Balbir Kaur vs Union Territory, Chandigarh and others

By this order I propose to decide 16 connected Civil Writ Petitions bearing No. 9430, 9491, 9489, 9780, 9781, 10973, 10276, 10113, 10114, 10275, 12086, 13720, 12694, 14145, 15667 of 1992 and 5569, of 1993, as common questions of law and fact are involved in all the writs. The learned Counsel representing the parties also suggest the Court that all these writ petitions should be decided in the manner proposed by the Court. The facts, however, been extracted from CWP No. 9430 of 1992, (Balbir Kaur v. Union Territory, Chandigarh and others).

Challenge herein is to notification dated 27lh of November, 1991, issued u/s 4 of the Land Acquisition Act and follow up declaration issued u/s 6 of the Act dated I2lh June, 1992, Annexures P-1 and P-2 respectively, by respondent-Union Territory, Chandigarh. Petitioner owns Khasra No. 84/22/ 1/2, 21/2, 21/1/1 measuring 2 Kanal 14 Marlas. She constructed a Farm House-cum-Cattle Shed and Poultry Shed which is in existence for the last 20 years. It is, however, her case that Hanimajra was declared notified area vide Chandigarh Administration, Finance department notification dated 12th of April. 1976and certain sections of Punjab Municipal Act, 1911 were extended to this notified area vide notification dated 11th June, 1976. The Chandigarh Administration, vide Gazette notification dated 27th of November, 1991, sought to acquire land measuring 17.63 acres at village Daria and 80.83 acres of land in village Mani Majra (Chandigarh) urider Section 4 of the Land Acquisition Actforapublic purpose namely for Afforestation, by the Forest Department, Chandigarh Administration, Chandigarh. Vide notification aforesaid all those persons interested could file objections u/s 5 wilhin one month from the date of publication. In due course of time i.e. on June 23, 1992 respondent-Union Territory, Chandigarh finally decided to acquire the land fully detailed above and, therefore, issued declaration u/s 6. The acquisition has been challenged on variety of grounds but what has been pressed at the time of arguments is that no proper publication of notification u/s 4 was given, thus, depriving the petitioners of their statutory right of filing objections u/s 5A of the Act as also that the land of petitioners being located in a notified area committee to which Committee the provisions of Punjab Municipal Act, 1911 are applicable, no notification u/s 4 and declaration u/s 6 could at all be issued as also that no public purpose could at all be achieved when the petitioners had already developed the land into farm house''s, nurseries or poultry farms. In other words, it is the case of the petitioners that they were also engaged in the public purpose by developing their land into farm houses, nurseries of poullry farms and the Government could not achieve any public purpose when in achieving the so-called public purpose, public purpose undertaken by the petitioners was to come to an end.

The mailer has been contested on all fronts. However, there is no need at present to give detailed pleadings incorporated in the written statement contesting the claim of the petitioners. As and when necessary, while dealing with the points Raised by Mr. V. Ram Swaroop, reference shall''be made to the same.

Insofar as the contention of learned counsel for the petitioners for non-publication of the notification issued u/s 4 of the Act is concerned, he has brought to the notice of the Court that the very Chowkidar who, as per various documents attached with the written statement is stated to have informed the people by beat of drum has filed an affidavit swearing therein that he had not given any such information by beat of drum to the people in the concerned locality. This very point was raised in connected writ petition which came to be disposed of by me, earlier in point of time. While dealing with that case i.e. C.W.P. No. 9429 of 1992 (Hira Lal and others v. Union Territory, Chandigarh through its Administrator and others) decided on 15-2-1994 with regard to Chowkidar in the said case whose affidavit is exactly the same, as in the present case, this Court observed as follows :--

"Not only this, it has also been mentioned that a copy of the notification had been pasted on the wall of the Dharamshala in Manimajra and that proclamation has been done by beat of empty drum in the streets of village Manimajra. It is thus, apparent that the proclamation was done at prominent places and the only objection with regard to a minor lapse of publication, as raised by the learned counsel for the petitioners that it has not been proved by the respondents as to at which prominent place, the proclamaiion was done, is of no importance. No notice can be taken at this stage of. the affidavit given by Achhra Singh the authenticity of which has been seriously challenged by the learned counsel appearing for the respondents. Otherwise loo. in face of the contents of a copy of Roznamcha it will be very difficult to return to a finding that Achhra Singh had only signed on the asking of somebody and as a matter of fact he had not done any proclamation by beat of empty drum. Even otherwise, this Court is ill-equipped to go into the question of fact which has been seriously disputed and which needs recording of evidence to reach to a definite conclusion. Reliance of the learned counsel appearing for the petitioners on a judgment of the Hon''ble Supreme Court Om Prakash v. State of Haryana 1971 1 RLR , that it is not a rule of general application that the High Court cannot go into the question of fact in peculiar facts and circumstances of the case would not apply. It is true that the High Court is not debarred from going into thequestion of fact but it depends upon the facts of each case and when on the material placed before the High Court, no definite finding can be recorded the parties have necessarily to be relegated to an appropriate forum."

