advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, August 17, 2013

Land Acquisition Actappellant- sec.4 notification, sec.6 and award can be challenged before taking possession with in reasonable time - Notice at locality is mandatory - no company and it's site can be acquired for industrial purpose = Company itself is running an industry on the date of the notification, we are of the view that there is no justification in acquiring a running industrial unit for industrialization of the area.- In view of the above, it is clear that in spite of knowing the specific ground raised by the appellant about the non- publication of the substance of the notification as prescribed under the Act in the locality concerned, neither the State nor the Land Acquisition Collector availed the opportunity of filing reply refuting the same. In such circumstances, we have no other option except to hold that there was no publication of the substance of the notification under Section 4(1) of the Act in the locality which is held to be mandatory. It is also relevant to point out that by effecting such publication in the locality, it would be possible for the person in possession, namely, either the owner or lessee to make their representation/objection in the enquiry under Section 5A. In addition to the same, such person “owner or occupier” is entitled to file their objections within 30 days from the date of publication in the locality and by non-publication of the same in the locality as provided under the Act, the owner or occupier loses his valuable right. For these reasons also, the acquisition proceedings are liable to be quashed.= Under these circumstances, we set aside the impugned order of the High Court dated 08.07.2008 and quash the land acquisition proceedings insofar as the appellant-Company is concerned.

                        published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40657                                   
  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                         CIVIL APPELLATE JURISDICTION

                                      1


                 2 CIVIL APPEAL NO.   6792          OF 2013


                3 (Arising out of SLP (C) No. 19869 of 2008)




M/s V.K.M. Kattha Industries Pvt. Ltd.       .... Appellant(s)

            Versus

State of Haryana & Ors.                                   ....
Respondent(s)





                               J U D G M E N T

P. Sathasivam, CJI.
1)    Leave granted.
2)     This  appeal  is  directed  against  the  judgment  and  order  dated
08.07.2008 passed by the High Court of Punjab &  Haryana  at  Chandigarh  in
CWP No. 13208 of 2007 whereby the High Court dismissed  the  petition  filed
by M/s V.K.M. Kattha Industries Pvt. Ltd.-the appellant-Company.
3)    Brief Facts:
(a)   The appellant-Company is an industrial unit engaged  in  manufacturing
of kattha for various tobacco and non-tobacco products,  having  its  office
at Janti Kalan Road, Post Office Kundli, District Sonipat.  Vide  sale  deed
dated 10.05.1994, the appellant-Company purchased a running industrial  unit
comprised in Rect. No. 75, Khasra No. 25, Rect. No. 80, Khasra Nos. 5/1  and
6/2 total measuring 23 kanals 14 marlas and got it  registered  as  a  Small
Scale Industrial Unit with the  Director,  Industries  Department,  Haryana.
On 05.05.2003, the appellant-Company leased out the running industrial  unit
to one M/s Anand Agro Products.
(b)   On 21.12.2005,  Haryana  Government  Industries  Department  issued  a
notification under Section 4 of the Land Acquisition  Act,  1894  (in  short
‘the Act’) for acquisition of certain lands situated in Village  Kundli  and
Village Sirsa for a  public  purpose,  namely,  for  the  development  of  a
Industrial Estate and the lands belonging  to  the  appellant  Company  were
covered in the said notification.  The declaration under Section  6  of  the
Act was subsequently made on 29.12.2006  and  the  award  was  announced  on
15.07.2007.
(c)   Being aggrieved by the notifications dated 21.12.2005 and  29.12.2006,
the appellant-Company preferred CWP  No.  13208  of  2007  before  the  High
Court.  By order  dated  08.07.2008,  the  High  Court  dismissed  the  writ
petition.
(d)   Being aggrieved of the same, the appellant-Company has preferred  this
appeal by way of special leave before this Court.
4)     Heard  Mr.  Guru  Krishna  Kumar,  learned  senior  counsel  for  the
appellant-Company, Mr. Manjit Singh,  learned  Additional  Advocate  General
for the respondent-State.
Contentions:
5)    Mr. Guru Krishnakumar,  learned  senior  counsel  for  the  appellant-
Company submitted as under:-
(i) The notification under  Section  4  (1)  of
the Act was not published in the  locality wherein the  land  situate  which
prevented the appellant-Company from making objection under  Section  5A  of
the Act.  
(ii)  As the appellant-Company itself is  a  running  industry  on
the date of the notification, the said land cannot be acquired for a  public
purpose, namely, for the development of Industrial Estate.  
(iii)  The  High Court committed an error in  dismissing  the  writ  petition  filed  by  the
appellant-Company herein on the ground that the  same  is  not  maintainable
after the announcement of award, particularly,  when  the  appellant-Company
failed to file any objection under Section 5A of the Act.  
The decisions  of this Court relied on by the High Court are not applicable to  the  facts  of
this case and are distinguishable.
(v)  Inasmuch  as  the  respondent-State
itself has excluded more than 76 acres of land and the appellant is  running
an industry even as on date, it ought to have excluded  and  such  exclusion
would not affect the execution of the Scheme.
6)    On the other hand,  Mr.  Manjit  Singh,  learned  Additional  Advocate
General appearing for the State of Haryana submitted that  inasmuch  as  the
land acquisition authorities have complied with  all  the  formalities,  the
appellant-Company failed to file objection under Section 5A of the  Act  and
the writ petition having been filed in the High Court after passing  of  the
award, the High Court is fully justified in  dismissing  the  writ  petition
filed by the appellant-Company.
7)    We have carefully considered the rival  contentions  and  perused  all
the relevant materials.


