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
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
