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TMI Blog2012 (10) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... ested 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 phase of Chandigarh, and about 280 acres land falling in the revenue estates of village Hallo Majra and village Dalheri Rajputan as reserved forest. The State Government also acquired hilly area measuring 6172.09 acres of Sukhna lake catchment during 1961-62, 1962-63 and 1963-64 for carrying out soil conservation works to reduce the silt in-flow into the lake. The Forest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 prepare the old document. 3. Broad guidelines are spelt out hereunder:- I. The whole exercise would involve a joint venture with the private party through an agreement, but without creating a joint venture company. II. No capital expenditure would be involved on the part of the Chandigarh Administration. III. The building and sale of all property would be left to the private party but all mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Secretary/Secretary Information Technology, Chandigarh Administration, wherein it was emphasized to acquire 50 acres of land adjoining to the present I.T. Park in Kishangarh (Manimajra) for construction of 2nd phase of IT. Park. You are, therefore, requested to provide drawing of the land required to be acquired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n/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 acquisition. That letter reads as under: "From The Land Acquisition Officer, UT, Chandigarh To, The Finance Secretary, Chandigarh Administration, Chandigarh. Memo No. Kgo (LA)/LAO/2006/1296 Dated, Chandigarh, the 16/1/06 Subject: Acquisition of remaining land in Village Manimajra, UT, Chandigarh. This refers to the minutes of the meeting held on 29.12.2005 under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 the 18.4.06 Subject: - Acquisition of land measuring 280 acres in village Kishangarh (Manimajra). The matter regarding acquisition of land measuring 280 acres in village Kishangarh Manimajra has been discussed for the development of 2nd Phase of I.T. Park. It has been decided that the said land may be acquired in 2 parts, i.e. (140 acres + 140 acres). Your are therefore requested to take immediat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 representation of Shri Brar vide his letter dated 31.7.2006, which is reproduced below: "General (Retd.) S.F. Rodrigues RAJ BHAVAN PVSM, VSM CHANDIGARH 160019 Governor of Punjab JULY 31, 2006 and Administrator Union Territory, Chandigarh I am in receipt of your representation dated 12.7.2006 regarding land acquisition & related issues. The issues raised mostly pertain to changes in the existing law, for which d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 planning has been done for IT and other related services/uses to IT Park i.e., Hotel, Grid Sub Station, Tube Wells, Commercial Area, reserve etc. 4(j,k) It is a policy matter to be decided at higher level. 5 (a) Originally the Chandigarh was planned for five lacs of population. As per the 2001 census the total population of Chandigarh is 9 lacs and it is envisaged that in the year 2021 the approximate population of Chandigarh will be 18 lacs approximately on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 belt." 21. For the sake of reference, some of the objections filed by Shri Surinder Singh Brar and Shri Kuldip Singh Kahlon are reproduced below: Surinder Singh Brar: "Notification not proper hence liable to be quashed: The impugned notification is liable to be quashed as the public purpose mentioned therein is vague as 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. The total area under acquisition is le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.3/117-UTFI(4)-89/12204 dated 11.9.1989 issued under Section 6 of the LA Act covering 29.07 acres of land in Village Manimajra, District Chandigarh for the public purpose of "resident-cum-commercial complex scheme no.2"; * Notification No.3/117-UTFI(4)-89/12209 dated 11.9.1989 issued under Section 6 of the LA Act covering 39.27 acres of land in Village Manimajra, District Chandigarh for the public purpose of "residential-cum-commercial complex scheme no.2 and construction of multi-specialty hospital"; * Notification No.3/117- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 purchase land by private negotiations instead of the State assisting him. If the Chandigarh Administration is bent upon urbanising the green belt against all respect for the ecology and environment, then why are the landowners themselves not allowed to develop their land within the set development plan as opposed to taking the land away from the small agriculturists and selling it further to private developers at a huge profit, thus playing the role of land brokers. As no real public purpose has clearly been defined by the Chandigarh Administration in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired. 