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Land Acquisition Act – Sec.5 A and sec. 6 – on objections under sec. 5 A the land acquisition collector exempted the land from acquisition as the buildings are in existence as per policy- Despite of the report with out furnishing valid reasons, the Govt. proceeded with acquisition of lands is not valid and Acquisition is void – but High court come to wrong conclusion that the buildings are not approved buildings with out giving any validity of report of collector which is final one as per settled law – Apex court set aside the orders of High court = VINOD KUMAR ……… APPELLANT Vs. STATE OF HARYANA AND ORS. ……… RESPONDENTS = 2014 ( January part)judis.nic.in/supreme court/filename=41186

Land Acquisition Act – Sec.5 A and sec. 6 – on objections under sec. 5 A the land acquisition collector exempted the land from acquisition as the buildings are in existence as per policy- Despite of the report with out furnishing valid reasons, the Govt. proceeded with acquisition of lands is not valid and Acquisition is void – but High court  come to wrong conclusion that the buildings are not approved buildings with out giving any validity of report of collector which is final one as per settled law – Apex court set aside the orders of High court =

 

The  appellant  filed  a

      detailed objection under Section 5A of the Act  categorically  stating

      that the appellant has raised an A Class construction on the concerned

      area in the year 1999-2000 and therefore, inclusion of  the  land  for

      the purpose of acquisition is not  justified.  In  the  meanwhile,  on

      10.03.2008, the said land was released by the Authority in  favour  of

      Ritwiz Builders and Developers Pvt. Ltd. However, on  15.09.2008,  the

      Land Acquisition Collector  considered  the  objection  filed  by  the

      appellant under Section 5A of the Act and as per his report,  exempted

      the land of the appellant from acquisition since there was  already  a

      residential building on the land on the date of the  notification.  

In

      spite of the report produced by the Land  Acquisition  Collector,  the

      Haryana Urban Development Authority vide notification dated 06.02.2009

      made a declaration that the appellant’s land is to be acquired for the

      development of residential and commercial Sector Nos. 76,77 and 78 for

      which the notification was initially issued on 07.02.2008. =

 

Shyam Nandan Prasad & Ors. v.  State

      of Bihar & Ors.[4], this Court observed that compliance of Section  5A

      of the Act is a sine qua non for acquisition of land. This Court  held

      that:

             “10.…..The decision of the Collector is supposedly final unless

             the appropriate Government chooses  to  interfere  therein  and

             cause affectation, suo motu or on the application of any person

             interested in the land. These requirements  obviously  lead  to

             the  positive  conclusion  that  the  proceeding   before   the

             Collector is a blend of  public  and  individual  enquiry.  The

             person interested, or known to be interested, in the land is to

             be served  personally  of  the  notification,  giving  him  the

             opportunity of objecting to the acquisition and  awakening  him

             to such right. That the objection  is  to  be  in  writing,  is

             indicative of the fact that the enquiry into the  objection  is

             to focus his individual cause as well as public cause…..”

 

 

      10.   In the light of the foregoing cases,  it  is  evident  that  the

      government  has  to  consider  the  report  of  the  Land  Acquisition

      Collector while  making  declaration  of  acquisition  of  land  under

      Section 6 of the Act. Further,  if  the  government  is  coming  to  a

      conclusion which is contrary to the report, then the government has to

      provide  appropriate  reason  for  the  same.  The  report   of   Land

      Acquisition Collector is extracted hereunder:-

 

 

      “REPORT U/S 5-A OF SECTOR 76, 77, 78 FARIDABAD-U/S 4 DATED 7.2.2008

 

