Pratap Singh vs State of Haryana

Nanak Chand Khichi, J.—In this writ petition under Article 226 of the Constitution of India, the petitioners have prayed for the issuance of a

writ, order or direction in the nature of certiorari, prohibition, mandamus etc. restraining the respondents from issuing any fresh Notification under

Section 6 of the Land Acquisition Act, 1894, and for setting aside any such notification if already issued.

The facts of the case as have emerged from the record are as under :

The State Government issued Notification No. 11/14L3, dated January 14, 1991 under Section 4 of the Land Acquisition Act, 1894 (hereinafter

referred to as ''the Act'') for acquisition of land pertaining to village Saniana, Chamar Khera (18.34 Acres) and Pabra, Majra and Kinala (34.86

Acres), for a public purpose namely for constructing link channel from RD 9000L Fatehabad Branch to RD 75000R Pabra Distributory for

improvement of BML Barwala/Sirsa Branch for the purpose of irrigation of uncommand area and for improvement of the command area. The said

notification was published in daily ''Tribune'' dated January 29, 1991 (copy Ann. P.1). The landowners/interested persons were asked to file

objections within a period of 30 days from the publication of this notification. The petitioners being persons interested, filed stereo type objections

on February 27, 1991 in terms of Section 5A of the Act. Copy of one of such objections filed on behalf of Sher Singh petitioner No. 11 is

Annexure P2. According to the petitioners no action was taken on these objection petitions. However, from the perusal of the official file produced

on the direction of the Court, it is found that these objections were rejected being barred by limitation on March 12, 1991. The land is question

was acquired by subsequent notification dated February 18, 1991 under Section 6 of the Act published on 20.2.1991 and it was published in the

''Tribune'' on March 5, 1991. Thereafter, one Raghbir Singh son of Shri Ganga Ram, who was also an interested person being the owner in

possession of some of the land, approached this Court and challenged the acquisition proceedings by way of filing CWP No. 5620 of 1991. While

issuing notice of motion, the Hon''ble Bench was pleased to observe as under :

Notification under Section 4 of the Land Acquisition Act was published in the official Gazette on 14th January, 1991 but it was published in the

''Tribune'' on 29th January, 1991. Notification under Section 6 of the Act has been published on 20th February, 1991 i.e. before the expiry period

of 30 days provided for filing objections under Section 5A of the Act.

In the above said writ petition, it was alleged that some of the landowners personally took the objection petitions to respondent No. 3 on February

28, 1991 but the latter declined to accept the same. Raghbir Singh petitioner in the said writ petition sent the objections by registered post A.D.

which was in fact received on February 28, 1991, but the same was received back with the remarks ""Refused delivery, Back to Sender."" C.W.P.

No. 5620 of 1991 was admitted on June 7, 1991. Instead of contesting the writ petition the respondents vide Notification dated July 8, 1991,

published in official gazette on July 9, 1991, copy whereof is Annexure P.4, withdrew the impugned notification under Section 6 of the Act and the

follow up action thereon. On July 8, 1993, the aforesaid writ petition when came up for regular hearing, was disposed of as having rendered

infructuous in view of the statement of the Deputy Advocate General, Haryana that notification under Section 6 had been withdrawn as intimated

by respondent No. 2 vide his letter dated August 10, 1991. According to the petitioners the aforesaid writ petition was disposed of with a

direction that any future notification under Section 6 can be issued only after hearing objections under Section 5A and deciding the same in

accordance with law. Further, it is the case of the petitioners that a reference was made to respondent No. 3, on August 16, 1993 to which he

furnished reply vide Memo. No. 499/LAC, dated August 20, 1993, copy whereof is Annexure P.6. The petitioners have disputed the correctness

of this reply wherein it was mentioned that the petitioners had filed fresh objections on September 3, 1991 which had been passed on by

respondent No. 3 to the Government with his comments. Thereafter, the then Chief Engineer Canal vide Memo. dated January 13, 1992, intimated

