Punjab-Haryana High Court

Hargobind Singh And Others vs State Of Punjab And Others on 18 April, 2024

Author: Sureshwar Thakur

Bench: Sureshwar Thakur, Lalit Batra

                                  Neutral Citation No:=2024:PHHC:050537-DB




CWP-25843-2013                                -1-
                                                           2024:PHHC:050537-DB



              IN THE HIGH COURT OF PUNJAB & HARYANA
                        AT CHANDIGARH.

                                              CWP-25843-2013
                                              Reserved on: 12.03.2024
                                              Pronounced on: 18.04.2024

HARGOBIND SINGH AND OTHERS
                                                                   .....Petitioners
                                     Versus
STATE OF PUNJAB AND ORS.
                                                                 ....Respondents

CORAM:      HON'BLE MR. JUSTICE SURESHWAR THAKUR
            HON'BLE MR. JUSTICE LALIT BATRA

Argued by: Mr. Raina S. Thakur, Advocate
           for the petitioners.

            Mr. Maninder Singh, Sr. DAG, Punjab.

            Ms. Rupa Pathania, Advocate
            for respondent No.5.
                        ****

SURESHWAR THAKUR, J.

1. Through the instant writ petition, the petitioners pray for quashing

of notification (Annexure P-2) issued on 09.05.2013, under Section 4 of the

Land Acquisition Act, 1894 (hereinafter referred to as "the Act of 1894");

besides pray for the quashing of notification (Annexure P-3/A) issued on

09.09.2013, under Section 6 of the Act of 1894.

2. The brief facts of the case are that the Government of Punjab

issued a notification dated 09.05.2013, to acquire land measuring 44.963 acres,

situated at villages Dhol, Rajpur Kalan, Moujpur, Bhago Majra, falling in

Sectors 99, 105, 106, 108, 109 and 110 of SAS Nagar (Mohali) for setting up

mega township project approved by the authorities in favour of respondent

No.5. The purpose was mentioned as "at the expense of the company for public

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purpose, the planned harmonious and compact urban development of the area".

3. Reiteratedly, the public purpose as mentioned in the apposite

notification is "with a view to promote the Mega Housing Development

Schemes in the State of Punjab, and, for that the government entered into an

agreement with respondent No.5 for setting up the Mega Township project in

Sectors 99, 105, 106, 108, 109 and 110, Tehsil and District SAS Nagar".

Thereafter, the State Government issued a notification under Section 6 of the

Act of 1894 (Annexure P-3/A) for acquiring land measuring 44.963 acres, thus

for the apposite public purpose.

SUBMISSIONS         OF     THE      LEARNED          COUNSEL       FOR        THE
PETITIONERS

4. The learned counsel for the petitioners contends, that the impugned

notifications are liable to be quashed and set aside as the procedure provided

under Chapter-VII of the Act of 1894, and under the rules known as The Land

Acquisition (Companies) Rules, 1963 (hereinafter referred to as "the Rules of

1963) have not been followed. Further as per Section 44-B of Part-VII of the

Act of 1894, the land can be acquired for a private company, but only for the

purpose mentioned in clause-(a) of sub-section (1) of Section 40, provisions

whereof becomes extracted hereinafter. However, it is contended that in the

present case, no Land Acquisition Committee was constituted by the State

Government, as provided under Rule 3 of the Rules of 1963 nor when the

public purpose (supra), falls in alignment with the hereinafter extracted

provisions. Therefore, it is contended that the acquiring authority rather

blatantly transgressed the statutory mandate, as enclosed in the statutory

provisions (supra), and, therebys the acquisition as made for a public/private

company concerned, is flawed, and/or is vitiated.

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"40(1) [(a) that the purpose of the acquisition is to obtain land for the erection of dwelling-houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or]"

5. It is further submitted by the learned counsel for the petitioners,

that till date no amount of compensation has been deposited by the company-

respondent No.5 thus with the government. Resultantly, it is argued that if the

acquisition of the subject lands, is necessitated, thereby the acquisition in

respect thereof, being enjoined to be launched under the Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation And

Resettlement Act, 2013 (hereinafter referred to as the 'Act of 2013').

6. The learned counsel appearing for respondent Nos. 1 and 4

submits, that as per the reply, Mega Housing Project of respondent No.5 has

been approved by the High Empowered Committee under the Chairmanship of

Chief Minister, Punjab, in its meetings held on 12.01.2006, and, on 01.06.2006.

