Bharat
Singh & Ors Vs. State of Haryana & Ors [1988] INSC 275 (13 September 1988)
Dutt,
M.M. (J) Dutt, M.M. (J) Singh, K.N. (J)
CITATION:
1988 AIR 2181 1988 SCR Supl. (2)1050 1988 SCC (4) 534 JT 1988 (4) 91 1988 SCALE
(2)890
ACT:
Land
Acquisition Act, 1894-Section 4(1)--Whether substance of the notification is
published in the localities concerned or not is preeminently a matter of fact
and not of law.
% Land Acquisition Act, 1894-Section 3--Public purpose--
Development and industrialisation of land is a public purpose and not a
profiteering venture.
Pleadings--Pleadings
under Civil Procedure Code and a writ petition or counter affidavit are
different--In plaint or written statement facts are to be pleaded but in writ
petition facts and evidence in proof thereof is also to be pleaded. Point of
law should be substantiated by facts--The facts must be pleaded and proved by
evidence which must appear from writ petition or counter affidavit--If not so
done Court will not entertain that point.
HEAD NOTE:
The
State of Haryana through Haryana Urban Development
Authority (HUDA) acquired some land under the land Acquisition Act for the
purpose of development and utilisation of that land for industrial purposes of Gurgaon
under the Haryana Urban Development Authority Act, 1977. The appellants herein
filed writ petitions in the High Court challenging the validity of the
acquisition of land. The High Court dismissed the writ petitions. Hence the
writ petitioners filed these appeals by special leave. .Some other affected
persons also filed writ petitions in this Court Dismissing all the appeals and
the writ petitions.
this
Court,
HELD:
The first ground of attack to the acquisition that the sub-stance of the
notification under section 4(1) of the Act has not been published in the
locality of the land said to be acquired is without any foundation. Whether the
substance of the notification was published or not is pre- eminently a question
of fact. It is apparent from the statement made in paragraph 8 of the affidavit
in reply of the land Acquisition Collector that the substance of the
notification was published in the concerned localities. It is further stated in
the affidavit that pursuant such PG NO 1050 PG NO 1051 publication, 157 of the
land owners filed objections to the proposed acquisition. This fact has not
been disputed by the appellants. In view of these facts the first ground of
attack is without any foundation whatsoever. [1054D-E] The second ground of
attack was that the sole purpose of the acquisition was for a profiteering
venture of the Government to acquire land at nominal price and then to re- sale
the same at a high profit Reliance was placed on an application for
intervention filed in this matter by Haryana State Industrial Development
Corporation (HSIDC) which showed that HUDA sold the land to HSIDC at a very
high price paid by HSIDC out of the amounts received from intended allottees/entrepreneurs.
In the opinion of this Court the facts stated in the application of the HSIDC
do not, support the contention of the appellants. It is true that, as stated in
the said application, HSIDC paid a sum of Rs. 1.74 crores to HUDA, but nothing
turns out on that. The land was acquired by the Government for the purpose of
development and industrialisation. The Government can do it itself or through
other agencies. In the instant case, the land was acquired at the instance of
HUDA and, thereafter, HUDA had transferred the same to HSIDC. It is not that
the land was transferred in the same condition as it was acquired. But, we are
told by the learned Counsel appearing on behalf of HUDA and HSIDC that before
transferring, HUDA had made external developments incurring considerable cost
and HSIDC in its turn has made various internal developments and in this way
the land has been fully developed and made fit for industrialisation. Thus,
there was no motive for HUDA to make any profit. [1058E-H; 1059A] The
"Public purpose" in question is development and industrialisation of
the acquired land. The appellants have not challenged the said public purpose.
In the absence of any such challenge it does not lie in the mouth of the
appellants to contend that the acquisition was merely a profiteering venture by
the State Government through Haryana Urban Development Authority. Even assuming
that HUDA has made some profit, that will not in any way affect the public
purpose for which the land was acquired and the acquisition will not be liable
for any challenge on that ground. [1059B- D] Arnold Rodricks v. State of Maharashtra, AIR 1966 SC 1788, referred to.
