MOHAN SINGH GILL & ORS. ETC. ETC. Vs. STATE OF PUNJAB & ORS. ETC. ETC.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 3177 - 3178 of 2015, Judgment Date: Mar 25, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.3177-3178 OF 2015
(ARISING OUT OF SLP (C) NOS.26770-26771 OF 2011)
MOHAN SINGH GILL & ORS. ETC. .....APPELLANT(S)
VERSUS
STATE OF PUNJAB & ORS. ETC. .....RESPONDENT(S)
W I T H
CIVIL APPEAL NOS.3179-3180 OF 2015
(ARISING OUT OF SLP (C) NOS.26779-26780 OF 2011)
W I T H
CIVIL APPEAL NO.3181 OF 2015
(ARISING OUT OF SLP (C) NO.13124 OF 2012)
A N D
CIVIL APPEAL NO.3182 OF 2015
(ARISING OUT OF SLP (C) NO.17407 OF 2012)
J U D G M E N T
A.K. SIKRI, J.
Leave granted.
2) These appeals arise out of the common judgment dated April 29, 2011
passed by High Court of Punjab and Haryana at Chandigarh whereby number of
writ petitions which were filed challenging the acquisition of land
measuring 192.75 acres vide two notifications, both dated 10.08.2009,
issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter
referred to as the 'Act') were dismissed. As a consequence, validity of
the notifications has been upheld, holding that acquisition for public
purpose for development of Missing Link-II from Dhandra Road to Sidhwan
Canal via Malerkotla Road, Ludhiana as well as for development of
residential urban estate along proposed road from Dhandra Road to Sidhwan
Canal via Malerkotla Road, Ludhiana, is just and proper.
3) It is clear from the above that two notifications were issued on the
same day i.e. on 10.08.2009. Vide first notification, land was acquired
for development of Missing Link-II on the route mentioned above. By the
second notification, land was sought to be acquired for the development of
residential urban estate along with the proposed road, mainly to adjust
oustees of the above said road. Land acquired by the first notification
was 192.75 acres whereas by the second notification, land measuring 59
acres 1 kanal 12 marlas was acquired. After the aforesaid notifications
under Section 4 of the Act, two notifications both dated 10.08.2009 under
Section 6 of the Act were issued and consequent thereupon, Award No.4 dated
07.08.2010 pertaining to the first notification and Award No.3 dated
07.08.2010 pertaining to the second notification were passed. Validity of
all these notifications was the subject matter of the writ petitions.
4) In order to appreciate the present dispute in its correct
perspective, it is necessary to consider some important background facts
pertaining to construction of what has been termed as 'Missing Link-I' -
which is inextricably linked to the present acquisition. It is a matter of
record that a bypass is being constructed to connect Ferozepur Road to
Sidhwan Canal aiming at decongesting Ludhiana City of the traffic problems.
Major portion of the road had already been constructed, which were shown
in the site plan filed in the High Court as Annexure R/1/7. From point A
to point D and again from point E to point F, these portions had already
been constructed. However, there were two Missing Links namely between
point D to point E and point F to point G. Missing Link from point D to E
has been shown as 'Missing Link-I'. The respondent-State had issued the
notification dated 12.05.2003 under Section 4 read with Section 17(4),
followed by the notification dated 13.05.2003 under Section 6, to acquire
land measuring 11 acres 3 kanal 9 marlas for construction of Missing Link-
I. Pursuant thereto, the land was acquired vide Award No.1 dated
24.08.2005. This acquisition was challenged but the said challenge failed
as writ petitions were dismissed and decision of the High Court was upheld
by this Court as well.
5) It is in this scenario, for providing road from point F to
point G (Missing Link-II), the impugned notification dated 10.08.2009 was
issued for the aforesaid public purpose. As per the Government, the bypass
had been planned and realignment done keeping in view the availability of
the land so that it may not affect the existing buildings and in order to
solve the increasing traffic problems in future so as to ensure free and
smooth flow of the traffic. The realignment was approved by the Punjab
Regional and Town Planning and Development Board (hereinafter referred to
as the 'Board') in its meeting dated 06.08.2009. That led to the passing
of Award No.4 dated 07.08.2010.
6) Simultaneously, second set of notifications were issued for
acquisition of land for development of residential urban estate to adjust
oustees of the above said road. According to the Government, with the
acquisition of the land to complete Missing Link-II, the residents of the
said land had to be ousted. In order to adjust those oustees, it became
necessary to acquire the land for development of residential urban estate
to rehabilitate such oustees.
7) Insofar as first notification is concerned, it was challenged on
various grounds including the plea that the said acquisition for proposed
road i.e. Missing Link-II, is an inviable option and there is total lack of
application of mind on the part of the respondent-Government in acquiring
the land in question. It was also argued that land was not utilised
entirely for the construction of the aforesaid proposed road i.e. Missing
Link-II but a large portion of the acquired land was used for other purpose
viz. commercial purpose which is not the purpose stated in the
notifications. Number of other technical and legal objections were taken
including the objection that the proposed bypass road has not been shown in
the master plan and, therefore, the same could not be developed by
acquiring the land without first making amendments in the master plan.
However, none of these arguments have found favour with the High Court.