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 is very close to the Sukhna Lake and adjacent to the Sukhna Choe and the area declared as a reserved forest. If the land in dispute and its surrounding areas are allowed to be urbanised it will result in the degradation of the habitat and disturb the thousands of migratory birds which come every year to the Sukhna Lake. It may be mentioned here that the Sukhna Lake is a wetland declared by the Central Government and is a protected area and is known as the Sukhna Wildlife Sanctuary. If high rise buildings are allowed to be constructed on the land being acquired under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the ecological plants and flora and fauna of the area because the proposed acquisition will also disturb the dense forest area having more than 50,000 grown trees which are more than 30 years old. Forests and orchards are the lungs of a city and have a very important environmental function to perform. Such lands cannot be acquired under the provisions of Land Acquisition Act, 1894. The Chandigarh Administration has not carried out an Environmental Impact Assessment study which is extremely necessary before an exercise of this magnitude is carried out. Further more it needs to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raphy, 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 the impugned notification and therefore the petitioner have been denied a basic right of examining the plans and other documents asked for." Kuldip Singh Kahlon: "VIOLATION OF PERIPHERY CONTROL ACT: The land in question falls within the periphery of Chandigarh and the Periphery Control Act, 1951 regulates its use. The purpose of this legislation is to prohibit any activity that is non-agricultural and to that extent even prohibits the landowners from constructing houses for their own living. The UT Administration, has been forcefully implementing this Act and penalizing those who violate any of its provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 separate reports in relation to the two notifications with identical observations, which are extracted below: "OBSERVATIONS: After seeing the revenue record and spot inspection, I find no merits in the objections raised by the Objectors. Because, for the future extension of the Capital and to ensure healthy & planned development, and further, to prevent growth of slums and ramshackle construction on the land lying on the periphery of the 'new city', area of 10 miles on all sides from the outer boundary of the land was declared as 'controlled area'. In order to have legal authority to control and regulate the use of the land, the Punja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 compensation is determined as per the existing provisions of law, The determination of compensation of land is based on a very sound principle of average as enunciated and upheld by the Hon'ble Supreme Court in various judgements as a sound basis for calculating market value. The Collector rates for agricultural land have been revised twice in the last year. While acquiring the land, the land owners are not only paid the award calculated on the basis of Collector's rate, but solatium @ 30% on the value assessed on the basis of Collector's rate and additional market-value @ 12% per annum on the value assessed on the basis of Collector's rates is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the land owners have been framed. Some other land owners have also raised the similar objections. Mrs. Ritu Joshi objected that the land is being acquired is being given for the commercial activities whereas, she has not permitted the land for the hotel project when she applied once. The Land Acquisition Officer after examining objections has found no merits, because for future extension of capital and to ensure healthy and planned development and further to prevent growth of slums, this was required to be acquired. The Land Acquisition Officer has further stated that the structure existing on the site called Shastri Nagar has been raised in violation of the periphe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 found no merits in the objections of the land-owners (objectors). The LAO has filed the objections as being devoid of merit and has finally recommended that the land notified under section 4 be acquired. On examination of these reports, it is found that the LAO's findings are in order. Therefore, approval may be granted to the proposal to issue a notification under section 6 (placed at flag 'Y') in respect of land measuring 104.83 acres in Village Manimajra, Hadbast No.375, U.T., Chandigarh. A.A.'s approval would be required in this case. SSF 28.2.2007 AA Sd 28.2.2007" 24. On the same day, the declarations issued under Section 6(1) were published in official gazette dated 28.2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 Act; that the existence of a definite plan was not a condition precedent for the acquisition of land; that the landowners had been given opportunity to file objections and that the declaration was issued after considering the same. The High Court also referred to the judgments of this Court in Somawanti v. State of Punjab AIR 1963 SC 151 and Ganga Bishnu Swaika v. Calcutta Pinjrapole Society AIR 1968 SC 615 and held that the declaration issued under Section 6(1) was conclusive and was not open to judicial review. The High Court further held that the special audit got conducted by the Government of India in the context of the