Punjab-Haryana High Court
Smt. Saroj Bala & Others vs State Of Haryana & Others on 23 July, 2013
Author: Surinder Gupta
Bench: Surya Kant, Surinder Gupta
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
CWP No. 1173 of 2013
Date of Decision :23.07.2013
Smt. Saroj Bala & others
.......... Petitioners
Versus
State of Haryana & others
...... Respondents
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CORAM : HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE SURINDER GUPTA
Present : Mr. Shailendra Jain, Advocate
for the petitioners.
Mr. S.S. Patter, Sr. D. A.G., Haryana.
Mr. R.S. Kundu, Advocate
for respondent No.3.
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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?
SURINDER GUPTA, J.
(1). The petitioners impugn the notifications dated 08.07.2008 and 06.01.2009 issued under Sections 4 & 6 of the Land Acquisition Act, 1894 (in short, 'the Act'), respectively whereby the land measuring 17 acres 7 Kanals and 13 Marlas situated within the revenue estate of Village Gurgaon, Tehsil & District Gurgaon for public purpose, namely, for the development of Shree Mata Shitla Devi Shrine Complex and other public utilities in village Gurgaon was notified. They have also sought quashing of the orders dated 22.7.2011 (Annexure P-11) passed by Satyawan 2013.07.30 13:48 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 1173 of 2013 2 the District Revenue Officer-cum-Land Acquisition Collector on the petition of the petitioners under Section 13-A of the Act and Annexure P-13 dated 21.6.2012 passed by the Financial Commissioner & Principal Secretary, Urban Development Department, Government of Haryana in appeal against the order dated 22.7.2011.
(2) At the time of issuance of notification under Section 4 Sarv Shri Mohit and Ajay sons and Smt. Pooja Singh daughter of Shri Ajit Singh were owners in possession of the land measuring 2Bigha-3Biswa-4Biswansi comprising of Khasra No. 15475/2290.
As per petitioners, there was an old residential house on land measuring 1Bigha-8Biswa-12 Biswansi of the aforesaid khasra number at the time of notification under Section 4 of the Act, which comprised of 23 rooms, 2 sheds, one water tank, gate, stairs etc. The Eastern and Southern side of the said khasra number were plot having boundary wall. Due public notice of the notification under Section 4 of the Act was not given. No munadi as alleged in Rapat No. 2257 dated 4.8.2008 was made at the spot. (3) Objections were filed by Mohit etc. under Section 5-A of the Act. On their objections, respondent No.2 i.e. Land Acquisition Collector, Gurgaon made a report recommending the release of the residential house over the land of Mohit etc. with proportionate vacant area in all measuring 1 Bigha. As per the petitioners there was a factual error in the report, as the residential house was on the Eastern side of the plot and not on Satyawan 2013.07.30 13:48 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 1173 of 2013 3 the Western side as mentioned in the report above. The report was accepted and the declaration under Section 6 of the Act was issued for acquisition of the land measuring 11 acres 9 kanals and 12 marlas. Some of the land around Khasra No. 2290 was not the subject matter of declaration under Section 6 of the Act (Annexure P-6/A). The due public notice of declaration under Section 6 of the Act was also not given to the affected parties. Both the notifications under Section 4 & 6 were declared null and void by this Court in CWP No. 13217 of 2009 titled Virender Kumar and others vs. State of Haryana and others, decided on 15.12.2010.
(4) Petitioners purchased Khasra No. 2290/4, which was the subject matter of the acquisition proceedings, vide two sale deeds No. 15463 and 15464 dated 30.03.2009 from the previous owners, namely, Shri Mohit etc. He purchased the land measuring 0B-8B-12B out of khasra No. 15475/2290/4 and vide second sale deed he purchased the residential house measuring 1 Bigha. It has been alleged that the petitioners were not aware that the property purchased was the subject matter of the notification under Section 4 of the Act and they got entered the mutations No. 42889 and 42890 with regard to their purchases in the revenue record. After the purchase the petitioners started living in the house with their families.
(5) As a consequence of the judgment dated 15.12.2010 in CWP No. 13217 of 2009, the award dated 29.12.2010 was passed Satyawan 2013.07.30 13:48 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 1173 of 2013 4 with regard to the area measuring 9 Biswas and 4 Biswansis, which included the area measuring 0B-8B-12B of Khasra No. 15475/2290/4 purchased by the petitioners. The petitioners filed a petition under Section 13-A of the Act seeking correction in the report of the Land acquisition Collector on the objections under Section 5-A of the Act and in the award No. 2 of 29.12.2010, which was dismissed and the appeal against the same was also declined. Hence, this writ petition.
