TMI Blog2012 (10) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. After finalisation of the plan, the Government of Punjab acquired land of various villages for establishing Chandigarh as the new capital of the State and also constituted various committees including Land Scape Committee for implementing the plan. In the meeting of the Land Scape Committee held on 3.9.1954, the Divisional Forest Officer, Rupar (now Ropar) suggested that the land lying along the right bank of Sukhna Choe and the left bank of Patiala Ki Rao where plantation had been started by the Forest Department should be declared as reserved forest under Section 4 of the Punjab Land Preservation Act, 1900. This was approved by the Land Scape Committee, and Chief Engineer, P.W.D. was asked to furnish the details of the area. On receipt of necessary details of khasra numbers together with the plan of the area, which included residential and commercial plots, preliminary notification under Section 4 of the Indian Forest Act, 1927 was issued by the State Government on 28.2.1956 and final notification under Section 20 of that Act was issued on 3.2.1961 declaring 6724.19 acres land including about 6000 acres land which had already been utilised for construction of the first ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) was subsequently resumed because they failed to set up their units. 8. Out of the remaining land of Phase-II, 135 acres was transferred to the Chandigarh Housing Board (for short, the Board ) vide order dated 15.11.2005/1.12.2005 issued by the Finance Secretary, Chandigarh Administration for development of residential and other infrastructural facilities in the IT Park. The relevant portions of that order are extracted below: 1. The Administrator, Union Territory, Chandigarh-, is pleased to order to the transfer of 135 acres of land in the Chandigarh Technology Park at Kishangarh in favour of the Chandigarh Housing Board, Chandigarh, on free hold basis, for the execution of the project of development and residential and other infrastructural facilities in the said park. The price of the land, details of the land use and other terms and conditions of transfer of this land will be decided later on. 2. The Administrator, Union Territory, Chandigarh is further pleased to designate the Chandigarh Housing Board, Chandigarh as the Nodal Agency for executing the aforesaid project by engaging SBI Caps as consultants who would help fine tune the financial package, as also prepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tocratic Living) to attract prospective buyers of residential and commercial properties, M/s Parsvnath Developers appears to have abandoned the project and raised certain disputes which are pending before the arbitrator. 11. Soon after transfer of almost half of the land acquired for Phase-II to a private developer, Land Acquisition Officer, Union Territory, Chandigarh (hereinafter described as, the LAO ) sent Memo No. Teh.(LA)/LAO/2005/37365 dated 15.12.2005 to the Director, Information Technology, Chandigarh with reference to some meeting held on 9.12.2005 under the Chairmanship of the Finance Secretary-cum-Secretary Information Technology, Chandigarh and asked him to provide the drawing of 50 acres land adjoining the IT Park for facilitating its acquisition. That memo reads under: From The Land Acquisition Officer, UT, Chandigarh. To The Director Information Technology, Chandigarh Administration, Chandigarh. Memo No. Teh (LA)/LAO/2005/37366 Dated, Chandigarh, the 15/12/05 Subject : Acquisition of land in Village Manimajra for 2nd phase of I.T. Park. This refers to minutes of the meeting held on 09.12.2005 under the chairmanship of Sh. S.K. Sandhu, Finance Secret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sites have also been earmarked as per the plan in the CTP Phase-I. This plan was approved. 6. Regarding land scaping it was decided that Chief Architect UT, Chief Engineer UT and Director Information Technology will decide the final plan from the 3 plans received from Chandigarh College of Architecture. 7. The Porta Structure for the Reception/Help Desk would be set up by CE/UT immediately. 8. It was decided to close the access from Mansa Devi side from Indira Colony urgently. 9. Zoning of the Build to Suit Sites would be Finalized by 12.12.2005. Meeting ended with a vote of thanks to the chair. (S.K.Sandhu) FS/SIT 13. The Director, Information Technology sent DO No. 107 dated 12.1.2006 to the LAO and requested him to take action as per the minutes of the meeting held on 9.12.2005. In turn, the LAO sent DO No.1294-95 dated 16.01.2006 to the Director and reiterated the instructions contained in memo dated 15.12.2005. After 4 days, he sent letter dated 16.1.2006 to the Finance Secretary in the context of some meeting held on 4.1.2006 and pointed out that 280 acres land including 50 acres land already decided to be acquired for IT Park was available for acquisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e handed over to the Court Master. Thereafter, Shri S. K. Setia, Joint Secretary (Estates), Chandigarh Administration filed affidavit dated 10.9.2012, paragraph 4 whereof reads as under: 4. That in response to courts query, the deponent respectfully submits as under: i) There was no meeting held on 29.12.2005. This is a typographical error in the letter dated 16.01.2006. The correct date of the meeting is 09.12.2005. This is self evident from various letters on the original file which refer to 09.12.2005 which are explained and annexed below. ii) There was a meeting held on 04.01.2006, which was attended by Land Acquisition Officer; Director, IT and Jt. Secretary (Finance). However, no minutes were recorded for that meeting, which is referred to in the letter dated 16.01.2006. 