Constitution of India

Article 14 -- Land Acquisition Act, 1894 (1 of 1894), Section 4,6 – Acquisition of land – Release of land – Discrimination -- In the process of acquisition, more than half of the land has been ordered to be released from the acquisition, inspite of a very good case for the release of land in favour of the petitioners, their land was kept under acquisition -- Even the land of the petitioners, regarding which, change of land use certificate was granted way back in the year 2000, was also included in declaration issued u/s 6 of the Act -- As per Policy of the State Government, land regarding which such a certificate has been issued cannot be acquired -- Even that Policy was ignored in the case of the petitioners – Held, action taken by the authorities is in complete violation of the principles laid down under Article 14 of the Constitution -- Facts of the case indicate that the common man has been reduced virtually to a zero figure -- The State authorities have shown their utter disregard to the law -- Such an attitude cannot be tolerated – Petition allowed, notifications issued u/s 4 and declaration u/s 6 of the Act are quashed with costs of Rs.2,50,000/-. M/s Sindhu Education Foundation and others v. State of Haryana and others, 2011(1) L.A.R. 454 (P&H DB).

Article 19(1)(c), 19(4) -- Society Registration Act, 1860 (21 of 1860), Section 30 (As introduced by Haryana Act No. 14 of 2007) – Societies Registration (Haryana Amendment) Act, 2007 (Haryana Act No. 14 of 2007), Section 7 – Khadi and Village Industries Commission Act, 1956 (61 of 1956) -- Appointment of Administrator -- Vires of the Act – Challenge to – Contention that Article 19 (1) (c) confers all citizens the fundamental right to form associations or unions, however, under Article 19 (4), the said fundamental right is subject to the State making a law imposing reasonable restrictions on the exercise of the right conferred and such law can be made by the State in the interest of the sovereignty and integrity of India or public order or morality – Accordingly contended that Haryana Amendment Act does not have any reasonable nexus with the sovereignty and integrity of India or public order or morality and, therefore, the restrictions that have been imposed by the Amendment Act is ultra vires Article 19 (4) – Contention not tenable -- It is also difficult to appreciate as to how by enacting the Amendment Act the State Legislature can be understood to have encroached a field occupied by a Central Act, both the enactments operate in unconnected/different fields -- Challenge to vires of the provisions fails. Jagat Sarup and others v. The State of Haryana and others, 2011(1) L.A.R. 389 (P&H DB).

Article 26,227 -- Northern India Canal & Drainage Act, 1873 (8 of 1873), Section 23,30-A, 30-B, 30-C – Change of outlet – Writ jurisdiction -- Ordinarily the authorities under the Act are best persons to assess the irrigation prospects and other circumvening circumstances before passing an order – Orders need to be interfered with only if the order is found to be arbitrary, perverse, without jurisdiction or passed for malafide reasons. Adeshvir Singh & another v. State of Punjab & others, 2011(1) L.A.R. 240 (P&H). 

Article 191, Tenth Schedule – Haryana Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986, Rule 7(3)(h) – Defection in party -- Petition before Speaker – Pendency of – Non-decisioning of -- Judicial review – Power of -- Five members of Haryana Janhit Congress (BL) defected to Congress – Petition before Speaker for their disqualification – Speaker gave as many as six opportunities to respondents to file replies over a period of about eight and half months – Speaker even after the filing of the writ petition wherein the prayer was for speedy decision-kept granting further time to respondents -- Held, the present is a case where judicial intervention is justified even during the trial of the petitions, and issue a direction to Speaker to decide the said petitions within a fixed time frame – Speaker is directed to finally decide the petitions in accordance with law, within a period of four months. Kuldeep Bishnoi v. Speaker, Haryana Vidhan Sabha and others, 2011(1) L.A.R. 504 (P&H).

Article 191, Tenth Schedule – Petition before Speaker – Power of Judicial review -- Even though proceedings under Paragraph 6 of the Tenth Schedule cannot be termed to be immune from judicial review, yet the Courts would enter this area with strict circumspection. Kuldeep Bishnoi v. Speaker, Haryana Vidhan Sabha and others, 2011(1) L.A.R. 504 (P&H).

