CWP No.13601 of 2009(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.13601 of 2009(O&M) Date of decision: 8.2.2011 Dr. Gurdeep Singh and others ......Petitioner(s) Versus State of Punjab etc. ......Respondent(s) CWP No.14486 of 2009(O&M) Gurcharan Singh and others ......Petitioner(s) Versus State of Punjab etc. ......Respondent(s) CWP No.16376 of 2009(O&M) Gurudwara Paramjot Aad ......Petitioner(s) Versus State of Punjab etc. ......Respondent(s) CWP No.19107 of 2009(O&M) Gurdeep Singh and others ......Petitioner(s) Versus State of Punjab etc. ......Respondent(s) CWP No.1170 of 2010(O&M) Mrs. Narinder Mann and others ......Petitioner(s) Versus State of Punjab etc. ......Respondent(s) CWP No.13601 of 2009(O&M) 2 CWP No.16867 of 2009(O&M) Mandir Satya Narain Ji ......Petitioner(s) Versus State of Punjab etc. ......Respondent(s) CWP No.7439 of 2010(O&M) Gulzar Singh ......Petitioner(s) Versus State of Punjab etc. ......Respondent(s) CWP No.488 of 2011(O&M) Paramjit Kaur 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. G.S. Grewal, Sr. Advocate with Ms. Tanisha Peshawaria, Advocate, Mr. Arun Jain, Sr. Advocate with Mr. Vishal Goel, Advocate, for the petitioner(s). Mr. Manohar Lal, Additional Advocate General, Punjab. Mr. Sanjeev Sharma, Advocate with Mr. Shekhar Verma, Advocate for respondent-GMADA. Rakesh Kumar Garg, J. This judgment shall dispose of 8 writ petitions i.e. CWP Nos.13601, 14486, 16376 16867, 19107 of 2009, 1170, 7439 of 2010 and 488 of 2011 as in all these writ petitions the same notifications issued CWP No.13601 of 2009(O&M) 3 under Sections 4 and 6 of the Land Acquisition Act and also a notification dated 24.11.2006 issued under the Punjab Regional and Town Planning and Development Act, 1995 have been challenged on similar grounds. However, the facts are being taken from CWP No.13601 of 2009 for convenience sake. The petitioners are residents of village Mullanpur, Tehsil and District SAS Nagar Mohali. As per the averments made in the petition, they are owners of small shops, houses and constructed areas in the village in which they are running their own small business in the form of shops etc. and some of them have residential houses in the area. The respondent-State of Punjab issued notification dated 20.2.2009 (Annexure P-2) under section 4 of the Land Acquisition Act, 1894 (hereinafter called the “Land Acquisition Act”) showing its intention to acquire the land measuring 149.90 acres including the land of the petitioners for a public purpose, namely, construction/upgradation of road from Punjab/U.T. Border (near Mullanpur) to Siswan T Junction in Local Planning Area, Mullanpur. It is the further case of the petitioners that the respondent-State issued further notification dated 10.8.2009 (Annexure P-3) under Section 6 of the Land Act declaring that land measuring 40.22 acres including the land of the petitioners stood acquired for the aforesaid public purpose. According to the petitioners, there already existed a road which was quite wide and could be widened on both sides, whereas instead of widening the same, a new road was being planned as proposed by the respondents which would destroy a large number of shops/houses of the petitioners causing great loss and damage to them and thus, violating the constitutional right of the petitioners under Article 300-A of the Constitution of India. Moreover, the notification dated 24.11.2006 (Annexure P-5) CWP No.13601 of 2009(O&M) 4 under Section 56(1) of the Punjab Regional and Town Planning and Development Act, 1995 (hereafter referred to as the “1995 Act”) declaring an area comprising of 14805 acres of land, including the land of the petitioners as “local planning area”, was illegal as the same was not published in the manner prescribed. It is the further case of petitioners that 1995 Act was amended w.e.f 20.10.2006 according to which instead of the Planning Board, the State Government was empowered to declare any area in the State to be a Regional Planning Area or a Local Planning area or the site for a new town. Moreover, under the amended Act, the land could be acquired only under Section 84 of the 1995 Act. PUDA/GMADA cannot be held to be competent Authority in the present case to do the work of planning and, thus, acquisition being contrary to the law and principles of natural justice was liable to be set aside/quashed. The writ petitions were contested by the respondents by filing written statements submitting therein that the notifications under sections 4 and 6 of the Land Act, were duly published following the proper procedure as provided under the Act. Moreover, the petitioners had no right to challenge the acquisition as they have not filed any objections in response to the notification under Section 4 of the Land Acquisition Act. It was further submitted that the planning area was declared