acquisition of land for Phases I and II of the IT Park did not have any beari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 Central Public Information Officer to Brig Kuldip Singh Kehlon and pointed out that the Chandigarh Administration was not following the "Chandigarh Inter-State Capital Regional Plan, 2001" approved by the Coordination Committee set up by the Ministry of Urban Development in 1984. Learned senior counsel also referred to the findings recorded in the Special Audit Report and the One- Man Committee headed by Shri Arun Ramanathan, which was appointed by the Government of India, to show that the land acquired for Phases I and II of IT Park had not been utilized and submitted that there is no justification whatsoever for the acquisition of additional land. 28. Shri Dinesh Dwivedi, learned senior counsel appearing f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 apply mind to the relevant issues including adverse impact of the acquisition on the environment and ecology of the area. 32. Shri Rakesh Khanna, learned Additional Solicitor General, produced copy of Notification dated 8.10.1968 issued under Article 239(1) of the Constitution and xerox copies of the notings recorded by the officers of the Ministry of Home Affairs on the report prepared by the Inquiry Officer in the light of the Special Audit Report. He also produced the decision taken by the Home Minister on 23.9.2010, which reads as under: "I have seen the notes as well as the final recommendations of AS(CS) on pages 31 and 32/n. I am in broad agreement with the recommendations on pages 31 and 32/n subject to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants' 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 and argued that the High Court did not commit any error by refusing to quash Notifications dated 28.2.2007 on the ground that in the first part thereof the satisfaction of the appropriate Government has not been recorded. Learned senior counsel further argued that the existence of a master plan or lay-out plan is not sine qua non for the acquisition of land because the purposes specified in Section 4(1) notification were identified public purposes. He pointed out that substantial portion of the land acquired for Phase I and Phase II of IT Park had been allotted to IT industries and the remaining portion was used for roads, parks, etc., and argued that the cancellation of allotment of three IT companies cannot lead to an inferen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 directs that all orders and other instruments made and executed in the name of Chief Commissioner of Union Territory of Chandigarh shall be authenticated by the signature of a Secretary/a Deputy Secretary an Under Secretary, an Assistant Secretary in any of the departments of the Chandigarh Administration. Sd/- A.D.Pande, JOINT SECRETARY" "NOTIFICATION New Delhi, the 8 October, 1968, S.O. 3612 - In pursuance of clause (1) of article 239 of the Constitution, and in partial modification of the notification of the Government of India in the Ministry of Home Affairs No.S.O. 3269 dated the 1st November, 1966, in so far as it relates to the exercise of powers and functions under the Land Acquisition Act, 1894 (1 of 1894) by the Administrator of the U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Commissioner or lieutenant governor) within the respective union territory under:- (i) the land acquisition Act 1894 (1 of 1894) except the functions exercisable by the Central Government under the provision to sub-section (1) of section 55 of the said Act; and (ii) the land acquisition (Companies) Rules, 1963. NO.U-11030/1/89-UTL/ Sd/- (Ashok Nath) Joint Secretary to the Govt. of India" 36. Notification dated 25.2.1988 issued under Section 3(1) of the 1987 Act as also Notifications dated 2.6.1984, 30.5.1985, 27.11.1999, 8.5.2003, 1.10.2004, 4.11.2004 and 17.11.2004 on which reliance was placed by Dr. Rajeev Dhawan are reproduced below: "CHANDIGARH ADMINISTRATION HOME DEPARTM ENT Notification The 25th February. 1988. No. LD-88/1302.-In. exercise of the powers confer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 Ministry of Home Affairs New Delhi-110001, the 30th May, 1985. NOTIFICATION Consequent upon the concurrent appointment of Shri Arjun Singh, 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) Director." "CHANDIGARH ADMINISTRATION DEPARTMENT OF PERSONNEL NOTIFICATION The 27 November, 1999 No.1015-GOI-IH (4)-99/22972 Consequent upon the appointment of Lieutenant-General (Retd.) Jack Frederick Ralph Jacob, PVSM, 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 19th November, 1999 conveyed vide Rashtrapati Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /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)/2004, dated the 8th November, 2004, General (Retd.) S. F. Rodrigues, PVSM, VSM, has assumed charge as Administrator of the Union Territory of Chandigarh on the afternoon of 18th November, 2004 . R. S. Gujral, Home Secretary Chandigarh Administration." 