15. After three months, the Finance Secretary sent memo dated 18.4.2006 to the LAO requiring him to submit draft notification for the acquisition of 280 acres land in two parts. That letter reads as under: From The Finance Secretary, Chandigarh Administration, No. PA/LAO/1019 Dt:20.4.06 To The Land Acquisition Officer, U.T. Chandigarh. Memo No.43/3/157-UTFI(5)-06/2123 Dated, Chandigarh th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chandigarh, is pleased to authorize the Officers for the time being engaged in undertaking this work with their servants and workmen to enter upon and survey the land in the locality and do all other acts required or permitted by that Section. The person interested can file their objections under Section 5-A of the Land Acquisition Act, 1894, within one month from the publication of the Notification before the Land Acquisition Collector, Union Territory, Chandigarh. 17. On 2.8.2006, another notification was issued for the acquisition of 167.50 acres land for the same purpose. 18. Surinder Singh Brar, who is one of the appellants in the lead case submitted representation dated 12.7.2006 to the Administrator, Union Territory, Chandigarh (hereinafter described as, the Administrator ) and prayed that the land in question may not be acquired because large number of trees had been grown by the landowners and cutting of the same will adversely impact the environment and ecology of the area. Shri Brar emphasized that the land already acquired for IT Park was lying unutilized and, therefore, there was no justification to acquire additional land. The Administrator rejected the rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s one of the appellants in the appeal arising out of SLP (C) Nos.13518- 13521/2011 filed an application under the Right to Information Act, 2005 ( RTI Act) and sought information on various issues which had direct bearing on the acquisition of their land. Senior Town Planner-cum-Central Public Information Officer, Chandigarh Administration sent reply dated 22.7.2007, the relevant portions of which are extracted below: The information of the paras relating to this office is as under:- 3 (vii) FAR Allowed in IT Park Area: a. Built to suit site (BTS) 1.25 b. Campus sites 0.5 However, FAR can be increased to 0.75 on payment. 4(c) The Development Plan of the area being acquired: - Planning for Ph.-1 and Ph.-II of Rajiv Gandhi Technology Park has been done. However the III phase of Chandigarh Technology Park is being acquired and planning for the same will be done after the acquisition and on receipt of survey plan from the Engineering Department, U.T., Chandigarh. 4(d) The area in question is not yet planned hence, detail of area cannot be provided. 4(1) THE PLANNING OF Phase I II of the Rajiv Gandhi Technology Park has been completed. In the side area the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plan for the development and utilization of the land to be acquired. (k) The Administration has not framed any scheme for rehabilitation of the landowners whose land is acquired and they have been uprooted more than once. (l) Only 10% of the flats would be built on 129 acres of land given to Parsvanath Developers and the developer is likely to accrue immense tax relief on the basis of the units being built in the SEZ. (m) Most of the land stands already acquired and reserved for I.T Park has not so far utilized then what is the necessity to acquire this land. (n) Where the acquisition of this land will uproot the farmers from their livelihood and abode, it would immensely damage the green cover of the city and about 50000 fully grown trees would also be chopped down. The Administration on one hand does not allow even a tree to be cut, though it is on the mettalled road in terms of Forest Act, then how the Administration would afford to cut the 20 years old fruit/non-fruit bearing trees. (o) The acquisition of land is in violation of the Punjab New Capital (Periphery) Control Act, 1952. The Periphery Control Act was enacted to ensure the outskirts of the city as green ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tity from the authorities exercising the powers under the Periphery Control Act. To the knowledge of the objectors no permission has been obtained, as of date, by the Chandigarh Administration for the development of the aforementioned land from the authority under the Periphery Control Act and consequently the entire acquisition proceedings are illegal, null and void. Over the past 15 years the Chandigarh Administration has compulsorily acquired huge chunks of land in Village Manimajra, District Chandigarh purportedly for various public purposes. However, in most cases the areas acquired have not been fully utilized and are either lying vacant or have been encroached upon. In this scenario the action of the Chandigarh Administration to acquire another huge chunk of land in Village Manimajra under the