 

|S. |Name of |Name  |Khasra |Total     |Type of|Whether  |Objec|Reco-mmen|

|No.|Place   |of the|No.    |constructe|Const-r|constru-c|tion |dation   |

|of |and     |Object|total  |d area    |uction |tion     |of   |of L.A.O.|

|Obj|Sector  |or    |land   |          |       |before or|the  |         |

|.  |        |      |       |          |       |after u/s|Petit|         |

|   |        |      |       |          |       |4        |ioner|         |

|1  |2       |3     |4      |5         |6      |7        |8    |9        |

|4  |Farid-pu|      |       |          |       |         |     |         |

|   |r       |      |       |          |       |         |     |         |

|   |76,77,  |      |       |          |       |         |     |         |

|   |78      |      |       |          |       |         |     |         |

|5  |-do-    |Vinod |18/13/3|1200      |A-Class|Prior    |The  |A well   |

|   |        |son of|(4-10) |Sq.yds.   |       |         |appli|laiden   |

|   |        |Birbal|8/2/3  |Residentia|       |         |cant |beautiful|

|   |        |      |(1-16)/|l Kothi   |       |         |has  |residence|

|   |        |      |6-6    |swimming  |       |         |reque|. Hence, |

|   |        |      |       |Pool      |       |         |sted |may not  |

|   |        |      |       |Boundary  |       |         |to   |be       |

|   |        |      |       |Wall      |       |         |get  |acquired.|

|   |        |      |       |          |       |         |his  |         |

|   |        |      |       |          |       |         |house|         |

|   |        |      |       |          |       |         |relea|         |

|   |        |      |       |          |       |         |sed  |         |

|   |        |      |       |          |       |         |from |         |

|   |        |      |       |          |       |         |acqui|         |

|   |        |      |       |          |       |         |sitio|         |

|   |        |      |       |          |       |         |n    |         |

 

 

 

                                                    Sd/-L.A.C.

                                                    15.09.2008”

 

11.   Hence, the declaration made by the Government for acquisition of  land

of the appellant under Section 6 of the Act does not provide any reason  for

arriving at a decision contrary to that of the report produced by  the  Land

Acquisition  Collector.  Therefore,  the  basic  protection  to  which   the

landowners are entitled to under the Act through  Section  5A  is  violated.

Consequently, the process of acquisition of the land  of  the  appellant  is

tainted with mala-fide and therefore, the same is liable to  be  set  aside.

Accordingly, the impugned acquisition notifications under Sections 4  and  6

of the Act in relation to the appellant’s land and the action taken  thereon

are hereby quashed. The impugned judgment and orders of the High  Court  are

set aside.  The appeals are allowed. No costs.

 

  2014 ( January part)judis.nic.in/supreme court/filename=41186       

 

SUDHANSU JYOTI MUKHOPADHAYA, V. GOPALA GOWDA

 

 

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 973-974 OF 2014
(ARISING OUT OF SLP(C) NOS. 14383-14384 OF 2012)

 

 
VINOD KUMAR ……… APPELLANT

Vs.

STATE OF HARYANA AND ORS. ……… RESPONDENTS

 

 

 

J U D G M E N T

 

V. GOPALA GOWDA, J.

 