37. We may also take cognizance of Notifications dated 12.1.2001, 15.1.2003, 11.9.2003, 21.11.2003, 1.1.2007 by which different officers of Indian Administrative Service were appointed/given charge of the post of Adviser, Union Territory, Chandigarh. The same read as under: "CHANDIGARH ADMINISTRATION DEPARTMENT OF PERSONNEL NOTIFICATION Dated, the 12th January, 2001. No.59(GOI)-IH (4)-2001/786 Consequent upon her appointment as Adviser to the Administrator, Union Territory, Chandigarh, Ms. Neeru Nanda, IAS (AGMU:71) took over charge of the said post with effect from 12.01.2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 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. As against this, amended Article 239 lays down that subject to any law enacted by Parliament every Union Territory shall be administered by the President acting through an Administrator appointed by him with such designation as he may specify. In terms of Clause (2) of Article 239 (amended), the President can appoint the Governor of a State as an Administrator of an adjoining Union territory and on his appointment, the Governor is required to exercise his function as an Administrator independently of his Council of Ministers. The difference in the language of the unamended and amended Article 239 makes it clear that prior to 1.11.1956, the President could administer Part C State through a Chief Commissioner or a Lieutenant Governor, but, after the amendment, every Union Territory is required to be administered by the President through an Administrator appointed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised 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 Notification dated 1.1.1970. 41. There is marked distinction in the language of the notifications issued under Article 239(1) of the Constitution. By notification dated 1.11.1966, the President generally delegated the powers and functions of the State Government under various laws in force immediately before 1.11.1966 to the Administrator. By all other notifications, the power exercisable by 'the appropriate Government' under the Act and the Land Acquisition (Companies) Rules, 1963 were delegated to the Administrator. It is not too difficult to fathom the reasons for this departure from notification dated 1.11.1966. The Council of Ministers whose advice constitutes the foundation of the decision taken by the President was very much conscious of the fact that compulsory acquisition of land, though sanctioned by the provision of the Act not only impacts lives and liveli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under the Act by the Administrators of various Union Territories. Therefore, even if it is assumed that vide Notification dated 25.2.1988 the Administrator had authorised the Adviser to exercise the power of 'the appropriate Government' under the Act, after the issuance of Notification dated 14.8.1989, the said delegation will be deemed to have ceased insofar as the exercise of power of 'the appropriate Government' under the Act and the Rules framed thereunder is concerned and in the absence of fresh delegation by the Administrator, the Adviser could not have exercised the power of the appropriate Government and sanctioned the acquisition of land for the purposes specified in Notifications dated 26.6.2006 and 2.8.2006 nor could he symbolically accept the recommendations of the LAO and record his satisfaction on the issue of need of land for the specified public purposes. 44. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 recommendations contrary to what was contained in the letter sent by the Administrator to Surinder Singh Brar. If he had shown the courage of acting independently and made recommendation against the acquisition of land, he would have surely been shifted from that post and his career would have been jeopardized. In the system of governance which we have today, junior officers in the administration cannot even think of, what to say of, acting against the wishes/dictates of their superiors. One who violates this unwritten code of conduct does so at his own peril and is described as a foolhardy. Even those constituting higher strata of services follow the path of least resistance and find it most convenient to tow the line of their superiors. Therefore, the LAO cannot be blamed for having acted as an obedient subordinate of the superior authorities, including the Administrator. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relation to acquisition of land for any other purposes, the State Government; 3 (f) the expression 'public purpose' includes- (i) the provision of village- sites, or the extension, planned development or improvement of existing village- sites; (ii) the provision of land for town or rural planning; (iii) the provision of land for planned development of land from public funds in pursuance of any scheme or policy of Government and subsequent disposal thereof in whole or in part by lease, assignment or outright sale with the object of securing further development as planned; (iv) the provision of land for a corporation owned or controlled by the State; (v) the provision of land for residential purposes to the poor or landless or to persons residing in areas affected by natural calamities, or to persons displaced or affected by reason of the implementation of any scheme undertaken by Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final. (3) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act. 6. Declaration that land is required for a public purpose.