impugned notification is incomprehensible and cannot be justified. The details of the notifications issued under Sections 4 and 6 of the Land Acquisition Act, 1894 whereunder land has earlier been acquired by Chandigarh Administration in Village Manimajra, District Chandigarh but large chunks whereof are still lying unutilized or under encroachment are as under: Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 991 issued under Section 4 of the LA Act covering 56.14 acres of land in Village Manimajra, District Chandigarh for the public purpose of setting up nurseries . Public purpose not defined: In the impugned notification the Chandigarh Administration has proposed to acquire the land for the alleged public purpose of: ....the provision of city level infrastructure, the regulated urban development of the area between Chandigarh and Mani Majra, the planned development and expansion of Chandigarh Technology Park in village Manimajra. The setting-up or expansion of a technology park, for which the land in dispute is also sought to be acquired, is not a public purpose. In fact, the Chandigarh Administration itself has neither developed nor is it running the technology park but has allotted the land to DLF Ltd., a private entrepreneur for this purpose. DLF Ltd. has profiteered by selling the area further to other private companies. Thus the whole idea behind the impugned acquisition proceedings is to assist a private entrepreneur to profiteer. No person from the ordinary public will be benefited in any way. In today's age and economy a private entrepreneur can very well pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le an objector to effectively object under Section 5-A the details of the public purpose, alongwith the details of the scheme, the plans etc. must be available in the office of the Land Acquisition Collector for perusal of the objector. In the present case as no such plan/scheme is available in the office of the Land Acquisition Collector or any other office, it is apparent that the alleged public purpose is merely an attempt by the Chandigarh Administration to acquire the land with the sole object of using it at a later date for whatsoever purpose that may be required. No public purpose has been spelt out nor any public purpose has been established for the proposed acquisition. In any case the proposed construction of the IT Park is not a conducive measure because of the fact that it is closer to the defence area adjoining Chandimandir and can interfere in the communication system and sensitive defence installations. The public purpose mentioned is vague and as such it is not possible for the right holders to raise objections against the same, under section 5-A of the Land Acquisition Act, 1894 effectively. Violation of Environmental and Forest Laws: The land in dispute i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in soil erosion which is like to cause flash floods in the rainy season thus putting in danger the city of Chandigarh itself. As such the dangers to the ecology and subsequently to the city itself can well be imagined if the acquisition under the impugned notification is allowed to stand. The havoc caused along the banks of the choe and in the village of Kishangarh in particular during the recent rainy season is not something to be taken lightly. With the urbanization and choking of Sukhna Choe/Lake catchment area Chandigarh itself will be liable to immense danger of floods which can be life threatening to its citizen as we have seen in the recent past. The Chandigarh Administration needs to define its role viz a viz the citizen, is it here to protect us or to endanger our lives. Chandigarh needs to be protected and that is what the Chandigarh Administration should be doing. That in any case, no resolution for change has been passed for conversion of the proposed land from the zoning area which is forest land area/green belt prior to the date of the publication of the notice. Thus the notification is vitiated on this ground alone. The proposed acquisition will also disturb th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rights of the petitioner to effectively object to the proposed acquisition in terms of Section 5-A of the Land Acquisition Act, 1894. Consequently the entire proceedings are illegal, null and void. The Chandigarh Administration has not even designated a planning agency that could have shown how the area under acquisition is to be developed and utilized. The Chandigarh Administration has not been able to produce a proper plan for the development of the so-called Technology Park. No consideration seems to have been taken of the following points: a) geographical features that is physiography, climate, water, soils and other physical resources; b) means of communication and accessibility; c) distribution of the present and future population; d) industrial location and growth trends; e) economic base and commercial activities; f) preservation of historical and cultural heritage; g) urban expansion and periphery management; h) ecological and environmental balance; i) balanced regional development of the City Beautiful; j) dispersal of economic activities to alleviate pressure on the city. It is clear that no such plan existed at the time issuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout making any investment on it sold