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Vinod Kumar v. State Of Haryana And Others
Factual and Procedural Background
The appellant owns 5 kanals 6 marlas of land in Faridabad, Haryana, of which 934 sq. yards were initially left out of acquisition. On 7-2-2008 the Haryana Urban Development Authority (HUDA) issued a Section 4 notification under the Land Acquisition Act, 1894 (“the Act”) to acquire land, including the appellant’s, for development of residential and commercial Sectors 76, 77 and 78. The appellant filed objections under Section 5-A, highlighting that an A-Class residential building had existed on the land since 1999-2000. On 15-9-2008 the Land Acquisition Collector recommended that the land “may not be acquired” because of the well-laid residence.
Despite that recommendation, the State issued a Section 6 declaration on 6-2-2009, reaffirming acquisition of the appellant’s land while releasing some adjoining parcels, including property of M/s Harpreet Food. The appellant’s writ petition (CWP 7746/2009) challenging the acquisition was dismissed by the Punjab and Haryana High Court, which clubbed the matter with similar cases and treated New Vidya Niketan Educational Society v. State of Haryana (CWP 7711/2009) as the lead case. A review application was also dismissed on 16-12-2011. The appellant thereafter appealed to the Supreme Court.
Legal Issues Presented
- Whether the State Government could lawfully issue a Section 6 declaration contrary to the Land Acquisition Collector’s recommendation without recording reasons.
- Whether non-consideration of the Section 5-A report vitiates the acquisition process under the Land Acquisition Act, 1894.
- Whether the High Court erred in upholding the acquisition despite the appellant’s existing authorised residential construction.
Arguments of the Parties
Appellant's Arguments
- The appellant’s land contains an authorised residential construction; under the State’s own policy, such built-up areas should be released from acquisition.
- The Land Acquisition Collector expressly recommended exemption; the State’s contrary decision is arbitrary and lacks reasons, violating Section 5-A safeguards.
- The State adopted a “pick-and-choose” approach, releasing adjoining commercial establishments while discriminating against the appellant.
- In comparable cases the High Court ordered release of built-up houses, indicating inconsistent treatment.
State's Arguments
- The appellant constructed the building without requisite permissions; therefore he cannot seek exemption on the basis of the construction.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kamal Trading (P) Ltd. v. State of W.B., (2012) 2 SCC 25 | Section 5-A hearing is the sole protection against arbitrary acquisition; Collector’s report is not an empty formality and must be considered before issuing a Section 6 declaration. | Used to emphasise that failure to consider or depart from the Collector’s report vitiates the acquisition. |
| Usha Stud and Agricultural Farms (P) Ltd. v. State of Haryana, (2013) 4 SCC 210 | The State must apply its mind to the Collector’s report and objections before issuing a Section 6 declaration. | Cited to reinforce that the Government must record reasons when disagreeing with the Collector. |
| Women's Education Trust v. State of Haryana, (2013) 8 SCC 99 | Lack of objective consideration of the Collector’s recommendations renders acquisition ultra vires Section 6. | Relied upon to demonstrate that similar failures have led to quashing of acquisitions. |
| Shyam Nandan Prasad v. State of Bihar, (1993) 4 SCC 255 | Compliance with Section 5-A is a sine qua non; proceedings involve both public and individual enquiry. | Invoked to underline the mandatory nature of Section 5-A safeguards. |
| Hindustan Petroleum Corpn. Ltd., (2005) 7 SCC 627 (referenced in quotation) | Appropriate Government must consider objections and Collector’s report before issuing Section 6 declaration. | Referenced within the quotation from Kamal Trading to bolster the same principle. |
Court's Reasoning and Analysis
The Supreme Court held that the High Court’s dismissal of the writ petition was erroneous because it ignored binding principles governing Sections 5-A and 6 of the Act. Drawing on the cited precedents, the Court reiterated that:
- The Collector’s report after a Section 5-A enquiry constitutes a substantive safeguard for landowners.