Insofar as second notification is concerned, there is not much discussion
in the impugned judgment and the counsel for all the parties agreed that
this Court itself should decide the issue on merits.
8) Mr. Nidhesh Gupta, learned senior counsel who appeared in three
appeals out of four, targeted the judgment of the High Court, insofar as it
relates to the first acquisition namely acquisition of land for Missing
Link-II is concerned, by raising following arguments:
In the first place, he pleaded that the land in question was
utilised for the purposes different from what is stated in the
notification. It was the submission that though the purpose was Missing
Link-II for development (Dhandra Road to Sidhwan Canal via Malerkotla Road,
Ludhiana), as a matter of record, a large part of the acquired land was
used for a totally different purpose viz. commercial purpose, which
according to him is impermissible in law. He referred to the replies filed
by the official respondents wherein the factum of land being used for
commercial purpose had been admitted. He pointed out that the width of
Missing Link-II had been kept at 450 feet whereas the proposed road is only
200 feet and on both the sides two commercial pockets of 100 feet and 150
feet respectively are going to be developed. He also pointed out that
objections were submitted under Section 5-A of the Act which related to the
stated public purpose only. As the use of part of the land for the
commercial purpose was not stated in the notification and the appellants
were kept in dark, they could not file objections to the same and were
thereby deprived of their legitimate right to file effective objections.
He pleaded that it amounted to violation of the provisions of Section 5-A
of the Act by depriving the appellants from giving opportunity to submit
their objections to the aforesaid use of land which was not stated in the
impugned notifications. He further argued in this behalf that the
utilisation of land for purpose other than the purpose stated not only
defeats the right available under Section 5A of the Act but the consequence
thereof would be to acquire the land under Section 17 of the Act viz. in
exercise of emergent powers and that could not be done without following
the procedure contained in that section. Related submission of Mr. Nidhesh
Gupta was that utilising the major chunk of land for developing commercial
area clearly showed that the land of the appellants was acquired to finance
the project of constructing the road. According to him, such an action is
per se arbitrary as land of the appellants could not be acquired for such a
purpose thereby depriving them of their right to livelihood. He took this
argument on a higher pedestal by submitting that such an act amounted to
violation of Article 21 of the Constitution.
9) Another submission of Mr. Nidesh Gupta was that the proposed road
(Missing Link-II) and the changes made therein are contrary to the master
plan inasmuch as master plan does not show such a road and, therefore,
there could not be any construction of any road without there being a
provision made in the master plan. He referred to Section 77 of Punjab
Regional and Town Planning and Development Act, 1995 which prescribes the
mandatory procedure that has to be followed without making the changes in
the master plan and submitted that the construction of the road amounted to
violation of this provision as well.
10) Ms. S. Janani, who appeared for the other appellant led by Mr. M.L.
Saggar, senior advocate, also highlighted the aforesaid contentions argued
by Mr. Nidhesh Gupta and elaborated the same with facts and figures from
the record. In addition, another thrust of their submission was that
alignment of the road was changed thereby creating Missing Link-II and this
was not only arbitrary but without application of mind as well.
11) Mr. Rakesh Khanna, learned Additional Solictor General, argued the
matter on behalf of respondent No.3, namely Greater Ludhiana Area
Development Authority (GDADA), strongly refuting the aforesaid submissions
of the appellants. He referred to the various meetings that had taken
place before the final decision was taken in respect of the realignment of
the road. He was at pains to submit that it was a bona fide policy
decision taken to complete the Missing Link-II inasmuch as other route for
completing this road would have resulted in uprooting the settled
habitation in much more substantial measure. In order to demonstrate it,
learned senior counsel had drawn our attention to various maps as well. He
also referred to the judgment of the High Court where this material has
been noted and discussed elaborately, while upholding the acquisition.
12) It is clear from the aforesaid that in so far as the first
notification is concerned, where the land is acquired for the purpose of
constructing Missing Link-II, it has two facets. First relates to the
construction of the road itself, popularly known as Missing Link-II.
Second facet thereof is the permissibility of the utilisation of the part
of the land for commercial purpose which was not so stated in the impugned
notifications.
13) Insofar as first aspect is concerned, we find from the impugned
judgment that the High Court has dealt with this aspect very lucidly with
precision. As pointed out above, attempt of the counsel was to demonstrate
that there already exist enough links and it was not necessary to propose
the road. It was also argued that the realignment was not a wise decision.
14) Attempt was also made to point out that this purpose for which land
was acquired had become redundant in the changed circumstances. However,
after going into the matter in depth and examining the records, we are
satisfied that the High Court has correctly concluded that it is for the
authorities, who are engaged in the development and planning of a city, to
ascertain the need to acquire the land for creating infrastructure, such as
roads etc. It is a matter of record that their exists a road from point A
to point D and again from point E to point F. There are two Missing Links
namely Missing Link-I from point D to point E and Missing Link-II from
point F to point G. The land which was acquired for Missing Link-I, almost
in similar circumstances, was subject matter of litigation but the attempts
of the landholders failed right upto this Court as the challenge to the
said notification was thwarted.
15) We also find that there have been due deliberations by the competent
authorities deciding upon the realignment of the road leading to proposed
Missing Link-II. We do not find any arbitrariness in the exercise done at
the highest level inasmuch as the Chief Minister himself approved the
revised plans. It is not the function of this Court to compare the Missing
Link-II with alternate route suggested by the appellants and to come to the
conclusion which out of the two would be more appropriate.
