CWP No. 6015 of 2005. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH.
C.W.P. No. 6015 of 2005.
Date of Decision: 15th December, 2008.
Vinod Kumar Ghai ..Petitioner through
Mr. Arun Jain, Sr. Advocate with
Mr. Amit Jain, Advocate.
Versus
State of Punjab & Ors. Respondents through
Mr. H.S.Mattewal, AG, Punjab with
Mr. Parveen Goel, Addl.AG, Punjab.
Mr. APS Mann, Advocate.
CORAM:
HON’BLE MR. JUSTICE SURYA KANT.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
SURYA KANT, J. [ORAL)
This Civil Writ Petition seeks quashing of the notifications
dated 25.2.2004 and 16.2.2005 [Annexures P1 and P9] issued under
Sections 4 and 6 of the Land Acquisition Act, 1894 [for short ‘the Act’]
whereby land measuring 26 kanals 3 marlas including that of the
petitioner to the extent of his 1/6th share situated in village Dogri
within the municipal limits of Jalandhar City is sought to be acquired
for the construction of 132 KV Sub Station in village Kahanpur
[Village Dogri] by the Punjab State Electricity Board.
Earlier also, the aforementioned land was acquired by the
respondents for the same ‘public purpose’ vide notifications dated
6.4.2000 and 15.6.2001 issued under Sections 4 and 6 of the Act
respectively. The said acquisition proceedings came to be
challenged by the petitioner along with his brother by way of CWP
No. 12194 of 2001 which was allowed by a Division Bench of this
Court vide judgment dated 11.9.2003 [Annexure P-2]. Suffice it to
CWP No. 6015 of 2005. ::-2-::
say that after taking judicial notice of the deliberate “actions and
omissions” on the part of the public officers which frustrated the
acquisition process meant for an important public purpose, this
Court arrived at the conclusion that the award was not passed within
the stipulated period of two years as provided under Section 11-A of
the Act. The Bench further held as under:-
“In the result, the writ petition is allowed. Notifications
dated 6.4.2000 and 15.6.2000 are declared illegal and
quashed. However, keeping in view the fact that the land
of the petitioners was being acquired for a large public
good, we deem it proper to observe that the State
Government shall be absolutely free to re-initiate the
proceedings for acquisition of the land. We also direct the
State Government to initiate disciplinary action against
the Land Acquisition Collector who was responsible for
not pronouncing the award within the prescribed time limit
and submit a report to this Court within six months after
completing the disciplinary proceedings. It will also be
appreciated if the State Government issues written
instructions to all the Land Acquisition Collectors that
they must pronounce the award within the time limit
prescribed under the Act and their failure to do so would
necessarily result in initiation of departmental enquiry for
major penalty”.
It was thereafter that fresh acquisition process was
initiated by issuing the notification dated 25.2.2004 under Section 4
of the Act [Annexure P-1]. The petitioner submitted his objections
under Section 5-A of the Act, inter-alia, pointing out that [i] the
alleged public purpose for which the land is sought to be acquired
has already been successfully achieved by installing 132 KV Sub
Station at village Alawalpuri; [ii] the Senior Engineers of the Board
CWP No. 6015 of 2005. ::-3-::
are of the view that the subject land is no longer required for
establishing a power Sub Station; [iii] the acquired land is an Orchard
where plants of Mango, Orange, Lemon of grown-up age are
standing and no useful purpose will be served by acquiring such
land; [iv] all Sub Stations have been established on a piece of land
measuring not more than one or one and half acres, therefore, the
entire land of the petitioner is not required for the alleged public
purpose.
The objections having not found favour with the State
Government and on the issuance of the resultant notification under
Section 6 of the Act, that the petitioner has again approached this
Court.
Respondents No. 2 and 3, i.e., Punjab State Electricity
Board and its authorities have filed their counter-affidavit. Thereafter,
an additional affidavit dated 27.11.2008 has also been filed by the
Land Acquisition Collector, PSEB, Patiala. The reconstructed records
[original is reported to have been lost] of the office of the Land
Acquisition Collector as well as of the State Government have also
been produced and perused.
Learned counsel for the parties have been heard at some
length.
