Head Notes:
- 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(2)
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).
- 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.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 973-974 OF 2014
(ARISING OUT OF SLP(C) NOS.
14383-14384 OF 2012)
VINOD KUMAR ………
APPELLANT
Vs.
STATE OF HARYANA AND ORS. ………
RESPONDENTS
J U D G M E N T: V. GOPALA GOWDA, J.
1. Delay
condoned. Leave granted.
2. These appeals are filed by the appellant questioning
the correctness of the judgment and final Order dated 05.04.2011 passed in
C.W.P. No. 7746 of 2009 and order dated 16.12.2011 passed in Review Application
No. 388 of 2011 by the High Court of Punjab and Haryana at Chandigarh, urging various
facts and legal contentions in justification of his claim.
3. Necessary relevant facts are stated hereunder to
appreciate the case of the appellant and also to find out whether the appellant
is entitled for the relief as prayed in this appeal.
The appellant is the owner of 5 Kanals 6 Marlas of land out of which 934
square yards have been left out of acquisition. On 07.02.2008, under the Haryana
Urban Development Authority Act, 1977, the Haryana Urban Development Authority
issued a notice for acquisition of land including that of the appellant for
public purpose namely, for the development and utilization of the land as residential
and commercial purposes. The notification was issued under Section 4 of the
Land Acquisition Act, 1894 (in short ‘the Act’) and the Land Acquisition
Collector, Urban Estate, Faridabad, Haryana was authorized to issue public notice
on the substance of notification at convenient places in the locality. He was
also authorized to survey upon the land and take necessary action regarding the
same. The appellant filed a detailed objection under Section 5A of the Act
categorically stating that the appellant has raised an A Class construction on
the concerned area in the year 1999-2000 and therefore, inclusion of the land
for the purpose of acquisition is not justified. In the meanwhile, on
10.03.2008, the said land was released by the Authority in favour of Ritwiz
Builders and Developers Pvt. Ltd. However, on 15.09.2008, the Land Acquisition Collector
considered the objection filed by the appellant under Section 5A of the Act and
as per his report, exempted the land of the appellant from acquisition since
there was already a residential building on the land on the date of the notification.
In spite of the report produced by the Land Acquisition Collector, the Haryana
Urban Development Authority vide notification dated 06.02.2009 made a
declaration that the appellant’s land is to be acquired for the development of residential
and commercial Sector Nos. 76,77 and 78 for which the notification was
initially issued on 07.02.2008.
4. It is the case of the appellant that while issuing
the notification under Section 6 of the Act, the property adjoining to the land
of the appellant, which belongs to one M/s. Harpreet Food, was released. Though
the respondent Authority has released a portion of the appellant’s property, some
part of the built-up and constructed portion of the house was not released.
5. The appellant therefore, filed a writ petition
before the High Court of Punjab and Haryana registered as Writ Petition No.
7746 of 2009, challenging the acquisition of his land by the Authority. The
said petition got tagged along with other similar petitions filed by different affected
parties and the Writ Petition No. 7711 of 2009, titled New Vidya Niketan Educational Society Vs. State of
Haryana & Ors. was
made the lead case.
6. The High Court, after hearing both the parties
concluded that in all the writ petitions, construction was raised in an
unauthorized manner without getting any permission either under the provisions
of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development
Act, 1963 or under the relevant Municipal laws. Even then in some cases, relief
was granted by releasing some portion of the land under construction and
ordering acquisition of vacant land. The action taken by the Authority was held
perfectly justified. The Review Application No. 388 of 2011 filed by the
appellant against dismissal of his C.W.P. No. 7746 of 2009 was also dismissed
on 16.12.2011. Hence, these appeals.
7. The learned senior counsel Mr. Pallav Sisodia,
appearing on behalf of the appellant argued that the High Court failed to
appreciate that there was a construction already made by the appellant for residential
purpose. Therefore, as per the policy of the Government of Haryana, the
constructed portion including the amenities and other built up areas are
required to be released from the process of acquisition. It is the further case
of the appellant that the High Court erred in not appreciating the fact that
the Land Acquisition Collector in his report has mentioned that the land of the
appellant may not be acquired since it has a well–laiden beautiful residence.