When a
point which is ostensibly a point of law i6 required to be substantiated by
facts, the party raising the point, if he is the writ petitioner, must plead
and prove such facts by evidence which must appear from the writ petition and if
he is the respondent from the counter- PG NO 1052 affidavit. If the facts are
not pleaded or the evidence in support of such facts is not annexed to the writ
petition or to the counter-affidavit, as the case may be, the Court will not
entertain the point. [1059F-G] There is a distinction between a pleading under
the Code of Civil Procedure and a writ petition or a counter- affidavit. While
in a pleading, that is, a plaint or a written statement, the facts and not
evidence are required to be pleaded, in a writ petition or in the counter-
affidavit not only the facts but also the evidence in proof of such facts have
to be pleaded and annexed to it. [1059G- H] The contention of the appellants
that the acquisition is for HSIDC which is a `company' within the meaning of
section 3(e) of the Act and, accordingly, the acquisition is invalid for the
non-compliance with the provisions of Part-III of the Act is untenable. In the
notification under section 4(1), it has been clearly stated that the
development and industrialisation of the acquired land would be made under the Haryana
Development Authority Act, 1977 by HUDA. It is, therefore, manifestly clear
that HUDA was the acquiring authority and not HSIDC. It is for HUDA to develop
the land fully either by itself or by any other agency or agencies.
HUDA
has transferred the land to HSIDC for the purpose of development and allotment
to various persons. It is too much to say that as HUDA has transferred the
acquired land to HSIDC, the latter is the acquiring authority. [1060B-D] The
contention that the petitioners have been discriminated inasmuch as the land of
other persons in the village has not been acquired is without any substance
whatsoever. The Government will acquire only that amount of land which is
necessary and suitable for the public purpose in question. The land belonging
to the petitioners have been acquired obviously considering the same as
suitable for the public purpose. [1061D]
CIVIL
APPELLATE/ORIGINAL JURISDICTION: Civil Appeal No 1193 of 1984 and 572-573 of
1985.
From
the Judgment and Order dated 12.10.1983 of the Punjab and Haryana High Court in C.W.P. Nos. 1659, 1777 and 1659
of 1983.
Writ
Petition (C) Nos. 11106-27 of 1984.
PG NO
1053 (Under Article 32 of the Constitution of India) U.R. Lalit, D.N. Goburdhan and Pankaj Kalra for the
Appellants.
R.N. Sachthey,
D.S. Tewatia, Anip Sachthey and Mahabir Singh for the Respondents.
The
Judgment of the Court was delivered by DUTT, J. In these appeals and writ
petitions, the appellants and the petitioners have challenged the validity of
the acquisition of their land by the State of Haryana under the Land
Acquisition Act, 1894, hereinafter referred to as `the Act', for a public
purpose, namely, for the development and utilisation of land for industrial purpose
at Gurgaon under the Haryana Urban Development Authority Act, 1977 by the Haryana
Urban Development Authority (for short HUDA). Although, both in the appeals and
in the writ petitions the validity of acquisition has been challenged, we
propose to deal with the appeals first.
The
appeals are directed against the judgments of the Punjab & Haryana High
Court dismissing the writ petitions of the Appellants questioning the validity
of the acquisition of their land and praying for the quashing of such acquisition.
The
first ground of attack to the acquisition, as urged by Mr. Lalit, the learned
Counsel appearing on behalf of the appellants in Civil Appeal No. 1193 of 1984,
is the non- publication of the substance of the notification under section 4(1)
of the Act in the locality of the land sought to be acquired It is true that
section 4(1) enjoins that the Collector shall cause public notice of the
substance of the notification to be given at convenient places in the locality.
It is however, preeminently a question of fact.
The
allegation of the appellants as to the non-publication of the notification
under section 4(1), as made in the writ petition before the High Court, was
emphatically denied and disputed in paragraph 8 of the affidavit in opposition
affirmed by the Land Acquisition Collector Paragraph 8 reads as follows:
"8.
In reply to para 8 of the writ petition. it is submitted that the averments of
the petitioners are wrong and denied. The publicity of the substance of the
notification was made in concerned locality of village PG NO 1054 Dundahera on 6th July, 1981 through Shri Chhattar Singh Chowkidar
with loud voice and beating of empty tin. The report exists in Roznamcha Vakyati
at Serial No. 519 dated 6.7.1981. Similarly, the publicity was made in
concerned locality of village Mulahera through Shri Surjan Singh Chowkidar with
loud voice and beat of empty tin (Kanaster).