- The State Government may issue a Section 6 declaration only after objectively considering that report and recording reasons if it chooses to disagree.
- In the present case, the Collector unequivocally recommended exemption owing to the “well-laid beautiful residence” on the land. The Section 6 declaration, however, provided no reasons for departing from that recommendation.
- Such omission violates the minimal procedural protection guaranteed under Section 5-A and taints the acquisition with mala fides.
- The High Court compounded the error by upholding the acquisition without examining whether the State had applied its mind to the Collector’s findings.
Holding and Implications
The Supreme Court allowed the appeals, quashed the Section 4 and Section 6 notifications insofar as they pertain to the appellant’s land, and set aside the High Court’s judgments in CWP 7746/2009 and CWP 7711/2009.
Immediate effect: the appellant’s land stands released from acquisition, and any consequential actions under the impugned notifications are nullified. Broader implication: the judgment reaffirms that State authorities must record cogent reasons when disagreeing with a Land Acquisition Collector’s Section 5-A report, else the acquisition is liable to be struck down. No new legal doctrine was created; the decision reinforces established safeguards under the Land Acquisition Act, 1894.
V. Gopala Gowda, J.— Delay condoned. Leave granted. These appeals are filed by the appellant questioning the correctness of the judgment and final order dated 5-4-2011 passed in Vinod Kumar v. State of Haryana CWP No. 7746 of 2009, CWP No. 7711 of 2009 and order dated 16-12-2011 passed in Vinod Kumar v. State of Haryana by the High Court of Punjab and Haryana at Chandigarh, urging various facts and legal contentions in justification of his claim.
2. Necessary relevant facts are stated hereunder to appreciate the case of the appellant and also to find out whether the appellant is entitled to the relief as prayed for in this appeal: the appellant is the owner of 5 kanals 6 marlas of land out of which 934 sq yd have been left out of acquisition. On 7-2-2008, under the Haryana Urban Development Authority Act, 1977, the Haryana Urban Development Authority issued a notice for acquisition of land including that of the appellant for public purpose, namely, for the development and utilisation of the land for residential and commercial purposes. The notification was issued under Section 4 of the Land Acquisition Act, 1894 (in short “the Act”) and the Land Acquisition Collector, Urban Estate, Faridabad, Haryana was authorised to issue public notice on the substance of notification at convenient places in the locality. He was also authorised to survey upon the land and take necessary action regarding the same.
3. The appellant filed a detailed objection under Section 5-A of the Act categorically stating that the appellant has raised an A Class construction on the area concerned in the year 1999-2000 and therefore, inclusion of the land for the purpose of acquisition is not justified. In the meanwhile, on 10-3-2008, the said land was released by the Authority in favour of Ritwiz Builders and Developers Pvt. Ltd. However, on 15-9-2008, the Land Acquisition Collector considered the objection filed by the appellant under Section 5-A of the Act and as per his report, exempted the land of the appellant from acquisition since there was already a residential building on the land on the date of the notification. In spite of the report produced by the Land Acquisition Collector, the Haryana Urban Development Authority vide Notification dated 6-2-2009 made a declaration that the appellant's land is to be acquired for the development of residential and commercial Sectors 76, 77 and 78 for which the Notification was initially issued on 7-2-2008.
4. It is the case of the appellant that while issuing the notification under Section 6 of the Act, the property adjoining the land of the appellant, which belongs to one M/s Harpreet Food, was released. Though the respondent Authority has released a portion of the appellant's property, some part of the built-up and constructed portion of the house was not released.
5. The appellant therefore, filed a writ petition before the High Court of Punjab and Haryana registered as Writ Petition No. 7746 of 2009, challenging the acquisition of his land by the Authority. The said petition got tagged along with other similar petitions filed by different affected parties and Writ Petition No. 7711 of 2009, titled New Vidya Niketan Educational Society v. State of Haryana was made the lead case.
