JUDGMENT
G.R. Majithia, J.
1. This judgment disposes of C.W.P. No. 3269 of 1990 and 21 other connected writ petitions, i.e. C. W. P. Nos. 3270, 3271, 3654, 4668, 4670, 4716, 4743, 4741, 4758, 4865, 4862, 4954, 4972, 5056, 5160, 5041, 5241, 5173, 6591, 12016 of 1990 and 4810 of 1991. In these petitions under Articles 226/227 of the Constitution of India, serious challange has been made to Notification No. LAC (P)/NTLA-87/1914, dated April 21 1987 issued under Section 4(1) of the Land Acquisition Act, 1894 (for short the Act) and Notification No. LAC (P)-NTLA-88/2785, dated April 20 1988, issued by the Haryana Government, Urban Estate Department under Section 6(2) of the Act,
2. Reference to relevant facts has been made from the Pleadings in C. W. P. No. 3269 of 1990 except where it is otherwise necessary to refer to a particular fact in a particular writ petition, it has been so made from the pleadings of that writ petition :-
The process of compulsory acquisition starts with the issuance of a notification under Section 4 of the Act. The object of issuing a notification under Section 4 of the Act is two fold First it is a public announcement by the government and a public notice by the Collector to the effect that the land, as specified therein is needed by the government for the “public purpose” mentioned therein and secondly it authorises the departmental officers of the local authority’ as the case may be, to do all such acts as are mentioned in Section 4(2) of the Act. The notification has to be published in the locality and particularly persons likely to be affected by the proposal have to be on notice that such activity is afoot Sub-section (1) of Section 5A of the Act enables any person interested in any land which has been notified under Section 4(1) of the Act within thirty days from the date of publication to file objection to the acquisition of the land or of any land in the locality, as the case may be Every such objection must be made to the Land Acquisition Collector in writing. Under Section 6 of the Act, a declaration can be issued only after the appropriate Government is satisfied, after considering the report, if any, made under Section 5A(2) that any particular land is needed for a public purpose or for a Company. Consideration of the report under Section 5A(2) will be a condition precedent to a valid declaration under Section 6 of the Act.
3. In the instant case, the land was acquired by the Haryana Government on a request made by the Haryana Urban,, Development Authority (for short, the HUDA). The public purpose specified in the notification under Section 4(1) of the Act is, “for the development utilization of land as residential area under the Haryana Urban Development Authority Act, 1977.” The notification also provided that “any person interested who has any objection to the acquisition of land in the locality, may within a period of 30 days of publication of this notification, file objections in writing before the Land Acquisition Collector.” Some of the petitioners filed objections saying that their land was situated in already developed congested area, that the land was purchased for residential and factory purposes; that they did not own any other residential plot except the ones sought to be acquired; that the acquired land was already developed and populated and the site plan annexed with the petition would show that a big Hospital, Schools, factories, saw mills and pucca houses were already there in the acquired land; that they had set up a saw mill in the said land after getting permission from the Municipality, Jagadhari and also paid House tax; that they also got the licence from the Chief Inspector of Factories for running the saw mill vide Registered No. AMB-S-269/6305 on December 31, 1985 and that their unit is also registered with the Industries Department as S. S. I. Unit; that they have also built up pucca rooms and shed in the factory and made part construction on the rest of the land for their houses it is further averred in the petition that some vacant plots, plots built upto plinth level, some houses and saw mills have been exempted from acquisition, whereas the house and factory of the petitioners have been acquired. The site plan, Annexure P-2 to the writ petition, would show that vacant plots situated in khasra No. 487 and Khasra No. 60 and so many other partly const ucted houses and Saw Mills have been released from acquisition even affer the publication of the notification under Section 6 of the Act. The properties released after the publicition of notification under Section 6 of the Act are shown in brown lines in Annexure P-2. It is averred that the authorities have adopted the policy of pick and choose in releasing some of the land from acquisition and have acted in a mala fide manner. Even the vacant plots which are in the middle of the acquired land have been released from acquisition. Whereas the petitioners’ property which is already developed as a house and a factory and which is adjacent to ESI Hospital and a few yards away from the shopping and Commercial Complex has been acquired. Land notified under Section 4(1) of the Act measures 250.45 acres, whereas the land notified under Section 6 of the Act measures 247 34 acres. The land released from the acquisition before the publication of the notification under Section 6 is shown with the help of blue Jines in the site plan, Annexure P-2 to the writ petition, and the land released from acquisition of the publicat on of notification under Section 6 is shown with the help of brown lines in the said site plan.