Delay condoned. Leave granted.
2. These appeals are filed by the appellant questioning the
correctness of the judgment and final Order dated 05.04.2011 passed in
C.W.P. No. 7746 of 2009 and order dated 16.12.2011 passed in Review
Application No. 388 of 2011 by the High Court of Punjab and Haryana at
Chandigarh, urging various facts and legal contentions in
justification of his claim.
3. Necessary relevant facts are stated hereunder to appreciate the
case of the appellant and also to find out whether the appellant is
entitled for the relief as prayed in this appeal.
The appellant is the owner of 5 Kanals 6 Marlas of land out of
which 934 square yards have been left out of acquisition. On
07.02.2008, under the Haryana Urban Development Authority Act, 1977,
the Haryana Urban Development Authority issued a notice for
acquisition of land including that of the appellant for public purpose
namely, for the development and utilization of the land as residential
and commercial purposes. The notification was issued under Section 4
of the Land Acquisition Act, 1894 (in short ‘the Act’) and the Land
Acquisition Collector, Urban Estate, Faridabad, Haryana was authorized
to issue public notice on the substance of notification at convenient
places in the locality. He was also authorized to survey upon the land
and take necessary action regarding the same. The appellant filed a
detailed objection under Section 5A of the Act categorically stating
that the appellant has raised an A Class construction on the concerned
area in the year 1999-2000 and therefore, inclusion of the land for
the purpose of acquisition is not justified. In the meanwhile, on
10.03.2008, the said land was released by the Authority in favour of
Ritwiz Builders and Developers Pvt. Ltd. However, on 15.09.2008, the
Land Acquisition Collector considered the objection filed by the
appellant under Section 5A of the Act and as per his report, exempted
the land of the appellant from acquisition since there was already a
residential building on the land on the date of the notification. In
spite of the report produced by the Land Acquisition Collector, the
Haryana Urban Development Authority vide notification dated 06.02.2009
made a declaration that the appellant’s land is to be acquired for the
development of residential and commercial Sector Nos. 76,77 and 78 for
which the notification was initially issued on 07.02.2008.
4. It is the case of the appellant that while issuing the
notification under Section 6 of the Act, the property adjoining to
the land of the appellant, which belongs to one M/s. Harpreet Food,
was released. Though the respondent Authority has released a portion
of the appellant’s property, some part of the built-up and constructed
portion of the house was not released.
5. The appellant therefore, filed a writ petition before the High
Court of Punjab and Haryana registered as Writ Petition No. 7746 of
2009,
challenging the acquisition of his land by the Authority. The said
petition got tagged along with other similar petitions filed by
different affected parties and the Writ Petition No. 7711 of 2009,
titled New Vidya Niketan Educational Society Vs. State of Haryana &
Ors. was made the lead case.
6. The High Court, after hearing both the parties concluded that in
all the writ petitions, construction was raised in an unauthorized
manner without getting any permission either under the provisions of
the Punjab Scheduled Roads and Controlled Areas Restriction of
Unregulated Development Act, 1963 or under the relevant Municipal
laws. Even then in some cases, relief was granted by releasing some
portion of the land under construction and ordering acquisition of
vacant land. The action taken by the Authority was held perfectly
justified. The Review Application No. 388 of 2011 filed by the
appellant against dismissal of his C.W.P. No. 7746 of 2009 was also
dismissed on 16.12.2011. Hence, these appeals.
7. The learned senior counsel Mr. Pallav Sisodia, appearing on
behalf of the appellant argued that the High Court failed to
appreciate that there was a construction already made by the appellant
for residential purpose. Therefore, as per the policy of the