under the 1995 Act in accordance with law and therefore, the GMADA/any other agency governed by the said Act could carry out the development work in the said area and the writ petitions were liable to be dismissed. It was also stated in the written statements that notification under Section 56(1) of the 1995 Act was issued on 14.8.2006 and not on 24.11.2006 as stated in the writ petition and in fact the notification dated 24.11.2006 (Annexure P-5) was CWP No.13601 of 2009(O&M) 5 issued under Section 56(5) of the 1995 Act after considering objections received in response to notification issued under Section 56(1) of the 1995 Act on 14.8.2006. Though the amendment in the Act of 1995 came into force on 20.10.2006 (which was prospective in nature) but in the present case, process under Section 56(1) of the 1995 Act had already been initiated on 14.8.2006. Therefore, the objections filed by the objectors were considered after giving them an opportunity of hearing, which has in no way prejudiced the petitioners and declaration/notification under Section 56 (5) of the 1995 Act was issued on 24.11.2006 declaring the area in question as local planning area. On the basis of the aforesaid averment, it was submitted that the writ petition has no merit and the same be dismissed. It is not out of place to mention at this stage that during the pendency of this writ petition, on 29.3.2010 it was submitted before this Court by both the parties that there was some development in the direction of granting relief to the petitioner(s) and the affidavit was likely to be filed. The case was adjourned to 20.4.2010. On 20.4.2010, the following order was passed by this Court:- “On 29.3.2010, the parties have stated that some development in the direction of granting relief to the petitioners were in the offing and the affidavit was likely to be filed by placing on record any order passed for release of the land in dispute. At the hearing today, learned State counsel has stated after obtaining instructions from Shri Kuldeep Singh Dhaliwal, Chief Town Planner, Punjab, that there is re-alignment of the road, which would result into release of substantial portion of land belonging to the petitioners although some land still would be required even after re-alignment. He seeks and granted one CWP No.13601 of 2009(O&M) 6 week time to file an affidavit of the Secretary, Department of Housing and Urban Development, Punjab, placing on record clearly which land could be released and it would still be required for execution of the public purpose of acquisition. The needful shall be done on or before 27.4.2010.” In pursuance of the aforesaid order, an additional affidavit of Sh. Kuldip Singh Dhaliwal, Chief Town Planner, Punjab Department of Town and Country Planning, Punjab, on behalf of respondents No.1 and 4 was filed. The relevant paragraphs of the aforesaid affidavit reads as follows:- “2. That in the main writ petition, the petitioners have challenged the proposed widening of Mullanpur-Siswan old road situated in District S.A.S Nagar, Mohali, inter- alia on the ground that the PRTPD Act, 1995 was amended on 20th October, 2006 and by virtue of this amendment, the Punjab Regional and Town Planning and Development Board could not have issued impugned notification dated 24.11.2006 at Annexure P-5 as after amendment, it was only the State Government which could have issued notification under Section 56 of the PRTPD Act, 1995. 3. That it is respectfully submitted that on 14.8.2006, i.e. even before amendment of PRTPD Act, 1995, the process of identifying and declaring “Local Planning Area” of Mullanpur had already been initiated under the un-amended Act and objections were invited from the affected persons. Since the filing of objections were a vested and substantive right of the affected persons, the amendment of the PRTPD Act, 1995 carried out on 20th October, 2006 was given prospective effect. The objection of one Gram Panchayat, Raihmanpur (Hadbast No.172) was accepted and as requested by it, this Gram Panchayat was included in the planning area. CWP No.13601 of 2009(O&M) 7 4. That as per the Amended PRTPD Act, 1995, the affected persons do not have any right to file objections against proposed planning area therefore, the petitioners have not suffered any prejudice with the issuance of the impugned notification at Annexure P-5 by the Punjab Regional and Town Planning and Development Board and rather they were given benefit of filing their objections. 