that the objections had been considered at his level and the same were found to be without any weight and were disposed of as such. This has

however been misconstrued by respondent No. 3 as rejection of the petitioners'' objections at the hand of the Government. It is further the case of

the petitioners that there has been noncompliance of the mandatory provisions of Section 5A of the Act and that the order dated January 13, 1992

of the Chief Engineer is totally without jurisdiction. Even if the version given out in Annexure P.6 is taken to be true, it does not construe

compliance with the order of the High Court dated July 8, 1993 (copy Ann. P.5), passed in CWP No. 5620 of 1991. They further challenged the

notification that the respondents had no legal authority to issue notification under Section 6 of the Act and is liable to be quashed being barred by

limitation and that it was issued for extraneous considerations.

The respondents filed the written statement and pleaded that the earlier notification under Section 6 published on February 20, 1991, was

withdrawn and a new notification under Section 6 was issued on January 13, 1992 which was published in the Haryana Government Gazette on

the same date.

The objections raised by the landowners were heard by respondent No. 3 and disposed or in accordance with law. The writ petition filed by

Raghbir Singh was finally disposed of on July 8, 1993 in view of the fact that the earlier notification under Section 6 had already been withdrawn.

When the matter came up for hearing before H.S. Bedi, J., it was felt that from the written statement filed by the respondents, there was some

confusion of facts and the documents annexed do not bear out the facts in the written statement. Thereafter, on the request of Shri N.S. Bhinder,

time was allowed to file a better affidavit giving full details. Reply to the affidavit was also directed to be filed, if any. The affidavit of Shri R.K.

Sharma, Executive Engineer, dated May 10, 1997 was filed. Another affidavit of Shri R.K. Sharma dated July 10, 1997 was filed by the

respondents alongwith the documents because the counsel for the petitioners had not filed reply to the earlier additional affidavit on the ground that

the orders passed were not placed on record and, therefore, he was not in a position to file reply to the additional affidavit filed on May 27, 1997.

On the direction of the Court, the State Government filed the affidavit dated May 27, 1997 of Shri R.K. Sharma to the effect that the petitioners

had filed objections through their counsel and the same were disposed of. Alongwith this affidavit, the respondents produced documents

Annexures R.20 to R.38, copies of the objections filed by the petitioners through their counsel Shri Mohan Lal Aggarwal. Copies of the

Vakalatnamas were also placed on record. From the written statement and the additional affidavits referred to above, the case set up by the

respondents is that since there were certain discrepancies in the acquisition proceedings and these were required to be suitably rectified, therefore,

on the advice of the office of the Advocate General, Haryana, the notification dated July 9, 1991 was issued by the Government of Haryana

whereby the earlier notification dated February 18, 1991 under Section 6 of the Act issued by the State Government and published in Haryana

Government Gazette (Extraordinary) dated February 20, 1991, was ordered to be withdrawn. The Superintending Engineer Bhakhra Canal

Circle, Hisar, vide letter dated July 9, 1991 wrote to respondent No. 3 that since the notification under Sections 6 and 7 with regard to Pabra Link

Channel Canal, having since been denotified, further follow up action be taken. The D.R.O.cumLand Acquisition Collector notified the contents of

the notification in the concerned villages on August 2, 1991 and Munadi was also got done for filing objections under Section 5 and 5A of the Act.

The petitioners then filed objections on September 3, 1991 since the last date for filing the objections was September 2, 1991. That being a

holiday, the objections were treated to have been filed within the prescribed period of limitation of 30 days beginning from August 2, 1991. The

objections were submitted by the petitioners through their counsel Shri Mohan Lal Aggarwal, Advocate Hisar. The objections raised by the

petitioners were disposed of after hearing their counsel in accordance with law. The DROcumLand Acquisition Collector, after considering the

objections sent his recommendation to the Commissioner and Secretary to Government, Haryana. Irrigation Department, Haryana, vide letter

dated October 15, 1991 with a copy to the Engineerinchief, Irrigation Department, Haryana. The Government of Haryana authorised the