it at a higher profit. This is extremely unfair to the farmers who have struggled rate does not reflect a realistic/actual value of the land, in this area. Going by the sale mentioned above, the market value of the land in village Manimajra is not less than ₹ 630 lacs per acre. VIOLATION OF MASTER PLAN: The development of Chandigarh is regulated by its Master plan. The land proposed to be acquired falls in the ecologically fragile green belt along the lake and Sukhna choe. Any land use change will not only threaten the environment of the city but will also disturb the habitat of a large species of flora arid fauna. It is public knowledge that no lay out plan for this area has been neither prepared nor other formalities completed as mandated by the land acquisition Act and the FCs Standing Order 28. Acquisition of land without first amending the master Plan by following due procedure prescribed by law and without clearance from the Ministry of Environment and Forests will be bad in law. 22. The LAO heard the objectors, briefly noticed the substance of their objections but did not deal with any one of them and submitted separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 1st November, 1966. 5. Restrictions in a controlled area. - Except as provided hereinafter, no person shall erect any building or make or extend any excavation, or lay out any means of access to a road, in the controlled area save in accordance with the plans and restrictions and with the previous permission of the Deputy Commissioner in writing. His Excellency the Governor of Punjab and Administrator, UT, Chandigarh has already conveyed his version, vide letter dated 31.07.2006 to one of the Objector - Sh. S.S. Brar, IPS (Retd.) that the Administration has been acquiring the land for various development projects being implemented for the public good. He further emphasized that the future of Union Territory, Chandigarh does not lie in agriculture, but we have to concentrate and invest in those sectors, where the factor productivity is relatively higher, and, which offer our youth opportunities for advancement. For that matter, the land is primary and essential requirement for any project, and therefore, the Administration has to go for its acquisition. The objection that the Administration has made huge profits out of land acquisition is baseless. The rate of compensat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 acres acquisition of land for the purpose namely the provision of city level infrastructure, the regulated urban development of the area between Chandigarh and Manimajra: the planned development and expansion to Chandigarh Technology Park in Village Manimajra, U.T. Chandigarh. The Administration had issued notification Under Section 4 of the Act for the acquisition of said land. The Land Acquisition Officer has invited objections and sixteen land owners have filled their objections. Sh. P.C. Dhiman appeared on behalf of some land owners objected to the acquisition of land on the ground that there are large number of fruit bearing trees on the agriculture land. The illiterate land owners have only the sole mode for their livelihood. Most of the land acquired by the administration earlier has not been utilized. It has further been objected that emaciate compensation is being given to the land owners whereas the slum dwellers occupying government land are being rehabilitated and the land owners are being made home less. The Administration is acquiring land for the public purpose for pocketing hefty profits by giving the land to private developers. No rehabilitation scheme for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AA for according approval and issuance of notification under Section 6 is added below at flag Y . Submitted for order please. Subject: Land Acquisition Case: Village Manimajra, Hadbast No.375, Union Territory, Chandigarh. Reference PUC, the Land Acquisition Officer has sent a report under section 5-A for acquiring land in the revenue estate of Village Manimajra for public purposes namely the provision of city level infrastructure, the regulated urban development of the area between Chandigarh and Manimajra, the planned development and expansion of Chandigarh Technology Park . This acquisition is for the Phase III of the Rajiv Gandhi Technology Park. In this case, the notification for acquiring land measuring 104.83 acres under section 4 was issued on 27.6.2006. The Land Acquisition Officer invited objections from land owners. 16 persons filed their objections in all. The Land Acquisition Officer heard the pleadings of the objectors/their counsels. The gist of their pleadings have been cited by the LAO from pages 412-415 of his report (PUC). The findings of the LAO in respect of each set of objections can be read at pages 416-418 of his report. The LAO has fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffectively avail the opportunity of filing objections under Section 5A(1); that the objections filed by them were not considered by the LAO and the competent authority and the declarations under Section 6(1) were issued without application of mind; that the acquisition was vitiated because the matter was not considered by the committee constituted under the notification issued by the Government of India under Section 3(3) of the Environment (Protection) Act, 1986 (for short, the 1986 Act ) and Rule 5(3) of the Environment (Protection) Rules, 1986 (for short, the 1986 Rules ). 