5. That after issuance of impugned notification at Annexure P-5, the State Government, continued the process initiated by the Board and issued notification under Section 70 of the amended PRTPD ACT,(2006), and thereafter, it also sanctioned Master Plan of the Mullanpur Planning Area in accordance with law. Therefore, the State Government accepting the impugned notification dated 24.11.2006 at Annexure P- 5, ratified all the actions taken by the Board, copy of the Notification/Master Plan is annexed herewith as Annexure R-1/A. 6. That it is worthwhile to mention here that on 29th January, 2008, the State Government, Punjab in order to meet challenges of the rapid growth of the S.A.S Nagar, Mohali notified a “Regional Planning Area” under Section 56(1) of the PRTPD Act, (Amended Act), 2006 and even the earlier notified area of the entire Local Planning Area of Mullanpur was merged in it. Copy of the notification dated 29.1.2008 and the map thereof is annexed herewith as Annexure R-1/B. 7. That the notification under section of the Land Acquisition Act, 1894 was issued on 20.2.2009 and declaration under Section 6 of the Land Acquisition was issued on 10.8.2009 and have not been challenged by the petitioners. 8. The entire project of widening of old Mullanpur- Siswan road is in public interest and besides overall development of Mullanpur area, it would provide a much CWP No.13601 of 2009(O&M) 8 wider additional route from Chandigarh to Kurali bypassing Mohali and Khara thereby reducing vehicular traffic in Mohali and Kharar.” Along with this affidavit, a notification dated 11.12.2008 (Annexure R-1/A) notifying Master Plan for the planning area Mullanpur and further notification dated 29.1.2008 issued under Section 56(1) of the Punjab Regional and Town Planning and Development Act, (Amendment Act), 2006, proposing Regional Planning area measuring 1.19,563 Hectares (295320.61 Acres) as per the scheduled or boundaries given in the aforesaid notification (Annexure R-1/B) including the land in question were also attached. Another affidavit dated 24.4.2010 of Sh. S.S. Sandhu, IAS Secretary, Department of Housing and Urban Development Punjab was also placed on record which reads as follows:- “2. That the writ petition had come up for hearing before this Hon'ble Court on 20.4.2010. After hearing, this Hon'ble Court was pleased to pass the following order: “CWP No.13601, 14486, 16376, 16867, 18097 and 19107 of 2009 and 1170 of 2010. Present: Mr. G.S. Grewal, Senior Advocate with Mr. H.S. Grewal, Advocate. Mr. H.S. Grewal, Advocate Mr. Arun Jain, Senior Advocate with Mr. Chetan Salathia, Advocate, for the petitioner (s). Mr. Suvir Sehgal, Additional Advocate General, Punjab, for respondent Nos.1, 3 and 4. Mr. Sanjiv Sharma, Senior Advocate with Mr. Shekhar Verma, Advocate for respondent No.4. On 29.3.2010, the parties have stated that some development in the direction of granting relief to the CWP No.13601 of 2009(O&M) 9 petitioners were in the offing and the affidavit was likely to be filed by placing on record any order passed for release of the land in dispute. At the hearing today, learned State counsel has stated after obtaining instructions from Shri Kuldeep Singh Dhaliwal, Chief Town Planner, Punjab, that there is re-alignment of the road, which would result into release of substantial portion of land belonging to the petitioners although some land still would be required even after re-alignment. He seeks and granted one week time to file an affidavit of the Secretary, Department of Housing and Urban Development, Punjab, placing on record clearly which land could be released and it would still be required for execution of the public purpose of acquisition. The needful shall be done on or before 27.4.2010. List for arguments on 28.4.2010. A photocopy of this order be placed on the files of connected cases.” 20th April, 2010 Sd/Judges.” 3. That it is respectfully submitted that the notification for acquisition of land for the aforementioned purpose, under section 4 of the Land Acquisition Act, 1894 was issued on 20.2.2009 and thereafter, after hearing and deciding objections of the land owners filed under section 5-A, a declaration under section 6 of the Land Acquisition Act, 1894 was issued on 10.8.2009. 4. That now the said road has been re-aligned. The new alignment of the road is annexed herewith as Annexure A. 5. That in so far as the present writ petition is concerned except land situated in khasra numbers 1015, 1016, 1033, 953 belonging to petitioners No.3, 5, 7 and 9 all other land situated in other khasra numbers CWP No.13601 of 2009(O&M) 10 would not be required for the new alignment of road and detailed information is as under: Revenue Estate and village : Mullanpur Hadbast No.342 Tehsil & Distt. SAS Nagar, Mohali. Sr. No. Name of Petitioner Khasra Nos, which are included in notifications dated 20.2.2009 and 10.8.2009 Previous Khasra No.inclu ded in new alignmen t 1 Dr. Gurdeep Singh Sohi S/o Sh. Harnek Singh 1619(15/168) share (1-2) 2 Harpal Singh S/o Lachman Singh 1619 (21/84) share of (1-2) 3 Paramjit Kaur w/d Late Gurmail Singh 244/1015 (3B- 15B) (2-0), 2742/1016 (4B- 15B) (2-12) = 4K 12M 1015 1016 4 Ashwani Kumar S/o Late Muni