VINOD KUMAR Vs STATE OF HARYANA .
Bench: SUDHANSU JYOTI MUKHOPADHAYA,V. GOPALA GOWDA
Case number: C.A. No.-000973-000974 / 2014
Diary number: 5899 / 2012
Advocates: SHARMILA UPADHYAY Vs
JYOTI MENDIRATTA
Page 1
NON-REPORTABLE 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.
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.
Page 2
C.A@SLP(C)Nos. 14383-14384 of 2012
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
- 2 -
Page 3
C.A@SLP(C)Nos. 14383-14384 of 2012
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
- 3 -
Page 4
C.A@SLP(C)Nos. 14383-14384 of 2012
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
- 4 -
Page 5
C.A@SLP(C)Nos. 14383-14384 of 2012
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
- 5 -
Page 6
C.A@SLP(C)Nos. 14383-14384 of 2012
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
- 6 -
Page 7
C.A@SLP(C)Nos. 14383-14384 of 2012
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.
- 7 -
Page 8
C.A@SLP(C)Nos. 14383-14384 of 2012
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
Bengal1, 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
1 (2012) 2 SCC 25
- 8 -
Page 9
C.A@SLP(C)Nos. 14383-14384 of 2012
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,
- 9 -
Page 10
C.A@SLP(C)Nos. 14383-14384 of 2012
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 Haryana2, 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) 2 (2013) 4 SCC 210
- 10 -
Page 11
C.A@SLP(C)Nos. 14383-14384 of 2012
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)
3 (2013) 8 SCC 99
- 11 -
Page 12
C.A@SLP(C)Nos. 14383-14384 of 2012
Also, in an earlier case in Shyam Nandan
Prasad & Ors. v. State of Bihar & Ors.4, 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
4 (1993) 4 SCC 255
- 12 -
Page 13
C.A@SLP(C)Nos. 14383-14384 of 2012
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 Const- ruction
Whether constru- ction before or after u/s 4
Objec tion of the Petit ioner
Reco- mmendatio 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 appli cant has reque sted to get his house relea sed from acqui sitio n
A well laiden beautiful residence . Hence, may not be acquired.
Sd/-L.A.C. 15.09.2008”
- 13 -
Page 14
C.A@SLP(C)Nos. 14383-14384 of 2012
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,
- 14 -
Page 15
C.A@SLP(C)Nos. 14383-14384 of 2012
January 28, 2014
- 15 -
Page 16
C.A@SLP(C)Nos. 14383-14384 of 2012
ITEM NO.1A COURT NO.11 SECTION IVB (For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).14383-14384/2012
VINOD KUMAR Petitioner(s)
VERSUS
STATE OF HARYANA & ORS. Respondent(s)
Date: 28/01/2014 These matters were called on for Judgment today.
For Petitioner(s)
Mr. Pawan Upadhyay, Adv. Ms. Anisha Upadhyay, Adv. Mr. Param Mishra, Adv.
Ms. Sharmila Upadhyay,Adv. For Respondent(s)
Ms. Jyoti Mendiratta,Adv. Mr. Rajan K.Chourasia ,Adv. Ms. Anubha Agrawal ,Adv.
Hon'ble Mr. Justice V. Gopala Gowda pronounced the
judgment of the Bench comprising of Hon'ble Mr. Justice
Sudhansu Jyoti Mukhopadhya and His Lordship.
Delay condoned.
Leave granted.
The appeals are allowed with no order as to costs
in terms of the signed non-reportable judgment.
- 16 -
Page 17
C.A@SLP(C)Nos. 14383-14384 of 2012
Photocopy of the Original Record, if any, submitted
during the hearing of the matter by the learned counsel
for the respondent-State be returned to the learned
counsel for the respondent-State.
[ Neeta ] [S.S.R. Krishna] Sr. P.A. Court Master (Signed non-reportable judgment is placed on the file)
- 17 -