Mangat Singh and ors. vs State of Punjab

A.L. Bahri, J.

Vide this order two writ petitions (Civil Writ Petition Nos. 8856 and 13886 of 1991) are being disposed of as the same notification issued under the provisions of the Land Acquisition Act (for short called ''the Act'') is under challenge in these petitions. Broad facts are taken from Civil Writ Petition No. 8856 of 1991.

A sugar mill was to be set up in district Patiala. The state of Punjab constituted a Site Selection Committee under the Chairmanship of Managing Director, Sugarfed (respondent No. 2). The committee was to select suitable site for installation of be sugar mill. The guidelines to be kept in view for the purpose are contained in Annexure P.1. The meeting of the Selection Committee took place on May 21, 1990 in the office of the SubDivisional Magistrate, Samarla. There were four proposals for consideration before the Committee with respect to the following sites :

(1) Lalwa, (2) Deogarh Hariphari and Harion, (3) Salwala, and (4) Khanewal Badalgarh.

The Committee selected site at Deogarh Hariphari and Harion. Copy of the proceedings of the Committee is Annexure P.2. In this writ petition the petitioners are landowners of village Harion whereas in the connected writ petition the petitioners are landowners of Deogarh Harphari and Harion. The Panchayats of the villages opposed setting up of the sugar mill at the selected site. About 40 Panchayats passed resolution in this respect. Names of different Panchayats were mentioned in the writ petition. According to the petitioners site in village Khanewal was most suitable for installation of the sugar mill as the sugarcane was easily available there. The rightholders of that village had given in writing that they had no objection if their land was acquired on reasonable compensation. The land of Khanewal fulfils all the guidelines given in Annexure P.1, whereas the land of village Harion did not fulfil the guidelines. Different points we mentioned in the writ petition on this subject. Representation was also made to the Governor of Punjab not to accept the recommendations of the Committee. Copy of the representation is Annexure P.3. The former Chairman of the Market Committee, Patran, also addressed a letter to the Governor, Punjab, on May 2, 1991, with copies to the Chief Secretary, Punjab, and Managing Director of the Sugarfed requesting or setting up of the mill at Khanewal. It was asserted that the site in dispute was selected for extraneous consideration and under political pressure. The Deputy Commissioner who was member of the Committee was influenced by the businessmen of Patran. Shri Baldev Singh Loomba, former M.L.A. also influenced the selection of the site in dispute through Shri C.L. Bains, IAS. The State Government issued notification Annexure P.5 intending to acquire 75 Acres, 6 Kanals and 18 Marlas of land of villages Harion Khurd, Deogarh and Hamjheri. The notification is dated May 7, 1991 under section 6 of the Act which is under challenge.

State of Punjab contested the writ petition by filing written statement, inter alia, alleging that earlier some of the landowners had filed Civil Writ Petition No. 7201 of 1991 (Nirmal Singh and others v. State of Punjab) which was dismissed on May 15, 1991. On that account the present writ petition ",its not maintainable. The petitioners could not challenge the decision of the State Selection Committee which decided to set up sugar mill in Patran. The project to instal sugar mill was of urgent nature and the provisions of Section 17(2) of the Act were rightly invoked. Civil Writ Petition No. 5173 of 1991, (Puran Singh and others v. State of Punjab etc.) decided on May 27, 1991, was pressed into service in this respect. On merits, the allegations of the petitioners were denied. The petitioners would be paid compensation for the houses constructed by them on the land to be acquired. Though the petitioners were small landowners, they were to be suitably compensated and they would not lose their means of livelihood. A correct decision was taken to set up the mill in Patran after taking into consideration three other projects by the Site Selection Committee. The offer made by the Panchayat at of village Khartoum for setting up the sugar mill in that village was of no consequence in view of the decision of the Site Selection Committee. Other grounds were denied.

We have heard learned counsel for the parties and we find that the procedure followed in the present case in the matter of acquisition was not in accordance with the Act. Copy of the notification published under section 4 of the Act was subsequently filed. The aforesaid notification is dated May 7, 1991 and was published in the Punjab Government Gazette (Extra) dated May 7, 1991 intending to acquire the land in dispute. This notification further contains a declaration for invoking the provision of Section 17(2)(c) of the Act with the direction to the Land Acquisition Collector, Samana, to proceed to take possession of the land described in the notification. Notification under section 6 of the Act is also dated May 7, 1991 under the signatures of the Secretary to the Government, Punjab. However, it was published in the Punjab Gazette on May 10, 1991. Similar declaration to invoke the provision of Section 17(1)(c) of the Act was contained therein. These copies of the Gazette notifications were produced along with an application (C.M. No. 7744/1991) which were taken on the record.