16) Insofar as argument predicated on the master plan is concerned, the
High Court has brushed aside this very argument with the following
discussion:
"Further the argument of the learned counsel for the appellants that
the proposed Bye Pass road has not been shown in the Master Plan and
therefore, the same cannot be developed by acquiring the land is without
any force. As shown by the learned counsel for the respondents the
realignment of the Missing Link-II which falls in Zonal Plan-I has been
notified as per the provisions of the Punjab Act vide notification No.1379
dated 24.02.2011 Annexure R-1/8 and the same has been shown in the Zonal
Plan of zone No.1 Annexure R-1/9. The argument of the learned counsel for
the appellants that the alleged realignment of the road has not been done
in accordance with the provisions of Section 76/77 of the Punjab Act, is
also without any merit. From the facts established on record, it is clear
that the changes have been necessitated which have arisen out of
implementation of the proposals as made in the master plan and such
realignment has been made in public interest and after notification of the
same which is clear from Annexure R-1/8. Interpretation as given by
learned counsel for the appellants of Section 76 of Punjab Act cannot be
accepted. Section 76 of Punjab Act reads as follows:
"Amendment of Master Plan- (1) At any time after the date on which
the Master Plan for an area comes into operation, and at least once after
every ten years, after that date, the Designated Planning Agency shall
after carrying out such fresh surveys as may be considered necessary or as
directed by the [State Government] prepare and submit to the [State
Government], a Master Plan after making alterations or additions as it
considers necessary.
(2) The provisions of [sections 70 and 75] shall mutatis mutandis as
far as may be possible, apply to the Master Plan submitted under sub-
section (1)."
A perusal of Section 76(1) of Punjab Act clearly indicates
that the Master Plan can be amended at any time after the date on which the
Master Plan for an area comes into operation and not after 10 years from
such date as argued by the learned counsel for the appellants. Even
otherwise, the High Court is of the view that, in the present case, Section
76 of Punjab Act has no applicability and in fact the realignment has been
done under Section 77 of the Punjab Act and, thus, there is no violation of
the provisions of the Punjab Act.
17) We are in agreement with the aforesaid findings arrived at by the
High Court. We would like to record here that in the affidavit dated May
06, 2014 filed by the respondent-authorities, it is specifically averred
that the alignment of the Missing Link-II between the Railway line and
Sidhwan Canal/crossing Malerkotla Road has never been changed. Just below
the point where the Missing Link-II crosses the Malerkotla Road is an
angular curve near village Gil (in Hadbast 263). This is explained by
pointing out that in the map filed the 10 km long road is divided into 6
segments: A-B already constructed, B-C already constructed, C-D already
constructed. D-E is Missing Link-I which has since been constructed in the
year 2012-13. E-F already constructed and F-G is the Missing Link-II.
Missing Link-II is further divided into points F and F1 i.e. the road
between Dhandra Road to Railway Crossing, F-1 to F-2 the Missing Link-II
road between existing Railway Crossing and Malerkotla Road and F2 to G i.e.
between Malerkotla Road and Sidhwan Canal. Point G is just near Lohara
village. It is also pointed out that in the blown-up portion of the
Traffic & Transportation plan (which is not revenue based) of the Master
Plan again this road from Firozepur Road till Sidhwan Canal is marked as
Points A, B, C, D, E, F, F1, F2 and G. The road crosses the Railway Line
at point F1, the existing railway crossing. The Missing Link-II road
crosses Malerkotla Road at point F2 just above point H, the curved road of
Gill Village at point H and ends at Point G, just near Village Lohara. The
deponent has also filed Aks Shajra map, zonal plan of the area, and plan
showing alignment of Missing Link-II. From these plans, an attempt is made
to demonstrate that at no point of time there is any variation in the
alignment of Missing Link-II between the portions F1 to G, be it Master
Plan, Revenue Plans or Zonal Development Plan. The only change in
alignment has been made between the portion F and F1 which was necessitated
during the implementation of the Master Plan to avoid the area in which
there was heavy construction existing. The realigned road between Point F
and F1 is passing through open areas avoiding the constructed areas.
18) We are, thus, satisfied on the basis of the records that the plea of
the appellants that the alignment of the road between Points F and G from
Traffic & Transportation Plan of the Master Plan has been shifted by about
3 - 4.5 kms on the Northern side is not correct.
19) As a consequence, insofar as need of land for the construction of
Missing Link-II is concerned, the same stands duly established and for
acquisition of this chunk of land, there cannot be any exception.
20) This leads us to the second facet of this notification. As noted
above, the width of road for Missing Link-II is 200 feet. However, the
land acquired is 450 feet. Land beyond 200 feet on either side is sought
to be utilised by constructing shops on both sides of the road. We have
already recorded the submissions of the appellants on the basis of which
this part of acquisition is questioned. To recapitulate the same briefly,
it was argued :
(a) such a purpose is not stated in the notification which mentions the
acquisition only for the purpose of construction of Missing Link-II. Under
the garb of this notification, the respondents cannot utilise the part of
the land for commercial purpose.