Article 226 – Punjab State Election Commission Act, 1994 (19 of 1994), Section 74 – Nomination papers – Filing of – Non-acceptance of – Writ Jurisdiction -- State Election Commissioner in the report has mentioned that there is no conclusive evidence to establish that petitioners reached the office of Returning Officer in order to file their nomination papers – Held, while exercising jurisdiction under Article 226 of the Constitution of India, this Court ordinarily shall not examine disputed question of fact -- As to whether petitioners reached in time to file nomination papers is a question of fact, it can be examined in an election petition. Dalbir Kaur and others v. State of Punjab and others, 2011(1) L.A.R. 489 (P&H).

Article 226, 227 -- Land Acquisition Act, 1894 (1 of 1894), Section 4,6, 11, 11-A, 17 – Acquisition of land – Award – Challenge to – Delay in challenging -- Limitation -- Acquired land was utilized for implementing Residential Scheme -- In the process, the BDA not only incurred huge expenditure but also created third party rights -- Delay of nine years from the date of publication of the declaration issued u/s 6(1) and almost six years from the date of passing of award should have been treated by the High Court as more than sufficient for denying equitable relief. Banda Development Authority, Banda v. Moti Lal Agarwal and others, 2011(1) L.A.R. 645 (SC).

Article 226, 227 -- Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1961), Section 7 – Common Land – Encroachment upon – Eviction – Writ jurisdiction -- An old well had been installed wherefrom all the villagers drew water -- It was a Share-am plot meant for common purposes -- Petitioners were having a house adjoining to the area and, therefore, so as to encroach, they constructed a boundary wall over the said land -- Facts have been verified by way of demarcation report and a finding of fact against the petitioners has been recorded -- In extra ordinary writ jurisdiction, no indulgence can be shown, particularly because the land was being used for common purposes. Surajbhan and Another v. The Commissioner, Rohtak Division and others, 2011(1) L.A.R. 245 (P&H).

Article 226, 227 -- Writ Court – Power of -- While deciding the writ petition, the High Court did not even consider the well reasoned judgments/orders by the authorities under the Statute -- Court was supposed to examine the correctness of those orders -- More so, the relevant record of the authority was not examined -- No reason, leave alone a cogent reason has been given by the High Court for the reversal of these orders -- High Court while deciding the case did not give opportunity to the authority to file a reply to the writ petition -- Court proceeded in haste and decided the case relying upon irrelevant materials -- Judgment and order of the High Court is set aside and the orders passed by the authorities under the statute are restored. Greater Mohali Area Development Authority & Anr. v. Manju Jain & Others, 2011(1) L.A.R. 147 (SC).

Article 226,227 -- Punjab Land Revenue Rules, Rule 15,16 – Appointment of Lambardar – Writ Jurisdiction -- Financial Commissioner and the Commissioner have taken into account the comparative merit of both the persons -- Petitioner is 49 years of age, appointed candidate is 28 years of age -- Both the candidates are matriculates -- In addition, appointed candidate has donated blood and is President of Guru Ravidas Mandir of the village and therefore, has been found to be serving the society – No reason to judicially review the well founded orders passed by the authorities. Raj Kumar v. Financial Commissioner, Haryana & others, 2011(1) L.A.R. 159 (P&H).

Article 243(Q), 73rd and 74th Amendment --  Haryana Municipal Corporation Act, 1994 (16 of 1994), Section 3, 413 – Haryana Municipal Act, 1973 (24 of 1973), Section 2-A -- Municipal Corporation – Declaration of – Gram Panchayat area – Inclusion of 42 Gram Panchayats to declare the Municipal Corporation is, in fact, against the intent of the Constitution itself -- Article 243 (Q) provides for transitional area i.e. from rural to urban area, therefore, the first step for taking the rural area into urban area is by constituting Nagar Panchayat -- State of Haryana, has defined urban area as Municipal Committee – For the purpose of 73rd as well as 74th amendment in the Constitution was to bring maximum participation of the people in the local self government by the rural or semi urban population -- State instead of decentralizing the powers is amalgamating the same in the hands of a few which body would certainly not take so close care which the smaller bodies were doing -- The purpose to introduce the 73rd and 74th amendment was that once the village attains the character which is more urban in nature then the said rural area is to be put in to transitional area i.e. in the present case as a Municipal Committee and the urban character of the said rural area is to be seen from last preceding census wherein non agricultural activities, revenue generated in the local administration etc. are determined -- It is only after a period and after seeing the population of that particular area on the basis of last preceding census that the transitional area is given the second step of being converted into a Municipal Council and then into a Municipal Corporation -- None of the above mandatory provisions of the Constitution as well as the 1973 Act and the 1994 Act have been followed – Notifications are held to be in clear cut contravention of 73rd and 74th amendment of the Constitution – Notifications quashed. V.K. Kapoor and others v. State of Haryana and others, 2011(1) L.A.R. 524 (P&H DB).