As already stated above, decision to set up the sugar mill in Punjab by the Site Selection Committee was taken in May 1990 whereas notification aforesaid intending to acquire land for the sugar mill was issued in May 1991. If the State had taken a full one year to finalise the decision to set up the sugar mill in Patran, it could have waited for a period of 30 days more, which is required to be given to the owners to raise objections under section 5A of the Act.

The Supreme Court in State of Punjab v. Gurdial Singh and others, A.I.R. 1980 Supreme Court 319, observed as under

"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 preemptive 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 authority should not, having regard to Articles 14 (and 19), burks and enquiry (Shirk and enquiry ? ?) under Section 17 of the Act."

It was further observed :

"Where the Government sought to acquire particular land for establishing a grain market, then gave it up and selected another piece of land but ultimately acquisition of the latter was declared mala fide by the High Court and seven years thereafter the Government again sought to acquire the same land under emergency powers under Section 17, it could not be said that the invoking of the section is justified."

Relying upon the aforesaid decision of the Supreme Court this Court also in Kartar Singh & others v. The State of Haryana and another, 1986 P.L.J. 464 : 1986 R.R.R. 225, quashed the notification invoking urgency provisions under section 17(4) of the Act. The land was sought to be acquired for constructing godowns for the Food Corporation of India which purpose could not be said to be so pressing or urgent that the authorities could not even afford to hear the objections of the claimants in terms of section 5A of the Act. The position in the present case is also similar that when the State had taken so long for deciding to set up sugar mill on the site in dispute, it could pot be said that it could not wait for another period of 30 days to enable landowners to file objections under section 5A of the Act.

Learned counsel for the respondents have referred to two decisions of the Supreme Court (Smt. Somawanti and others v. The State of Punjab and others, A.I.R. 1963 Supreme Court 151 and Babu Singh and others v. Union of India and others, A.I.R. 1979 Supreme Court 1713), in support of their contentions that notifications under sections 4 and 6 could be issued and published simultaneously on the same day. It is not necessary to refer to these two cases in detail as these cases have been distinguished by a later decision of the Apex Court in State of Uttar Pradesh v. Radhey Shyam Nigam and others, 1989(2) R.R.R. 220 : A.I.R. 1989 Supreme Court 682, a decision after enforcement of the amended Act of 1984. Relevant observations from para 14 are noticed as under:

"It is true that the expression after the date of publication of the notification'' introduced in Section 4 can be explained away as making no change from the provisions of law by reading it along with the amendment made in Section 4 whereby in different situation in Section 4, the last date of publication of the notice has been determined as the date of the publication of the notification and similarly in Section 6 a date of the publication of the notice has been provided for. But the words after the date of the publication of the notification in subsection (4) of Section 17 read simpliciter clearly indicate that declaration under Section 6 had to be made after the publication of the notification meaning thereby subsequent to the date of the publication of the notification. It appears to us that there is nothing in the scheme of the Act which militates against such a construction. The fact that at times where emergency provisions are invoked emergent action may be taken but in such a situation in view of the state of law that was before it, the legislature had made a conscious change which cannot be explained away merely because this is as a consequence of the changes in Sections 4 and 6 of the Act."

In para 15 of the judgment it was observed which referring to introducing the words after before date of publication of the notification in subsection (4) of Section 17 of the Act by Amending Act of 1984, as under :

"It is true that there were some changes giving the meaning of the date of the publication in Section 4(1) and (2) as well as Section 6(2) of the Act. But for that, there was no need for the use of the expression after the date. If that be the position, then we must accept the interpretation put upon the amended clauses by the High Court in the judgment under appeal. It will, however, be open to the appellants to issue a fresh declaration under Section 6, if so advised, within the period contemplated in the proviso to Section 6(1) of the Act read with its first explanation."