4. In the written statement filed on behalf of the State by Shri K. K. Sharma, Land Acquisition Collector, Urban Estate, Panchkula, a preliminary objection was taken that petitioners No. 1 to 3, 6 and 9 did not file objections under Section 5A of the Act. On merits, it was stated that the constructed area of petitioners No. 4 and 8 was released by the Government after considering the objections under Section 5A of the Act filed by them. Land of rest of the petitioners was lying vacant at the time of publication of the notification under Section 4 of the Act and that the area under which the land of the petitioners falls is not developed one. The purpose of acquisition is not so much to provide residential plots of the persons who did not own any residential plot in the State; the man aim of the respondent is rather to restrict unregulated development which leads to creation of alums. For this purpose, HUDA is an implementing agency for the planning made by the Planning Department. A development area should have roads, sewerage, drinking water, street lights, schools, hospitals, parks, market and public utility buildings The land under acquisition does not have the aforesaid facilities. Further, as per the Punjab Controlled Area (Restriction of Unregulated Development) Act, 3963 and Urban Area Act, 1988, no person can make sale, purchase of plots without the permission of the competent authority and without getting permission in land case from the District Town Country Planner. The purchase of the plot by the petitioner is in violation of the provisions of the aforesaid two Acts. It was further averred in the written statement that all the objections received under Section 5A of the Act were duly considered vide personal hearing on the spot on February 10, 1988, Notices under Section 9 of the Act were issued to all the landowners at the addresses available in the revenue record. Award of Khasra numbers 688, 689, 696 and 695 had no been announced as the same khasra numbers were included in the separate writ petition No. 5144 of 1990 in which this Court had stayed acquisition proceedings vide order dated October 10, 1990. Award with respect to the land measuring 173.34 had already been announced on April 17,1990. The other allegations made in the writ petitions were general denied.
5. It will be relevant to reproduce some of the averments made in the writ petition and the corresponding reply to those averments in the written statement: –
AVERMENTS IN THE WRIT PETITION
“7. That respondent issued another notification under Section. 6 of the Land acquisition Act which was published in the official Gazette dt, 20-4-1988. A copy of the notification dated 20 4-3988 is attached as Annexure P-5 with the writ petition. A perusal of this notification would show that land measuring 247.34 acres was acquired vide this notification whereas under Section 4 Notification (Annexure P-l) land measuring 250.45 acres was notified for acquisition. The land released under Section 6 notification has been shown with the help of Blue lines in the site plan P-2. It is pertinent to mention here that respondent released land shown in Brown lour lines in annexure P-2 after the notification issued under Section 6 (Annexure P-5).
10. That Notifications issued by the respondent under Sections 4 and 6 of the Land Acquisition Act Annexure P-l and P-5 respectively are illegal and are liable to be quashed on the following grounds inter-alia :-
(iv) that the acquired land of the petitioners is situated in a thickly populated area behind the ESI Hospital, A perusal of Annexure P2 and P-3 would show that the area is already developed fully. There is no jurisdiction to acquire the same under the notification to construct the house for the development and utilisation of the land as residential area by the Haryani Urban Development, Authority. There is no idea to demolish the good and newly built houses and built another house on that land. So no useful purpose will be served by acquiring the land.
(v) That the notification issued by the Govt. is illegal and against the provisions of the law, equity, good conscious and unconstitutional because some vacant plots, plots built upto plinth level and some houses and Saw Mills built in the locality has been exempted from the acquisition whereas the house and factory of the petitioner have been acquired Thus a great discrimination has been done to the petitioner by the respondent Authorities. A perusal of Annexure P-2 would show that vacant plots situated in khara No. 487 and Khasra No 60 and so many other partly constructed houses and Saw Mills have been released from acquisition even after the publication of notification under Section 6 of the Act. The properties released after publication of notification under Section 6 of the Act and shown in Brown lines in Annexure P-2. Thus the acquisition is violative of Articles 14 and 31 of the Constitution of India.
(vi) That respondent authorities have exercised the power in a colourable manner which has vitiated the whole acquisition proceedings thus warranting the quashing of the same. A perusal of Annexure P-2 would show that the respondent authorities have acted in a mala fide and pick and choose manner while acquiring the land. The land of similarly situated persons have been released after notification under Section 6 of the Act. Even the vacant plots which are in the middle of the acquired land have been left from the acquisition whereas petitioners property which is already developed as a house and factory and which is adjacent to ES I Hospital and a few yards away from the shopping and commercial Complex has been acquired.”
CORRESPONDING REPLY OF AFORESAID PARAS :
“7. That contents of para 7 of the writ petition are not disputed.
10. That in reply to para 10 of the writ petition, it is Submitted that notification issued under Sections 4 and 6 of the Act are legal and valid and constitutional. Grounds are replied as under :-
(iv) that reply of para 5 of the writ petition may please be read as reply of this sub para.
(v) that contents of sub para (v) of the writ petition are wrong, hence denied. Construction/houses were released on the basis of objections filed by the petitioners Under-section 5A of the Act and on the basis of individual merits of each case by the Govt.
(vi) that contents of sub para (vi) are wrong hence denied. Reply of sub para (v) is reiterated.”
6. Thus, the plea of the petitioner that some of the land was released from acquisitions even after the publication of the declaration under Section 6 of the Act has been denied Furthermore, in some cases, vacant plots, plots built upto the plinth level and houses and saw mill in the locality have been excluded from the acquisition, whereas the petitioner’s house and factory have been acquired. The plea of the petitioners that vacant plots situated in Khasra Nos. 487 and 60 and so many other partly constructed houses and Saw Mills have been released from acquisition even after the publication of the notification under Section 6 of the Act has not been denied.
