Vinod Kumar Vs State of Haryana .

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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.

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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

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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

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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

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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

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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

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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.

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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

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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,

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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

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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

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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

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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”

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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,

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January 28, 2014

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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.

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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)

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