Engineerin Chief vide Memo No. 36/24/911, dated January 13, 1992, to take decision of the objections on behalf of the State Government. The

Chief Engineer considered all the objections and the recommendations of the DROcumLand Acquisition Collector, Hisar and vide letter dated

January 13, 1992 informed the DROcumLand Acquisition Collector, Hisar, that the objections of the landowners have no weight except

obstructions in natural drainage for which the Superintending Engineer Bhakra Canal Circle, Hisar has already issued directions to provide suitable

siphons at suitable sites to meet with the demand of the villagers. Thereafter, notification under Section 6 of the Act was published in the official

gazette on the same date i.e. January 13, 1992. It was also published in daily ''Tribune'' and ''Indian Express''. An order under Section 7 of the Act

was issued by the Government of Haryana on January 26, 1992 and was published in the official gazette on January 27, 1992, whereby

respondent No. 3 was directed to take orders for further necessary action towards the acquisition of the land described in the declaration. It was

further averred by the respondents that in the earlier CWP No. 5620 of 1991, filed by Raghbir Singh, the interim stay granted on May 1, 1991,

was vacated by the Division Bench of this Court on June 7, 1991 as the respondents had taken possession of the land on April 18, 1991. The writ

petition filed by Raghbir Singh was rendered infructuous in view of the statement made by the State counsel that the notification under Section 6 of

the Act had already been withdrawn. Raghbir Singh petitioner in the earlier writ petition did not choose to file the writ petition afresh against the

fresh notification dated January 13, 1992. Therefore, the present petitioners cannot take any benefit from the orders dated July 8, 1993, passed in

CWP No. 5620 of 1991. It was further averred that the present writ petition is nothing but only misuse of the process of the Court to deprive the

State Government from land in question on frivolous grounds and the petition is liable to be dismissed.

Counsel for the parties have been heard.

In the first instance Mr. K.K. Jagia, learned counsel for the petitioners has contended that the respondents have not complied with the orders

dated July 8, 1993, passed by V.K. Bali, J. The respondents were directed to issue fresh notices to the petitioners. No fresh notices were issued

by the respondents.

This contention has no force. The earlier notice under Section 6 of the Act dated February 18, 1991 and published in the Official Gazette on

February 20, 1991, was withdrawn. The Land Acquisition Collector notified the contents of the notification in all the concerned villages on August

2, 1991 and Munadi was also got done for filing the objections under Section 5 and 5A of the Act. The petitioners then filed objections on

September 3, 1991 since the last date for filing of the objections was September 2, 1991. This fact is evident from the additional affidavit of Shri

R.K. Sharma. According to the official file dealing with the objections wherein attested copies of the Vakalatnamas and objections are attached.

The D.R.O.cumLand Acquisition Collector after considering the objections jointly filed by the petitioners with other persons, sent his

recommendation to the Commissioner and Secretary to Government Haryana, Irrigation Department, on October 15, 1991. It is pertinent to

mention here that no fresh objections were filed by Shri Raghbir Singh, petitioner in the earlier writ petition i.e. CWP No. 5620 of 1991.

Therefore, consideration of his objections afresh, if any, did not arise. As per the order passed by V.K. Bali, J. he could only be heard if he had

chosen to file fresh objections.

After disposal of the objections, fresh notification under Section 6 of the Act was published in the official gazette on January 13, 1992. Fresh

awards were announced on March 27, 1992 i.e. much prior to the decision of CWP No. 5620 of 1991 in Raghbir Singh''s case. As is apparent

from the order Annexure P.5, Mr. Jagia, counsel for Shri Raghbir Singh pointed out that no notice was received by his client and as such, it was

ordered by the learned Judge that if that be so, notification under Section 6 of the Act would not be issued till such time notice is issued to the

petitioner and he is heard in the matter with regard to objections if the same have been filed and in case the impugned notification was issued

without considering objections under Section 5A or the objections were returned, the Collector would entertain fresh objections. Admittedly,

