Haryana Urban Development Authority vs Abhishek Gupta Etc

2024 INSC 796 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7420-7421 of 2010

Haryana Urban Development Authority …Appellant(s)

Versus

Abhishek Gupta etc. …Respondent(s)

JUDGEMENT

SURYA KANT, J.

1. These appeals have been preferred by the Haryana Urban

Development Authority (HUDA, now HSVP) (hereinafter,

‘Appellant’) against the judgement dated 15.07.2008 of the High

Court of Punjab and Haryana (hereinafter, ‘High Court’), whereby

the land acquisition proceedings initiated by the State of Haryana

were annulled by quashing the notifications issued under Sections Signature Not Verified Digitally signed by ARJUN BISHT Date: 2024.10.21

4 and 6 of the Land Acquisition Act, 1894 (hereinafter, ‘1894 Act’). 14:05:46 IST Reason:

1

A. FACTS

2. A notification was issued on 16.03.1999 under Section 4(1)

of the 1894 Act for acquiring 952.18 acres land, of which 748.56

acres fall in Village Saketri and 203.62 acres in Village Bhainsa

Tiba, both in Tehsil and District Panchkula, Haryana. The land

was being acquired for development and utilization for residential,

commercial, institutional and recreational purposes.

3. Located between the Union Territory of Chandigarh and the

Shivalik Range, the lands are bordered on one side by the Sukhna

Lake, and a designated Forest Area on the other. It is also adjacent

to several other residential sectors that the Appellant has fully

developed as part of the Mansa Devi Complex in the Panchkula

Urban Area.

4. The Respondents submitted their objections under Section

5A of the 1894 Act on 16.04.1999, contending that their portion of

the land under acquisition ought to be exempted as they contained

fruit trees and the state policy mandates the exemption of such

lands from acquisition. Additionally, they claimed that a cattle-

shed, greenhouse, and an attendant room were also erected on the

land, for which authorization had been granted by the

2 Commissioner, Ambala, on 23.12.1992 under the Punjab New

Capital (Periphery) Control Act, 1952 (hereinafter, ‘Punjab

Periphery Act’). Similarly, a farmhouse was also claimed to have

been constructed with the approval of the Additional District

Judge, Ambala, (hereinafter, ‘ADJ’) vide judgement dated

05.04.1994.

5. The Collector accepted these objections, noting that since the

Commissioner and the ADJ had authorized the construction on

the land, it could be exempted from acquisition. However, the State

Government went ahead with the acquisition, asserting that the

structures were unauthorized. A declaration under Section 6 of the

1894 Act was issued on 16.03.2000 to acquire both the land and

the constructions thereon.

6. Aggrieved, the Respondents approached the High Court,

pleading that their objections under Section 5A of the 1894 Act

had not been appropriately considered.

7. Subsequently, vide the impugned judgement dated

15.07.2008, the High Court allowed the Respondents’ writ petition

and quashed the notifications issued under Sections 4 and 6 of the

1894 Act. This finding stood on two primary legs: (i) the

3 Respondents’ objections were wrongfully rejected as the

constructions were duly authorized; and (ii) it was discriminatory

to acquire the Respondents’ land when similarly situated land

belonging to Maharaja Harinder Singh ‘Khalaf’ Maharaja Varinder

Singh had been exempted from acquisition.

8. Discontented with the quashing of the notifications issued

under Sections 4 and 6 of the 1894 Act, the Appellant—beneficiary

of the acquisition, is before us in these appeals. This Court, vide

order dated 01.09.2008, directed the parties to maintain status

quo which is operating till date.

B. CONTENTIONS

9. Mr. Lokesh Sinhal, Learned Senior Additional Advocate

General of Haryana, appearing on behalf of the Appellant—

beneficiary of the acquisition contended that the High Court erred

in quashing the aforementioned notifications. In support of this

assertion, he made the following submissions:

(a) The constructions undertaken by the Respondents were

unauthorized. Although permission was granted by the

Commissioner, Ambala, it was conditioned on the

Respondents submitting the building plan. However, there is

4 no evidence substantiating that such a plan was ever

submitted. Hence it cannot be presumed that the

construction was duly authorized, and consequently, the

Competent Authority was justified in repudiating the

Appellant’s objections under Section 5A of the 1894 Act.

(b) The Collector did not recommend the release of the

Respondents’ land. He merely stated that the State

Government may consider such release. The issue of

exemption from acquisition was consequently left open for

consideration by the Competent Authority.