26. The Division Bench of the High Court relied upon the judgments of this Court in Aflatoon v. Lt. Governor of Delhi (1975) 4 SCC 285, Gandhi Grah Nirman Sahkari Samiti Ltd. v. State of Rajasthan (1993) 2 SCC 662, State of T.N. v. L. Krishnan (1996) 1 SCC 250, Ajay Krishan Shinghal v. Union of India (1996) 10 SCC 721 and Sooraram Pratap Reddy v. District Collector, Ranga Reddy District (2008) 9 SCC 552 and held that the public purpose specified in Notifications dated 26.6.2006 and 2.8.2006 was not vague; that the Chandigarh Administration had complied with the provisions of Sections 4, 5A and 6(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears and likely to be needed in the notifications issued on 20.8.2007 show that the Adviser, whose approval preceded the issuance of declaration under Section 6(1), had not applied mind to the reports of the LAO. Shri Dwivedi then argued that the reports prepared by the LAO are vitiated due to non-application of mind because he did not objectively consider the objections filed under Section 5A(1) and mechanically made recommendations for the acquisition of land for Phase III ignoring that about half of the land acquired for Phase II had been alienated to the private developers, namely, Parsvnath Developer and Kujjal Builders to enable them to construct residential complex and hotel respectively which had nothing to do with the public purpose specified in the notifications issued under Sections 4(1) and 6(1). Learned senior counsel further argued that the existence of a plan is sine qua non for the acquisition of land for planned development of the area between Chandigarh and Mani Majra and expansion of IT Park and, in the absence of a definite plan, there was no justification to acquire the land in question. He sought support for this argument from the reply given by the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed decision after due application of mind to the record and was satisfied about the need of the land for a public purpose and in these cases, the competent authority had not at all applied mind to the recommendations made by the LAO and the objections filed by the landowners. 30. Shri Neeraj Jain, learned senior counsel argued that the High Court committed serious error by negating the appellants challenge to the acquisition of their land ignoring its impact on the environment and the fact that the declaration under Section 6 could not have been issued without objectively considering this important aspect. Learned senior counsel also highlighted that a major chunk of the land acquired for Phase II had been transferred to the developers for residential and commercial purposes and argued that there was no justification for the acquisition of additional land in the name of expanding the IT Park. 31. Learned counsel appearing for the other appellants largely adopted the arguments of Shri Rakesh Dwivedi, Shri Dinesh Dwivedi and Shri Shekhar Naphade and submitted that the entire acquisition should be quashed because the functionaries of the Chandigarh Administration did not appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Adviser and argued that the impugned acquisition cannot be nullified on the ground that the notifications under Sections 4(1) and 6(1) were issued without the approval of the Administrator. Dr. Dhawan submitted that the notifications challenged before the High Court cannot be declared illegal on the ground that the Administrator had not accorded sanction to the acquisition of land for Phase III of IT Park because no such point was argued on behalf of the appellants. He then submitted that the Advisor to the Administrator is equivalent to the Chief Commissioner and the Chief Commissioner and the Administrator of a Union Territory are of coordinate rank. Learned senior counsel then argued that the acquisition of the appellants land cannot be quashed on the ground that the purpose specified in Notifications dated 26.6.2006 and 2.8.2006 was not a public purpose or that the same was vague. He submitted that the appellants cannot make a complaint on this score because they had filed detailed objections under Section 5A(1), which were duly considered by the LAO. Dr. Dhawan emphasised that the declaration issued under Section 6(1) is in consonance with the language of the statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tories to which any law in force immediately before the 1st day of November, 1966, extends or applies, and territorial references in any such law to the State of Punjab shall, until otherwise provided by a competent legislature or other competent authority, be construed as meaning the territories within that State immediately before the said day; And whereas the powers exercisable by the State Government under any such law as aforesaid are now exercisable by the Central Government; Now, therefore, in pursuance of clause (1) of article 239 of the Constitution, and all other powers enabling him in this behalf, the President hereby directs that, subject to his control and until further orders, the Administrator of the Union territory of Chandigarh shall, in relation to the said territory, exercise and discharge, with effect from the 1st day of November, 1966, the powers and functions of