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Judgment
Jasbir Singh, J.
CM No. 146 of 2011:
Application is allowed and the applicants are ordered to be impleaded as Respondents No. 3 to 6.
CWP No. 8129 of 2010
This order will dispose of two writ petitions, i.e., C.W.Ps. No. 8129 and 10789, both of the year 2010 as common question of law and facts are involved in these cases. For facility of dictating order, facts are being mentioned from CWP No. 8129 of 2010.
Petitioners have filed this writ petition with a prayer to quash a notification issued u/s 4 read with Section 17 of the Land Acquisition Act, 1894 (in short the Act) on February 18, 2010 (P-2) and also to quash declaration issued u/s 6 read with Section 17 of the Act on April 15/16, 2010 (P-4). It is necessary to mention here that vide the notifications, mentioned above, land is going to be acquired for a public purpose, i.e., construction of drain RD 6700/R to connect it with RD 0-8500 outfalling to Bhullar field Drain.
As per admitted facts, the land is going to be acquired to curtail the problem of water-logging in the area in question. It is contention of the counsel for the Petitioner that 9.06 Acres of land is under acquisition and that there is no water-logging problem in that area. To say so, reference has been made to the revenue documents and also the photographs to show that the land is under cultivation. It is further stated that without giving an opportunity of hearing to the Petitioners to file objections u/s 5-A of the Act, land has been ordered to be acquired. Even the land falling in the adjoining Khasra numbers, which do not fall in the alignment of the proposed drain, have been ordered to be acquired.
On May 5, 2011, taking note of above said contention of counsel for the Petitioner, following order was passed by this Court:
Learned Counsel for the Petitioners placed reliance on the judgments of Hon''ble the Supreme Court rendered in the cases of Union of India (UOI) and Others Vs. Mukesh Hans etc., and Essco Fabs Pvt. Ltd. and Another Vs. State of Haryana and Another, , and has, inter alia, argued that before dispensing with objections u/s 5-A of the Land Acquisition Act, 1894 (for brevity, ''the Act'') there has to be application of mind by the competent authority showing that urgency is of such a nature that it cannot even wait for 30 days for inquiry u/s 5-A of the Act.
Notice of motion for 26.5.2010.
Mr. Suvir Sehgal, Additional Advocate General, Punjab, who is present in the Court, accepts notice on behalf of the Respondents. Three copies of the paper book shall be handed over to him during the course of the day by the learned Counsel for the Petitioners.
The Petitioners are granted liberty to file application as and when notice u/s 9 of the Act is issued.
In response thereto, reply has been filed, wherein it is stated that to remove the water logging problem in the area and to construct a drain, the land has been acquired.
Heard counsel for the parties.
At the time of arguments, Shri Doabia restricted his arguments only with regard to challenge of the Petitioners, regarding involving the imposition of the provisions of Section 17 of the Act. Reference in that regard was made to the averments in paragraphs No. 24 and 27 of the writ petition, which reads thus:
That a perusal of Annexure P-2 and P-4 reveal that urgency provisions u/s 17 have been resorted to by the Respondents. The valuable rights of the Petitioners u/s 5-A have been by-passed. This a substantial right of the Petitioners akin to the fundamental rights. The notification fails to show that there were any urgency in carrying out the said acquisition for the proposed drain which merited invoking of urgency measures and taking away the valuable rights of the Petitioners u/s 5-A of the Act. Therefore, the act of the Respondents smacks of malafide and is liable to be set aside.
That Section 17 confers extra ordinary powers on the authorities. By depriving a land owners of the valuable right u/s 5-A a public purpose however laudable cannot be sought to be achieved unless a real urgency or emergency is shown by the government for invoking such provisions. In the present instance there is no reason to invoke the extra ordinary powers u/s 17 by the Respondents. As has been shown above, no public purpose would be achieved by constructing of the proposed drain, leave alone the need to invoke the urgency provisions under section.
