IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 17070 of 2009 Date of Decision: April 5, 2010 Shanti Jan Kalyan Regd. Education Society and another …Petitioners Versus State of Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. N.C. Kinra, Advocate, for the petitioners. Ms. Palika Monga, DAG, Haryana, for respondent Nos. 1, 3, 4 and 5. Mr. Raghujeet Singh Madan, Advocate, for respondent No. 2. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges notification dated 15.12.2006 (P-5), issued under Section 4 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’) and declaration dated 14.12.2007 (P-8), made under Section 6 of the Act. Brief facts of the case are that petitioner No. 1 is a registered Educational Samiti having lease rights of agricultural land for 99 years, which belongs to petitioner No. 2. The land is comprised in Khewat No. 598/558, Khatoni No. 721, Killa Nos. CWP No. 17070 of 2009 20/22 (7-2), 20/23min (7-2), 24 min (0-18) and 35/4 (1-0), total measuring 16 Kanals 2 Marlas, situated in the revenue estate of Mouza Para Rohtak (P-2). The land in question was leased out by petitioner No. 2 in favour of petitioner No. 1 for 99 years, vide lease deed dated 18.1.2007 (P-3). On 15.12.2006, a notification under Section 4 of the Act was issued by the respondent State proposing to acquire land for a public purpose, namely, for residential Sector 36, Rohtak (P-5). The land belonging to the petitioners was also included in the specification given in the said notification. The petitioners filed detailed objections under Section 5-A of the Act, dated 18.1.2007, which were duly received in the office of the Land Acquisition Collector, Urban Estate, Haryana, HUDA Complex, Sector 13, Hisar, on 19.1.2007 (P-7). On 14.12.2007, a declaration under Section 6 of the Act was made. It has been noticed in the first para of the declaration that “……a notification under Section 4 read with Sub- section (1) of the Section 17 of the Land Acquisition Act, 1894 has been published vide Haryana Government Gazette notification No. LAC(H)-2006/345, dated 15th December, 2006”, whereas in the notification dated 15.12.2006, there was no mention of Sub-section (1) of Section 17 of the Act (P-8). The land of the petitioners was also acquired. Subsequently, notice under Section 9 of the Act, dated 16.11.2009 was issued to the petitioners to submit their claims with regard to interest and compensation of the acquired land (P-8/1). The grievance of the petitioners is that despite filing of objections under Section 5-A of the Act on 18.1.2007 (P-7), in the office of the Land Acquisition Collector, Rohtak-respondent No. 3, 2 CWP No. 17070 of 2009 no opportunity of hearing was afforded to them by the Land Acquisition Collector and without considering the objections declaration under Section 6 of the Act has been made. According to the petitioners the land in question has been acquired by invoking the provisions of Section 17(1) of the Act, as is evident from the declaration under Section 6. The public purpose mentioned in the notification under Section 4 is for residential purpose, which entails no urgency. In para No. 4 of the preliminary objections of the written statement filed on behalf of respondent Nos. 1 and 3 it has been asserted that the petitioners did not file objections and opportunity of hearing was afforded on 29.1.2007 to only those land owners who filed the objections. However, in the same breath in the next line it has been mentioned that notice dated 29.1.2007 was issued to the petitioner but he was not present on the said date. Similar stand has been reiterated in various paras of the reply on merits. Para 4 of the Preliminary Objections is reproduced as under:- “4. That the land owners were given an opportunity to file objections u/s-5A of the Land Acquisition Act but the petitioner did not file the objections and the land owners who filed the objection were given due opportunity of being heard on 29.1.2007. Notice for the proper hearing dated 29.1.2007 was given to the petitioner but he was not present on the said date and Govt. after considering the objection u/s-5A and report of land acquisition collector, decided to acquire the vacant land of the petitioner.” 3 CWP No. 17070 of 2009 With regard to mentioning of sub-section (1) of Section 17 in the declaration under Section 6 of the Act, it has been submitted that the same has been inadvertently mentioned and as a matter of fact the acquisition has been made without invoking urgency provisions under Section 17(1) of the Act. A short reply on behalf of respondent No. 5 and a written statement on behalf of respondent No. 2 has also been filed, wherein the stand taken is that the Government has the power to acquire the land for the public purpose. In sum and substance the respondents have sought to justify the acquisition proceedings by mentioning that all the provisions of the Act were religiously followed at every stage. On 10.3.2010, when the matter came up for consideration, learned counsel for the petitioners sought time to place on record any document showing that objections were in fact filed and were not decided by the respondents. Thereafter, in the replication, which has been filed by way of affidavit, it has been categorically submitted by the petitioners that objections under Section 5-A of the Act were filed, which were duly received by an official of the Land Acquisition Officer, Hisar (P-10). At the hearing, learned counsel for the petitioner has also placed on record Memo. No. 1441, dated 30.3.2010 along with photocopy of the objections dated 18.1.2007, obtained under the Right to Information Act, 2005, supplied by the Land Acquisition Collector, Urban Estate, Rohtak, which is taken on record as Mark ‘A’. Mr. N.C. Kinra, learned counsel for the petitioners has vehemently argued that from the written statement filed by 4 CWP No. 17070 of 2009 respondent Nos. 1 and 3 it is abundantly clear that despite filing of objections under Section 5-A of the Act neither any notice of hearing was issued to the petitioners nor the objections were considered by the Land Acquisition Collector before making any report to the Government for acquisition of the land. Learned counsel has urged that it must be accepted that the principles of natural justice have been violated. In support of his submission, he has drawn our attention to the averments made in para 4 of the preliminary objections of the written statement and others paras of the reply on merit filed by respondent Nos. 1 and 3. In the backdrop of the aforesaid factual situation, the question which falls for consideration is whether the principles of natural justice and the mandatory provisions of Section 5-A of the Act have been violated or not. It is well settled that right of hearing contemplated by Section 5-A is akin to fundamental rights and it is not an empty formality, as has been held by Hon’ble the Supreme Court in the case of Hindustan Petroleum Corporation Limited v. Darius Shapur Chenai, (2005) 7 SCC 627. The filing of objection is one thing and issuance of notice of hearing and then affording an opportunity of hearing either to the objector in person or through his counsel are mandatory stages implicit in Section 5-A of the Act. In that regard reliance may be placed on the judgments of Hon’ble the Supreme Court rendered in the cases of Shri Mandir Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298 and Farid Ahmed Abdul Samad v. Municipal Corporation of the City of Ahmedabad, (1976) 3 SCC 719. However, the question which arise for consideration in the instant petition has been answered in para 10 of 5 CWP No. 17070 of 2009 the judgment in the case of Shyam Nandan Prasad v. State of Bihar, (1993) 4 SCC 255. The following extract answers the question raised in the instant petition:- “10. ……That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause. That at the time of the enquiry, for which prior notice shall be essential, the objector has the right to appear in person or through pleader and substantiate his objection by evidence and argument. And lastly, since the decision of the Collector may turn out to be final, unless interfered with by the Government, suo motu or on application, the Collector’s decision is that of a quasi-judicial authority, arrived at by quashi-judicial methods.” Viewed in the light of aforesaid observation of Hon’ble the Supreme Court, the impugned notification under Section 4 and the declaration made under Section 6 of the Act cannot be sustained. Accordingly, the writ petition merits acceptance. As a sequel to the above discussion, the instant petition is allowed and the impugned notification dated 15.12.2006 (P-5), issued under Section 4 and declaration dated 14.12.2007 (P-8), made under Section 6 of the Act are hereby quashed. (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) 6 CWP No. 17070 of 2009 April 5, 2010 JUDGE Pkapoor 7