- (1) Subject to the provision of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under section 5A, sub- section (2), that any particular land is needed for a public purpose, or for a Company, a declaration shall be made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, then a notification to that effect is required to be published in the Official Gazette and two daily newspapers having circulation in the locality. Of these, one paper has to be in the regional language. A duty is also cast on the Collector, as defined in Section 3(c), to cause public notice of the substance of such notification to be given at convenient places in the locality. The last date of publication and giving of public notice is treated as the date of publication of the notification. 51. Section 5A, which embodies the most important dimension of the rules of natural justice, lays down that any person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 required to take order from the State Government for the acquisition of land to be carved out and measured and planned (Sections 7 and 8). The next stage as envisaged is issue of public notice and individual notice to the persons interested in the land to file their claim for compensation. Section 11 envisages holding of an enquiry into the claim and passing of an award by the Collector who is required to take into consideration the provisions contained in Section 23. 55. In Nandeshwar Prasad and Anr. v. The State of Uttar Pradesh and Ors. (1964) 3 SCR 425, this Court observed that the right to file objections under Section 5-A is a substantial right when a person's property is being threatened with acquisition. In Munshi Singh v. Union of India (1973) 2 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired 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 acceptance of the recommendations by the Government, it is trite, must precede a proper application of mind on the part of the Government. .......... Furthermore, the State is required to apply its mind not only on the objections filed by the owner of the land but also on the report which is submitted by the Collector upon making other and further enquiries therefor as also the recommendations made by him in that behalf. The State Government may further inquire into the matter, if any case is made out therefor, for arriving at its own satisfaction that it is necessary to deprive a citizen of his right to property." 58. What needs to be emphasised is that hearing required to be given under Section 5A(2) to a person who is sought to be deprived of his land and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 observed: "The scheme of the Act is that normally the provisions of Section 5-A have to be complied with. Where, in pursuance of the provisions, objections are lodged, these objections will have to be decided by the Government. For deciding them the Government will have before it the Collector's proceedings. It would, therefore, be clear that the declaration that a particular land is needed for a public purpose for a company is not to be made by the Government arbitrarily, but on the basis of material placed before it by the Collector. The provision of sub-section (2) of Section 5-A make the decision of the Government on the objections final while those of sub-section (1) of Section 6 enable the Government to arrive at its satisfaction. Sub-section (3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired 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 was to arrive at its decision and then make the declaration required by sub-section (2), the appropriate words would be "when the Local Government is satisfied" rather than the words "when it appears to the Local Government". The other reason which presumably led to the change in the language was to bring the words in sub-section (1) of Section 6 in line with the words used in Section 40 where the Government before granting its consent to the acquisition for a Company has to "be satisfied" on an inquiry held as provided thereinafter. Since the Amendment Act 38 of 1923 provided an inquiry into the objections of persons interested in the land under Section 5-A, Section 40 also was amended by adding therein the words "either on the report of the Collector under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the appropriate Government envisaged in Section 6(1) must be preceded by consideration of the report prepared by the Collector after considering the objections filed under Section 5A and hearing the objectors. This necessarily implies that the Government must objectively apply its mind to the report of the Collector and the objections filed by the landowners and then take a decision whether or not the land is needed for the specified public purpose. A mechanical endorsement of the report of the Collector cannot be a substitute for the requirement of application of mind by the Government which must be clearly reflected in the record. 62. In addition to what we have observed on the issue of flagrant violation of the two sections, it will be apposite to recapitulat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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