(b) In the absence of any such purpose mentioned in the notification
issued under Section 4 of the Act, the appellants were deprived of
purposeful and effective opportunity to file objections under Section 5-A
of the Act.
(c) The hidden purpose of utilising the major chunk of land for developing
commercial area shows that the land of the appellants was acquired to
finance the project of constructing the road. According to the appellants,
it is clearly impermissible.
21) Learned counsel for the appellants has referred to the judgment of
this Court in Tulsi Co-operative Housing Society, Hyderabad etc. v. State
of Andhra Pradesh and others etc.[1], wherein this Court while upholding
the acquisition, had directed that lands had to be utilised for the
purposes for which they were acquired. For the same proposition, judgment
in Narpat Singh etc. v. Jaipur Development Authority and Another[2] was
relied upon.
22) The respondents have attempted to meet this challenge by explaining
that in the notifications it was categorically stated that plans of the
land may be inspected in the office of the Land Acquisition Collector
(LAC). The plans which were displayed in the office of the LAC and filed on
record, show that this part of the land to be utilised for the commercial
purpose. The land owners were, therefore, fully made aware of the use of
the land. They were given an opportunity to file their objections under
Section 5-A of the Act. However, no objection was submitted by the
affected persons alleging that development of commercial area along side of
Missing Link-II was improper or should not be done. On that basis, it is
argued, relying on the decision of this Court in the case of Delhi
Administration v. Gurdip Singh Uban and Others[3], that those claimants who
had not filed objections to the Section 4 notification cannot now be
permitted to contend before Court that the Section 5-A inquiry is vitiated.
23) We have pondered over this issue in depth with reference to the
record and find force in the submissions of the learned counsel for the
appellants. It is clear from the facts noted above that in the
notification dated 10.08.2009 issued under Section 4 of the Act, public
purpose which is stated is "Missing Link-II for development (from Dhandra
Road to Sidhwan Canal via Malerkotla Road), Ludhiana....". Thus, the land
owners were informed that the land is sought to be acquired for the
construction of Missing Link-II. From the reading of this notification, it
is difficult to visualize by a common person with reasonable prudence that
the part of land is sought to be exploited for commercial development as
well. Obviously, when the purpose stated is construction of Missing Link-
II, the objections would be filed by land owners having focus on the said
stated purpose in mind. Had the land owners been told that major part of
the land is going to be utilised for commercial purpose as well, they would
have filed their objections to the proposed move. With no specific
stipulation in this behalf in the notification under Section 4 of the Act,
the persons whose land was sought to be acquired were deprived of an
effective opportunity to file the objections under Section 5-A of the Act.
It hardly needs to be mentioned that filing of objections under Section 5-A
of the Act is, in substance, the only procedural safeguard/right given to
the land owners. It is for this reason that violation of Section 5-A of
the Act has been treated as fatal by this Court in number of cases as it
becomes violative of principles of natural justice. The importance of
objections under Section 5-A of the Act has been highlighted in Usha Stud
and Agricultural Farms Pvt. Ltd. and others v. State of Haryana and
others[4] as under:
"23. Section 5-A, which embodies the most important dimension of the rules
of natural justice, lays down that any person interested in any land
notified under Section 4(1) may, within 30 days of publication of the
notification, submit objection in writing against the proposed acquisition
of land or of any land in the locality to the Collector. The Collector is
required to give the objector an opportunity of being heard either in
person or by any person authorised by him or by pleader. After hearing the
objector(s) and making such further inquiry, as he may think necessary, the
Collector has to make a report in respect of land notified under Section
4(1) with his recommendations on the objections and forward the same to the
Government along with the record of the proceedings held by him. The
Collector can make different reports in respect of different parcels of
land proposed to be acquired.
24. Upon receipt of the Collector's report, the appropriate Government is
required to take action under Section 6(1) which lays down that if after
considering the report, if any, made under Section 5-A(2), the appropriate
Government is satisfied that any particular land is needed for a public
purpose, then a declaration to that effect is required to be made under the
signatures of a Secretary to the Government or of some officer duly
authorised to certify its orders. This section also envisages making of
different declarations from time to time in respect of different parcels of
land covered by the same notification issued under Section 4(1). In terms
of Clause (ii) of the proviso to Section 6(1), no declaration in respect of
any particular land covered by a notification issued under Section 4(1),
which is published after 24.9.1989 can be made after expiry of one year
from the date of publication of the notification. To put it differently, a
declaration is required to be made under Section 6(1) within one year from
the date of publication of the notification under Section 4(1).
25. In terms of Section 6(2), every declaration made under Section 6(1) is
required to be published in the Official Gazette and in two daily
newspapers having circulation in the locality in which the land proposed to
be acquired is situated. of these, at least one must be in the regional
language. The Collector is also required to cause public notice of the
substance of such declaration to be given at convenient places in the
locality. The declaration to be published under Section 6(2) must contain
the district or other territorial division in which the land is situate,
the purpose for which it is needed, its approximate area or a plan is made
in respect of land and the place where such plan can be inspected.
26. Section 6(3) lays down that the declaration made under Section 6(1)
shall be conclusive evidence of the fact that land is needed for a public
purpose.