Raghbir Singh did not choose to file any fresh objections, therefore, the question of deciding the same does not arise. So much so, Raghbir Singh in

that case has not become a party as petitioner in the present writ petition. In view of the clear cut direction of the Court in the judgment Annexure

P.5, the objections by the previous objector if any in the earlier writ petition, were required to be heard if they filed fresh objection, in response to

the fresh notification and the objections which were called for by way of proper publication and Munadi. The earlier writ petition was filed by

Raghbir Singh. The petitioners, as is apparent on the record, had filed fresh objections within limitation and these were considered and disposed of

there and then. The petitioners cannot place reliance on the previous judgment in Raghbir Singh''s case as they had already filed objections before

the disposal of CWP No. 5620 of 1991.

The learned counsel for the petitioners has then argued that the petitioners were not given hearing with regard to the objections raised by them

as required under Section 5A of the Act and as such, the notifications under Sections 6 and 7 of the Act are required to be quashed being illegal.

In support of his contention Mr. Jagia relied upon the decision rendered by the Supreme Court in Farid Ahmed Abdul Samad and another v. The

Municipal Corporation of the City of Ahmedabad and another, AIR 1976 SC 2095, wherein the Supreme Court has held as under :

The heart of Section 5A of the Land Acquisition Act is the hearing of objections and under subsection (2) of that section a personal hearing is

mandatorily provided for. Section 5A does not rest on a person''s demand for personal hearing. The matter may be different if a person whose

property is acquired abandons the right to a personal hearing. Provision of appeal is also not a substitute for personal hearing provided for under

Section 5A of the Land Acquisition Act.

He further relied upon the decision of the Supreme Court rendered in Mandir Sita Ramji v. Governor of Delhi, AIR 1974 SC 1868, wherein their

Lordships observed as under :

A decision by the Government on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper.

The power to hear the objections under Section 5A is that of the Collector and not of the appropriate Government. It is no doubt true that the

recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the

recommendation or to reject it, but the mandatory requirement of the section is that when a person''s property is proposed to be acquired, he must

be given an opportunity to show cause against it. The fact that the Collector is not the authority to decide the objection does not exonerate him

from his duty to hear the objector on the objection and make the recommendation.

There is no dispute with regard to the proposition that personal hearing and disposal of the objections are two different things. The question to be

determined in this case is whether from the facts and circumstances of the case, the petitioners were given hearing before sending the

recommendation by the DROcumLand Acquisition Collector to the Government ?

The respondents by way of filing the additional affidavit of Shri R.K. Sharma averred that proper hearing was given to the petitioners, before

disposing of the objections. By way of filing another additional affidavit of Sh. R.K. Sharma, Executive Engineer, Hisar, it was averred that all the

petitioners now before the Court filed their objections through their counsel duly instructed namely; Sh. Mohan Lal Aggarwal, Advocate, Hisar.

Copies of 18 objection petitions filed on behalf of 34 persons, have been placed on record as Annexures R.20 to R.38 alongwith Vakalatnamas

filed by Shri Mohan Lal Aggarwal, Advocate, Hisar. By way of filing another additional affidavit, it was averred that the objections raised by the

petitioners were disposed of after hearing the learned counsel in accordance with law. After considering the objections, the then Land Acquisition

Collector sent his recommendation to the Commissioner and Secretary to Government Haryana, Irrigation Department vide his letter dated

October 15, 1991. It is pertinent to mention here that the second notification under Section 6 of the Act was published in the official gazette on

January 13, 1992 and also in daily ''Tribune'' and ''Indian Express''. Admittedly, all the petitioners before this Court, had filed objections after the

withdrawal of the notification under Section 6 of the Act. I have perused the official file which also contains the photostat copies of the objection

petitions and Vakalatnamas filed on September 3, 1991. They chose to file the objections. They filed the present writ petition on December 8,

