Punjab-Haryana High Court
Yash Pal vs State Of Haryana & Ors on 19 August, 2013
Bench: Surya Kant, Surinder Gupta
CWP No. 4036 of 1991. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH.
CWP No. 4036 of 1991. [O&M]
Date of Decision:19th August, 2013.
Yash Pal Petitioner through
Mr. R.A.Yadav, Advocate
Versus
State of Haryana & Ors. Respondents through
Ms. Palika Monga, DAG, Haryana.
CORAM:HON'BLE MR. JUSTICE SURYA KANT HON'BLE MR. JUSTICE SURINDER GUPTA
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? SURYA KANT, J. [ORAL] The petitioners seek quashing of notifications dated 08.03.1989 and 07.03.1990 issued under Sections 4 and 6 of the Land Acquisition Act, 1894, respectively, acquiring his land measuring 12000 square yards comprised in Khasra No. 1134 and situated within the revenue estate of village Gurgaon, for development and utilization thereof as residential and commercial area of Sector 9, 9A and 10 at Gurgaon.
[2]. The only plea taken by the petitioner to assail the acquisition is that he has constructed a residential house on a part of the acquired land and this fact has been duly acknowledged by the respondents in their subsequent communications. [3]. We find from the record that the respondents were given time to file written statement in the year 1995 but no reply has been placed on record. Learned State Counsel, however, has shown us a Gupta Dinesh 2013.08.31 11:02 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 4036 of 1991. ::-2-::
photo copy of the written statement lying in her brief in which existence of construction has been controverted. However, in the absence of such a plea before us, we are unable to accept the same. [4]. Learned State Counsel also relies upon a decision dated 29.03.1995 of this Court dismissing certain writ petitions arising out of the same acquisition.
[5]. We have heard learned counsel for the parties and gone through the record.
[6]. In Para 2 of the writ petition, the petitioner has categorically averred that he purchased the subject land along with a house and thereafter he 'constructed more rooms and the construction is over 2611 square yards area along with boundary wall". It has further been averred that the construction was raised in the year 1970 and there is a tube-well near the house with electric connection.
[7]. We further find from the record that during the pendency of the writ petition, the Land Acquisition Collector has sent a report in the year 2012, a Photostat copy of which is available on record, wherein the existence of some scattered constructions over the acquired land has been acknowledged.
[8]. As regard to earlier decision of this Court dated 29.03.1995, suffice it would be to observe that though the writ petition challenging the acquisition was dismissed but in that case also this Court took notice of the fact that the constructed area along with proportionate vacant areas had been released. Gupta Dinesh 2013.08.31 11:02 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 4036 of 1991. ::-3-::
[9]. Since in the present case, the petitioner has come up with a categoric plea that he had constructed a residential house over the land measuring 2611 square yards, we are of the view that the writ petition qua the area under construction along with proportionate/ reasonable vacant area for proper enjoyment of the residential house, needs to be released. We say so for the reason that the State Government itself has come up with the policy dated 26.10.2007 as modified on 24.01.2011 wherein it is resolved to release the structures from acquisition.
[10]. The policy decision dated 26.10.2007 reads as follows:-
"After careful consideration of the facts and circumstances, the Government has felt the need to review the policy referred to above. The amended policy regarding release of land will be as under:-
1. Only those requests will be considered by the Government for release of land under Section 48(1) where objections under Section 5-A were filed in following cases:-
a) Any request or application where structure has been constructed provided the structure existed prior to Section 4, is inhabited and is being used by the owner for his own residential purposes.
b) Any factory or commercial establishment which existed prior to section 4 provided it was functional at the time of Section 4 and is also functional at the moment.
c) Any religious institution or any building owned by community which is being used Gupta Dinesh 2013.08.31 11:02 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 4036 of 1991. ::-4-::
for community purposes.