6. The High Court, after hearing both the parties concluded that in all the writ petitions, construction was raised in an unauthorised manner without getting any permission either under the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 or under the relevant municipal laws. Even then in some cases, relief was granted by releasing some portion of the land under construction and ordering acquisition of vacant land. The action taken by the Authority was held perfectly justified. Review Application No. 388 of 2011 filed by the appellant against dismissal CWP No. 7746 of 2009, CWP No. 7711 of 2009 of his CWP No. 7746 of 2009 was also dismissed on 16-12-2011. Hence, these appeals.
7. The learned Senior Counsel Mr Pallav Sisodia, appearing on behalf of the appellant argued that the High Court failed to appreciate that there was a construction already made by the appellant for residential purpose. Therefore, as per the policy of the Government of Haryana, the constructed portion including the amenities and other built-up areas are required to be released from the process of acquisition. It is the further case of the appellant that the High Court erred in not appreciating the fact that the Land Acquisition Collector in his report has mentioned that the land of the appellant may not be acquired since it has a well-laid beautiful residence. The State Government, as per the learned Senior Counsel, illegally and in an unauthorised manner, has acquired the land. It is also the case of the appellant that in a different case having similar facts, the High Court has passed an order releasing the lands over which built-up houses were situated. The learned Senior Counsel of the appellant further argues that the Government has adopted the “pick-and-choose” methodology for acquiring land thereby exempting the commercial establishments from acquisition and discriminating against the appellant.
8. The learned Additional Advocate General Mr Manjit Singh, appearing on behalf of the State contended that the appellant had illegally raised construction on this land without permission of the authority concerned. Hence, the appellant cannot now seek exemption from acquisition on the ground that there is a residential construction on the land and therefore, the land cannot be acquired.
9. We are inclined to observe that the High Court has erred in dismissing the writ petition of the appellant as the same is contrary to the principle laid down by this Court in the following cases.
10. In Kamal Trading (P) Ltd. v. State of W.B (2012) 2 SCC 25 it has been held as under:
“14. It must be borne in mind that the proceedings under the LA Act are based on the principle of eminent domain and Section 5-A is the only protection available to a person whose lands are sought to be acquired. It is a minimal safeguard afforded to him by law to protect himself from arbitrary acquisition by pointing out to the authority concerned, inter alia, that the important ingredient, namely, ‘public purpose’ is absent in the proposed acquisition or the acquisition is mala fide. The LA Act being an expropriatory legislation, its provisions will have to be strictly construed.
15. Hearing contemplated under Section 5-A(2) is necessary to enable the Collector to deal effectively with the objections raised against the proposed acquisition and make a report. The report of the Collector referred to in this provision is not an empty formality because it is required to be placed before the appropriate Government together with the Collector's recommendations and the record of the case. It is only upon receipt of the said report that the Government can take a final decision on the objections. It is pertinent to note that declaration under Section 6 has to be made only after the appropriate Government is satisfied on the consideration of the report, if any, made by the Collector under Section 5-A(2). As said by this Court in Hindustan Petroleum Corpn. Ltd. (2005) 7 SCC 627, the appropriate Government while issuing declaration under Section 6 of the LA Act is required to apply its mind not only to the objections filed by the owner of the land in question, but also to the report which is submitted by the Collector upon making such further inquiry thereon as he thinks necessary and also the recommendations made by him in that behalf.
16. Sub-section (3) of Section 6 of the LA Act makes a declaration under Section 6 conclusive evidence that the land is needed for a public purpose. Formation of opinion by the appropriate Government as regards the public purpose must be preceded by application of mind as regards consideration of relevant factors and rejection of irrelevant ones. It is, therefore, that the hearing contemplated under Section 5-A and the report made by the Land Acquisition Officer and his recommendations assume importance. It is implicit in this provision that before making declaration under Section 6 of the LA Act, the State Government must have the benefit of a report containing recommendations of the Collector submitted under Section 5-A(2) of the LA Act. The recommendations must indicate objective application of mind.”