A
report to this effect exists in Roznamcha Vakyati at Serial No. 520 dated 6.7
1981. The publicity was made on this very day on which the notification was
issued. In response to this publicity 157 land-owners filed objection
applications which clearly shows that due publicity was made in the concerned
locality and the averments of the petitioners are wrong, baseless and hence denied."
It is apparent from the statement made in paragraph 8 that the substance of the
notification under section 4(1) was published in the concerned localities of
villages Dundahera and Mulahera. It is, however, urged on behalf of the
appellants that it was not at all possible to make entries in the Roznamcha as
to the publication of the notification under section 4(1) on the same day it
was published in both the villages. It is submitted that on this ground the
statement in paragraph 8 as to the publication of the substance of the
notification in the localities should not be accepted, and it should be held
that there was no such publication is alleged. We are afraid, we are unable to
accept the contention. Apart from the statement that there was publication of
the notification, there is further statement in paragraph 8 that pursuant to
such publication, 157 land-owners filed objections to the proposed acquisition.
This fact has not been disputed before us on behalf of the appellants.
Moreover, Mr. Tewatia, learned Counsel appearing on behalf of the State of Haryana,
has produced before us the original objection petitions filed by the
land-owners. In each of these objection petitions there is a note at the end
which reads as follows:
"Note:
The above referred notification was announced by the beat of drum in the
village Dundahera on 6.7.1981, vide Patwari's Roznamcha Report No. 519 dated
6.7.1981." Similar notes, as extracted above, are there in the petitions
of objections filed by the land-owners of village Mulahera. In view of the
facts stated above, the allegation of the appellants that the substance of the
notification under section 4(1) of the Act was not published in the localities
of the two villages mentioned above, is without any foundation whatsoever. The
contention of the appellants in this regard is rejected.
PG NO
1055 The next ground of attack to the acquisition comes from Mr. Kalra, the
learned Counsel appearing on behalf of the appellants in Civil Appeals Nos. 572
& 573 of 1985. It is urged by the learned Counsel that the sole purpose of
the acquisition is for a profiteering venture of the Government to acquire land
of the helpless farmers at a nominal price of Rs. 10, Rs. 20 or Rs. 50 per
square yard and then to resale the same at a high profit. It is submitted that
a welfare State should work for the poor and the down-trodden of the society
rather than to displace them from their land for the sake of making profit. Our
attention has been drawn by the learned Counsel to an application filed in this
Court by the Haryana State Industrial Development Corporation (for short HSIDC)
praying for impleading it as a party-respondent in these appeals. In this
application it has been stated, inter alia, by HSIDC that it plays an important
role in the industrialisation of the State by providing concessional finance
and offering land at no profit no loss basis along with infra-structure
facilities for setting up new industrial units in the State. Further, it is
stated that the land in Udhyog Vihar, Phase-lV, (land which is the
subject-matter of these appeals), was acquired by HUDA and later sold to HSIDC
at the approximate price of Rs 55,000 per acre. In paragraph 5 of the
application, it is stated that on account of the price of the above land of
Phase-lV, approximately Rs. 1.74 crores was paid by the the HSIDC to HUDA. The
said payment was made out of the amounts received from the intended allottees/entrepreneurs
and also out to the funds/reserves of the HSIDC, and that a sum of Rs. 4.90 crores
is estimated to be spent on the development of the industrial complex in
question.
Relying
upon the above statements in the said application of HSIDC, the learned Counsel
for the appellants, endeavours to substantiate his contention that the impugned
acquisition is nothing but a profiteering venture of the Government. It is
urged that the said statements in the application prove that the Government has
made huge profit in the guise of development and utilisation of the land for
industrial purpose at Gurgaon.
In
support of the contention, Mr. Kalra has placed reliance upon an observation of
Mahajan, J. (as he then was) in the State of Bihar v. Maharajadhiraja Sir Kameshwar
Singh, [1952] 3 SCR 889, namely, that it is a well accepted proposition of law
that property of individuals cannot be appropriated by the State under the
power of compulsory acquisition for the mere purpose of adding to the revenues
of the State. The learned Counsel has also placed reliance on the observation
in the minority judgment of Wanchoo, J.