(c) Even if it is assumed that the Collector recommended the

release of the land, it would not bind the State Government.

After due inspection, the High-Powered Committee had

determined that the construction was unauthorized and not

in conformity with the Developmental Plan. The State

Government, therefore, committed no error on disagreeing

with the Collector and proceeding with the acquisition, as

buttressed by this Court’s decision in Anand Buttons Ltd.

v. State of Haryana.1

1 (2005) 9 SCC 164.

5

(d) The land belonging to Maharaja Harinder Singh ‘Khalaf’

Maharaja Varinder Singh had also been subsequently

acquired through the notification dated 17.05.2007. It could

not be acquired earlier on account of pending public interest

litigations. It is thus incorrect to assert that the State

Government discriminated against the Respondents by

releasing similarly placed lands. In any case, the

Respondents had also not demonstrated that this land was

similarly placed as their own land. Furthermore, the

acquisition proceedings do not violate the provisions of the

Punjab Periphery Act.

10. Per contra, Mr. Rajive Bhalla, Dr. Bharat Bhushan Parsoon,

and Mr. Sanjeev Sharma, Learned Senior Counsels representing

the Respondents, have supported the impugned judgement by

arguing that:

(a) The burden of proving that the constructions were not

supported by the building plan lies on the Appellant. Since

the same has not been proved, there cannot be any adverse

presumption against the legality of the construction. In any

case, as confirmed by the order dated 05.04.1994 of the ADJ,

6 the Appellant was not obligated to seek any permission and

hence, non-submission of the building plan is not material.

(b) There is a flagrant violation of Section 5A as the Respondents’

objections have not been considered in accordance with law.

Since Section 5A of the 1894 Act provides a valuable

safeguard to an expropriated land owner, it warrants

mandatory compliance and cannot be treated as an empty

formality.

(c) Furthermore, doubt can be cast on the thoroughness of the

inspection conducted by the High-Powered Committee

constituted by the State Government, given that a vast tract

of land is claimed to have been inspected in a very short

duration. Additionally, the composition of the committee

formed for the inspection indicates a complete abdication of

power by the State government.

(d) Even if the land of Maharaja Harinder Singh ‘Khalaf’

Maharaja Varinder Singh was re-acquired, it was done at a

rate prevalent in 2007, which was higher in comparison to

1999. Denying the higher rate to the Respondents amounts

to arbitrary and discriminatory conduct.

7

(e) In any case, there is a significant subsequent development,

as during the pendency of the proceedings, the State of

Haryana has agreed on releasing the subject land, provided

that the Respondents provide a part of the land for basic

amenities free of cost and use the remaining for charitable

purposes. Since the Respondents have consented to put their

land to such conditional use, this Court should give effect to

such a conscionable agreement between the parties and may,

therefore, dismiss the instant appeals in light thereof.

(f) Since this Court has dismissed the previous appeals filed by

the State of Haryana against the same impugned order, the

present set of appeals are not maintainable and attract the

auspices of the doctrine of merger.

C. ISSUES

11. Having given our thoughtful consideration to the

submissions at length, we find that the following four issues are to

be analysed:

i. Whether the mandatory procedure contemplated under

Section 5A of the 1894 Act has been complied with?

8 ii. Whether the land acquisition proceedings deserve to be

vitiated on the ground that similarly placed landowners have

been treated differently?

iii. Whether the instant appeals are liable to be dismissed as

infructuous in view of the subsequent developments like

`settlement’ between the parties?

iv. Whether doctrine of merger is attracted in view of the fact

that State appeals against the same impugned judgment

have already been dismissed?

D. ANALYSIS

D.1 Evaluation of objections under Section 5A of the 1894

Act

12. The focal contention of the Respondent-landowners is that

the acquisition proceedings stand vitiated and ought to be quashed

as they were carried out in violation of Section 5A of the 1894 Act,

which mandates due consideration of their objections.