It is argued on behalf of the petitioner that the entire
acquisition process is vitiated in law for the reason that the
petitioner’s objections have not been dealt with or disposed of in
accordance with the mandatory procedure laid down under Section
5-A of the Act. It is urged that the petitioner was served with a notice
CWP No. 6015 of 2005. ::-4-::
to appear in person on 10.8.2004 by the Land Acquisition Collector
and on submission of additional objections in writing on his behalf by
his counsel on that day, the matter was adjourned to enable the
PSEB authorities to submit their comments on those additional
objections. Thereafter, no opportunity of being heard was ever given
to the petitioner and the objections were sent by the LAC to the State
Government for appropriate decision. Relying upon the order dated
10.8.2004 [Annexure P-4] and the communication dated 8.2.2005
[Annexure P-7], it is contended that the objections submitted by the
petitioner have been rejected by the State Government without there
being any report from the Collector u/s 5A of the Act. To be precise,
it is urged that while the Collector failed to afford an opportunity of
being heard, the objections have been turned down by the Authority
who did not even call for hearing. It is strenuously urged that the
duties of the Land Acquisition Collector under Section 5A are of
quasi-judicial nature and not an empty formality and right of hearing
under Section 5A is akin to fundamental rights as the only
opportunity of being heard before acquisition of one’s land is
envisaged by the said provision. In support of this contention, learned
counsel has relied upon a judgment of this Court Gopal Krishan
Gupta & Ors. V State of Haryana & Ors., 1993 PLJ, 603.
It is then argued that the Board’s own experts, namely,
Additional Superintending Engineer vide his memo dated 9.11.2004
[Annexure P-5] has categorically opined that there is no necessity to
construct the Sub Station at the proposed site. Reference is then
made to a communication dated 9.8.2005 [Annexure P-13] by the
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Chief Engineer [Operations] to the Member [Distribution], PSEB,
Patiala wherein also he has elaborately dealt with the issue of
construction of the proposed Sub Station and then recommended
that “there is no need of the proposed 132 KV Sub Station at
Kahanpur [Dogri]”. Reliance is also placed upon another letter dated
11.11.2005 [Annexure P-14] by the Engineer-in-Chief , Sub Stations,
PSEB informing the Secretary of the Board that there is no need of
the proposed 132 KV Sub Station at Dogri and intimation to this
effect may be sent to the LAC of the Board. The petitioner’s case
appears to be that notwithstanding the recommendations made by
the Senior Engineer of the Board for not acquiring the land, some
officers/higher authorities in the Board, on account of their personal
vendetta, were hellbent to acquire the petitioner’s land and it was
with that ulterior motive that Memo dated 19.12.2005 [Annexure P-
15] was sent to the Additional Superintending Engineer to give his
second opinion as to whether or not the subject land was required for
construction of 132 KV Sub Station at Kahanpur [Dogri], more so
when there were no directions issued by the High Court as wrongly
mentioned in the said letter. Alternatively, it is maintained that all the
Sub Stations have been constructed over land measuring not more
than one or one and half acres whereas the petitioner and his
family’s land measuring more than three acres is sought to be
acquired.
On the other hand, learned counsel for the respondents
have argued that the Competent Authority to take the final decision
as to whether or not the subject land is required for the construction
CWP No. 6015 of 2005. ::-6-::
of the proposed Sub Station is the Secretary and the Chairman of the
Board and not the Engineer-in-Chief or so. It is pointed out that the
recommendations made by the Senior Engineers of the Board in
favour of the petitioner were duly considered by the Competent
Authority but the same did not find favour as the Board had taken a
conscious decision to construct 132 KV Sub Station at Kahanpur
[Dogri] in order to meet the increasing demand of power supply to the
Industries growing in the adjoining areas. Relying upon the records
of the Land Acquisition Collector, it is argued that an opportunity of
being heard was duly afforded to the petitioner who put in
appearance through his counsel. Reference to the notings from the
Government file has also been made in order to show that there was
due application of mind and a conscious decision has been taken as
to why the subject land should be acquired for construction of the
Sub-Station in question. On this premise, learned counsel submitted
that the procedure envisaged by Section 5-A of the Act has been
faithfully complied with.