PG NO 1056
in Arnold Rodricks v. State of Maharashtra, AIR 1966 SC 1788. In that case, the
enquiries purported to be held under section 5A and section 11 of the Act were
challenged as illegal, invalid and inoperative in law. In that connection, the
validity of the definition of "Public purpose" in clause (f) of
section 3 of the Act, as amended by the Bombay Amendment Act 35 of 1953, also
came to be considered. Clause (2) of the amended definition in clause (f) reads
as follows:
"(f).
the expression "Public purpose" includes- (1)
..................................................
(2)
the acquisition of land for purposes of the development of areas from public
revenues or some fund controlled or managed by a local authority and subsequent
disposal thereof in whole or any part by lease, assignment or sale, will be
object of securing further development." Wanchoo, J. observed as follows:
"(33).
The attack of the petitioners is on the second part of the addition in 1953
which provides for "subsequent disposal thereof in whole or in part by
lease, assignment, or sale, with the object of securing further
development." It is urged that all these words means that after the
development envisaged in the first part of the addition the State or the local
authority would be free to dispose of the land acquired in whole or in part by
lease, assignment or sale, apparently to private persons. This, it is said,
means that the State or the local authority would acquire land in the first
instance and develop it in the manner already indicated and thereafter make
profit by leasing, assigning or selling it to private individuals or bodies. It
is also said that the object of securing further development which is the
reason for sale or lease etc. is a very vague expression and there is nothing
to show what this further development comprises of.
(34).
It is true that when this part speaks of "subsequent disposal thereof in
whole or in part by lease, assignment or sale", it is not unlikely that
this disposal] will take place to private persons and thus in an indirect way
the State would be acquiring the land from one set of individuals and disposing
it of to another set of PG NO 1057 individuals after some development. If this
were all, there may be some force in the argument that such acquisition is not
within the concept of "public purpose" as used in Art. 31(2). But
this in our opinion is not all. We cannot ignore the words "with the
object of securing further development", which appear in this provision.
It would have been a different matter if the provision had stopped at the words
"lease, assignment or sale"; but the provision does not stop there.
It says that such lease, assignment or sale must be with the object of securing
further development, and these words must be given some meaning. It is true
that the words "further development" have not been defined, but that
was bound to be so, for further development would depend upon the nature of the
purpose for which the land is acquired. Of course, it is possible that further
development can be made by the State itself or by the local authority which
acquired the land; but we see no reason why the State or the local authority
should not have the power to see that further development takes place even
through private agencies by lease, assignment or sale of such land. So long as
the object is development and the land is made fit for the purpose for which it
is acquired there is no reason why the State should not be permitted to see
that further development of the land takes place in the direction for which the
land is acquired, even though that may be through private agencies. We have no
doubt that where the State or the local authority decides that further
development should take place through private agencies by disposal of the land
so acquired by way of lease, assignment or sale, it will see that further
development which it has in mind does take place. We can see no reason why if
the land so acquired is leased, assigned or sold, the State or the local
authority should not be able to impose terms on such lessees, assignees or
vendees that will enable further development on the lines desired to take
place. We also see no reason why when imposing terms, the State or the local
authority may not provide that if the further development it desires the
lessee, assignee or vendee to make is not made within such reasonable time as
the State or the local authority may fix, the land will revert to the State or
the local authority so that it may again be used for the purpose of further
development which was the reason for the acquisition of the land." PG NO
1058 We fail to understand how does the above observation help the contention
of the learned Counsel for the appellants that the acquisition has been made by
the Government with a motive for profiteering in the guise of development and industrialisation.
The observation of Wanchoo, J relates to the definition of "Public
purpose" under section 3(f) of the Act as amended by the Bombay Amendment
Act 35 of 1953. The amended provision specifically provides for the disposal of
acquired land in whole or in part by lease, assignment or sale, but there is no
such provision in the unamended section 3(f) of the Act with which we are
concerned. Wanchoo, J overruled the contention as to profiteering by the State
or local authority as the amended provision made it very clear that such
subsequent disposal of the acquired land will be for the purpose of securing
further development. We do not think we are called upon to express any opinion
on the correctness or otherwise of the above observation, and all that we say
is that there is no such provision like the amended definition in section 3(f)
of the Act with which we are concerned. In the circumstances. the observation
has no manner of application in the instant case.