13. It would be pertinent to understand the object that Section

5A of the 1894 Act seeks to fulfil. A plain reading of the provision

indicates that it codifies the fundamental safeguard of audi altrem

partem. Landowners have the opportunity to demonstrate that the

9 acquisition is against public purpose or marred by mala fides. In

the event the landowner presents a cogent case, the appropriate

government may exempt such land from acquisition. By enabling

landowners to put forward their perspective and elucidate their

remonstrances, Section 5A envisions a modus of deliberation and

consultation, which must therefore be construed to be mandatory,

akin to a right.2

14. Objections under Section 5A of the 1894 Act most often

proceed in four distinct stages:

i. The filing stage: Landowners can file objections within thirty

days of the notification issued under Section 4 of the 1894

Act;3

ii. The hearing stage: The Collector must provide an oral hearing

to the objecting landowners, either in person or through a

pleader/authorized representative;4

iii. The recommendation stage: The Collector—after hearing

objections and upon further inquiry—makes a report to the

2 Women's Education Trust v. State of Haryana, (2013) 8 SCC 99, para 1. 3 Section 5A (1), 1894 Act.

4 NOIDA v. Darshan Lal Bora, 2024 INS 508.

10 appropriate government containing their recommendations;

and

iv. The decision stage: The appropriate government considers

the Collector’s report and takes a final decision on the

objections.

15. Reverting to the case in hand, although the Respondents

have averred that their right under Section 5A has been infringed,

however, they have failed to substantiate such claim. Onus was on

the Respondents to identify any fault in the procedure adopted by

the State, which we find tracks closely with the aforementioned

four-stage process. When the Section 4 notification was issued on

16.03.1999, objections were invited from the landowners. These

objections were duly heard, and a report was prepared by the

Collector. Subsequently, the State Government constituted a High-

Powered Committee, and based on its findings and opinion, the

Government ultimately took a final decision to acquire the

Respondents’ land. Section 5A mandates a procedure, not a

particular outcome. The landowners in this case were thus

certainly guaranteed a hearing and consideration, not relief.

16. Regarding the fourth stage, the Respondents have specifically

argued that since the Collector had recommended the release of 11 their land and the State Government deviated from such

recommendation without any valid and sufficient reasons, its

decision is bad in law. In effect, their claim seems to be that the

Collector’s recommendation ought to be final and binding on the

Government. However, such an interpretation is at odds with the

bare text of Section 5A, which states that the Collector shall “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.” [Emphasis

supplied]

17. The choice of different terminologies for the role of the

Collector and the role of the Government makes it evident that the

Legislature intended different roles for each of them. The Collector

has no power to “decide” the case and can only give

“recommendations” to the Government. It is the Government

which is the ultimate arbiter for determining whether the land is

to be released or not. No other authority can dictate the outcome

12 of Section 5A proceedings—neither the Collector nor the

landowner.5 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.

18. It is therefore patently clear that the State Government

possessed the ability to disagree with the Collector’s report and

decide a different course. This is not to say that the Government’s

decision cannot be challenged or is beyond judicial review. Indeed,

had the Respondents demonstrated that the decision was arbitrary

or passed without due application of mind, then they could have

been victorious in their challenge. However, the Respondents have

not placed any evidence on record to lay such foundation. On the

contrary, the State Government/Appellant have demonstrated that

their decision was not whimsical but was predicated on the

findings of a High-Powered Committee, which comprised qualified

individuals, like officers of the Indian Administrative Services,

officials working with the Appellant, experts from the Town

Planning Department and the Department of Agriculture, etc.

Having duly inspected the subject land, this Committee deduced

5 Shri Mandir Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298, para 5.

13 that the building structures on the land were unauthorized and

not in conformity with the Development Plan. Relying on this

analysis, the Government deviated from the Collector’s

recommendation and proceeded with the acquisition. We are of the

considered view that such departure was made in public interest,

with due application of mind and was fully justified.

19. The Respondents have also assailed that the State

Government’s decision was at odds with the earlier orders of the

Commissioner and the ADJ, who had authorized such

constructions. We find this submission disingenuous. These

orders of the Commissioner and ADJ permitted constructions that

were to be erected specifically for agricultural purposes, not

residential. The order dated 23.12.1992, specifically notes that

only structures like cattle sheds and green houses would be

permitted, as they are subservient to agricultural activities,

whereas a modern farm house would be unauthorized under the

Punjab Periphery Act. Similarly, the order dated 05.04.1994 noted

that no such authorization would be necessary, provided the land

was to be utilized for agricultural purposes. However, the

submissions proffered by the Respondents undermine their own

case. While attempting to attack the public purpose element of the

14 acquisition proceedings, they admitted that the usage of the land

was not limited to ‘agricultural purposes’ and that it was intended

to be ‘residential’ in nature as well. This disharmony is visible in

the Respondents’ Section 5A objections:

“6. That the above said land of the objector is situated adjacent to sector 4 Mansa Devi Complex and the objector has purchased this costly land with a view to set up a farm house thereon, since the purpose of Acquisition is also residential, it would be against the principal of natural justice to uproot the objector first and then to develop the same land for residential purpose meaning thereby the State would be providing residential accommodation to one of after taking away the residential land from the objector, which would serve no public purpose as stated in the notice. Hence, the notice under section 4 of the Land Acquisition Act is liable to be withdrawn qua the above said land of the objector.” [Emphasis supplied]

20. Given how the Respondents have themselves admitted to the

intention of developing their lands and structures for non-

agricultural activities, we do 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

15 coming to a different conclusion as to their actual use. It is indeed

possible that following the said orders, the land may have had

unauthorized 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.

21. Regardless, we may also hasten to add here that there are

serious doubts on the jurisdictional competence of the Civil Court,

in holding that agriculture related structures could be raised

without prior permission. Such a hasty declaration by the ADJ was

ex facie uncalled for and beyond its jurisdictional authority, given

that it was expressly barred under the Punjab Periphery Act.

22. However, the Respondents’ strategy of arguing that their

constructions were authorized (being agricultural), while

simultaneously seeking exemption from acquisition on the ground

that their lands were subserving the same intention as the

acquisition (being residential), is not only contradictory but also

ill-advised. Furthermore, in first placing themselves at par with the

object of acquisition, and then vitiating that very purpose by

claiming that it contravenes the Punjab Periphery Act, the

Respondents have effectively shot themselves in the foot. 16

23. The Respondents have also failed to discharge their burden

of proof. They have not produced any reliable material to prove that

the constructions on their land were authorized, and if anything,

have further created doubts, as to whether these structures are

indeed permitted under the auspices of the Punjab Periphery Act.

24. On the contrary, 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 unauthorized 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.

25. In any case, even if the constructions were to be authorized,

it would not materially affect our outcome. As has been held by

this Court on several occasions, exempting lands bearing

constructions from acquisition is a matter of State Policy, and not 17 of law.6 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.7 Private interest of a few, should give way to the public

interest of the many. Prior authorization 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 authorized by the

government beforehand, as was the case in State of Haryana v.

Vinod Oil & General Mills:8

“8. Acquisition of the respondents' lands was held to be vitiated on the ground that the State having granted permission to the respondents for change of land use and develop the area as an industry cannot turn around after twenty-six years to acquire the land saying that the same is required to be developed for residential purposes and the action of the respondent State was held to be arbitrary. Of course, the Director of Town and Country Planning, Haryana earlier granted permission to the respondents herein for change of land use for construction of Oil and General Mills in their lands in 23 kanals 6 marlas in Khasra Nos. 148/1, 148/2 and 149/10. The fact that the factory and building was put up in the land with the approval of the authority cannot be a bar for acquisition of the land. Public interest overrides individual

6 NOIDA v. Darshan Lal Bohra, 2024 SCC Online SC 1690. 7 Anand Buttons Ltd. v. State of Haryana, (2005) 9 SCC 164. 8 (2014) 15 SCC 410, para 8.

18 interests. In our view, the High Court was not justified in saying that the acquisition is bad since permission was earlier granted for change of land use and developing the area as an industry and that the Government is estopped from initiating acquisition proceeding” [Emphasis supplied]

26. The existence of constructions on the Respondents’ land,

whether authorized 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.

D.2. Discrimination and Article 14 of our Constitution

27. In addition to seeking refuge under Section 5A of the 1894

Act, the Respondents contend that the acquisition of their land

was violative of Article 14 of the Constitution. They claim that the

land of Maharaja Harinder Singh ‘Khalaf’ Maharaja Varinder Singh

had been exempted from the acquisition. This contention was also

accepted by the High Court, which held the subject-acquisition to

be discriminatory in nature, for leaving out lands of similarly

placed owners from the process of acquisition.

28. We find this patently erroneous, for three reasons. First, the

High Court overlooked the fact that the total land proposed to be

19 acquired through the Section 4 notification was 952.18 acres, out

of which land admeasuring 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.