It is then argued that even if there are no specific
recommendations, either way, by the Collector, the State
Government is not precluded from taking a decision regarding
acquisition of a land. Reference has been made to the judgment of
this Court in Dharam Pal & Anr. V State of Haryana, 2007[4] PLR,
299. Reliance is also placed upon the judgment in Scindia
Employees’ Union v State of Maharashtra & Ors. [1996] 10 SCC,
150 to contend that the scope of inquiry under Section 5-A of the Act
pertains to as to whether the land sought to be acquired is needed
CWP No. 6015 of 2005. ::-7-::
for a public purpose or not.
Having heard learned counsel for the parties, I do not find
any merit in this writ petition. There is no gain in saying that Section
5-A[2] of the Act contemplates observance of natural justice and a
fair procedure by giving an opportunity to the landowners to submit
their objections in writing and then an opportunity of being heard in
person or through a representative or by pleader on such objections.
If the situation so permits, the Collector can hold a further inquiry and
then submit his report/recommendations together with the records of
the proceedings to the State Government, who being the Competent
Authority is required to take a final decision on such objections. It is
true that the procedure provided under Section 5A[2] is not an empty
formality nor the role of the Land Acquisition Collector is that of a
postal authority to receive the objections and pass-on to the State
Government. At the same time, the Collector does not enjoy upon
any adjudicatory powers under sub-Section [2] and he is just to send
his recommendations to the State Government, as held by the
Hon’ble Supreme Court, on the limited issue as to whether or not the
land proposed to be acquired is required for the public purpose. It is
not in dispute that there was a difference of opinion amongst the
Engineers of the Board as to whether or not 132 KV Sub Station is
required to be constructed in Kahanpur [Dogri]. In deed, the record
does suggest that the State Government rejected the objections of
the petitioner under Section 5-A of the Act after accepting the opinion
of the Engineers to the effect that the Sub Station was required to be
constructed and a communication to this effect was sent to the
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petitioner also vide Annexure P-7, followed by the notification under
Section 6 of the Act. It further appears that after the issuance of
notification under Section 6, some of the Engineers working in the
Board recommended that there was no necessity to construct the
Sub Station at the acquired land. Their recommendations were again
considered by the State Government which took a conscious
decision, agreeing with the Secretary/Chairman of the Board that the
Sub-Station in question is required to be constructed.
The construction of a power Sub Station entails huge
expenditure. Its corresponding utility for the public purpose sought to
be achieved, is also to be kept in view. In such like matters,
difference of opinion amongst the functionaries of the acquiring
department is neither unusual nor unexpected. While exercising the
powers of judicial review, this Court would be well within its right to
see as to whether the divergent views have been accepted or
rejected mechanically and/or there is a due application of mind by the
Competent Authority. If one goes through the contents of the
decision taken by the State Government second time, it is manifest
that the decision to construct the Sub-Station has been taken after
due deliberations and not in a casual fashion and/or to deprive the
petitioner of his land.
Adverting to the next contention that after the construction
of a Power Sub-Station at Alawalpur, there is no need to construct
the present Sub-Station, suffice it to say that such like decisions fall
within the domain of the experts and are beyond the scope of judicial
review. The necessity of a public utility is to be seen mainly by the
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State Government or the Board. Both of them have taken a
categoric stand that the Sub-Station is required to be constructed at
the site. It has also been explained that some new industrial units
have been set up in the vicinity and there is a growing demand for
power supply. It is to facilitate the additional demand for the power
supply that a new Sub-Station is required to be constructed at the
site in question. There is nothing on record to suggest that the
respondents would not utilize the land for construction of a Sub-
Station inasmuch as they have got no opportunity to raise the
construction till date as dispossession of the petitioner remained
stayed under the orders of this Court.
Similarly, the contentions that there are some fruit plants
standing over the land or that a lesser area could serve the public
purpose also merit rejection. The award passed by the Land
Acquisition Collector suggests that a compensation of Rs.1170/- has
been granted towards the value of the fruit trees which leaves no
manner of doubt that these were newly planted trees only. So far as
achieving of the public purpose by acquiring a smaller piece of land
is concerned, the respondents have come up with a categoric stand
that the entire land is required not only for the present purpose but
for its future expansion also.
For the reasons aforementioned, I do not find any merit in
this writ petition which is accordingly dismissed, however, leaving the
parties to bear their own costs.
December 15, 2008. ( SURYA KANT ) dinesh JUDGE