Lal 206/(8B-0B) 5 Dharam Singh S/o Nanak Chand 1033 (0B-2B) 1033 6 Saudagar Singh S/o Late Bahadur Singh 2070 (0B-4.5B), 2069/2 (0B-4B) 7 Sukhwinder Singh S/o Balbir Singh 953 ((0B 15B) 2070 (0B-4B) 953 8 Paramjit Singh Suman S/o Kehru Ram 2069/1 (0B 12.5B) 9 Mewa Singh S/o Uttam Singh 2489/1031 2491/1033 (0-4) 10 Devinder Kumar S/o Lajja Ram 1608, 1609 11 Deepak Kumar S/o Late Mehar Singh 2070 (0B-4B), 2071(0B 1.5B) 6. That land which does not fall in the new alignment of the road will be de-notified in due course.” Accordingly, it was submitted that realignment of the road had been done according to which, the land not falling in the new alignment of the road will be de-notified in due course. CWP No.13601 of 2009(O&M) 11 Sh.G.S. Grewal, Senior Advocate appearing on behalf of the petitioners has vehemently argued that the site in question for widening of the existing road was not selected in accordance with law i.e. not by a competent Authority. Elaborating his argument further learned counsel for the petitioners has referred to the notification Annexure P-5 issued under the 1995 Act declaring the local planning area by the Punjab Regional and Town Planning and Development Board. According to the learned counsel for the petitioners, the amended 1995 Act had come into force w.e.f. 20.10.1996 whereby instead of Planning Board, the State Government was authorized to make a declaration to notify the local planning area and since the impugned notification (Annexure P-5) was issued by the Planning Board on 24.11.2006 (i.e. the date on which it was not competent to do so and it was only the State Government which could have issued such a notification/declaration), the same was bad in law and was liable to be quashed. According to the learned counsel for the petitioners, since the local planning area, as per the provisions of 1995 Act, was not declared legally, the acquisition proceedings vide notifications Annexure P-2 and P-3 and all other subsequent proceedings were liable to be quashed and could not be sustained in law, as there could not have been any public purpose without having a local planning area and a master plan for the same. In support of his case, learned counsel for the petitioners has placed heavy reliance on the judgment of the Hon'ble Supreme Court in the case of State of Punjab and others v. Sanjeet Singh Grewal and others (2007) 6 Supreme Court Cases 292. Learned counsel for the petitioners further argued that in the present case, the land could not have been acquired as Section 80 of the 1995 Act prohibits any development/change of use of land in respect of the area in the local CWP No.13601 of 2009(O&M) 12 planning area as notified in the master plan except as provided in the aforesaid Section. It is the further case of the petitioners that the public purpose as mentioned in the impugned notifications does not fall within the purview of aforesaid proviso to Section 80 of the Act. Learned counsel for the petitioners has further placed reliance upon a judgment of the Hon'ble Supreme Court in the case of Accountant and Secretarial Services Pvt. Ltd. and another v. Union of India and others (1988) 4 Supreme Court Cases 324 to contend that the provisions of the Land Acquisition Act could not have been applied in the present case as the aforesaid Act is applicable only for acquisition of the land whereas in the present case, the respondents were acquiring the houses/shops/structures of the petitioners which do not come within the definition of land and thus, the impugned notifications were liable to be quashed. On the other hand, learned counsel appearing on behalf of the respondents has refuted the arguments raised by Sh. G.S. Grewal, learned Senior Advocate, submitting that process of identifying and declaring “Local Planning Area” under the provisions of the 1995 Act had already been initiated on 14.8.2006 (i.e. under the unamended Act) and objections were invited from the affected persons. Since the filing of objections was a vested and substantive right of the affected persons, the amendment carried out on 20.10.2006 in the 1995 Act was given prospective effect. The objections were heard and one of the objections of Gram Panchayat, Raihmanpur was accepted and the said Gram Panchayat area was also included in the planning area and thereafter, the State Government continued the process initiated by the Board and issued notification (Annexure P-5) under Section 56(5) of the 1995 Act, declaring the local planning area. It was further explained that though the affected persons CWP No.13601 of 2009(O&M) 13 did not have any right to file objections against the proposed planning area yet they were given a hearing and it cannot be said that the petitioners have suffered any prejudice; rather they were given benefit of filing their objections and thereafter, the process