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Synopsis

The Supreme Court recently observed that a Collector holds no authority to "decide" on releasing portions of land from acquisition. Instead, the Collector's role is limited to offering "recommendations" to the Government, which retains the final decision-making power on whether the land should be released.

"No other authority can dictate the outcome of Section 5A (of the Land Acquisition Act) proceedings—neither the Collector nor the landowner. While the Collector’s report can form the 'basis' of such decision, the Government is free to independently evaluate and take a final decision, of course, based on relevant and lawful considerations," a bench of Justices Surya Kant and K V Vishwanathan said.

Rejecting a plea by Abhishek Gupta and others of Panchkula, the bench said that the State Government possesses the ability to disagree with the Collector’s report and decide a different course, but this is not to say that the Government’s decision cannot be challenged or is beyond judicial review. 

Regarding the matter at hand, court said, "There is ample material on record to show that the High-Powered Committee comprised of senior officials, made their assessment after having properly inspected the site. This Committee emphatically recommended that the whole of the land, including the unauthorised structures, be acquired for the proposed regulated development. Such a decision, in our considered view, is in conformity with the legislative object behind the Haryana Development and Regulation of Urban Areas Act, 1975, whereunder no construction on an agricultural land is permissible save and except when the change of land use is granted by the appropriate authority, in accordance with the procedure prescribed therein".

The bench also pointed out that the top court held on several occasions that exempting lands bearing constructions from acquisition is a matter of State Policy, not of law. 

"In case the Government finds that exempting such lands would adversely affect the larger Development Plan or any other purpose behind the acquisition, then it can still continue with the acquisition. Private interest of a few, should give way to the public interest of the many. Prior authorisation of the constructions is also not the definitive saving grace that the Respondents imagine it to be. In fact, this Court has repeatedly allowed acquisitions even in cases where the construction was specifically authorised by the government beforehand," the bench said.

The existence of constructions on the respondents’ land, whether authorised or not, legal or not, cannot be by themselves an absolute embargo on the Government’s power of eminent domain. The challenge brought by the Respondents on the anvil of Section 5A of the 1894 Act, therefore, falls flat, the bench added.

As respondents themselves admitted to the intention of developing their lands and structures for nonagricultural activities, the court said it did not wish to second guess the fact finding exercise conducted by the High-Powered Committee. 

"We must also note that the orders of the Commissioner and ADJ were caveated approvals for prospective construction of the agricultural structures. We do not see how these would preclude the State  Government from conducting an actual on-ground inspection and coming to a different conclusion as to their actual use. It is indeed possible that following the said orders, the land may have had unauthorised structures, which were being used beyond mere agricultural purposes. This possibility is only further enhanced by the Respondents’ own stated intention of putting the lands to residential use," the bench said.

The respondents also contended that the acquisition of their land was violative of Article 14 of the Constitution, as the land of Maharaja Harinder Singh ‘Khalaf’ Maharaja Varinder Singh had been exempted from the acquisition. 

The court noted that the total land proposed to be acquired through the Section 4 notification was 952.18 acres, out of which land measuring 950.14 acres eventually stood acquired. The acquisition of 99.78% of the initially notified land demonstrated the intention of the State to acquire the land uniformly, and not pick and choose individual parcels of land, it said.

The court said even if discrimination was to have been established, the solution to some lands being unjustifiably left out was to direct their acquisition, not encourage the exclusion of more lands. 

"Moreover, it is settled law that Article 14 cannot be ordinarily employed as a ground to claim negative equality, i.e., it cannot be used for claiming illicit benefits simply because someone else has been allowed such an undue favour, especially when doing so would jeopardise the entire acquisition by undermining its contiguity. Therefore, instead of multiplying the illegality, the High Court ought to have exercised its writ jurisdiction to annul such illicit benefit received by the similarly placed person," the bench said.

The court also noted that the land of Maharaja Harinder Singh ‘Khalaf’ Maharaja Varinder Singh had been subsequently acquired through notifications issued on May 16, 2007 and March 27, 2008. 