27. After publication of the declaration under Section 6(1), the Collector
is required to take order from the State Government for the acquisition of
land and cause it to be measured and planned (Sections 7 and 8). The next
stage is the issue of public notice and individual notice to the persons
interested in the land to file their claim for compensation. Section 11
envisages holding of an enquiry into the claim and passing of an award by
the Collector who is required to take into consideration the provisions
contained in Section 23.
28. In Munshi Singh v. Union of India, (1973) 2 SCC 337, this Court
emphasised the importance of Section 5-A in the following words:
"7. ...Sub-section (2) of Section 5-A makes it obligatory on the Collector
to give an objector an opportunity of being heard. After hearing all
objections and making further inquiry he is to make a report to the
appropriate Government containing his recommendation on the objections. The
decision of the appropriate Government on the objections is then final. The
declaration under Section 6 has to be made after the appropriate Government
is satisfied, on a consideration of the report, if any, made by the
Collector under Section 5-A(2). The legislature has, therefore, made
complete provisions for the persons interested to file objections against
the proposed acquisition and for the disposal of their objections. It is
only in cases of urgency that special powers have been conferred on the
appropriate Government to dispense with the provisions of Section 5-A."
29. In State of Punjab v. Gurdial Singh, (1980) 2 SCC 471, the Court
observed as under:
"16. ...it is fundamental that compulsory taking of a man's property is a
serious matter and the smaller the man the more serious the matter. Hearing
him before depriving him is both reasonable and pre-emptive of
arbitrariness, and denial of this administrative fairness is constitutional
anathema except for good reasons. Save in real urgency where public
interest does not brook even the minimum time needed to give a hearing land
acquisition authorities should not, having regard to Articles 14 (and 19),
burke an enquiry under Section 17 of the Act. Here a slumbering process,
pending for years and suddenly exciting itself into immediate forcible
taking, makes a travesty of emergency power."
30. In Shyam Nandan Prasad v. State of Bihar, (1993) 4 SCC 255, this Court
reiterated that compliance of Section 5-A is mandatory and observed:
"10. ...The decision of the Collector is supposedly final unless the
appropriate Government chooses to interfere therein and cause affectation,
suo motu or on the application of any person interested in the land. These
requirements obviously lead to the positive conclusion that the proceeding
before the Collector is a blend of public and individual enquiry. The
person interested, or known to be interested, in the land is to be served
personally of the notification, giving him the opportunity of objecting to
the acquisition and awakening him to such right. 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."
31. In Raghbir Singh Sehrawat's case, this Court referred to the judgments
in Munshi Singh v. Union of India, (1973) 2 SCC 337, State of Punjab v.
Gurdial Singh, (1980) 2 SCC 471, Shyam Nandan Prasad v. State of Bihar,
(1993) 4 SCC 255, Union of India v. Mukesh Hans, (2004) 8 SCC 14, Hindustan
Petroleum Corporation Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627, Radhy
Shyam v. State of U.P., (2011) 5 SCC 553 and observed:
"39. In this context, it is necessary to remember that the rules of
natural justice have been ingrained in the scheme of Section 5-A with a
view to ensure that before any person is deprived of his land by way of
compulsory acquisition, he must get an opportunity to oppose the decision
of the State Government and/or its agencies/instrumentalities to acquire
the particular parcel of land. At the hearing, the objector can make an
effort to convince the Land Acquisition Collector to make recommendation
against the acquisition of his land. He can also point out that the land
proposed to be acquired is not suitable for the purpose specified in the
notification issued under Section 4(1). Not only this, he can produce
evidence to show that another piece of land is available and the same can
be utilised for execution of the particular project or scheme.
40. Though it is neither possible nor desirable to make a list of the
grounds on which the landowner can persuade the Collector to make
recommendations against the proposed acquisition of land, but what is
important is that the Collector should give a fair opportunity of hearing
to the objector and objectively consider his plea against the acquisition
of land. Only thereafter, he should make recommendations supported by brief
reasons as to why the particular piece of land should or should not be
acquired and whether or not the plea put forward by the objector merits
acceptance. In other words, the recommendations made by the Collector must
reflect objective application of mind to the objections filed by the
landowners and other interested persons."
32. In Kamal Trading (P) Ltd. v. State of West Bengal (supra), this Court
again considered the scope of Section 5-A and observed:
"13. Section 5-A(1) of the LA Act gives a right to any person interested
in any land which has been notified under Section 4(1) as being needed or
likely to be needed for a public purpose to raise objections to the
acquisition of the said land. Sub-section (2) of Section 5-A requires the
Collector to give the objector an opportunity of being heard in person or
by any person authorised by him in this behalf. After hearing the
objections, the Collector can, if he thinks it necessary, make further
inquiry. Thereafter, he has to make a report to the appropriate Government
containing his recommendations on the objections together with the record
of the proceedings held by him for the decision of the appropriate
Government and the decision of the appropriate Government on the objections
shall be final.
14. It must be borne in mind that the proceedings under the LA Act are
based on the principle of eminent domain and Section 5-A is the only
protection available to a person whose lands are sought to be acquired. It
is a minimal safeguard afforded to him by law to protect himself from
arbitrary acquisition by pointing out to the authority concerned, inter
alia, that the important ingredient, namely, "public purpose" is absent in
the proposed acquisition or the acquisition is mala fide. The LA Act being
an expropriatory legislation, its provisions will have to be strictly
construed.