Subsequently, letter of intent dated 08.03.2006, and, 02.05.2006, besides

revised letter of intent dated 15.11.2006 were issued, by the Nodal Agency for

Mega Projects in housing sector thus in favour of respondent No.5. The said

Mega Housing Project of respondent No.5 has been approved by the Punjab

Government under the Industrial Policy, 2003, which was also extended to

housing projects vide notification No.1925 dated 22.4.2005, issued by the

Government of Punjab, Department of Industries and Commerce. Subsequently,

the Government Punjab, Department of Housing & Urban Development signed

legal agreements with respondent No.5 on 15.06.2006, and, on 16.11.2006, thus

for setting up Mega Housing Project of respondent No.5. Thereafter, the State

Government issued notification under Section 4 of the Act of 1894, to acquire

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the apposite lands for the public purpose (supra).

7. Reiteratedly, it is submitted that the land described in the

notifications (supra), are needed by the State Government, at the expenses of

the Company-respondent No.5, for public purpose viz planned, harmonious and

compact urban development of the area in accordance with the duly notified

Master Plan of SAS Nagar, and, more specifically for the planned harmonious

and compact development of Mega Township Project of respondent No.5 at

villages Dhol, Rajpur Kalan, Moujpur, Bhago Majra, Tehsil and District SAS

Nagar.

8. Learned State counsel submits that since the acquisition was done

by the State Government in discharge of the policy of the State, thereby the

subject acquisition has to be considered as acquisition for public purpose, but if

the compensation is not contributed by the State. He further submits, that since

the acquisition is carried out under Part II of the Act of 1894 under the policy of

the State Government, as such Sections 39 to 42 and Section 44-B of the Act of

1894, are not applicable.

Fulcrum of the entire case is rested upon the provisions carried in Section 43 of the Act of 1894

9. The question of law which is required to be to be formulated and to

be also answered by this Court, is whether, in terms of the agreement entered

into inter se the government and the private respondent-developer concerned,

thus the provisions carried in Section 43 of the Act of 1894, provisions whereof

becomes extracted hereinafter, thus relax and dilutes, rather the rigor of the

statutory mandates, as respectively carried in Sections 39 to 42 of the Act of

1894.

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"43. Section 39 to 42 not to apply where Government bound by agreement to provide land for Companies. - The provisions of sections 39 to 42, both inclusive, shall not apply and the corresponding sections of Land Acquisition Act, 1870 (10 of 1870), shall be deemed never to have applied, to the acquisition of land for any Railway or other Company, for the purposes of which, [under any agreement with such Company, the secretary of State for India in Council, the Secretary of State, [the Central Government or any State Government] is or was bound to provide land]."

10. If the answer to the above formulated question of law is in the

affirmative, therebys even if assumingly in terms of sub-section (1) clause (a),

(aa) and (b), of Section 40 of the Act of 1894, provisions whereof become

extracted hereinafter, rather the appropriate government is assumingly not

satisfied from an enquiry report, or has not recorded any satisfaction, vis-a-vis,

an enquiry report, as purportedly made in respect of the enshrinements carried

in the above extracted provisions, as, borne in Section 40 of the Act of 1894.

However, irrespective of the above, yet in the wake of the provisions embodied

in Section 43 of the Act of 1894, the mandate enclosed in Sections 39 to 42 of

the Act of 1894, does become ousted or excluded, predominantly in the wake of

an agreement arrived at inter se the developer and the government. Resultantly,

thereby the said provisions become ineffective, and/or therebys non

compliance, if any, to the said provisions, becomes completely inconsequential.

"40. Previous enquiry. - (1) [(a) that the purpose of the acquisition is to obtain land for the erection of dwelling houses for workmen employed by the Company or for the provision of amenities directly connected therewith, or

[(aa) that such acquisition is needed for the construction of some building or work for a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose, or]

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(b) that such acquisition is needed for the construction of some work, and that such work is likely to prove useful to the public]."

For the reasons to be assigned hereinafter the submissions addressed by the learned counsel for the petitioners is rejected, and, the submissions addressed by the learned State counsel is accepted.

11. Even if there is no recorded satisfaction by the appropriate

government vis-a-vis any purported enquiry, thus detailing thereins, the

speakings as enshrined in clauses (supra), as carried in the statutory provisions,

borne in Section 40 of the Act of 1894, yet for the reasons to be assigned

hereafter, the provisions of Section 43 of the Act of 1894, do come to the

forefront. Resultantly, therebys the provisions of Sections 39 to 42 of the Act of

1894 become excluded. In sequel non-compliance, if any, to the provisions of

Section 40 of the Act of 1894, by the appropriate government, does not at all

vitiate, the acquisition proceedings, as became launched for the benefit of the

private company-developer concerned, who becomes arrayed in the instant writ

petition, as co-respondent No.5.