The very basis of discrimination, thus, stood denuded of its factual foundation as the High Court passed the impugned judgment on July 15, 2008, it noted. 

The High Court ought to have taken note of this material subsequent event which took place during the pendency of the proceedings before it, considering its serious impact on the outcome of the entire acquisition process, the bench said.

During the proceedings before the top court, the State consented to drop the acquisition process qua the respondents’ land only, if they were to agree, to provide a part of the subject land for the building of roads and other public amenities free of cost, along with an undertaking that the remaining land shall be utilized only for charitable purposes, i.e., non-commercial activities. 

The respondents also, without any delay, filed their affidavits in consonance and agreement with the State Government’s decision.

Examining the settlement, the bench said, "We are not oblivious to ground realities. This court is aware that the subject land is prime real estate. The proposed acquisition and development is located between the Shivalik Range and the Union Territory of Chandigarh. One side touches the Sukhna lake, while the other side abuts a notified forest. The land is contiguous with well-developed residential areas like the Mansa Devi Complex. Its idyllic natural surroundings and strategic proximity to urban areas and limited supply of similarly placed alternative areas, makes the land priceless."

Given the land’s premium nature, and its criticality to the subject acquisition, the bench opined, it was rather intriguing why the State Government had opted to enter into a compromise, knowing full well that doing so would weaken its case in defending the major chunk of the acquisition. The court decided to examine all the pros and cons and if the State Government acted in a bona fide manner to serve the public interest, before making the offer of release.

In the case, the bench said a perusal of the original record casted a cloud of doubt on the legal necessity of the entire exercise and had disappointed it regarding the manner in which the State Government’s decision to release the land had been taken. 

The court said that the record revealed that this issue was first discussed on September 08, 2023, in which the appellant (HUDA) noted that the land in question could not be spared. Nevertheless, it deferred the final decision to the State government. This note was authored by an official in the rank of an Assistant. Following this, the file moved with remarkable celerity and received approval from various departments and officials, including as high as the office of the Additional Chief Secretary, Urban Development on the very same date.

"The confluence of circumstances— the land being prime real estate and yet suddenly and inexplicably being excluded from acquisition, crucial policy decisions with wide ranging public interest of enormous financial ramifications being discussed and finalised by very junior officials, files receiving approval at exceptional speed, etc.—collectively do not inspire confidence as to the objectivity of the entire process," the bench said.

Holding the release of the respondents’ land as manifestly arbitrary, the bench emphasised while the State Government undoubtedly possesses the power to release the land for lawful considerations, it cannot do so whimsically, irrationally, without any application of mind, or selectively. 

"Condoning such action would encourage further monocratic release of other lands in complete disregard of the consequences and impact on public interest. This would likely result in the creation of small islands of unacquired lands within large swathes of acquired land. These private enclaves would undoubtedly upset the effectiveness of the rest of the acquisition—making it patently unfair for all other landowners, laying to waste perhaps the very purpose for which their lands were acquired in the first place," the bench said.

In their hurry to curry favour with the respondents, the senior bureaucrats have unfortunately failed to visualise the serious ramifications their actions could have had on the entire acquisition of more than 950 acres land and the law in general, the bench said.

Observing that the High Court's judgment which allowed release of the respondents' land was patently unjust and could adversely affect the subject acquisition, leading to significant harm to the public at large, the bench found it a fit case to invoke its powers under Article 142 of the Constitution and carve out an exception to the doctrine of merger so as to do complete justice to the parties.

Among its final directions in its judgment on October 21, 2024, the court directed the State of Haryana and the other authorities to take possession of the subject-land in accordance with law and commence development works without any delay, while clarifying that the land should be utilised for the public purposes for which it has been acquired.

The court also directed for filing a compliance report six months after and before April 30, 2025.

Case Title: Haryana Urban Development Authority Vs Abhishek Gupta Etc