In the
writ petitions, the point was taken as an abstract point of law. There was no
attempt on the part of the appellants to substantiate the point by pleading
relevant facts and producing relevant evidence. It is apparent that there was
no material in the writ petitions in support of the contention of the
appellants that the impugned acquisition was nothing but a profiteering
venture.
The
contention was not also advanced before the High Court at the hearing of the
writ petitions. The facts stated in he said application of the HSIDC do not, in
our opinion, support the contention of the appellants. It is true that, as
stated in the said application, HSIDC paid a sum of Rs. 1.74 crores to HUDA,
but nothing turns out on that. The land was acquired by the Government for the
purpose of development and industrialisation. The Government can do it itself
or through other agencies. In the instant case, the land was acquired at the
instance of HUDA and, thereafter, HUDA had transferred the same to HSIDC. It is
not that the land was transferred in the same condition as it was acquired.
But, we are told by the learned Counsel appearing on behalf of HUDA and HSIDC
that before transferring, HUDA had made external developments incurring
considerable cost and HSIDC in its turn has made various internal developments
and in this way the land has been fully developed and made fit for industrialisation.
Our attention has been drawn by the learned Counsel for HUDA and HSIDC to the
various external developments made by HUDA at a cost of Rs. 1,66,200 per acre
before it was transferred to HSIDC and the cost that was incurred for external
developments was included in the price. Thus, there was no motive for HUDA to
make any profit.
PG NO
1059 The "public purpose" in question, already noticed, is
development and industrialisation of the acquired land. The appellants have not
challenged the said "public purpose". In the absence of any such
challenge, it does not lie in the mouth of the appellants to contend that the
acquisition was merely a profiteering venture by the State Government through
HUDA. The appellants will be awarded the market value of the land as
compensation by the Collector. If they are dissatisfied with the award they may
ask for references to the District Judge under section 18 of the Act. If they
are still aggrieved, they can file appeals to the High Court and, ultimately,
may also come to this Court regarding the amount of compensation. The
appellants cannot claim compensation beyond the market value of the land. In
such circumstances, we fail to understand how does the question of profiteering
come in. Even assuming that HUDA has made some profit, that will not in any way
affect the public purpose for which the land was acquired and the acquisition
will not be liable for any challenge on that ground.
As has
been already noticed, although the point as to profiteering by the State was
pleaded in the writ petitions before the High Court as an abstract point of
law, there was no reference to any material in support thereof nor was the
point argued at the hearing of the writ petitions. Before us also, no
particulars and no facts have been given in the special leave petitions or in
the writ petitions or in any affidavit, but the point has been sought to be
substantiated at the time of hearing by referring to certain facts stated in
the said application by HSIDC. In our opinion, when a point which is ostensibly
a point of law is required to be substantiated by facts, the party raising the
point, if he is the writ petitioner, must plead and prove such facts by
evidence which must appear from the writ petition and if he is the respondent,
from the counter-affidavit. If the facts are not pleaded or the evidence in
support of such facts is not annexed to the writ petition or to the counter,
affidavit, as the case may be, the court will not entertain the point. In this
context, it will not be out of place to point out that in this regard there is
a distinction between a pleading under the Code of Civil Procedure and a writ
petition or a counter-affidavit. While in a pleading, that is, a plaint or a
written statement, the facts and not evidence are required to be pleaded, in a
writ petition or in the counter-affidavit not only the facts but also the
evidence in proof of such facts have to be pleaded and annexed to it. So, the
point that has been raised before us PG NO 1060 by the appellants is not entertainable.
But, in spite of that, we have entertained it to show that it is devoid of any
merit.
Equally
untenable is the contention of the appellants that the acquisition is for HSIDC
which is a `company' within the meaning of section 3(e) of the Act and,
accordingly, the acquisition is invalid for the non- compliance with the
provisions of Part-III of the Act. In the notification under section 4(1), it
has been clearly stated that the development and industrialisation of the
acquired land would be made under the Haryana Development Authority Act, 1977
by HUDA. It is, therefore, manifestly clear that HUDA was the acquiring
authority and not HSIDC.