Discussion:
8)    Coming to the contention of learned senior counsel for  the  appellant
about the dismissal of the writ petition by the High  Court  on  the  ground
that the same has been filed after passing of the award, 
it  is  brought  to
our notice that all  the  four  cases  relied  on  by  the  High  Court  are
inapplicable to the facts of the present case.  
The  first  decision  relied
on by the High Court is Star Wire (India) Ltd. vs. State of Haryana &  Ors.,
(1996) 11 SCC 698.
 In that case, notification under  Section  4(1)  of  the
Act was published  in  the  Gazette  on  01.06.1976,  award  was  passed  on
03.07.1981 and the   aggrieved parties  filed  writ  petition  in  the  High
Court only on 21.01.1994, i.e. after 13 years.
Second  decision  relied  on
by the High Court in Municipal Council, Ahmednagar &  Anr.  vs.  Shah  Hyder
Beig & Ors., (2000) 2 SCC 48 wherein notification  under  Section  4(1)  was
published on 15.05.1971,  award  was  passed  on  26.04.1976  and  the  writ
petition came to be filed on 21.10.1992, i.e., 21 years after  the  date  of
notification.
Third decision relied on by the High  Court  is  C.  Padma  &
Ors. vs. Dy. Secretary to the Government of Tamil Nadu & Ors., (1997) 2  SCC
627 wherein notification under Section 4(1)  was  published  on  17.10.1962,
acquisition  proceedings  became  final  and   possession   was   taken   on
30.04.1964, compensation was paid and accepted and writ petition  was  filed
after 32 years.
The last decision relied on by the  High  Court  is  Swaika
Properties (P) Ltd. & Anr. vs. State of Rajasthan & Ors., (2008) 4  SCC  695
wherein notification  under  Section  4(1)  of  the  Act  was  published  on
08.02.1984, possession was taken on 17.02.1987 and writ petition came to  be
filed on 10.03.1989.  It is relevant to point out  that  the  writ  petition
came to be filed after two years that too after taking over possession.
9)    In the case on hand,
notification under Section 4(1) of  the  Act  was
published in the official gazette on 21.12.2005,
declaration  under  Section
6 of the  Act  was  issued  on  29.12.2006  and
the  award  was  passed  on 15.07.2007.
Challenging the said award, a writ petition was  filed  by  the
appellant-Company on 20.08.2007, i.e. within 5 weeks of the passing  of  the
award.
It is the assertion of the appellant-Company that possession of  the
said land is still vested with them.   
Taking  note  of  the  above  factual
scenario and of the fact that in the decisions relied on by the High  Court,
there was a huge delay in filing the writ petitions, such as  13  years,  21
years, 32 years and 2 years after taking  over  possession,  hence,  in  the
light of the fact that the appellant-Company has  filed  the  writ  petition
within a reasonable time, namely, within 5  weeks  of  the  passing  of  the
award,  we are of the view that all the 4 decisions referred to  and  relied
on by the High Court are inapplicable to the facts of the present case.  
On
this ground itself, the impugned  order  dismissing  the  writ  petition  is
liable to be set aside.
Accordingly, we hold that the  Writ  Petition  filed
by the appellant herein before the High Court cannot be simply dismissed  on
the ground of delay or laches or filed after  passing  of  the  award.  
The said issue depends upon the facts and circumstances  of  each  case  and  in
view of the fact that the appellant has approached the High Court  within  a
reasonable time, it is but proper for the High Court to go into  the  merits
of the claim of the appellant.
In normal circumstance, the matter has to  go
back to the High Court for consideration of various points raised,  however,
in order to shorten the litigation and of the fact  that  necessary/required
materials are available before this Court, we consider the case of both  the
parties on merits and give our reasons hereunder.
10)   Regarding the  contention  relating  to  publication  of  notification
under Section 4(1) of the Act, it is the claim of the appellant  that  since
the same was not in accordance with the mandate  provided  in  the  Statute,
the appellant-Company was not at all in a position to file  their  objection
under Section 5A of the Act.
11)   In order to answer the above claim, it is  better  to  understand  the
Scheme of the Act and the benefits given to the land owners for which it  is
desirable to extract Sections 4, 5A and 6 of the Act which are as under:

      “4. Publication of preliminary notification  and  powers  of  officers
      thereupon.—
(1) Whenever it appears to the appropriate Government  that
      land in any locality is needed or is  likely  to  be  needed  for  any
      public purpose or for a company, a notification to that  effect  shall
      be published in the Official  Gazette  and  in  two  daily  newspapers
      circulating in that locality of which at least one  shall  be  in  the
      regional language, and the Collector shall cause public notice of  the
      substance of such notification to be given at convenient places in the
      said locality (the last of the  dates  of  such  publication  and  the
      giving of such public notice, being hereinafter  referred  to  as  the
      date of the publication of the notification).

     
(2) Thereupon it shall be lawful for any officer, either generally  or
      specially authorised by such Government in this behalf,  and  for  his
      servants and workmen,—

        [pic]to enter upon and survey and take levels of any land  in  such
        locality;

        to dig or bore into the subsoil;

        to do all other acts necessary to ascertain  whether  the  land  is
      adapted for such purpose;

        to set out the boundaries of the land proposed to be taken and  the
      intended line of the work (if any) proposed to be made thereon;

        to mark such levels, boundaries  and  line  by  placing  marks  and
      cutting trenches; and,

        where otherwise the survey cannot be completed and the levels taken
      and the boundaries and line marked, to cut down  and  clear  away  any
      part of any standing crop, fence or jungle:

      Provided that no person shall enter into  any  building  or  upon  any
   enclosed court or garden attached to a dwelling house  (unless  with  the
   consent of the occupier thereof) without previously giving such  occupier
   at least seven days’ notice in writing of his intention to do so.

      5A. Hearing of objections.—(1) Any person interested in any land which
   has been notified under Section 4, sub-section (1), as  being  needed  or
   likely to be needed for a public purpose or for  a  company  may,  within
   thirty days from the date of the publication of the notification,  object
   to the acquisition of the land or of any land in  the  locality,  as  the
   case may be.

      (2) Every objection  under  sub-section  (1)  shall  be  made  to  the
   Collector in writing, and  the  Collector  shall  give  the  objector  an
   opportunity of being heard in person or by any person authorised  by  him
   in this behalf or by pleader and shall, after hearing all such objections
   and after making such further inquiry, if any, as  he  thinks  necessary,
   either make a report in respect of the land which has been notified under
   Section 4, sub-section (1), or  make  different  reports  in  respect  of
   different parcels of such land, to the appropriate Government, containing
   his recommendations on the objections, together with the  record  of  the
   proceedings held by  him,  for  the  decision  of  that  Government.  The
   decision of the appropriate Government on the objections shall be final.

      (3) For the purposes of this section, a person shall be deemed  to  be
   interested in land  who  would  be  entitled  to  claim  an  interest  in
   compensation if the land were acquired under this Act.