7. Rules 3, 4 and 5 of Order 8 of the Code of Civil Procedure form an integrated code dealing with the manner in which allegations of fact in the petition should be traversed and the legal consequences flowing from its non-compliance. The written statement must deal specifically that each allegation of fact in the petition and when a respondent denies any such fact, he must not do so evasively but answer the point of substance If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. (See in this connection; Badat and Co. Bombay v. India Trading Co., A. I. R. 1964 S. C. 538. The facts stated in the writ petitions which have not been specifically denied will be deemed to be admitted The respondent could not controvert the plea of the petitioners that in the case of the persons who were similarly situated as the petitioners, their plots were released from acquisition even after the publication of the declaration under Section 6 of the Act.
8. I summoned the record of acquisition from the concerned Department and it testifies the averments made in the writ petitions. The extracts of the orders under which the land was released from acquisition after the publication of notification under Section 6 of the Act are appended as Appendices I and II to the judgment. (Appendices omitted-Editor).
9. In the note dated January 20, 1989 written by the Additional Director Urban Estates, it is pertinently mentioned although not in specific language that the objections under Section 5A of the Act far releasing the land from acquisition were arbitrarily dealt with. While in some cases the whole pieces of land-contracted portion as well as adjacent open area-were released, in others only the constructed portion had been released. Release of proportionate open area (alongwith the constructed area) is an accepted practice and a necessity, but in some cases it was not adhered to. Some land was released from acquisition under the orders of the Chief Minister, Haryana dated August 8, 1988 and June, 24, 1989.
10. Declaration under Section 6 of the Act was published on April 20, 1988. Declaration under Section 6 is issued by the appropriate Government only when it is satisfied, after considering the report, if any, made under Section 5A(2) of the Act, that any particular land is needed for a public purpose or for a Company. In the instant case, satisfaction of the Haryana Government under Section 6 was recorded first and the report under Section 5A(2) was made thereafter. The declaration under Section 6 of the Act itself stands vitiated. It will be relevant to reproduce the following observations of the apex Court in Ganga Bishnu Swaika and anOrs. v. Calcutta Pinjrapole Society and Ors., A. I. R. 1968 S. C. 615, (at pp. 618 and 619) :-
“Sub-section (1) provides that when the Government is satisfied that a particular land is needed for a public purpose or for a Company, a declaration shall be made ‘to that effect’. Satisfaction of the Government after Consideration of the report, if any, made under Section 5A is undoubtedly a condition precedent to a valid declaration, for there can be no valid acquisition under the Act unless the Government is satisfied that the land to be acquired is needed for a public purpose or for a Company. But there is nothing in sub-section (1) which requires that such satisfaction need be stated in the declaration. The only declaration as required by sub-section (1) is that the land to be acquired is needed for a public purpose or for a Company. Subsection (2) makes it clear, for it clearly provides that the declaration ‘shall state’ where such land is situate, ‘the purpose for which it is needed’, its approximate area and the place where its plan, if made, can be inspected. It is such a declaration made under sub-section (1) and published under sub-section (2) which becomes conclusive evidence that the particular land is needed for a public purpose or for a Company, as the case may be. The contention, therefore, that it is imperative that the satisfaction must be expressed in the declaration or that otherwise the notification would not be in accord with Section 6 is not correct.”
11. In that case, is question bad arisen whether the satisfaction of the appopriate Government that the land is needed for a public purpose must be mentioned in the notification under Section 6 of the Act itself, and the notification under Section 6 in that case used the words “whereas it appears to the Governor that the land is required” for a public purposes The declaration did not show such satisfaction and the High Court had held the notification under Section 6 per se is in proper form. On appeal, construing the language of the Section 6 of the Act, the apex Court observed as reproduced supra. Thus, the satisfaction of the Governor has to be recorded only after consideration of the report, if any, made under Section 5A of the Act Consideration of the report, if any, made under Section 5A is a condition precedent to a valid declaration under Section 6. In the instant case, declaration under Section 6 itself is vitiated, because on the date when the declaration was published, complete report under Section 5A(2) of the Act had not been received by the Governor. Some of the notified- land had been released from acquisition even after the publication of the declaration under Section 6 of the Act.
12. The plea of the petitioners, detailed and discussed supra, suggests that land of some of the land owners similarly situated as the petitioners was released from acquisition, while that of the petitioners was not released. The ground of exclusion adopted in the case of the petitioner indicates that discrimination is transparent. It is elementary that in all State actions discrimination and arbitrariness has to be ruled out. But, in the instant case, it is writ large. The action of the State cannot be upheld. The policy of the Government has to be uniform and it cannot be allowed to adopt the policy of pick and choose. Such action of the State to pick and choose is arbitrary and violative of Article 14 of the Constitution and has to be struck down being contrary constitutional provisions (See in this connection : Maganbhai Vanarshibhai Patel v. The State of Gujarat and Ors., A.I.R 1976 Gujart 84.
13. For the reasons stated above, these petitions succeed and the declaration under Section 6 of the Act cannot be sustained and is quased. However, I leave the parties to bear their own costs.