15. Hearing contemplated under Section 5-A(2) is necessary to enable the
Collector to deal effectively with the objections raised against the
proposed acquisition and make a report. The report of the Collector
referred to in this provision is not an empty formality because it is
required to be placed before the appropriate Government together with the
Collector's recommendations and the record of the case. It is only upon
receipt of the said report that the Government can take a final decision on
the objections. It is pertinent to note that declaration under Section 6
has to be made only after the appropriate Government is satisfied on the
consideration of the report, if any, made by the Collector under Section 5-
A(2). As said by this Court in Hindustan Petroleum Corporation Ltd., the
appropriate Government while issuing declaration under Section 6 of the LA
Act is required to apply its mind not only to the objections filed by the
owner of the land in question, but also to the report which is submitted by
the Collector upon making such further inquiry thereon as he thinks
necessary and also the recommendations made by him in that behalf.
16. Sub-section (3) of Section 6 of the LA Act makes a declaration under
Section 6 conclusive evidence that the land is needed for a public purpose.
Formation of opinion by the appropriate Government as regards the public
purpose must be preceded by application of mind as regards consideration of
relevant factors and rejection of irrelevant ones. It is, therefore, that
the hearing contemplated under Section 5-A and the report made by the Land
Acquisition Officer and his recommendations assume importance. It is
implicit in this provision that before making declaration under Section 6
of the LA Act, the State Government must have the benefit of a report
containing recommendations of the Collector submitted under Section 5-A (2)
of the LA Act. The recommendations must indicate objective application of
mind."
33. The ratio of the aforesaid judgments is that Section 5-A(2), which
represents statutory embodiment of the rule of audi alteram partem, gives
an opportunity to the objector to make an endeavour to convince the
Collector that his land is not required for the public purpose specified in
the notification issued under Section 4(1) or that there are other valid
reasons for not acquiring the same. That section also makes it obligatory
for the Collector to submit report(s) to the appropriate Government
containing his recommendations on the objections, together with the record
of the proceedings held by him so that the Government may take appropriate
decision on the objections. Section 6(1) provides that if the appropriate
Government is satisfied, after considering the report, if any, made by the
Collector under Section 5-A that particular land is needed for the
specified public purpose then a declaration should be made. This
necessarily implies that the State Government is required to apply mind to
the report of the Collector and take final decision on the objections filed
by the landowners and other interested persons. Then and then only, a
declaration can be made under Section 6(1).
24) The aforesaid dicta was reiterated recently in Women's Education
Trust and another v. State of Haryana and others[5] emphasising the
importance of Section 5-A in the following words:
"5. The principles which can be culled out from the above-noted judgments
are as under:
5.1. The rule of audi alteram partem engrained in the scheme of Section 5-
A of the Act ensures that before depriving any person of his land by
compulsory acquisition, an effective opportunity must be given to him to
contest the decision taken by the State Government /competent authority to
acquire the particular parcel of land.
5.2. Any person interested in the land, which has been notified under
Section 4(1) of the Act, can file objections under Section 5A(1) and show
that the purpose specified in the notification is really not a public
purpose or that in the guise of acquiring the land for a public purpose the
appropriate Government wants to confer benefit upon private persons or that
the decision of the appropriate Government is arbitrary or is vitiated due
to mala fides.
5.3. In response to the notice issued by the Land Acquisition Collector
under Section 5A(2) of the Act, the objector can make all possible
endeavours to convince the Land Acquisition Collector that the acquisition
is not for a public purpose specified in the notification issued under
Section 4(1); that his land is not suitable for the particular purpose;
that other more suitable parcels of land are available, which can be
utilized for execution of the particular project or scheme.
5.4. The Land Acquisition Collector is duty bound to objectively consider
the arguments advanced by the objector and make recommendations, duly
supported by brief reasons, as to why the particular piece of land should
or should not be acquired and whether the plea put forward by the objector
merits acceptance. In other words, the recommendations made by the Land
Acquisition Collector should reflect objective application of mind to the
entire record including the objections filed by the interested persons.
5.5. The Land Acquisition Collector is required to submit his report and
the recommendations to the State Government along with the record of
proceedings to enable the latter to take final call on the desirability,
propriety and justification for the acquisition of the particular parcel(s)
of land.
5.6 The declaration under Section 6(1) of the Act can be issued only if
the appropriate Government, on an objective application of mind to the
objections filed by the interested persons including the landowners and the
report of the Land Acquisition Collector, is satisfied that the land is
needed for the particular purpose specified in the notification issued
under Section 4(1) of the Act.
6. It is unfortunate that despite repeated judicial pronouncements, the
executive authorities entrusted with the task of acquiring private land for
any specified public purposes have time and again exhibited total lack of
seriousness in the performance of their duties under the statute. Often
they do not comply with the mandate of Section 5A of the Act, which is sine
qua non for making a valid declaration under Section 6(1) of the Act. This
batch of appeals is illustrative of the malady that has afflicted the State
authorities who are keen to acquire private lands in the name of planned
development of various urban areas, but do not bother to comply with the
relevant statutory provisions and the rules of natural justice."