the State Government under any such law. [No.l3/l/66-CHD] No.5/1/66-CHD GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS NEW DELHI-II, the 1st November, 1966. NOTIFICATION G.S.R.1675-In exercise of the powers conferred by clause (1) of article 239 of the Constitution, the President hereby dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose of the Central Government under the provisos to sub-section (1) of section 55, and (ii) the Land Acquisition. (Companies) Rules, 1963, shall also be exercised and discharged by the Administrator of every Union territory (whether known as the Administrator, Chief Commissioner or the Lieutenant Governor), within the respective Union territories. (No.F.2/8/68-UTL) Sd/- (P.N. KAUL) DEPUTY SECRETARY TO THE GOVT. OF INDIA BHARAT SARKAR / GOVERNMENT OF INDIA GRIH MANTRALAYA / MINISTRY OF HOME AFFAIRS New Delhi, the 14th Aug, 89 NOTIFICATION S.O. 642(E) In pursuance of clause (1) of Article 239 of the Constitution and in suppression of all previous notifications relating to the exercise of power; and functions under the Land Acquisition Act, 1894 (1 of 1894) by the Administrator of various Union Territories except as respects things done or omitted to be done before such suppression, the president hereby directs that subject to his control and until further orders, the powers and functions of the appropriate government in relation to a Union Territory shall also be exercised and discharged by the administrator of such Union Territory (Whether known as Administrator, Chief C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Territory, Chandigarh. x) Cases where modification of the orders passed by the predecessors of the present Administrator are involved. xi) Proposals for the creation or abolition of Class-I posts. xii) Such other cases or class of cases as the Administrator may consider necessary or such other cases where his orders are necessarily to be he obtained under a Statute, for instance granting sanction to the launching of prosecution under section 196 Cr PC or any other Criminal Law. By order and in the name of Administrator (Sd.) P. K. VERMA, Home Secretary, Chandigarh Administration. No.U.14020/17/84 - UTS Government of India Ministry of Home Affairs New Delhi-110001, the 2nd June, 1984. NOTIFICATION Consequent upon the concurrent appointment of Shri B.D. Pande, Governor of Punjab, as Administrator of the Union Territory of Chandigarh, Shri K. Banarji, IAS (UT : 1954 1/2), Chief Commissioner, Chandigarh will be redesignated as Adviser to the Administrator of the Union Territory of Chandigarh. (Baleshwar Rai) Deputy Secretary to the Government of India. (FOR PUBLICATION IN THE GAZETTE OF INDIA PART I SECTION 2) No.U.14020/17/84 UTS. Pt. Government of India Min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h September, 2004 . R. S. Gujral, Home Secretary Chandigarh Administration. CHANDIGARH ADMINISTRATION DEPARTMENT OF PERSONNEL NOTIFICATION 4.11.2004 No.22/S/39/IH (4)-2004/20197 Consequent upon the appointment of Dr. Akhlaq-ur-Rahman Kidwai, Governor of Punjab as Administrator of the Union Territory of Chandigarh in addition to his duties as Governor of Punjab vide order of the President of India, dated the 30th October, 2004 conveyed vide Rashtrapati Bhawan communication bearing No.F.31-CA(I)/2004, dated the 30th October, 2004, Dr. Akhlaq-ur-Rahman Kidwai has assumed charge as Administrator of the Union Territory of Chandigarh on the forenoon of the 3rd November, 2004 . R. S. Gujral, Home Secretary Chandigarh Administration. CHANDIGARH ADMINISTRATION DEPARTMENT OF PERSONNEL NOTIFICATION The 17th November, 2004 No.22/S/39/IH (4)-2004/20890 Consequent upon the appointment of General (Retd.) S. F. Rodrigues, PVSM, VSM, Governor of Punjab as Administrator of the Union Territory of Chandigarh in addition to his duties as Governor of Punjab vide order of the President of India, dated the 8th November, 2004, conveyed vide Rashtrapati Bhawan communication bearing No.F.31- CA(I)/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ERSONNEL NOTIFICATION Dated, the 21.11.2003. No.IH (4)-2003/21655 Consequent upon his appointment as Adviser to the Administrator, Union Territory, Chandigarh, Sh. Lalit Sharma, IAS (AGMU:1971) has taken over the charge of the said post with effect from the afternoon of 21.11.2003, relieving Sh. R.S. Gujral, IAS (HY- 1976), Home Secretary, Chandigarh Administration, of this additional charge. R. S. Gujral, Home Secretary Chandigarh Administration. CHANDIGARH ADMINISTRATION DEPARTMENT OF PERSONNEL NOTIFICATION Dated, the 01.01.07 No.22/2/47-IH (4)-2007/19619 Consequent upon his appointment as Adviser to the Administrator, Union Territory, Chandigarh, Sh. Pradip Mehra, IAS (AGMU:1975) assumed the charge of the said post with effect from the afternoon of 30.09.2007. Krishna Mohan, Home Secretary Chandigarh Administration. 38. The unamended Article 239 envisaged administration of the States specified in Part C of the First Schedule of the Constitution by the President through a Chief Commissioner or a Lieutenant Governor to be appointed by him or through the Government of a neighbouring State. This was subject to other provisions of Part VIII of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Administrative Service. 