1993 i.e. after a period of more than one year. It is again pertinent to note here that the petitioners have placed on record Annexure P.6. A copy

of the reply of the Land Acquisition Collector, Hisar to the Executive Engineer, Bhakra Canal Circle, Hisar on August 20, 1993. In the relevant

portion of the reply it is mentioned that ""as many as four villagers of village Saniana and 14 landowners of village Chamar Khera submitted

objections on September 3, 1991. Instead of September 2, 1991 being a public holiday, the objections under Section 5A of the Land Acquisition

Act, 1894 so received in this office on September 3, 1991, were considered then and there as per requirement of the Act."" No specific word of

''hearing'' has been mentioned therein but it stands proved on record that the objections were filed by Shri Mohan Lal Aggarwal, counsel for the

petitioners. Thus under the facts and circumstances, the objections were heard on the same day when these were presented before the Land

Acquisition Collector i.e. on September 3, 1991 and thereafter these were dealt with and taken into consideration while making recommendation

on October 15, 1991. Thus hearing was given to the petitioners through their counsel Shri Mohan Lal Aggarwal. No affidavit of Shri Mohan Lal

Aggarwal, Advocate has been filed by the petitioners that the objections were not filed on behalf of the petitioners or he was not heard on

September 3, 1991. So much so, the petitioners themselves did not make any mention in the present writ petition that they ever filed written

objections themselves or through counsel before the Land Acquisition Collector on September 3, 1991. So much so, the petitioners themselves

did not make any mention in the present writ petition that they ever filed written objections themselves or through counsel before the Land

Acquisition Collector on September 3, 1991. Since the petitioners were represented through counsel before the report was submitted to the

Government, therefore, the requirement of hearing for the purpose of enquiry under Section 5A of the Act has been fully complied with.

Shri Jagia, learned counsel for the petitioners then contended that no authorisation can be made by the Government to take further necessary

action for the decision of the case as has been done in the present case while entrusting the matter to the EngineerinChief.

The learned State counsel controverted these submissions of Mr. Jagia. He has placed reliance on the decision rendered in Ambatipudi Rama

Brahmin v. State of Andhra Pradesh, AIR 1957 AP 450 (DB) wherein it has been inter alia held that Government may direct the concerned official

to issue notification and dispense with the provisions of Sections 4 and 5A of the Act. The Government of Haryana has authorised the

EngineerinChief vide Annexure R8 to take necessary action in the matter and to decide the objections on its behalf.

Learned counsel for the petitioners further contended that the land in question was not acquired for public purpose but for extraneous political

reasons. This argument is also without any basis. No material has been brought on record in support of his contention that the land has been

acquired not for constructing link channel from RD 9000L Fatehbad Branch to RD 75000R Pabra Distributory for Improvement of BML

Barwala/Sirsa Branch for the purpose of irrigation of uncommand area for improvement of the command area, to provide irrigation facilities to the

people of the area. The acquisition of land for construction of a canal channel is certainly a public purpose. This Court was informed during

arguments that the entire process for taking over possession of the land, has been completed. Compensation in terms of the three separate awards

has been determined and the amount of compensation has been deposited. The petitioners are not interested for withdrawing the amount but are

interested to prolong the matter. It was further argued that the petitioners are guilty of concealment of material facts from the Court. In the earlier

writ petition, i.e. CWP No. 5620 of 1991 filed by Raghbir Singh, the stay granted in favour of Raghbir Singh was vacated on June 7, 1991 by a

Division Bench of this Court because the respondents had taken possession on April 18, 1991. The petitioners did not make any mention of this

fact in the present writ petition. They also did not make any mention that they had filed objections through Sh. Mohan Lal Aggarwal, Advocate

before the Land Acquisition Collector, Hisar. Thus, they are guilty of concealment of facts from this Court.

After perusal of the pleadings and documents placed on record it appears that with a view to prolong the proceedings by way of filing the

present writ petition after dismissal of the first writ petition filed by Raghbir Singh, the conduct of the petitioners tantamount to misuse of the

process of the Court.

In view of the above discussion, the petitioners are not entitled to the relief prayed for. Consequently, the writ petition is dismissed. However,

the parties are left to bear their own costs.