29. A mere plea regarding differential treatment is insufficient;

the claimant must instead demonstrate that similarly placed

classes had been treated dissimilarly, unjustifiably.9 The burden

lies on the Respondents to not only prove disparate treatment of

equals, but that it amounts to hostile discrimination as well.

30. Second, we disagree with the remedy, even if discrimination

was to have been established. The solution to some lands being

unjustifiably left out is to direct their acquisition, not encourage

the exclusion of more lands. The latter approach only furthers the

discrimination and creates more aggrieved landowners. 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

9 State of Madhya Pradesh v. Bhopal Sugar Industries Ltd., 1964 SCC Online SC 121, para

11.

20 jeopardize the entire acquisition by undermining its contiguity.10

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.11

31. Third, and most crucially, the illegality, if any, has since been

remedied. It could not be disputed before us that the land of

Maharaja Harinder Singh ‘Khalaf’ Maharaja Varinder Singh had

been subsequently acquired through notifications dated

16.05.2007 and 27.03.2008. The very basis of discrimination,

thus, stood denuded of its factual foundation as of the date the

High Court passed the impugned judgement on 15.07.2008. 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.

D.3. Events before this Court

32. We may now advert to certain unpalatable events which

occurred during the pendency of these appeals before this Court.

On 10.05.2023, when the matter was posted for hearing, a joint

10 Gurcharan Singh & Ors. v. New Delhi Municipal Committee & Ors., (1996) 2 SCC 459 11 Vivek Coop. House Building Society Ltd. v. State of Haryana, 2016 SCC OnLine P&H 15802;

Chandigarh Administration v. Jagjit Singh, (1991) 1 SCC 745.

21 request was made to list these matters for final hearing on

26.07.2023. On the date fixed, learned Senior Additional Advocate

General of Haryana bona fidely conveyed the State’s consent 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. Learned

Senior Counsel for the Respondents was consequently directed to

seek formal instructions in this regard. Respondents meanwhile

filed a formal undertaking stating that they would use the land

only for non-profit and charitable purposes.

33. On 13.09.2023, we directed the State Government /

Appellant to file an affidavit responding to the following queries:

(a) Why the State Government is agreeable to release the land of

the Respondents from acquisition?

(b) Whether such release of land will affect the acquisition of

adjoining lands or not?

(c) Whether the subject-land falls within or near the Sukhna

Lake catchment area?

22

(d) Whether the land in dispute falls in any non-construction

zone?

(e) If not, what type of construction is permissible in and around

the area of subject-land?

34. In response thereto, the State of Haryana filed an affidavit

stating, inter alia, as follows:

(a) The land can be released because the acquisition proceedings

for the same were quashed by the High Court and are under

abeyance in view of the status quo order passed by this Court

and because the Respondents undertake to utilize the land

for charitable purposes;

(b) The present case has unique circumstances;

(c) The site does not fall within the Sukhna Catchment Area,

however, the exact area that falls under Eco Sensitive Zone

would be known once the notification for such zone is

finalized; and

(d) Construction is permissible in the land.

35. The Respondents also, without any delay, filed their affidavits

in consonance and agreement with the State Government’s

23 affidavit. Since the parties have reached a ‘settlement’ during the

pendency of these appeals, we are introspecting as to whether or

not to allow the Government to make such exemption for the

Respondents’ land.

36. 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.

37. Furthermore, we are also aware of the fact that the

acquisition, in its entirety, was under challenge before the High

Court, with a batch of writ petitions pending at the stage of final

hearing, at the time when the State Government agreed to release

the subject land. The High Court has meanwhile dismissed those

petitions, upholding the acquisition, and presently, Special Leave

Petitions (hereinafter ‘SLPs’) are pending before this Court.

24

38. Be that as it may, given the land’s premium nature, and its

criticality to the subject acquisition, it is rather intriguing why the

State Government has opted to enter into a compromise, knowing

full well that doing so would weaken its case in defending the major

chunk of the acquisition. We, therefore, in order to satisfy

ourselves that the State Government has considered thoroughly all

the pros and cons and acted in a bona fide manner to serve the

public interest, before making the offer of release, deemed it

imperative to delve deeper.