Government of Haryana, the constructed portion including the amenities
and other built up areas are required to be released from the process
of acquisition. It is the further case of the appellant that the High
Court erred in not appreciating the fact that the Land Acquisition
Collector in his report has mentioned that the land of the appellant
may not be acquired since it has a well–laiden beautiful residence.
The State Government, as per the learned senior counsel, illegally and
in an unauthorized manner, has acquired the land. It is also the case
of the appellant that in a different case having similar facts, the
High Court has passed an Order releasing the lands over which built up
houses were situated. The learned senior counsel of the appellant
further argues that the Government has adopted the ‘pick and choose’
methodology for acquiring land thereby exempting the commercial
establishments from acquisition and discriminating against the
appellant.
8. The learned Additional Advocate General Mr. Manjit Singh,
appearing on behalf of the State contended that the appellant had
illegally raised construction on this land without permission of the
concerned authority. Hence, the appellant cannot now seek exemption
from acquisition on the ground that there is a residential
construction on the land and therefore, the land cannot be acquired.
9. We are inclined to observe that the High Court has erred in
dismissing the writ petition of the appellant as the same is contrary
to the principle laid down by this Court in the following cases :-
In Kamal Trading (P) Ltd. v. State of West Bengal[1], it has
been held as under:-
“14. It must be borne in mind that the proceedings under the LA
Act are based on the principle of eminent domain and Section 5-
A is the only protection available to a person whose lands are
sought to be acquired. It is a minimal safeguard afforded to
him by law to protect himself from arbitrary acquisition by
pointing out to the authority concerned, inter alia, that the
important ingredient, namely, “public purpose” is absent in the
proposed acquisition or the acquisition is mala fide. The LA
Act being an expropriatory legislation, its provisions will
have to be strictly construed.
15. Hearing contemplated under Section 5-A(2) is necessary to
enable the Collector to deal effectively with the objections
raised against the proposed acquisition and make a report. The
report of the Collector referred to in this provision is not an
empty formality because it is required to be placed before the
appropriate Government together with the Collector’s
recommendations and the record of the case. It is only upon
receipt of the said report that the Government can take a final
decision on the objections. It is pertinent to note that
declaration under Section 6 has to be made only after the
appropriate Government is satisfied on the consideration of the
report, if any, made by the Collector under Section 5-A(2). As
said by this Court in Hindustan Petroleum Corpn. Ltd., the
appropriate Government while issuing declaration under Section
6 of the LA Act is required to apply its mind not only to the
objections filed by the owner of the land in question, but also
to the report which is submitted by the Collector upon making
such further inquiry thereon as he thinks necessary and also
the recommendations made by him in that behalf.
16. Sub-section (3) of Section 6 of the LA Act makes a
declaration under Section 6 conclusive evidence that the land
is needed for a public purpose. Formation of opinion by the
appropriate Government as regards the public purpose must be
preceded by application of mind as regards consideration of
relevant factors and rejection of irrelevant ones. It is,
therefore, that the hearing contemplated under Section 5-A and
the report made by the Land Acquisition Officer and his
recommendations assume importance. It is implicit in this
provision that before making declaration under Section 6 of the
LA Act, the State Government must have the benefit of a report
containing recommendations of the Collector submitted under
Section 5A(2) of the LA Act. The recommendations must indicate
objective application of mind.”
(Emphasis laid by this Court)