40. After about 2 years of the issuance of the first notification under Article 239(1) of the Constitution, by which the powers and functions exercisable by the State Government under various laws were generally entrusted to the Administrator, Notification dated 8.10.1968 was issued and the earlier notification was modified insofar as it related to the exercise of powers and functions by the Administrator under the Act and the President directed that subject to his control and until further orders, the powers and functions of the appropriate Government shall also be exercised and discharged by the Administrator. Notification dated 8.10.1968 was superseded by Notification dated 1.1.1970 and the President directed that subject to his control and until further orders, the powers and functions of the appropriate Government shall also be exercised and discharged by the Administrator of every Union Territory whether known as the Administrator, the Chief Commissioner or the Lieutenant Governor. The last notification in the series was issued on 14.8.1989 superseding all previous Notifications. The language of that notification is identical to the language of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... numerated in the Schedule. There is nothing in the language of Section 3(1) of the 1987 Act from which it can be inferred that the Administrator can delegate the power exercisable by the appropriate Government under the Act which was specifically entrusted to him by the President under Article 239(1) of the Constitution. Therefore, notification dated 25.2.1988 cannot be relied upon for contending that the Administrator had delegated the power of the appropriate Government to the Adviser. 43. The issue deserves to be considered from another angle. While delegating the power, authority or jurisdiction vested in him by or under any law, rules or regulations as applicable to the Union Territory of Chandigarh, the Administrator had used the expression on the date of this notification . This necessarily implies that the power of the appropriate Government conferred upon or entrusted to the Administrator by the President under Article 239(1) after 25.2.1988 were not delegated to the Adviser. It is also apposite to note that Notification dated 14.8.1989 was issued under Article 239(1) in supersession of all previous notifications relating to the exercise of power and functions un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he paragraph titled Observations , we repeatedly asked Shri Sudhir Walia, learned counsel assisting Dr. Rajiv Dhawan to show as to when the LAO had summoned the revenue records and when he had conducted spot inspection but the learned counsel could not produce any document to substantiate the statement contained in the two reports of the LAO. This leads to an inference that, in both the reports, the LAO had made a misleading and false statement about his having seen the revenue records and conducted spot inspection. That apart, the reports do not contain any iota of consideration of the objections filed by the landowners. Mere reproduction of the substance of the objections cannot be equated with objective consideration thereof in the light of the submission made by the objectors during the course of hearing. Thus, the violation of the mandate of Section 5A(2) is writ large on the face of the reports prepared by the LAO. 47. The reason why the LAO did not apply his mind to the objections filed by the appellants and other landowners is obvious. He was a minion in the hierarchy of the administration of the Union Territory of Chandigarh and could not have even thought of making re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was entrusted with the onerous task of taking a decision on behalf of the appropriate Government after considering the reports of the LAO. The casual manner in which the senior officers of the Chandigarh Administration dealt with the serious issue of the acquisition of land of citizens signifies their total lack of respect for the constitutional provision contained in Article 300A, the law enacted by Parliament, that is, the Act and interpretation thereof by the Courts. It seems that the officers were overawed by the view expressed by the Administrator and the instinct of self-preservation prompted them not to go against the wishes of the Administrator who wanted that additional land be acquired in the name of expansion of IT Park despite the fact that a substantial portion of the land acquired for Phase II had been allotted to a private developer. 49. At this stage, it will be useful to notice the provisions of Sections 3(ee), 3(f) (as substituted by Act No.68 of 1984), 4(1), 5A and 6(1). The same read as under: 3(ee) the expression appropriate Government means, in relation to acquisition of land for the purposes of the Union, the Central Government, and, in relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nient 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. xxx xxx xxx 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 authorized 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 50. Section 4(1) lays down that whene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be made after expiry of one year from the date of publication of the notification. To put it differently, a declaration is required to be made under Section 6(1) within one year from the date of publication of the notification under Section 4(1). 