[Emphasis Supplied]
25) We, thus, are of the opinion that appellants are deprived of proper
and reasonable opportunity of persuading the authorities concerned to spare
that part of the land which is not required for construction of Missing
Link-II but is intended to be used for commercial purpose. We are not
influenced by the arguments of the respondents that in the drawings which
were kept for inspection, this part of land is shown for commercial
development. First of all, it is disputed by the appellants and nothing is
produced on record by the respondents to substantiate this plea. In any
case, we are of the view that such a drawing by itself would not meet the
mandatory requirement of the Act in the absence of specific stipulation in
this behalf in the notification itself.
26) In the aforesaid backdrop, we find strength in the submission of the
appellants that the hidden purpose for acquiring "surplus" land, i.e. the
land apart from what is required for constructing Missing Link-II, was to
develop it as commercial area (which is not stated in the acquisition
notification) so that the finances could be arranged for construction of
road or for some other purpose. This cannot be treated as public purpose.
If the land was to be utilised for commercial purpose, there has to be a
proper planning into it and it needs to be demonstrated that utilisation of
the land serves some public purpose. We do not find it to be so in the
present case.
27) Mr. Khanna had cited certain judgments in support of his submission
that even if the land is acquired for one particular purpose, the
authorities are empowered to utilise the same for another public purpose.
However, it is permissible in those circumstances where the original
purpose for which the land was acquired had to be changed for some valid
reasons. Even that is not the case herein. From the very beginning, the
authorities had in mind to use the extra chunk of land for commercial
purpose but the same was not even stated in the notifications issued under
Sections 4 or 6 of the Act. It is stated at the cost of the repetition
that insofar as notifications are concerned, purpose mentioned is
construction of Missing Link-II, and in this scenario, the authorities
cannot acquire more land than what is required for construction of Missing
Link-II. The notifications to the extent they acquire land over and above
which is needed for construction of Missing Link-II are, thus, held to be
bad in law and set aside.
28) This brings us to the validity of second notification. As already
mentioned above, 55.41 acres of land has been acquired vide notification
No.3 dated 07.08.2010 and the public purpose stated is "Development of
Urban Estate, mainly to adjust oustees of Missing Link-II (Dhandra Road to
Sidhwan Canal via Malerkotla Road, Ludhiana)". The main plank of attack of
the appellants to this notification is that land of the appellants could
not be acquired to rehabilitate other persons, and in the process rendering
the appellants homeless and landless. Such an action was arbitrary and
illegal which also amounted to depriving the appellants of their
livelihood. It was also argued that in the process, the changes which made
were much more serious violating the master plan. It was also argued that
the aforesaid stated purpose is totally vague, since it only says that the
same is for the development of a residential urban estate. It was argued
that the public purpose of "residential" has been held by this Court to be
vague in Madhya Pradesh Housing Board v. Mohd. Shafi[6]:
14. Apart from the defect in the impugned notification, as noticed above,
we find that even the "public purpose" which has been mentioned in the
schedule to the notification as "residential" is hopelessly vague and
conveys no idea about the purpose of acquisition rendering the notification
as invalid in law. There is no indication as to what type of residential
accommodation was proposed or for whom or any other details. The State
cannot acquire the land of a citizen for building some residence for
another, unless the same is in 'public interest" or for the benefit of the
"public" or an identifiable section thereof. In the absence of the details
about the alleged "public purpose" for which the land was sought to be
acquired, no-one could comprehend as to why the land was being acquired and
therefore was prevented from taking any further steps in the matter.
[Emphasis Supplied]
29) It was also submitted that the notification acquiring land for the
Missing Link road is for an area of approx. 74.52 acres. Yet, more than
55.41 acres of land has been acquired for adjusting the oustees of the said
road. Thus, the acquisition is for a far greater area than what was
required even as per the stated public purpose inasmuch as 55.41 acres of
land was sought to be given to those from whom 74.52 acres of land was
taken.
30) Mr. Gupta concluded his arguments with the submission that such an
acquisition was not at all necessary, apart from being illegal, unfair,
unjust and against the principles of natural justice as the appellants are
being ousted from their land in order to accommodate, adjust and
rehabilitate others who are similarly situated as the appellants. In other
words, the appellants are being rendered oustees in order to accommodate
other oustees. Such a patently unjust and unfair action cannot, by any
stretch of imagination, be termed as 'public purpose' as grave harm, loss
and injustice is being caused to the appellants for no sustainable reason.
He also emphasised that the land from which the appellants are being
ousted, in order to accommodate other oustees, is the sole source of
livelihood for the appellants. Part of the acquired land is agricultural,
part of it is inhabited and part of it has functioning industries. As
such, there is no rationale whatsoever in uprooting well established
livelihoods merely to accommodate others. The respondents action evidences
absolutely no application of mind as there is vacant agricultural land
nearby where the oustees could have been adjusted. It is argued that the
real reason behind present acquisition is that in actual fact the
respondent-government intends to use the acquired land for profit-making
purposes. It is submitted that the respondents are planning to use the
major part of the land under acquisition for commercial purposes.