Article 243(U) -- Haryana Municipal Corporation Act, 1994 (16 of 1994), Section 3 – Municipal Corporation -- Declaration of -- In the absence of assessment by the authorities, regarding the involvement of 60% of the population of the area in non agricultural activities, such an area could not be added in the Municipal Corporation. V.K. Kapoor and others v. State of Haryana and others, 2011(1) L.A.R. 524 (P&H DB).

Article 246(Q) -- Haryana Municipal Corporation Act, 1994 (16 of 1994), Section 3 -- Haryana Municipal Act, 1973 (24 of 1973), Section 2-A -- Municipal Corporation -- Declaration of -- Notification issued to declare the Panchkula Municipal Council as Municipal Corporation after merging Municipal Committees of Pinjore and Kalka and certain villages – (a) The State Government before issuing such notification did not call for any objection by the individuals, councils, institutions or societies of the area or Panchayats or Municipal Committees, (b) Nothing was mentioned; if the cantonment area or the forest area was excluded from its operation. The Municipal Councils were not consulted for altering or adding the area within their respective municipal limits. (c) No draft notification was issued and two notifications by the State Government and the Governor were, directly issued for creation and declaring the Municipal Corporation consisting of the area as referred to in the notification, (d) Though, the area of Gram Panchayats was added, yet, no specific notification for dissolving of the gram panchayats was issued. (e) The notification issued by the Governor of Haryana does not record his subjective satisfaction as to whether it satisfied the guidelines issued by the Government and is in consonance with the provisions of Haryana Municipal Act, 1973, Haryana Municipal Corporation Act, 1994 and Article 246(Q) of the Constitution – Held, to declare certain municipal area as 'Municipal Corporation' is the legislative act, however, no such act could be done in contravention of the laws of the State and procedure as laid down under Section 2-A of the 1973 Act as well as Section 3 (2)(3) of the 1994 Act -- The legislature never intended to give a go bye these provisions while creating a Municipal Corporation by upgrading Municipal Committee and Municipal Council – Notifications are in clear cut contravention of 73rd and 74th amendment of the Constitution so also the guidelines as well as the aforesaid provisions of the 1973 Act and the 1994 Act, therefore, the same are quashed. V.K. Kapoor and others v. State of Haryana and others, 2011(1) L.A.R. 524 (P&H DB).

Article 300-A – Land Acquisition act, 1894 (1 of 1894), Section 4,6 – Acquisition of land – Rehabilitation of owners – Requirement of -- Article 300-A of the Constitution rests on the doctrine of eminent domain and guarantees a constitutional right against deprivation of property save by authority of law – It mandates that to be valid the deprivation of property must be by authority of law – Property has been acquired in terms of the provisions of the Land Acquisition Act, 1894 which is a validly enacted piece of legislation – Neither Article 300-A of the Constitution nor the Land Acquisition Act make any measures for rehabilitation of the expropriated owners a condition precedent for compulsory acquisition of land -- In the absence of any such obligation arising either under Article 300-A or under any other statutory provision, rehabilitation of the owners cannot be treated as an essential requirement for a valid acquisition of property. Amarjit Singh & Ors. V. State of Punjab & Ors, 2011(1) L.A.R. 470 (SC).

Preamble -- Duties of Public Officers -- All officers of the State are getting powers under the Constitution, its Preamble starts with the words “We, the people of India” and Preamble ends with the words “adopt, enact and give to ourselves this Constitution” -- It is a common man’s power, which runs throughout, from page one to the end of the Constitution -- As per the Constitution, the officers of the State are supposed to act as a guardian of the general public and not as its detractors. M/s Sindhu Education Foundation and others v. State of Haryana and others, 2011(1) L.A.R. 454 (P&H DB).