39. A perusal of the original record casts a cloud of doubt on the

legal necessity of the entire exercise and has disappointed us

regarding the manner in which the State Government’s decision to

release the land has been taken. The record reveals that this issue

was first discussed in the letter dated 08.09.2023, in which the

Appellant (HUDA) noted on record that the land in question cannot

be spared. Nevertheless, the Appellant 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

25 date. Unfortunately, none of the officers thought it appropriate to

write even a single word while agreeing with the proposal to release

the land. This rapid progression raises questions on whether all

relevant factors were considered before recommending such

approval. The only so called self-speaking note is of the Director

General, Urban Estate of the even date, i.e., 08.09.2023, which

noted that the file may be “submitted to govt. for approval so that

Honorable Apex Court may be informed about view of state…”. The

proposal was reportedly approved by the State Government within

a period of 3 days only, i.e., on 11.09.2023. Res ipsa loquitor.

40. Even the responses to the questions posed by this Court in

its order dated 13.09.2023, moved with extraordinary swiftness,

securing approval at an astonishingly expedited pace upwards,

without the addition of even a single word at any level. The

responses the record shows, were drafted by an Assistant.

41. We hasten to add here that we have no intention to suggest

that bureaucratic swiftness necessarily undermines the

thoroughness of the process. Indeed, our administrative setup can

do with more such alacrity. Rather, the confluence of

circumstances— the land being prime real estate and yet suddenly

and inexplicably being excluded from acquisition, crucial policy 26 decisions with wide ranging public interest of enormous financial

ramifications being discussed and finalized by very junior officials,

files receiving approval at exceptional speed, etc.—collectively do

not inspire confidence as to the objectivity of the entire process.

42. Despite meticulously analyzing all relevant documents

appended with the file, including the cryptic brief notes of the

Assistant, we are unable to get any qualitative assistance from the

government record. As noted above, there is little discussion

about: (i) the effect of release of the Respondents’ land on the

remaining acquisition, in light of the challenge pending before the

High Court or this Court; (ii) the cascading effect that this

compromise would have on the other landowners along with the

arguments it would invite on the question of hostility of Article 14,

and if so; (iii) the basis of such classification and whether it would

be reasonable; (iv) whether the release of the land would affect the

contiguity of the land under acquisition and if so, would it impair

the planned development of the area under acquisition; and (v)

whether the State was competent to release the land in purported

exercise of its powers under Section 48 of the 1894 Act when the

matter was sub judice before this Court.

27

43. None of these issues have been discussed, considered, or

analyzed. The decision regarding release of the Respondents’ land

is, therefore, manifestly arbitrary. 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. Turning futile the

acquisition would also render mindless dissipation of the State

Exchequer, already expended earlier in the process—reducing

returns for all. Although the State Government possesses

acknowledgeable power in the lifecycle of the acquisition process,

it also bears great responsibility of ensuring its judicious exercise.

We cannot, therefore, treat the compromise or release lightly.

28

44. Keeping in view the entirety of the exercise and the sum

totality of all factors, both apparent and others more insidious, we

are unable to accept the parties’ compromise, in terms whereof the

disposal of instant appeals is suggested.

45. Having held so, we are not enthused by the Respondents’

conduct either. These unusual events create more than just

suspicion that the Respondents have been able to influence the

representations of the many, as well as twist and undermine

institutions and process meant for the protection of public interest.

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.

46. We are thus, of the considered view that this is a case where

the bureaucracy abdicated its duty and failed to objectively assist

the Decision-Making Authority, in arriving at a just and fair

conclusion in conformity with larger public interest. Had the senior

officers flagged all the relevant issues on file, we have no reason to

doubt that the Competent Authority would have never approved

the proposal to release the subject land.

29 D.4 Doctrine of merger

47. We must also note that the previous Civil Appeals preferred

by the State Government, challenging the same impugned order

were dismissed on account of non-prosecution. Hence, there arises

an important question with regard to the maintainability of the

present appeals. This issue may be conclusively determined by

examining the applicability of the doctrine of merger to the peculiar

set of circumstances of the instant case.

48. In this respect, in the landmark case of Kunhayammed v.

State of Kerala12, it was held that:

“44. To sum up, our conclusions are:

(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law […]

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.” [Emphasis supplied]

12 (2000) 6 SCC 359

30

49. The same principle was reiterated in the case of Khoday

Distilleries Limited v. Sri Mahadeshwara Sahakara Sakkare

Karkhane Limited, Kollegal13, where this Court held that merger

would result if the SLPs were dismissed after granting leave,

irrespective of whether reasons were given or not:

“20. The Court thereafter analysed number of cases where orders of different nature were passed and dealt with these judgments by classifying them in the following categories:

(i) Dismissal at the stage of special leave petition—without reasons—no res judicata, no merger.