The State Government, as per the learned senior counsel, illegally and in an
unauthorized manner, has acquired the land. It is also the case of the appellant
that in a different case having similar facts, the High Court has passed an
Order releasing the lands over which built up houses were situated. The learned
senior counsel of the appellant further argues that the Government has adopted
the ‘pick and choose’ methodology for acquiring land thereby exempting the
commercial establishments from acquisition and discriminating against the appellant.
8. The learned Additional Advocate General Mr. Manjit
Singh, appearing on behalf of the State contended that the appellant had
illegally raised construction on this land without permission of the concerned
authority. Hence, the appellant cannot now seek exemption from acquisition on
the ground that there is a residential construction on the land and therefore,
the land cannot be acquired.
9. We are inclined to observe that the High Court
has erred in dismissing the writ petition of the appellant as the same is contrary
to the principle laid down by this Court in the following cases :-
In Kamal Trading (P) Ltd. v. State
of West Bengal (2012) 2 SCC 25, it has
been held as under:-
“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 Corpn. 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 5A(2) of the LA Act. The recommendations must indicate objective
application of mind.”
(Emphasis laid by this Court)
In the case of Usha
Stud and Agricultural Farms Pvt. Ltd. v.
State of Haryana (2013)
4 SCC 210, it
was held as under:
“30…..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(2)
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).”
(Emphasis laid by this Court)
Further, in the case of Women’s Education Trust and Anr. v. State
of Haryana & Ors.3, this Court has held as
under:-
“20.
What is most surprising is that the High Court did not even deal with the issue
relating to application of mind by the Government to the report submitted by
the Land Acquisition Collector under Section 5A(2) along with his
recommendations. The documents produced before the High Court and this Court do
not show that the State Government had objectively applied mind to the
recommendations made by the Land Acquisition Collector and felt satisfied that
the land in question deserves to be acquired for the purpose specified in the
notification issued under Section 4(1). The record also does not contain any
indication as to why the State Government did not consider it proper to accept
the recommendations of the Land Acquisition Collector. Therefore, there is no escape
from the conclusion that the impugned acquisition is ultra vires the provisions
contained in Section 6 of the Act.”
(Emphasis laid by this Court)
Also, in an earlier case in Shyam Nandan Prasad & Ors. v. State
of Bihar & Ors. (1993) 4 SCC 255 this Court observed that compliance of Section
5A of the Act is a sine qua non for acquisition
of land. This Court held that:
“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…..”
10. In the light of the foregoing cases, it is evident
that the government has to consider the report of the Land Acquisition
Collector while making declaration of acquisition of land under Section 6 of
the Act. Further, if the government is coming to a conclusion which is contrary
to the report, then the government has to provide appropriate reason for the
same. The report of Land Acquisition Collector is extracted hereunder:-
“REPORT U/S 5-A OF SECTOR 76, 77, 78
FARIDABAD-U/S 4 DATED 7.2.2008
S.
No
.
of
Ob
j.
|
Name
of
Place
and
Sector
|
Name
of
the
Object
or
|
Khasra
No.
total
land
|
Total
constructed
area
|
Type
of
Construction
|
Whether
Constructi
on
before
or
after
u/s
4
|
Objec
tion
of
the
Petit
ioner
|
Recomme
ndatio
n
of
L.A.O.
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
4
|
Farid-pur
76,77,
78
|
|||||||
5
|
-do-
|
Vinod
son
of
Birbal
|
18/13/3
(4-10)
8/2/3
(1-16)/
6-6
|
1200
Sq.yds.
Residentia
l
Kothi
swimming
Pool
Boundary
Wall
|
A-Class
|
Prior
|
The
applicant
has
reque
sted
to get his house
released
from
acqui
sition
|
A
well
laiden
beautiful
residence
.
Hence,
may
not
be
acquired.
|
Sd/-L.A.C.
15.09.2008”
11. Hence,
the declaration made by the Government for acquisition of land of the appellant under
Section 6 of the Act does not provide any reason for arriving at a decision
contrary to that of the report produced by the Land Acquisition Collector.
Therefore, the basic protection to which the landowners are entitled to under
the Act through Section 5A is violated. Consequently, the process of
acquisition of the land of the appellant is tainted with mala-fide and therefore, the
same is liable to be set aside. Accordingly, the impugned acquisition
notifications under Sections 4 and 6 of the Act in relation to the appellant’s
land and the action taken thereon are hereby quashed. The impugned judgment and
orders of the High Court are set aside. The appeals are allowed. No costs.
………………………………………………………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
………………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
January 28, 2014