In the case of Usha Stud and Agricultural Farms Pvt. Ltd. v.
State of Haryana[2], it was held as under:
“30…..Section 6(1) provides that if the appropriate Government
is satisfied, after considering the report, if any, made by the
Collector under Section 5-A(2) that particular land is needed
for the specified public purpose then a declaration should be
made. This necessarily implies that the State Government is
required to apply mind to the report of the Collector and take
final decision on the objections filed by the landowners and
other interested persons. Then and then only, a declaration can
be made under Section 6(1).”
(Emphasis laid by this Court)
Further, in the case of Women’s Education Trust and Anr. v.
State of Haryana & Ors.[3], this Court has held as under:-

“20. What is most surprising is that the High Court did not
even deal with the issue relating to application of mind by the
Government to the report submitted by the Land Acquisition
Collector under Section 5A(2) along with his recommendations.
The documents produced before the High Court and this Court do
not show that the State Government had objectively applied mind
to the recommendations made by the Land Acquisition Collector
and felt satisfied that the land in question deserves to be
acquired for the purpose specified in the notification issued
under Section 4(1). The record also does not contain any
indication as to why the State Government did not consider it
proper to accept the recommendations of the Land Acquisition
Collector. Therefore, there is no escape from the conclusion
that the impugned acquisition is ultra vires the provisions
contained in Section 6 of the Act.”
(Emphasis laid by this Court)
Also, in an earlier case in Shyam Nandan Prasad & Ors. v. State
of Bihar & Ors.[4], this Court observed that compliance of Section 5A
of the Act is a sine qua non for acquisition of land. This Court held
that:
“10.…..The decision of the Collector is supposedly final unless
the appropriate Government chooses to interfere therein and
cause affectation, suo motu or on the application of any person
interested in the land. These requirements obviously lead to
the positive conclusion that the proceeding before the
Collector is a blend of public and individual enquiry. The
person interested, or known to be interested, in the land is to
be served personally of the notification, giving him the
opportunity of objecting to the acquisition and awakening him
to such right. That the objection is to be in writing, is
indicative of the fact that the enquiry into the objection is
to focus his individual cause as well as public cause…..”
10. In the light of the foregoing cases, it is evident that the
government has to consider the report of the Land Acquisition
Collector while making declaration of acquisition of land under
Section 6 of the Act. Further, if the government is coming to a
conclusion which is contrary to the report, then the government has to
provide appropriate reason for the same. The report of Land
Acquisition Collector is extracted hereunder:-
“REPORT U/S 5-A OF SECTOR 76, 77, 78 FARIDABAD-U/S 4 DATED 7.2.2008
|S. |Name of |Name |Khasra |Total |Type of|Whether |Objec|Reco-mmen|
|No.|Place |of the|No. |constructe|Const-r|constru-c|tion |dation |
|of |and |Object|total |d area |uction |tion |of |of L.A.O.|
|Obj|Sector |or |land | | |before or|the | |
|. | | | | | |after u/s|Petit| |
| | | | | | |4 |ioner| |
|1 |2 |3 |4 |5 |6 |7 |8 |9 |
|4 |Farid-pu| | | | | | | |
| |r | | | | | | | |
| |76,77, | | | | | | | |
| |78 | | | | | | | |
|5 |-do- |Vinod |18/13/3|1200 |A-Class|Prior |The |A well |
| | |son of|(4-10) |Sq.yds. | | |appli|laiden |
| | |Birbal|8/2/3 |Residentia| | |cant |beautiful|
| | | |(1-16)/|l Kothi | | |has |residence|
| | | |6-6 |swimming | | |reque|. Hence, |
| | | | |Pool | | |sted |may not |
| | | | |Boundary | | |to |be |
| | | | |Wall | | |get |acquired.|
| | | | | | | |his | |
| | | | | | | |house| |
| | | | | | | |relea| |
| | | | | | | |sed | |
| | | | | | | |from | |
| | | | | | | |acqui| |
| | | | | | | |sitio| |
| | | | | | | |n | |

 

Sd/-L.A.C.
15.09.2008”

11. Hence, the declaration made by the Government for acquisition of land
of the appellant under Section 6 of the Act does not provide any reason for
arriving at a decision contrary to that of the report produced by the Land
Acquisition Collector. Therefore, the basic protection to which the
landowners are entitled to under the Act through Section 5A is violated.
Consequently, the process of acquisition of the land of the appellant is
tainted with mala-fide and therefore, the same is liable to be set aside.
Accordingly, the impugned acquisition notifications under Sections 4 and 6
of the Act in relation to the appellant’s land and the action taken thereon
are hereby quashed. The impugned judgment and orders of the High Court are
set aside. The appeals are allowed. No costs.
………………………………………………………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]

 

………………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
January 28, 2014
ITEM NO.1A COURT NO.11 SECTION IVB
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).14383-14384/2012
VINOD KUMAR Petitioner(s)
VERSUS
STATE OF HARYANA & ORS. Respondent(s)
Date: 28/01/2014 These matters were called on for Judgment today.
For Petitioner(s)
Mr. Pawan Upadhyay, Adv.
Ms. Anisha Upadhyay, Adv.
Mr. Param Mishra, Adv.
Ms. Sharmila Upadhyay,Adv.
For Respondent(s)
Ms. Jyoti Mendiratta,Adv.
Mr. Rajan K.Chourasia ,Adv.
Ms. Anubha Agrawal ,Adv.

 

Hon’ble Mr. Justice V. Gopala Gowda pronounced the judgment of
the Bench comprising of Hon’ble Mr. Justice Sudhansu Jyoti Mukhopadhya
and His Lordship.
Delay condoned.
Leave granted.
The appeals are allowed with no order as to costs in terms of
the signed non-reportable judgment.
Photocopy of the Original Record, if any, submitted during the
hearing of the matter by the learned counsel for the respondent-State be
returned to the learned counsel for the respondent-State.

 

 
[ Neeta ] [S.S.R. Krishna]
Sr. P.A. Court Master
(Signed non-reportable judgment is placed on the file)

———————–
[1] (2012) 2 SCC 25
[2] (2013) 4 SCC 210
[3] (2013) 8 SCC 99
[4] (1993) 4 SCC 255

———————–
– 15 –

 

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