. Now if the Government can rescind a notification and can also issue another notification and its power to acquire land in particular locality is not exhausted by issuing one notification under s. 4(1) followed by a notification under S. 6, I fail to understand as to how on the ground that earlier notifications have been allowed to lapse for valid reason or are quashed by a Court, the impugned notifications can declared legally in valid. In my view there can be no escape from the conclusion that each time the validity and legality of particular notification has to be seen and judged independently. If the contention of Shri J. N. Kaushal, learned senior Advocate, is accepted, then very anomalous situation may arise that for all times to come a particular are cannot be acquired though it may be genuinely needed for a public purpose and the entire development of the area and the Schemes of the Government would come to a standstill. What has to be seen is the real motivation behind the acquisition and if it is found out that the acquisition is not for any specific public purpose and its expeditious execution, but is a mere ruse to peg down the prices by an issuance of notification under s. 4 of the Act and thus holding the citizens to ransom for years at whim and caprice of the State to finalize the acquisition proceedings when it chooses, then this would be an important factor for establishing CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -9- the colourable exercise of power. But in the instant case, the acquisition is for a specific public purpose, the validity of which has not been challenged, namely, the development and utilization of land, as residential area and the Government has proceeded to acquire the land be issuing a fresh notification under S 4 (1) of the Act and a fresh declaration under S. 6. The procedure now followed by the Government does not appear to be unfair as the land owners whose land is being acquired would be paid the price of the land as it existed on the date of the issue of the notification under S. 4 of the Act, i. e. 23rd May, 1983. In the circumstances of the case, it would not be fair to plead that the price that is virtually paid to the landowners would be of the year 1969, when the first notification under S. 4 of the Act was issued. In this view of the matter, I find that the impugned notifications do not suffer from any legal infirmity. The primary challenge of the petitioners is to an Award passed by the Land Acquisition Collector on November 18, 1995. It is stated that as per provisions of Section 11 of the Act, before passing of that Award, prior sanction of the Government to issue the same, which is mandatory, was not obtained by the Collector and as such Award cannot be sustained. To support their contention, reliance was placed upon the ratio of a judgment in Suresh Chand's case (supra). The said order was passed in a writ petition filed by some of the land owners whose land was also the subject matter of the impugned notifications. It was found by the Court that no doubt, approval was sought by the Collector from the Government, CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -10- however, the same was not conveyed to the Land Acquisition Collector before passing of an Award under challenge. In view of above and taking note of the provisions of Sections 11 and 11-A of the Act, the Award was quashed and the acquisition proceedings were deemed to have been lapsed qua those land owners. After hearing counsel for the parties at length, we are of the opinion that the judgment, mentioned above, will not enhance the case of the petitioners. Before proceeding further, it is necessary to note down the relevant provisions of Section 11 of the Act: “11. Enquiry and award by Collector. - [(1)] On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objection (if any) which any person interested has stated pursuant to a notice given under section 9 to the measurements made under section 8, and into the value of the land [at the date of the publication of the notification under section 4, sub-section (1)], and into the respective interests of the persons claiming the compensation and shall make an award under his hand of- (i) the true area of the land; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, or whom, or of whose claims, he has information, whether CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -11- or not they have respectively appeared before him : [Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorize in this behalf: Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf. “ The above said provision mandates that after making an appropriate enquiry, the Collector is required to pass an Award. Ist proviso to Section 11(1) says that no Award shall be passed without seeking prior approval of the appropriate Government or of such officer as the appropriate Government may authorise in that behalf. The second proviso to Section 11 (1) envisages that it is open to the appropriate Government to direct the Collector to pass an Award without getting such approval in a particular class of cases. The Government is required to pass an order in that behalf. Reading of the judgment in Suresh Chand's case (supra) indicates that when that judgment was passed, the State counsel failed to bring to the notice of the Division Bench that any order