31) The aforesaid arguments of the appellants was sought to be negated by
Mr. Rakesh Khanna with the submission that the specific stand was taken by
the respondents that the eligible land owners / structure holders of
Missing Link-II road as well as urban estate both will be considered for
allotment of plot/house as per oustee policy of the State Government. It
was submitted that there are 949 land owners involved in this acquired land
for Missing Link-II and urban estate. Firstly, it is only 48 of them who
are before this Court. Therefore, 901 of them have no objection to the
acquisition. Secondly, even out of the 48 owners, only 33 appellants were
parties before the High Court and 15 have filed SLP for the first time
being SLP No. 14124 of 2012. Two of them being appellants in SLP No. 15365
of 2012, have since withdrawn the SLP.
32) After considering the submissions of counsel for the parties on
either side and on going through the records, we find force and merit in
the case set up by the respondents. The defence put up by the respondent
authorities, as noted above in the submissions of Mr. Rakesh Khanna,
appears to be attractive wherein it is stated that the purpose of
acquisition of this land is not only to accommodate the oustees of the land
owners whose land was acquired for construction of Missing Link-I, the
acquired land shall be used to provide shelter to the appellants and others
who will be divested of their land. In this behalf, it is stated that all
949 land owners will be entitled for allotment of plots as per the oustees
policy.
33) It is also to be borne in mind that out of 949 land owners, whose
land is sought to be acquired by the instant impugned notification,
majority of them, numbering 901 persons, have raised no objection to the
acquisition and even accepted the compensation. Only 48 affected persons
challenged the notification before the High Court. After the High Court
dismissed the challenge vide impugned judgment, out of these 48 only 15 had
preferred to come to this Court. We have also noted that as per the
oustees policy of rehabilitation, all persons who have built up structures
over the land, will be entitled for allotment of plot. There were 128
structures on the Missing Link-II and 36 structures in the urban estates.
Therefore, 164 structure holders will be entitled for allotment of plots.
Besides this, all 949 land owners will be entitled for allotment of plots
as per the oustees policy. As per the plan for the area which is placed by
the appellants at the time of hearing, there are in total 452 residential
plots only in the urban estates which will be, by and large, sufficient for
rehabilitation of the eligible allottees. It was also brought to our
notice that the Government is providing free registration/zero stamp duty
if the land owners purchase land within Punjab, equal to the amount of
compensation received, within two years from the date of receiving of
compensation. Several land owners, who have received compensation, had
already availed this benefit. For all these reasons, we would not like to
go into the validity of challenge made to the second notification.
34) At the same time, it is necessary to reflect upon some pertinent
aspects of the case which were highlighted by the appellants. An attempt
was made by the appellants to show that there is vacant agricultural land
nearby which is more suitable for the purpose for which appellants land is
sought to be acquired. On this basis, a suggestion was mooted that the
Government should consider acquiring the said land nearby as there is
vacant agricultural or barren land nearby. It was also argued that the
notification acquiring land for the Missing Link road is for an area of
approx. 74.52 acres. Yet, more than 55.41 acres of land has been acquired
for adjusting the oustees of the said road. Thus, the acquisition is for a
far greater area than what was required even as per the stated public
purpose inasmuch as 55.41 acres of land are sought to be given to those
from whom 74.52 acres of land was taken. However, it is not for this Court
to consider as to which particular piece of land is more suited for
acquisition by the authorities. Likewise, though, prima facie, it appears
that acquisition of 55.41 acres of land to rehabilitate the oustees whose
land acquired measuring 74.52 acres is quite substantial, it is not for
this Court to decide as to what should be the extent of land that needs to
be acquired for this purpose. It is for the Government to look into these
aspects. For this purpose, we give liberty to the appellants to make a
suitable representation to the respondents in this behalf within a period
of 30 days from today. If such a representation is preferred, the same
shall be considered in accordance with law and decision thereupon shall be
taken within 2 months from said representation. However, this liberty of
making representation is going only to the appellants herein, which benefit
shall not enure to those who have not approached this Court. We also
expect that the Government shall take a pragmatic view and would not
consider the representation with closed mind. While deciding the
representation, the authorities will particularly consider the following
aspects:
(a) Whether the land of the appellants herein, keeping in view the total
area involved, be released as not required if the remaining land is
sufficient for the purpose for which the said land is acquired?
(b) Even if some more land is needed for the stated purpose, whether it
would be possible to release the land of the appellants and acquire vacant
agricultural or barren land nearby which may be more suitable?
(c) It may also be kept in mind that the land of the appellants is not
only Abadi land, the appellants have their residential houses or
industrial/commercial premises as well.
(d) The authorities may also keep in mind the location of the land of the
appellants and consider as to whether different chunks of land owned by the
appellants are scattered in between rest of the land acquired and on that
count, is it possible or not to hive off the land of the appellants?
35) However, we make it clear that while affording this opportunity to
the appellants to make a representation, we are not providing fresh cause
of action to the appellants, though, we expect the respondents to consider
the representation with open mind.
36) The upshot of the aforesaid discussion would be to allow these
appeals partly in the manner indicated above. However, there shall be no
order as to costs.
.............................................J.
(ANIL R. DAVE)
.............................................J.
(A.K. SIKRI)
NEW DELHI;
MARCH 25, 2015.
-----------------------
[1]
(2000) 1 SCC 533
[2] (2002) 4 SCC 666
[3] (2000) 7 SCC 296
[4] (2013) 4 SCC 210
[5] (2013) 8 SCC 99
[6] (1992) 2 SCC 168