was completed by issuing notification under section 70 of the 1995 Act sanctioning master plan of the Mullanpur Planning Area in accordance with law. The State Government also referred to notification dated 29.1.2008 (Annexure R-1/B issued by the State Government notifying “Regional Planning Area”. Mohali, which also included earlier notified area of the entire local planning area of Mullanpur. According to the learned counsel for the respondents, since the provisions of 1995 Act were complied with and there was no challenge to the notifications under Section 4 and 6 of the Land Acquisition Act on any other ground, the writ petitions are liable to be dismissed. We have heard learned counsel for the parties and perused the pleadings and the documents placed before this Court. At the outset, it may be mentioned that the public purpose of widening of old Mullanpur/Siswan road is in public interest, is not disputed. In fact, there is no challenge to the notifications (Annexures P-2 and P-3) issued under Sections 4 and 6 of the Land Acquisition Act on the ground of any procedural lapse as provided under the provisions of the Land Acquisition Act and the petitioners have laid challenge to the impugned notifications only on the grounds as mentioned in the arguments raised by Sh. G.S. Grewal, Senior Advocate appearing on their behalf. It is relevant to refer to the provisions of Section 56 of the 1995 Act which stood prior to the 1996 Amendment: “56. Declaration of Planning Areas.- (1) The Board may, from time to time by notification in the Official Gazette, declare its intention to specify any area in the CWP No.13601 of 2009(O&M) 14 State to be a regional planning area, a local planning area or a site for a new town (hereinafter referred to as the planning area).] (2) Before making the declaration under sub-section (1) the Board may take into consideration such matters as may be prescribed. (3) Every notification published under sub-section (1) shall define the limits of the area to which it relates. (4) Any person including representative of a Department of the State Government or the Central Government or a Local Authority or any other institution may, within sixty days of the date from the date of the publication of the notification under sub-section (1), submit any objections or suggestions in writing relating to anything contained in that notification, to the Board and the Board shall consider all such objections and suggestions. (5) After the expiry of two months from the date of publication of the notification of sub-section (1) and after considering objections and suggestions, if any, received under sub-section (4), the Board may, by notification in the Official Gazette,- (a) declare the area with or without any modification to be a regional planning area, a local planning area or a site for a new town, as the case may be ; and (b) specify the name of the regional planning area or the local planning area or a site for the new town, as the case may be. (6) Except in such class or category of cases which the Board may in its regulations exempt and except in the case of operational construction or construction in any area comprised in abadi-deh of any village falling inside its lal lakir or phirni, no person shall, on or after publication of public notice under sub-section (5), and till the date the Regional Plan or the Master Plan comes CWP No.13601 of 2009(O&M) 15 into operation under section 64 or under Section 75, as the case may be, institute or change the use of land for any purpose or carry out any development in respect of any land without the previous permission of the Competent Authority and the provisions of sections 67 and 68 mutatis mutandis shall apply to the grant of such permission. (7) The Board may, after following the procedure as laid down in this section, alter the limits of any regional planning area, local planning area or the site for a new town.” It is also useful to refer to Section 56 of the Act vide Amendment Act which came into force w.e.f 20.10.2006: “56. Declaration of Planning Areas.- [(1) The State Government may, from time to time by notification in the Official Gazette, declare any area in the State to be a regional planning area, a local planning area or the site for a new town (hereinafter referred to as the planning area).] (2) Before making the declaration under sub-section (1) the [State Government] may take into consideration such matters as may be prescribed. (3) Every notification published under sub-section (1) shall [indicate the limits and the name] of the area to which it relates. (4) [-] (5) [-] [(6) Except in such class or category of cases, which the State Government may, by order for the reasons to be recorded in writing, exempt, and except in the case of operational constructions or constructions in any area comprised in