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Monday, March 15, 2010

Declaration of public purpose open to judicial review--Affected party not debarred from alleging and showing absence of such purpose

Amita Banta & Anr. v. State of Haryana
942- 2010(1) LAW HERALD (P&H) 266 (DB)
IN THE HIGH COURT OF PUNJAB AND HARYANA
(DIVISION BENCH)
Before
The Hon’ble Mr. Justice Adarsh Kumar Goel
The Hon’ble Mr. Justice Gurdev Singh
CWP No.5878 of 2003(O&M)
Amita Banta & Anr.
v.
State of Haryana & Ors.
{Decided on 08/12/2009}
For the Petitioners in CWP No.5878 of 2003 and
CWP No.9155 of 2004: Mr. Vinay Kuthiala, Advocate and Mr. Munish Behl, Advocate.
For the Petitioners in CWP No.6038 of 2003, 9142 and
9181 of 2004: Mr. Shailendra Jain, Advocate.
For the Petitioners in CWP No.11502 of 2004: Mr. Ashish Chopra, Advocate.
For the Petitioners in CWP No.7922 of 2003,
14858 of 2003 and 11637 of 2004: Mr. Virender Kumar Kharta, Advocate.
For the Petitioners in CWP No.8515 of 2003: Mr. Sanjay Vij, Advocate.
For the State: Mr. Rameshwar Malik, Addl. A.G. Haryana.
IMPORTANT POINTS
Public Purpose--Declaration of--Judicial Review--Declaration of public purpose open to judicial review--Affected party not debarred from alleging and showing absence of such purpose--Action of State has to be consistent with declared public purpose--Declared public purpose established to be non-existent--Notification for acquisition of land quashed.
Release of Land--Plea that notified purpose was not required to be adhered to or that release to builders amounts to development of State--Is contrary to concept of public purpose under scheme of the act.
Public Purpose--Change of--Public purpose must continue to exist unless unforeseen situation arises--Plea on behalf of state that purpose can change any time even before completion of acquisition and vesting of land in state--Not acceptable.
Acquisition of Land--Public Purpose--Release of Land--90% of Land released in favour of private builders--Notified public purpose found non existent--Power of acquisition not exercised for public purpose is vitiated by concept of colourable exercise of power--Exercise of such power not only ultravires the Act but also hit by Article 14, 21 and 300-A.
(A) Land Acquisition Act, 1894, S. 48--Release of Land--Exercise of power by public authority--Scope of power under Section 48 and Judicial review there of--Discussed in light of leading judgments.
(B) Land Acquisition Act, 1894, S.48--Public Purpose--Release of Land--Land acquired for utilization of land for residential and commercial sector--90% of notified land released in favour of private builder who applied for licence--Plea that notified purpose was not required to be adhered to or that release to builders amounts to development of State--Is contrary to concept of public purpose under scheme of the Act--Notification of acquisition quashed.
(C) Land Acquisition Act, 1894, S.4, 6 & 48--Public Purpose--Declaration of--Judicial Review--Declaration of public purpose open to judicial review--Affected party not debarred from alleging and showing absence of such purpose--Action of State has to be consistent with declared public purpose--Declared public purpose established to be non-existent--Notification for acquisition of land quashed.
(D) Land Acquisition Act, 1894, S.4, 6 & 48--Public Purpose--Change in--Land Acquisition Act being expropriatory legislation has to be strictly construed--What cannot be done directly cannot be done indirectly--Further, Act being on concurrent list subject, field being occupied by Central Law, State cannot go beyond concept of ‘public purpose’ under the Act.
(E) Constitution of India, 1950, Art.14, 21 & 300-A--Land Acquisition Act, 1894, S. 4, 6, & 48--Acquisition of Land--Public Purpose--Release of Land--90% of Land released in favour of private builders--Notified public purpose found non existent--Power of acquisition not exercised for public purpose is vitiated by concept of colourable exercise of power--Exercise of such power not only ultravires the Act but also hit by Article 14, 21 and 300-A.
(F) Land Acquisition Act, 1894, S.5-A--Acquisition of Land--Objections--Non-application of mind--No affidavit filed by any of functionaries who dealt decision making at state level to show application of mind to objection filed under Sections 5-A preceding notification under Section 6--Affidavit filed only by collector hardly relevant to show application of mind at level of State Government--Allegation that there was no consideration to objection that in same circumstance, substantial part of notified land was not acquired not rebutted--Held, that there is no valid consideration of objections under Section 5-A vitiating notification under Section 6 of the Act.
(G) Land Acquisition Act, 1894, S.48--Release of land--Power under Section 48--Acquisition of Land for public purpose--Withdrawal from acquisition--Power under Section 48 is executive power and not source of laying down norms beyond of scheme of Act--Said power having regard to scheme of the Act has to be confined to exceptional situations--If acquisition is not permissible for purpose other than public purpose Section 48 cannot be source of power to act beyond scheme of the Act.
(H) Land Acquisition Act, 1894, S.48--Withdrawal from acquisition--Scope of power Section 48--Power of withdrawing from acquisition under section 48 can be exercised only for an unforeseen or uncontemplated situation and not by a planned policy which may be in conflict with declared public purpose or scheme of the Act--Release of land by the State under its policy is beyond the scope of Section 48--It can be annulled and appropriate direction issued to bring out situation existing prior to illegal actions of the State.
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