      6. Declaration that land is required for a public purpose.—(1) Subject
   to the  provisions  of  Part  VII  of  this  Act,  when  the  appropriate
   Government is satisfied, after considering the report, if any, made under
   Section 5-A, sub-section (2), that any particular land is  needed  for  a
   public purpose, or for a company, a declaration shall  be  made  to  that
   effect under the signature of a Secretary to such Government or  of  some
   officer duly authorised to certify its orders, and different declarations
   may be made from time to time in respect of different parcels of any land
   covered by the  same  notification  under  Section  4,  sub-section  (1),
   irrespective of whether one report or different reports has or have  been
   made (wherever required) under Section     5-A, sub-section (2):

      [pic]Provided that no declaration in respect of  any  particular  land
   covered by a notification under Section 4, sub-section (1)—

        (i)      published after the commencement of the  Land  Acquisition
      (Amendment and Validation) Ordinance, 1967 (1 of 1967), but before the
      commencement of the Land Acquisition (Amendment) Act, 1984,  shall  be
      made after the expiry of three years from the date of the  publication
      of the notification; or

        (ii) published after  the  commencement  of  the  Land  Acquisition
      (Amendment) Act, 1984, shall be made after the expiry of one year from
      the date of the publication of the notification:

      Provided further that no such declaration shall  be  made  unless  the
   compensation to be awarded for such property is to be paid by a  company,
   or wholly or partly out of public revenues or  some  fund  controlled  or
   managed by a local authority.

      Explanation 1.—In computing any of the  periods  referred  to  in  the
   first proviso, the period during which any action  or  proceeding  to  be
   taken in pursuance of the  notification  issued  under  Section  4,  sub-
   section (1), is stayed by an order of a court shall be excluded.

      Explanation 2.—Where the compensation to be awarded for such  property
   is to be paid out of the funds of a corporation owned  or  controlled  by
   the State, such compensation shall be deemed to be compensation paid  out
   of public revenues.

      (2) Every declaration shall be published in the Official Gazette,  and
   in two daily newspapers circulating in the locality in which the land  is
   situate of which at least one shall be in the regional language, and  the
   Collector shall cause public notice of the substance of such  declaration
   to be given at convenient places in the said locality (the  last  of  the
   date of such publication and the giving  of  such  public  notice,  being
   hereinafter  referred  to  as  the  date  of  the  publication   of   the
   declaration), and such declaration shall  state  the  district  or  other
   territorial division in which the land is situate, the purpose for  which
   it is needed, its approximate area, and, where a  plan  shall  have  been
   made of the land, the place where such plan may be inspected.

      (3) The said declaration shall be conclusive evidence that the land is
   needed for a public purpose or for a company, as the case  may  be;  and,
   after making such declaration, the appropriate Government may acquire the
   land in manner hereinafter appearing.”