(ii) Dismissal of the special leave petition by speaking or reasoned order—no merger, but rule of discipline and Article 141 attracted.

(iii) Leave granted—dismissal without reasons—merger results.” [Emphasis supplied]

50. In the instant case, leave to appeal was granted vide the order

dated 27.08.2010, and the Civil Appeals preferred by the State of

Haryana were then dismissed on 16.11.2016. Therefore, since the

previous SLPs arising out of the same impugned judgement were

dismissed after granting leave, arguably, the doctrine of merger

would be attracted.

13 (2019) 4 SCC 376

31

51. However, we may hasten to add that in Kunhayammed

(supra), this Court held that the doctrine of merger is neither a

doctrine of constitutional law nor of statutory recognition. Since it

is a common law principle directed towards judicial propriety, the

same should not be applied in a straitjacket manner, and the

nature of facts and circumstances of that particular case should

be considered.

52. Still further, a three-judge bench of this Court—to which one

of us (Surya Kant, J.) was a member—in GNCTD v. BSK

Realtors,14 analyzed the aforementioned exception to the doctrine

of merger and held that the exercise of powers under Article 142 of

the Constitution, which enables the Court to do complete justice,

would fall under the four corners of such exception.

53. Applying the afore-cited principle to the facts and

circumstances of the instant case, we have found that the

impugned judgement of the High Court is patently unjust and

could adversely affect the subject acquisition, leading to significant

harm to the public at large. In light of this, we find it a fit case to

invoke our powers under Article 142 of the Constitution and carve

14 GNCTD v. BSK Realtors, 2024 INSC 455.

32 out an exception to the doctrine of merger so as to do complete

justice to the parties.

E. CONCLUSION AND DIRECTIONS

54. We, thus, deem it appropriate to allow these appeals and

dispose of the matter in the following terms and directions:

i. The Appeals are allowed; the impugned judgment dated

15.07.2008 of the High Court, which is under challenge in

this batch of appeals, is hereby set aside;

ii. If there is any other judgement or order of the High Court

which is passed following the main judgement dated

15.07.2008, thereby quashing or adversely impacting the

subject acquisition, such judgements or orders are also

deemed to be set aside;

iii. In case no ‘award’ for the land owned by the Respondents was

passed earlier, the same shall be passed expeditiously, and

in any case within a period of 3 (three) months in accordance

with the provisions of the 1894 Act;

iv. If an award in respect of the Respondent’s land has already

been passed under the 1894 Act, in that event, there will be

no necessity to pass a fresh award. However, liberty is

33 granted to the Respondents to avail their remedy under

Section 18 of the 1894 Act, if so advised. Such reference, if

moved by the Respondents within a period of 2 (two) months

from the date of uploading of this order on the website, the

Reference Court will not dismiss it on the ground of limitation

and shall proceed to decide the same on merits and in

accordance with law;

v. In case the land of the Respondents is found to have same

potentiality and utility as that of Maharaja Harinder Singh

‘Khalaf’ Maharaja Varinder Singh (i.e., land which was

acquired vide the notifications dated 16.05.2007 and

27.03.2008), the Respondents will also be entitled to seek

compensation at the same rate as has been granted for the

said similarly located land; and

vi. The State of Haryana and the HSVP are directed to take

possession of the subject-land in accordance with law and

commence development works without any delay. The land

shall be utilized for the public purposes for which it has been

acquired.

55. We are sanguine that the State Government is conscious of

the principles evolved by this Court in a catena of decisions in 34 regard to the violation of public trust doctrine15 and will thus

ensure that the acquired land is utilised in public interest in

accordance with provisions of the Haryana Development and

Regulation of Urban Areas Act, 1975. Consequently, the HSVP will

take on the responsibility to develop the entire acquired land

strictly in accordance with the public purpose of its acquisition.

56. In this regard, compliance report shall be filed before this

Court after six months i.e. before 30.04.2025.

57. Ordered accordingly.

………..………………… J.

(SURYA KANT)

……………………………J. (K.V. VISWANATHAN)

NEW DELHI DATED: 21.10.2024

15 Uddar Gagan Properties v. Sant Singh and others, (2016) 11 SCC 378; Greater Noida Industrial Development Authority v. Devender Kumar and others, (2011) 12 SCC 375. 35