was passed by the appropriate Government in terms of the 2nd proviso to Section 11(1) of the Act on December 19, 1984, and thereafter it was reiterated on May 14, 1986, authorising the Land Acquisition Collector to pass an award with sanction CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -12- of the Government in some cases. Relevant portion of the order reads thus: “No. 7689-R-LH-84/34481:- The pursuance of the provisions contained in the second proviso of sub-section (1) of Section 11 of the Land Acquisition Act, 1894, the Governor of Haryana hereby directs the Collectors in the State of Haryana to make awards in all cases in which the amount awarded does not exceed more than 15% of the rate furnished of them by the Collector and the total amount of such difference also does not exceed 10 lakhs rupees without obtaining previous approval of the State Government.” Issuance of such like notification is permissible under the above said provision. The order passed by the appropriate Government,permits the Collector to pass an Award without getting prior approval when the difference in the amount of compensation to be awarded and the rate suggested by the Collector for the land under acquisition is not more than 15% and the total difference of that namount does not exceed Rs. 10,00,000/-. In the present case, perusal of the Award dated November 18, 1995, indicates that before passing an Award the District Collector Faridabad, Director Urban Estate, Haryana, Financial Commissioner, Gurgaon, District Revenue Officer, Faridabad, were requested to supply market rates of the land under acquisition. The Financial Commissioner suggested the market price of the land at the rate of Rs. 3,50,000/- per Acre. That very amount of compensation was accepted by the Collector without CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -13- any variation. Relevant portion of the Award reads thus: “In order to determine the value of the land under acquisition, the date of publication of notification u/s 4 of the Act, which is a material date, is to be kept in view. This date is 23.11.92. The District Collector (Deputy Commissioner), Faridabad, Director, Urban Estates, Haryana, Chandigarh, Divisional Commissioner, Gurgaon, District Revenue Officer, Faridabad were requested vice No. 36245 to 3617, dated 14.9.95 to supply the market rate in respect of this land as required. The Financial Commissioner & Secretary to Govt. Haryana, Revenue Deptt. has asked to supply the market rate vide his letter No. 36-10-R V.- 95/8943, dt. 20.6.95 and understanding order No. 28 and they have considered the market rates of Rs. 3,50,000/- per Acre supplied vide his memo No. 11356 dated 16./11.95. The notification u/S 4 back to 23.11.92. According to the instructions contained in Revenue Deptt. Order bearing No. 562-III-86/14522, dated 14.5.86, the market rates supplied by the District Collector will be taken into account while ascertaining the value of the land. I have also visited the site of the land under acquisition. In view of the position explained above and in view of the market rates supplied by the District Collector (Deputy Commissioner), Faridabad and all other relevant factors such as location, situation and potential value of the land under CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -14- acquisition and Section 23(1-A) of the Act, I determine and award Rs. 3,50,000/- per Acre.” When it is proved on record that the Collector has awarded the compensation, as per the market rates suggested by the Financial Commissioner and the Collector, the Court is of the opinion that there was no necessity for the Collector to get any prior approval of the appropriate Government to pronounce an Award. A Division Bench of this Court in Shyam Sunder Aggarwal and others v. State of Haryana and others, CWP No. 10530 of 2006, decided on January 29, 2007, by taking note of order dated December 19, 1984, and by making reference to the relevant portion of the order , as reproduced in earlier part of this judgment, observed as under: “ What this means is that an award can be passed without prior approval if the award is within 15% of the rate furnished by the Collector and its total amount does not exceed Rs. 10 lacs. In the present award the Collector has not made any variation from the rate supplied to him by the District Collector, Gurgaon, on July 27, 2005 and these very rates have been awarded to the petitioners” It was also brought to the notice of the Court that before passing of an Award, the Collector wrote a letter to the competent authority for sanction of the amount, which accordingly was sanctioned. A Division CIVIL WRIT PETITION NO. 510 OF 1994 (O&M) -15- Bench of this Court in Rajinder Kumar Shah and others v. State of Haryana and others, CWP No. 941 of 2004, decided on December 15, 2010, taking note of a fact that when, before pronouncement of an Award, the Collector sought sanction of money, to be paid towards compensation of the land and it was sanctioned, the Award cannot be set aside on a ground of lack of prior sanction of the Government, observed as under: “However, a separate ground has been pleaded by the petitioners in the writ petition wherein the award dated 17.11.2005 has been challenged on the ground that the prior approval of the Government had not been obtained by the Land Acquisition Collector