It is
for HUDA to develop the land fully either by itself or by any other agency or
agencies. HUDA has transferred the land to HSIDC for the purpose of development
and allotment to various persons. It is too much to say that as HUDA has
transferred the acquired land to HSIDC, the latter is the acquiring authority.
We do not think that there is any substance in the contention and it is,
accordingly, rejected.
Now we
may consider the contention made on behalf of the petitioners in the writ
petitions Nos. 11106 to 11127 of 1984. The first point that has been urged by
Mr. Goburdhan, learned Counsel appearing on behalf of the writ petitioners, is
similar to that urged by Mr. Lalit in Civil appeal No 1193 of 1984, namely,
non-publication of the substance of the notification under section 4(1) of the
Act in the locality. This contention need not detain us long, for in the
counter-affidavit filed by the Land Acquisition Collector, it has been averred
that the substance of the notification was published and out of 22 petitioners
16 filed their objections pursuant to the publication of the notification in
the locality. A similar note, as extracted above, appears in all these
objections. In the circumstances, there is no substance in the contention of
the petitioners that the substance of the notification under section 4(1) of
the Act was not published in the locality.
Next
it is urged on behalf of the petitioners that before starting the proceedings
for acquisition, the Government had not applied its mind to its policy
decision, as contained in the circular No. 2099-R-III-82/17113 dated 18.5.1982
wherein it has been stated that "in the matter of State's need for land
for its development activities, utmost restraint should be exercised in the
acquisition of land." It is submitted that as the land is agricultural, it
should not have been acquired in view of the said policy decision PG NO 1061 of
the Government. We are unable to accept the contention. In a welfare State, it
is the duty of the Government to proceed with the work of development and take
steps for the growth of industries which are necessary for the country's
progress and prosperity and for solving the question of unemployment.
It is
true that agricultural land is necessary and should not ordinarily be converted
to non-agricultural use, but keeping in view the progress and prosperity of the
country, the State has to strike a balance between the need for development of industrialisation
and the need for agriculture. The allegation that before initiating the
acquisition proceedings, the Government has not applied its mind to the need
for agricultural land is a very vague allegation without any material in
support thereof. The contention is overruled.
Lastly,
it is argued by Mr. Goburdhan for the writ petitioners that the petitioners
have been-discriminated inasmuch as the land of other persons in the village
has not been acquired. This contention is without any substance whatsoever. The
Government will acquire only that amount of land which is necessary and suitable
for the public purpose in question. The land belonging to the petitioners have
been acquired obviously considering the same as suitable for the public
purpose. The petitioners cannot complain of any discrimination because the land
of other persons has not been acquired by the Government. The contention is
devoid of any merit whatsoever.
Before
parting with these cases, we may consider a short submission on behalf of the
appellants as also the writ petitioners that as by the acquisition of their land
they have become landless, they should be allotted land by HSIDC, after
development, so that they may start their businesses and earn their livelihood.
After giving our anxious consideration to this submission, we direct that if
any of the appellants or the petitioners, who has become really landless by the
acquisition of his land, makes an application for the allotment of land, the
HSIDC shall consider such application and give him priority in the matter of
allotment provided he fulfils the conditions for such allotment and plot is
available.
Another
short submission has been made on behalf of the appellants in Civil Appeal No
1193 of 1984. Our attention has been drawn to paragraphs 4 and 5 of the
additional affidavit filed on behalf of the appellants, and affirmed by one Sat
Prakash, son of Mathura Prashad, one of the appellants, that in Khasra No 21/6/2 and in Khasra No. 22/10/1, there are a temple, a Piaou and
a Dharamshala. It is submitted that the land comprising the temple, Piaou and Dharamshala
may be exempted from acquisition. We do not PG NO 1062 consider it necessary to
give any direction in this respect.
The
appellants, however, will be at liberty to make a representation in that regard
to the authority concerned. No other point has been urged in these cases.
For
the reasons aforesaid, subject to the directions given on the short
submissions, all the appeals and the writ petitions are dismissed. There will,
however, be no order as to costs in any of them.
H.S.K.
Appeals and Petitions are dismissed.
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