This Court is given to understand by the learned Counsel that the Letters Patent Appeal carried against this judgment met with no success and so is the face of the SLP in the Apex Court. The first contention of Mr. Ram Swaroop is, thus, repelled.

The second point urged by the learned Counsel for the petitioners is lhat the land of the petitioners being located in a notified area committee, no nolificalion u/s 4, followed by declaration u/s 6 could be issued pertaining to the land located in an area to which the provisions of Punjab Municipal Act, 1911 are applicable. Suffice it to say that the matter stands clinched against the petitioners by the Division Bench Judgment of this Court in Partap Chand v. Union Territory and others, (C.W.P. No. 2126 of 1993) decided on 22nd of September, 1995. No other discussion is at all required on this point as well.

In so far as the last contention of Mr. Rain Swaroop is concerned, the same also in view of this Court has no substance as running of the business of/Nurseries, Farm Houses or Poultry Farms or for that matter even a Dairy Farm cannot be said to be public purpose. That apart, it is the positive case of the respondent-administration that all constructions made by the petitioners were without obtaining any permission as was required by virtue of provisions contained in Punjab New Capital (Periphery) Control Act. 1952. That apart, afforestation is not only a public purpose but perhaps the need of the day. All reports of environmentalists and even of Government agencies arc warning the nation of the difficulties the coming generations are going to face if immediate steps are not taken, not only to protect the existing forests but to add to it. The deforestation or abolition of forests is already giving alarming signals to the nation and if the Government has moved in a right direction by acquiring the land (o develop the same into a foresi area, no exception can be had to the same. There is no merit in this contention of the learned counsel as well.

Mr. Ram Samp (Swaroop), however, as a last resort, has contended that Ihose who had made their houses and developed lucrative business, be it nursery, a poultry farm or a dairy, should be aecommodaled, failing which not only that they will lose their home stead but also their livelihood. With a view to impress the Court that when the citizens are ousted in the manner i.e. in pursuance of a scheme and when the land in this manner is acquired, they should be accommodated by providing them an alternative site at least for their residence, he relies upon the observation of the Supreme Court in State of U.P. Vs. Smt. Pista Devi and Others, . He also relics upon the Division Bench judgment of (his Court in CWP No. 8275 of 1995, M/s. Harpreet Shullerings Store and others v. State of Punjab and others, decided on July 2, 1996. The Division Bench in M/s. Harpreet Shuttering Store''s case (supra) observed as follows :--

"However, in view of the law laid down by Hon''ble the Supreme Court, in case the authorities are satisfied that by the acquisition in question, the petitioners would be rendered homeless they would not or could not be compensated in terms of Section 23A of the Act or the authorities in the interest of justice for rehabilitating the displaced persons may frame an appropriate scheme for rehabilitation in accordance with law: rules, justice and good conscience."

This Court, in view of the peculiar facts and circumstances of this case as also in view of the observations of the Division Bench in M/s. Harprect Shutterings Store case (supra), directs the respondents to consider framing of an appropriate scheme for rehabilitation of petitioners in accordance with law, rules, justice and good conscience.

Mr. Ram Swaroop also prays that since these writ pelitions were admitted and stay of possession was granted, the petitioners could not make their reference u/s 18 of the Land Acquisition Act and if they file it now, it may not be entertained on the ground of limitation. He, therefore, prays that this Court should pass an order condoning the delay in filing the reference by the petitioners. In proceedings under Article 226 of the Constitution of India, perhaps this order cannot be passed. However, the petitioners may make reference u/s 18 of the Act by having the benefit of Sections 5 and 14 of the Limitation Act. The Court is sanguine that if any such applications are filed, the Land Acquisition Collector, dealing with the matter would deal with the same in view of the provisions contained in Sections 5 and 14 of the Limitation Act as also sympathetically.

Mr. Ram Swaroop at this stage prays that petitioners may be given some breathing space to vacate the land under their occupation. He contends that in the very nature of things it will take some time to vacate the land as the petitioners had established their houses or nurseries etc. from a very long time. In totality of the facts and circumstances of the case, petitioners arc allowed thirty days from today to vacate the land. It is thereafter only that the Administration will take steps to oust them.

This petition is disposed of accordingly.

Order accordingly.