Keeping in view the ratio of the decisions aforesaid, in the facts and circumstances of the present case, notification issued under section 6 and the declaration invoking urgency provisions of Section 17(2) of the Act cannot be sustained in law. As already stated above, both the notifications issued under sections 4 and 6 of the Act were issued on the same day i.e. May 7, 1991 though notification under section 6 of the Act was published 3 days thereafter. However, decision to invoke urgency provisions was taken simultaneously i.e. on the day notifications under sections 4 and 6 of the Act were issued. After amendment of the Land Acquisition Act this procedure was not contemplated as held by the Supreme Court in Radhey Shyam Nigam''s case (supra). Such a decision invoking urgency provisions was expected to be taken after publication of the notification issued under section 4 of the Act.

Annexure R.1 is copy of the judgment in Civil Writ Petition No. 7201 of 1991 (Nirmal Singh and others v. State of Punjab and another), decided on May 15, 1991. No doubt the Writ petition was dismissed with respect to acquisition of land for the sugar mill to be set up in Patran. The present petitioners were not parties to the aforesaid writ petition and, therefore, they are not bound by the decision given therein. The judgments of the Supreme Court which have been discussed above were not brought to the notice of the Bench deciding the aforesaid case, particularly, Radhey Shyam''s case, referred to above. The judgment aforesaid cannot be treated as a precedent to be followed.

Learned counsel for the petitioners referred to the decision of the Karnataka High Court in Gandigeppa Mahadevappa Chikkumbi v. State of Karnataka and others, A.I.R. 1990 Karnataka 2, in support of his contention that all the petitioners and other landowners whose land has been acquired under the impugned notification are left with no other land to fall back for their livelihood and thus the acquisition proceedings would be infringement of the fundamental right guaranteed to the petitioners under Article 19(1)(g) of the Constitution. In Para 8 of the judgment it was observed :

"The impugned action deprived the petitioner of his sole means of livelihood as an agriculturist since it renders him landless. His fundamental right to pursue his avocation is usurped. His right to live is seriously jeopardised. His right to carry on his occupation assured under Article 19(1)(g) of the Constitution is taken away. Acquisition in liberating the petitioner from his unalienable right to avocation is unconstitutional. The impugned action tantamounts to mutation of body from the soul when law is reduced to a fossil."

On the same lines observations were made in para 6 of the judgment. With great respect to the Hon''ble Judge deciding the case aforesaid we are unable to agree to the view expressed. No doubt a citizen has a right of property and he can be deprived of such a right in accordance with law. The provisions of Land Acquisition Act which provide the compulsory acquisition of land are not ultra vires the provisions of Article 19(1)(g) of the Constitution. When the State takes action under the provisions of the Land Acquisition Act for acquiring the land, proper compensation for the land acquired is paid to the owner. Not only the market price is paid but solatium now to the extent of 30% of the market value is also paid on account of compulsory acquisition. The cardinal principle that the rights of the State would have priority over the right of individual citizen is wellknown. The land is acquired under the Land Acquisition Act for a public purpose which is in the interest to the people at large. Merely because one of more or the landowners are to be deprived of their entire agricultural land per se would not make the acquisition proceedings illegal or in violation of the provisions of Article 19(1)(g) of the Constitution.

Learned counsel for the respondents has argued that the respondents have already taken possession of the acquired land and the acquisition proceedings could not be quashed. In support of this contention reliance has been placed on the Full Bench decision in Narinjan Singh and another v. The State of Punjab, through and Secretary to Government Department of Colonization, Punjab, Chandigarh and another, 1985 P.L.R. 358. The ratio of the aforesaid decision cannot be applied to the facts of the case in hand. Compensation for the land is yet to be determined. What was paid to some of the landowners was only compensation for the crops standing on the land which were damaged. At this stage it cannot be said that the land which is under process of acquisition has vested in the State. In Om Nirinjan Singh''s case (supra), after the Collector had made his Award, possession was taken which vested in Government free from all incumbrances and thereafter the acquisition proceedings could not be questioned being colourable exercise of powers. Some report purports to have been recorded with respect to taking over of the possession. Much importance cannot be attached to the same as resort to the emergency provisions was not called for.

For the reasons recorded above, this writ petition is allowed quashing notification issued under section 6 of the Land Acquisition Act Annexure P.5 and declaration invoking urgency provision under section 17(2) of the Act as contained in the notification section 4 of the Act. The remaining part of the notification under section 4 of the Act which is in accordance with law is sustained. The petitioners are allowed 30 days time from today to file objections under section 5A of the Act. There will be no order as to costs.