2. That the Government may also consider release of land belonging to individual applicants involving self inhabited structures, factory or commercial establishment or community or religious buildings, where the owner has approached the Hon'ble High Court and has obtained stay dispossession/status quo or any restraint order. In such cases, the decision will be taken on the merits of each individual case keeping in view the benefit to the development agency in terms of providing linkages, services and in the interest of planned development.
However, this clause will not be invoked for grant of licence for development of colonies.
3. Any land in respect of which an application under Section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975 has been made by the owner prior to issuance of Section 6 for converting the land into a colony may also be considered for release subject to the condition that ownership of the land is prior to the notification under Section 4 of the Act. In case, individual land owner makes application for grant of licence in collaboration with the developer/colonizer, the collaboration agreements should be registered before the Registering Authority before issuance of Section 6 notification. This clause will be made applicable on the applications received after this policy has come into effect."
[11]. It was later on substantially amended on 24.01.2011 and its amended version is to the following effect:- Gupta Dinesh 2013.08.31 11:02 I attest to the accuracy and integrity of this document Hihg Court Chandigarh
CWP No. 4036 of 1991. ::-5-::
"1. Only those requests will be considered by the Government for release of land under Section 48[1] where objections under Section 5A were filed in following cases:-
[a] Any request or application where structure has been constructed provided the structures existed prior to section 4, is inhabited and is being used by the owner for his own residential purposes.
[b] Any factory or commercial establishment which existed prior to Section 4 provided it was functional at the time of Section 4 and is also functional at the moment.
[c] Any religious institution or any building owned by community which is being used for community purposes;
2. That the Government may also consider release of land belonging to individual applicants involving self inhabited structures, factory or commercial establishment or community or religious buildings where the owner has approached the Hon'ble High Court and has obtained stay dispossession/status-quo or any restraint order. In such cases, the decision will be taken on the merits of each individual case keeping in view the benefit to the development agency in terms of providing linkages, services and in the interest of planned development. However, this clause will not be invoked for grant of licence for development of colonies.
3. Any land in respect of which an application under Section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975 has been made by the owner prior to the notification under Gupta Dinesh 2013.08.31 11:02 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 4036 of 1991. ::-6-::
Section 4 of the Act. In case, individual land owner makes application for grant of licence in collaboration with the developer/colonizer, the collaboration agreements should be registered before the Registering Authority before issuance of Section 6 notification. This clause will be made applicable on the applications received after this policy has come into effect. Provided that the Government may release any land on the grounds other than stated above under Section 48[1] of the Act under exceptionally justifiable circumstances for the reasons to be recorded in writing".
[12]. These policies have been held to be enforceable by the Hon'ble Supreme Court in Patashi Devi & Ors. Vs. State of Haryana & Ors.,[2012] 9 SCC, 503 observing as follows:-
"19.Before this Court it has been pleaded that on the date of issuance of preliminary notification the appellant's land was vacant, but this statement can not be relied upon for denying relief to her because no such averment was made in the counter-affidavit filed before the High Court. The policy framed by the Government of Haryana clearly stipulates release of the land on which construction had been raised prior to issuance of Section
4 notification. The appellant's case is covered by that policy. Therefore, her land ought to have been released was done in the case of M/s Sharad Farm and Holdings [P] Ltd....".
[13]. For the reasons afore-stated, we allow the writ petition in part and direct the respondents to conduct re-survey of the petitioner's property and if it is found that there exists a residential house on an area measuring 2611 square yards, let about 4000 Gupta Dinesh 2013.08.31 11:02 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 4036 of 1991. ::-7-::
square yards area out of the petitioners' total land measuring 12000 square yards be released. Appropriate orders in this regard shall be passed within a period of three months from the date a certified copy of this order is received.
Disposed of. Dasti.
( SURYA KANT )
JUDGE
August 19, 2013. ( SURINDER GUPTA )
dinesh JUDGE
Gupta Dinesh
2013.08.31 11:02
I attest to the accuracy and
integrity of this document
Hihg Court Chandigarh