12)   Among the  above  provisions,  Section  4  of  the  Act  empowers  the
appropriate Government to initiate proceedings for the acquisition of  land.
 Section 4(1) of  the  Act  lays  down  that  whenever  it  appears  to  the
appropriate Government that land in any locality is needed or is  likely  to
be needed for any public purpose or for a company, then  a  notification  to
that effect is required to be published in 
(i) the  Official  Gazette;  
(ii)
two daily newspapers having circulation  in  that  locality  of  which,  one
shall be in the regional language; and 
(iii) it is  also  incumbent  on  the
part of the Collector to cause  public  notice  of  the  substance  of  such
notification to be given at  convenient  places  in  the  locality.   It  is
relevant to mention that the last of the dates of such publication  and  the
giving of such public notice is treated as the date of  the  publication  of
the notification. 
 In terms of Section 4(2), any officer authorized  by  the
Government in this behalf and his servants or workmen  can  enter  upon  and
survey and take levels of any land in such  locality, dig or bore  into  the
subsoil and can do all other acts necessary for ascertaining that  the  land
is suitable for the purpose of acquisition.  The officers concerned can  set
out the boundaries of the land proposed to  be  acquired  and  the  intended
line of the work, if any,  proposed  to  be  made  on  it.   They  are  also
permitted to mark such levels, boundaries and lines  by  placing  marks  and
cutting trenches and can cut down and clear away any part  of  any  standing
crop, fence or jungle for the same purpose.  However,  neither  the  officer
nor his servants or  workmen  can  enter  into  any  building  or  upon  any
enclosed court or garden attached to a dwelling house  without  the  consent
of the occupier and previously giving such occupier at least 7  days  notice
in writing of their intention to do so.
13)   In terms of Section 5A, any person interested  in  any  land  notified
under Section 4(1) may, within 30 days from the date of publication  of  the
notification, submit objection in writing against the  proposed  acquisition
of land or of any land in the locality to the  Collector.   Thereafter,  the
Collector is required to give the objector an  opportunity  of  being  heard
either in person or by any person authorized  by  him  or  by  his  pleader.
After hearing the objections and making such  further  inquiry,  as  he  may
think necessary, the Collector shall make a report in respect  of  the  land
notified  under  Section  4(1)  containing  his   recommendations   on   the
objections and forward the same to the Government along with the  record  of
the proceedings held by him.  It is open to the Collector to make  different
reports in respect of different parcels of land proposed to be acquired.
14)   Keeping the above principles  in  mind,  let  us  consider  the  first
submission made by learned senior counsel for  the  appellant-Company  viz.,
the notification was not in  consonance  with  the  requirements  laid  down
under Section 4(1) of the Act.  Learned senior counsel  for  the  appellant-
Company argued before this Court that in the  light  of  the  language  used
under Section 4(1) of the Act, all the three modes of publication  mentioned
therein are mandatory.  He further asserted that since the notification  was
not published at the conspicuous places of the locality  concerned,  neither
the lessee of the appellant-Company nor the appellant-Company came  to  know
about the same.  It is also asserted that no individual notice  was  served.
In view of the same, according to learned  senior  counsel,  the  appellant-
Company was deprived of its valuable right to file objections under  Section
5A of the Act.  He further contended that, it is  an  opportunity  given  to
the land owners or person in possession of lands to  make  a  representation
under Section 5A of the Act.  To put it clear, the  purpose  of  publication
of the notification is two-fold, first, to ensure  that  adequate  publicity
is  given  so  that  land  owners  and  persons  interested  will  have   an
opportunity to file their objections  under  Section  5A  of  the  Act,  and
second, to give the land owners/occupants a notice that it shall  be  lawful
for any officer authorized by the government to  carry  out  the  activities
enumerated in sub-section (2) of Section 4 of the Act.   This  position  has
been reiterated in several decisions of this Court vide Khub  Chand  &  Ors.
vs. State of Rajasthan & Ors., (1967) 1 SCR 120, J&K Housing Board and  Anr.
vs. Kunwar Sanjay Krishan Kaul & Ors., (2011) 10 SCC 714  and  Usha  Stud  &
Agricultural Farms P. Ltd. & Ors. vs. State of Haryana and  Ors.,  (2013)  4
SCC 210.
15)   Learned Additional Advocate  General  appearing  for  respondent-State
asserted that the authorities have complied with  all  the  three  modes  of
publication.   To  test  the  above  statements,  we  verified  the  written
statement of Shri L.B. Verma, District Revenue Officer-cum-Land  Acquisition
Collector, Sonipat filed on behalf of respondent No.  2  herein  before  the
High Court.  Though in para 6,  it  is  stated  that  the  notification  was
published in two daily newspapers, namely, National Herald dated  02.01.2006
in English and Amar Ujala in Hindi dated 31.12.2005 but there is no  whisper
about the publication of the substance of the notification in  the  locality
as provided under Section 4(1) of the Act.  Except the  above  said  written
statement dated 15.11.2007, no other material such as counter  affidavit  or
reply had been projected before the High Court as well as before this  Court
in support of their stand.  In fact, on  09.08.2010,  when  the  matter  was
called for hearing, learned counsel appearing for the State  submitted  that
“in view of the counter filed before the High Court, no separate counter  is
being filed here”.  In view of the above, it  is  clear  that  in  spite  of
knowing  the  specific  ground  raised  by  the  appellant  about  the  non-
publication of the substance of the notification as  prescribed  under   the
Act in the locality concerned, neither the State nor  the  Land  Acquisition
Collector availed the opportunity of filing reply  refuting  the  same.   In
such circumstances, we have no other option except to hold  that  
there  was
no publication of the substance of the notification under  Section  4(1)  of
the Act in the locality which is held to be mandatory. It is  also  relevant
to point out that by effecting such publication in the  locality,  it  would
be possible for the person  in  possession,  namely,  either  the  owner  or
lessee to make their representation/objection in the enquiry  under  Section
5A.  In addition to the same, such person “owner or  occupier”  is  entitled
to file their objections within 30 days from the date of publication in  the
locality and by non-publication of the same  in  the  locality  as  provided
under the Act, the owner or occupier loses his valuable  right.   For  these
reasons also, the acquisition proceedings are liable to be quashed.
16)   Coming to the contention raised by learned  senior  counsel  that  the
appellant-Company  itself  is  running  an  industry  on  the  date  of  the
notification, we  are  of  the  view  that  there  is  no  justification  in
acquiring a running industrial unit for industrialization of the  area.   By
placing acceptable materials, the appellant-Company  has  demonstrated  that
the construction at the site in question is  A-Class  construction  and  the
fact that Rector No. 75 itself, which is a substantial  part  of  the  area,
has been left out from the acquisition, the impugned notifications  qua  the
running industrial unit cannot be sustained in law.
The  appellant-Company,
in support of the same, has also placed  copy  of  the  sanctioned  building
plan  of  the  Company  dated  18.03.1994,  copy  of  the  sale  deed  dated
10.05.1994, copy  of  the  communication  of  the  Director,  Urban  Estates
Development Haryana, Chandigarh dated 23.03.1982, copy  of  the  certificate
by the Haryana Financial Corporation dated 14.05.2003, copy of no  objection
certificate from the Haryana State Pollution Control Board dated  17.10.1996
and copy  of  lease  deed  in  favour  of  M/s  Anand  Agro  Products  dated
05.05.2003.
On going through the materials placed, we  are  satisfied  that
the appellant-Company has established that it is a running  industrial  unit
even prior to the notification under Section 4 of the Act and the  appellant
has established its case on this ground also.
17)   Coming to the last contention, viz., exclusion of more than  76  acres
of land, in the writ petition as well as  in  the  grounds  of  appeal,  the
appellant has furnished details of the area  released  from  acquisition  in
Rector-75 itself which is as under:
S.No. Name of industrial     Khasra No.      Area left from
      Concern                                Acquisition