(emphasis supplied)
11. In Usha Stud and Agricultural Farms (P) Ltd. v. State of Haryana (2013) 4 SCC 210 it was held as under:
“30. … Section 6(1) provides that if the appropriate Government is satisfied, after considering the report, if any, made by the Collector under Section 5-A(2) that particular land is needed for the specified public purpose then a declaration should be made. This necessarily implies that the State Government is required to apply mind to the report of the Collector and take final decision on the objections filed by the landowners and other interested persons. Then and then only, a declaration can be made under Section 6(1).”
(emphasis supplied)
12. Further, in Women's Education Trust v. State of Haryana (2013) 8 SCC 99, this Court has held as under:
“35. What is most surprising is that the High Court did not even deal with the issue relating to application of mind by the Government to the report submitted by the Land Acquisition Collector under Section 5-A(2) along with his recommendations. The documents produced before the High Court and this Court do not show that the State Government had objectively applied mind to the recommendations made by the Land Acquisition Collector and felt satisfied that the land in question deserves to be acquired for the purpose specified in the notification issued under Section 4(1). The record also does not contain any indication as to why the State Government did not consider it proper to accept the recommendations of the Land Acquisition Collector. Therefore, there is no escape from the conclusion that the impugned acquisition is ultra vires the provisions contained in Section 6 of the Act.”
(emphasis supplied)
13. Also, in an earlier case in Shyam Nandan Prasad v. State of Bihar (1993) 4 SCC 255, this Court observed that compliance with Section 5-A of the Act is a sine qua non for acquisition of land. This Court held that:
“10. … The decision of the Collector is supposedly final unless the appropriate Government chooses to interfere therein and cause affectation, suo motu or on the application of any person interested in the land. These requirements obviously lead to the positive conclusion that the proceeding before the Collector is a blend of public and individual enquiry. The person interested, or known to be interested, in the land is to be served personally of the notification, giving him the opportunity of objecting to the acquisition and awakening him to such right. That the objection is to be in writing, is indicative of the fact that the enquiry into the objection is to focus his individual cause as well as public cause.”
14. In the light of the foregoing cases, it is evident that the Government has to consider the report of the Land Acquisition Collector while making declaration of acquisition of land under Section 6 of the Act. Further, if the Government is coming to a conclusion which is contrary to the report, then the Government has to provide appropriate reasons for the same.
15. The report of the Land Acquisition Collector is extracted hereunder:
Report Under Section 5-A of Sectors 76, 77, 78, Faridabad—Under Section 4 dated 7-2-2008
Sl. No. of obj. Name of place and sector Name of the objector Khasra No. total land Total constructed area Type of construction Whether construction before or after under Section 4 Objection of the petitioner Recommendation of the LAO 1 2 3 4 5 6 7 8 9 4. Faridpur 76, 77, 78 5. -do- Vinod, son of Birbal 18/13/3 (4-10) 8/2/3 (1-16)/ 6-6 1200 sq yd residential kothi, swimming pool, boundary wall A Class Prior The applicant has requested to get his house released from acquisition A well-laid beautiful residence. Hence, may not be acquired.
15-9-2008”
16. Hence, the declaration made by the Government for acquisition of land of the appellant under Section 6 of the Act does not provide any reason for arriving at a decision contrary to that of the report produced by the Land Acquisition Collector. Therefore, the basic protection to which the landowners are entitled to under the Act through Section 5-A is violated. Consequently, the process of acquisition of the land of the appellant is tainted with mala fides and therefore, the same is liable to be set aside. Accordingly, the impugned acquisition notifications under Sections 4 and 6 of the Act in relation to the appellant's land and the action taken thereon are hereby quashed. The impugned judgment CWP No. 7746 of 2009, CWP No. 7711 of 2009 and orders of the High Court are set aside. The appeals are allowed. No costs.
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