53. In terms of Section 6(2), every declaration made under Section 6(1) is required to be published in the Official Gazette and in two daily newspapers having circulation in the locality in which the land proposed to be acquired is situated. Of these, at least one must be in the regional language. The Collector is also required to cause public notice of the substance of such declaration to be given at convenient places in the locality. The declaration to be published under Section 6(2) must contain the district or other territorial division in which the land is situate, the purpose for which it is needed, its approximate area or a plan is made in respect of land and the place where such plan can be inspected. 54. Section 6(3) lays down that the declaration made under Section 6(1) shall be conclusive evidence of the fact that land is needed for a public purpose. After publication of the declaration under Section 6, the Collector is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the matter. Hearing him before depriving him is both reasonable and pre-emptive of arbitrariness, and denial of this administrative fairness is constitutional anathema except for good reasons. 57. In Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai (2005) 7 SCC 627, this Court analysed Section 5-A in the following words: ..Section 5-A of the Act is in two parts. Upon receipt of objections, the Collector is required to make such further enquiry as he may think necessary whereupon he must submit a report to the appropriate Government in respect of the land which is the subject- matter of notification under Section 4(1) of the Act. The said report would also contain recommendations on the objections filed by the owner of the land. He is required to forward the records of the proceedings held by him together with the report. On receipt of such a report together with the records of the case, the Government is to render a decision thereupon. It is now well settled in view of a catena of decisions that the declaration made under Section 6 of the Act need not contain any reason. . However, considerations of the objections by the owner of the land and the accepta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) or failure of the appropriate Government to take objective decision on such objections in the light of the recommendations made by the Collector will denude the decision of the appropriate Government of statutory finality. To put it differently, the satisfaction recorded by the appropriate Government that the particular land is needed for a public purpose and the declaration made under Section 6(1) will be devoid of legal sanctity if statutorily engrafted procedural safeguards are not adhered to by the concerned authorities or there is violation of the principles of natural justice. The cases before us are illustrative of flagrant violation of the mandate of Sections 5A(2) and 6(1). Therefore, the second question is answered in affirmative. 59. Before parting with this aspect of the case, we consider it proper to deal with the two judgments relied upon by Dr. Dhawan in support of his submission that the declaration issued under Section 6(1) is conclusive and the satisfaction recorded by the competent authority cannot be subjected to judicial review. In Somawanti v. State of Punjab (supra), after analysing the relevant provisions, the majority of the Constitution Bench observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ka v. Calcutta Pinjrapole Society (supra), the two-Judge Bench considered the amendment made in the Act in 1923 and observed: As sub-section (1) stood prior to 1923 the words were subject to the provisions of Part VII of the Act, when it appears to the Local Government that any particular land is needed for a public purpose or for a Company, a declaration shall be made etc. The amendment of 1923 dropped these words and substituted the words when the Local Government is satisfied after considering the report, if any, made under Section 5-A, sub-section (2) etc. It seems that the amendment was considered necessary because the same Amendment Act inserted Section 5-A for the first time in the Act which gave a right to persons interested in the land to be acquired to file objections and of being heard thereon by the Collector. The new section enjoined upon the Collector to consider such objections and make a report to the Government, whose decision on such objections was made final. One reason why the word satisfaction was substituted for the word appears seems to be that since it was the Government who after considering the objections and the report of the Collector thereon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 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. Sub-section (2) makes this 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. (emphasis supplied) 61. The proposition laid down in the aforementioned two judgments does not support the stance of the Chandigarh Administration that even though there is breach of the mandate of Section 5A read with Section 6(1), the Court cannot, after the issue of declaration under Section 6(1), nullify the acquisition proceedings. As a matter of fact, the ratio of both the judgments is that satisfaction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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