1.    Natraj Stationery           75/11/2/2        --
      Products Pvt. Ltd.          2/13             1-6
                             12/2/1          1-1

2.    Moja shoes (Pvt) Ltd.  75/11/2         1-6
                             76/16
                             ½               0-6

3.    Haryana Coir (P) Ltd.  75/12/2/1       2-14
                             75/13/1         4-0
                             11/2/1          1-4
                             12/1/1          1-6
                             75/12/2/1       2-14

As rightly pointed out, if the  appellant-Company  had  the  opportunity  of
participating in the enquiry under Section 5A,  it  would  be  open  to  the
Company to make a representation for exclusion like others and  there  would
be every possibility for the State  Government  to  accede  to  the  request
since the appellant-Company is running an industry which is similar  to  the
public purpose for which lands were being acquired.  
During  the  course  of
hearing, learned senior counsel for the appellant has also  brought  to  our
notice an approved sketch about the  excluded  lands  and  location  of  the
appellant-Company which is on the extreme corner of the acquired lands.   In
other words, even if the Government or the authority concerned excludes  the
lands of the  appellant-Company,  there  would  not  be  any  difficulty  in
executing the scheme.  The said claim of the appellant is acceptable.

18)   Under these circumstances, we set aside  the  impugned  order  of  the
High Court dated 08.07.2008  and  quash  the  land  acquisition  proceedings
insofar  as  the  appellant-Company  is  concerned.   The  Civil  Appeal  is
allowed.  No order as to costs.


                                                      ...…………….………………………CJI.

                                 (P. SATHASIVAM)






                              .…....…………………………………J.


                              (RANJANA PRAKASH DESAI)




                            …....…………………………………J.


                              (RANJAN GOGOI)
NEW DELHI;
AUGUST 16, 2013.
-----------------------
19


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.