In reply, filed by Respondent No. 2, it is only stated that keeping in view onset of the rainy season and acute problem of water-logging being faced in this area, provisions of Section 17 of the Act were invoked. Same is the reply filed at the instance of Respondent No. 1. To the specific averments made in paragraphs 24 and 27 of the writ petition, virtually no reply/explanation has been offered by both the Respondents. It has come on record that the notification to acquire the land was issued on February 18, 2010. Declaration u/s 6 of the Act was issued on April 15/16, 2010. Thereafter, nothing was done. Draft award was sent on July 22, 2010 and it was approved by the competent authority on September 6, 2010. Thereafter, no action has been taken. As per information supplied, even today money to be paid towards compensation to the land owners is not available with the department, as the same has not yet been sanctioned. It is also an admitted fact that Award has not yet been pronounced and the possession is with the Petitioners. If that is so, we are of the view that there was no great urgency that the Respondents could not wait for 30 days to give right to the land owners to file objections u/s 5-A of the Act. Such a practice has been deprecated by the Hon''ble Supreme Court in a Civil Appeal arising out of SLP (c) No. 8939 of 2010 (Dev Sharan and Ors. v. State of U.P. and Ors.) decided on March 7, 2011, wherein acquisition of land to construct a jail by invoking the provisions of Section 17 of the Act was not approved by the Supreme Court by observing as under:
The question is whether in the admitted facts of this case, invoking the urgency clause u/s 17(4) is justified. In the writ petition before the High Court, the Petitioners have given the details of the land holding, and it has also been stated that the entire holding of Petitioners 2, 5, 7, 9, 10, 11 and 13 have been acquired, and as a result of such acquisition, the Petitioners have become landless. From the various facts disclosed in the said affidavit it appears that the matter was initiated by the Government''s letter dated 4th of June, 2008 for issuance of Section 4(1) and Section 17 notifications. A meeting for selection of the suitable site for construction was held on 27th June, 2008, and the proposal for such acquisition and construction was sent to the Director, Land Acquisition on 2nd of July, 2008. This was in turn forwarded to the State Government by the Director on 22nd of July, 2008. After due consideration of the forwarded proposal and documents, the State Government issued the Section 4 notification, along with Section 17 notification on 21st of August, 2008. These notifications were published in local newspapers on 24th of September, 2008. Thereafter, over a period of 9 months, the State Government deposited 10% of compensation payable to the landowners, along with 10% of acquisition expenses and 70% of cost of acquisition was deposited, and the proposal for issuance of Section 6 declaration was sent to the Director, Land Acquisition on 19th of June, 2009. The Director in turn forwarded all these to the State Government on 17th July, 2009, and the State Government finally issued the Section 6 declaration on 10th of August, 2009. This declaration was published in the local dailies on 17th of August, 2009.
Thus the time which elapsed between publication of Section 4(1) and Section 17 notifications, and Section 6 declaration, in the local newspapers is of 11 months and 23 days, i.e. almost one year. This slow pace at which the government machinery had functioned in processing the acquisition, clearly evinces that there was no urgency for acquiring the land so as to warrant invoking Section 17(4) of the Act.
The construction of jail is certainly in public interest and for such construction land may be acquired. But such acquisition can be made only by strictly following the mandate of the said Act. In the facts of this case, such acquisition cannot be made by invoking emergency provisions of Section 17. If so advised, Government can initiate acquisition proceeding by following the provision of Section 5A of the Act and in accordance with law.
Same is the situation in this case. More than one year has elapsed. Possession of the land is still with the Petitioners. Money to be paid towards compensation is not available with the department. If that is so, it was not impossible for the authorities to give 30 days'' time to the land owners to file objections u/s 5-A of the Act, which right has been held to be akin to a fundamental right. We are of the view that such a valuable right cannot be taken away at the whims and fancy of the authorities. For invoking emergency clause, no plausible reason has been given. Otherwise also, we are convinced that to link a drain is not such an urgent work, which will entitle the authorities to invoke the provisions of Section 17 of the Act.
In view of above, these writ petitions are allowed and acquisition under challenge is quashed. However, liberty shall remain with the Respondents to issue fresh notification for acquisition of the land, if need be, as per law.