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PUNJAB & HARYANA HIGH COURT
Adarsh Kumar Goel and Gurdev Singh JJ.
Amita Banta And Another
Versus
State Of Uaryana And Others
Civil Writ Petition No. 5878 of 2003,
Decided On : DECEMBER 8, 2009
(B) Land Acquisition Act, 1894, S.48--Public Purpose--Release of Land--Land acquired for utilization of land for residential and commercial sector--90% of notified land released in favour of private builder who applied for licence--Plea that notified purpose was not required to be adhered to or that release to builders amounts to development of State--Is contrary to concept of public purpose under scheme of the Act--Notification of acquisition quashed.
(C) Land Acquisition Act, 1894, S.4, 6 & 48--Public Purpose--Declaration of--Judicial Review--Declaration of public purpose open to judicial review--Affected party not debarred from alleging and showing absence of such purpose--Action of State has to be consistent with declared public purpose--Declared public purpose established to be non-existent--Notification for acquisition of land quashed.
(D) Land Acquisition Act, 1894, S.4, 6 & 48--Public Purpose--Change in--Land Acquisition Act being expropriatory legislation has to be strictly construed--What cannot be done directly cannot be done indirectly--Further, Act being on concurrent list subject, field being occupied by Central Law, State cannot go beyond concept of public purpose under the Act.
(E) Constitution of India, 1950, Art.14, 21 & 300-A--Land Acquisition Act, 1894, S. 4, 6, & 48--Acquisition of Land--Public Purpose--Release of Land--90% of Land released in favour of private builders--Notified public purpose found non existent--Power of acquisition not exercised for public purpose is vitiated by concept of colourable exercise of power--Exercise of such power not only ultravires the Act but also hit by Article 14, 21 and 300-A.
(F) Land Acquisition Act, 1894, S.5-A--Acquisition of Land--Objections--Non-application of mind--No affidavit filed by any of functionaries who dealt decision making at state level to show application of mind to objection filed under Sections 5-A preceding notification under Section 6--Affidavit filed only by collector hardly relevant to show application of mind at level of State Government--Allegation that there was no consideration to objection that in same circumstance, substantial part of notified land was not acquired not rebutted--Held, that there is no valid consideration of objections under Section 5-A vitiating notification under Section 6 of the Act.
(G) Land Acquisition Act, 1894, S.48--Release of land--Power under Section 48--Acquisition of Land for public purpose--Withdrawal from acquisition--Power under Section 48 is executive power and not source of laying down norms beyond of scheme of Act--Said power having regard to scheme of the Act has to be confined to exceptional situations--If acquisition is not permissible for purpose other than public purpose Section 48 cannot be source of power to act beyond scheme of the Act.
(H) Land Acquisition Act, 1894, S.48--Withdrawal from acquisition--Scope of power Section 48--Power of withdrawing from acquisition under section 48 can be exercised only for an unforeseen or uncontemplated situation and not by a planned policy which may be in conflict with declared public purpose or scheme of the Act--Release of land by the State under its policy is beyond the scope of Section 48--It can be annulled and appropriate direction issued to bring out situation existing prior to illegal actions of the State.
Adarsh Kukar Goel and Gurdev Smgh JJ.
1. This order will dispose of Civil Writ Petition Nos. 5878, 6038. 7922, 8515, 8886, 14858 of 2003, 9142, 9155, 9181, 11502 and 11637 of 2004, as all the writ petitions seek same relief of quashing of proceedings for acquisition of land initiated in pursuance of notification dated 13.8.2001 under Section 4 and notification dated 9.8.2002 under Section 6 of the Land Acquisition Act, 1894 (for short, the Act).
2. Case set out in CWP No. 5878 of 2003 is that the writ petitioners purchased land adjacent to Hotel Bristol and DLF Gymkhana Club in Gurgaon in 1990. Acquisition proceedings were earlier initiated vide notification dated 5.10.1984 under Section 4 of the Act, which were challenged by filing CWP No. 1470 of 1985. During pendency of the writ petition, the acquisition proceedings were withdrawn and the writ petition was disposed of as infructuous on 1.5.2000.
3. Thereafter, proceedings were initiated vide impugned notifications. The stated purpose for acquisition is "development and utilization of land for residential and commercial Sector 28 at Gurgaon", by "Haryana Urban Development Authority". The land notified was 36.59 acres. The petitioners raised objections under Section 5-A of the Act, "inter -alia. to the effect that land of the petitioners had 13000 square feet areafor business purposes constructed at cost of Rs. 65 lacs. The petitioners were doing multi business activities and had licences under various laws. Similar land on the other side of road, occupied by Sahara Mall, JMD and Shyam Lal Market was excluded from acquisition. It was also stated that there was policy not to acquire built up area. The objectors had applied for change of land use. The purpose of acquisition could not be fulfilled as the area surrounding the land was being used for commercial complex. The area covered by the notification was not a compact block but comprised scattered pieces of land as per site plan Annexure P.10. No residential colony could be set up as proposed.
4. Grounds raised in the petition for challenging acquisition are that notification under Section 6 of the Act was issued without considering the objections of the petitioners. The notification was not duly published. It has been further stated that substantial portion of area had already been released from acquisition in favour of DLF Construction Company and other persons mentioned in para 17 of the petition, who had influence on Government. The public purpose of development was an eye-wash. The area was surrounded by land belonging to private builder M/s. DLF Universal Limited and acquisition will advanceits pecuniary interest with the help of HUDA. The site was not validly selected. No development plan was prepared in accordance with the Punjab Scheduled Roads and Controlled Areas Restrictions of Unregulated Development Act, 1963 (in short, the 1963 Act) and Haryana Development and Regulation of Urban Areas Act, 1975 (in short. The 1975 Act). The acquisition amounted to benefiting a private builder by leaving out adjacent land from acquisition. The petitioners also tiled rejoinder placing on record further developments that land abutting and behind their land was exempted from acquisition on account of which notified public purpose did not survive. Substantial part of the land covered by the notification was released in favour of persons to whom licences Annexures P. 16 to P. 18 were granted under the provisions of the 1975 Act. There was no objective criteria for release and action of the State was discriminatory. Order of Director Urban Estate Development. Haryana for release of part of acquired land dated 2.5.2003 has been filed as Annexure P.20. Further affidavit dated 26.7.2004 was filed on behalf of the petitioners stating that during pendency of the petition, more land out of the acquired land was released,which was covered by licences Annexures P.23 to P.26. Most of the acquired land having thus been released, there
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