12. The primary reason for holding so is banked, upon the factum that

there is evidently an agreement (Annexure R-1/3) entered into inter se the

government and respondent No.5. Therefore, when in the wake of the said

agreement, thus the provisions of Section 43 of the Act of 1894, make

inapplicable the provisions as engrafted in Sections 39 to 42 of the Act of 1894.

In sequel, the effect of non-compliance, if any, by the acquiring authority with

the statutory mandate enshrined in Section 40 of the Act of 1894, rather

assumes no relevance.

13. Predominantly also when the Mega Housing Project of respondent

No.5 has been approved by the High Powered Committee under the

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Chairmanship of Chief Minister, Punjab, in its meetings held on 12.01.2006,

and, on 01.06.2006. Furthermore, with the issuance of a valid letter of intent

vis-a-vis respondent No.5, therebys the launching of acquisition proceedings for

a public purpose rather through the aegis of co-respondent No.5, rather does not

acquire any vice of any vitiation.

14. However, since in the instant case, the award has not been

awarded, therefore question arises as to whether the compensation is to be

determined under the Act of 1894 or under the Act of 2013.

15. Though, the learned State counsel argues that since in terms of

interim orders passed by this Court, thus the learned Collector concerned,

became precluded to pronounce an award under Section 11 of the Act of 1894.

Resultantly, he argues that therebys the mandate enclosed in paragraphs

No.10.12 and 10.13, 17(i), carried in the judgment rendered by the Hon'ble

Apex Court in 'Faizabad-Ayodhya Development Authority, Faizabad Versus

Dr. Rajesh Kumar Pandey and Others; 2022 Live Law (SC) 504', paras

whereof, are extracted hereinafter, do empower this Court to direct the

Collector concerned, to pass an award under Section 11 of the Act of 1894.

"10.12 Thus, it is necessary to dwell into the reasons as to why no award has been made. As discussed aforesaid, if there is an order of restraint on the Collector or on the acquiring authority and as a result of which, the Collector or the Land Acquisition Officer is not in a position to make an award for reasons beyond his control and in compliance of the interim order granted by a court of law at the instance of the land owner or any other person who may have questioned the acquisition, the period during which the interim order has operated has to be reckoned and if on the date of enforcement of Act, 2013 i.e., 01.01.2014, no award has been made owing to the operation of such an interim order granted by a Court in favour of the land owner, then the provisions of the 2013, Act cannot straightaway be 7 of 9

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made applicable in the determination of the compensation. This is because, but for the operation of the interim order, the award could have been made under the provisions of the Act, 1894 until 31.12.2013 and then provisions of Act, 1894 would have applied as per clause (b) of sub-section 1 of Section 24. But on the other hand, owing to the operation of the interim order granted by a Court in favour of land owner, the award would not have been made as on 01.01.2014 when the Act, 2013 was enforced.

10.13 In our view in such a situation the acquiring authority cannot be burdened with the determination of compensation under the provisions of the Act, 2013. In other words, the land owner cannot, on the one hand, assail the acquisition and seek interim orders restraining the authorities from proceeding further in the acquisition, and on the other hand, contend that since no award has been made under Section 11 of Act, 1894 on 01.01.2014, the provisions of the Act, 2013 should be made applicable in determining the compensation.

17. In view of the above and for the reasons stated above, it is observed as under:-

(i) It is concluded and held that in a case where on the date of commencement of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, no award has been declared under Section 11 of the Act, 1894, due to the pendency of any proceedings and/or the interim stay granted by the Court, such landowners shall not be entitled to the compensation under Section 24(1) of the Act, 2013 and they shall be entitled to the compensation only under the Act, 1894."

16. Consequently, the said made argument is vindicated by this Court,

especially when during the pendency of the instant writ petition an interim

order became passed on 02.12.2013, by this Court, order whereof becomes

extracted hereinafter. Resultantly, when the above extracted paragraphs carried

in the verdict (supra), as made by the Hon'ble Apex Court, it becomes

expostulated that when the award under the Act of 1894, became precluded to

be so rendered on account of pendency of any proceedings, and/or any interim

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orders becoming passed by this Court, thereby the non rendition of an award

under the Act of 1894, thus is to be condoned.

"It is, inter-alia, contended that the impugned acquisition for all intents and purposes amounts to acquisition for a private-company for which Part-VII of the Land Acquisition Act, 1894 ought to have been invoked.