(6) In the reply filed by respondent No. 3, which was also adopted by respondents No.1 & 2, the claim of the petitioners has been contested and controverted with the plea that the petitioners have purchased the property in question after the issuance of notices under Section 4 & 6 of the Act. A small construction existing at the time of issuance of notice under Section 4 of the Act, has already been released. Even in the sale deed, copy of which is on record, there is no mention of property purchased by the petitioners. The petitioners have challenged the orders dated 22.07.2011 and 21.06.2012 (Annexures P-11 & P-13 respectively) passed under Section 13-A and 48 of the Act. As such they have availed of the remedies available to them. The land in question was needed for public purpose and has been acquired after following due process of law.
(7) Counsel for the parties have been heard and record perused.
Satyawan 2013.07.30 13:48 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 1173 of 2013 5 (8) The first contention of learned counsel for the petitioners is that notices under Sections 4 & 6 of the Act pertaining to the present acquisition have already been declared to be null and void in Civil Writ Petition No. 13217 of 2009, which was decided by Division Bench of this Court on 15.12.2010. Copy of the order passed in the said writ petition is Annexure P-5. A perusal of the above judgment shows that the Hon'ble Division Bench has observed with regard to the notifications under Sections 4 & 6 of the Act as follows :-
"In view of the above, the present writ petitions deserves to be allowed and notifications dated 8.7.2008 and 21.8.2009 issued under Sections 4 and 6 of the LA Act deserve to be quashed qua the petitioners only."
(9) Learned counsel for the petitioners has stressed on the point that the reason for quashing the notification was that the due public notice of the aforesaid notification was not made. This argument of learned counsel for the petitioners carries no weight as admittedly the original property owners had filed objections under Section 5-A of the Act, which were dismissed. The petitioners have appeared on the scene at a very later stage. They had purchased the land after the issuance of declaration under Section 6 dated 6.1.2009 vide two sale deed, both dated 30.3.2009. (10) In case of Nandatai vs. State of Maharashtra and others, (1996) 6 SCC 407, the Supreme Court has observed as Satyawan follows :-
2013.07.30 13:48 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 1173 of 2013 6 "In this case since holder on record has already been given notice and he filed his objections after enquiry, he was heard. The omission to give notice to the petitioner who subsequently became owner of the property does not vitiate the enquiry conducted under Section 5-A nor is the enquiry violative of sub-section (2) of Section 5-A. The High Court, therefore, was right in refusing to interfere with the declaration published under Section 6 and notification published under Section 4."
(11) In view of the facts and the law as discussed above, the petitioners who have stepped into the shoes of the original owner after issuance of declaration under Section 6 of the Act has no right to challenge the notification under Section 4 of the Act particularly when the remedy, as available under the law, has already been availed by the original owners. (12) The other point, which has been hotly pressed by learned counsel for the petitioners is that the house, which has been released is on the Eastern side of the land bearing Khasra No. 2290/4 and not on the Western side and this fact was elaborately mentioned in the petition under Section 13-A of the Act (Annexure P-10) filed by the petitioners. The District Revenue Officer-cum-Land Acquisition Collector while disposing of the petition under Section 13-A of the Act has considered this fact. It is admitted that no objection was filed by the petitioners at the time of award dated 29.12.2010. They had purchased the property, which was under process of acquisition on 30.3.2009. Satyawan 2013.07.30 13:48 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 1173 of 2013 7 The award was passed on 29.12.2010. The petition under Section 13-A of the Act was filed on 7.2.2011 and till then the petitioners have remained silent. Even otherwise, the petitioners have not placed on record any document to show that they have purchased the built up portion. Copy of their sale deed Annexure P-16 vide which they purchased the land out of Khasra No. 15475/2290/4 measuring 0-8-12 show that it was a plot and not a house. Even the possession of plot was handed over to the petitioners. Even in the second sale deed Annexure P-17 there is mention of purchase of land measuring 1 Bigha ( 3025 Sq. yard). Even in this sale deed there is no mention of existence of any house or construction over this land. The petitioners have purchased the land and not the house vide this sale deed. Now the petitioners cannot alleged that they have in fact purchased any house existing over any part of the property regarding which declaration under Section 6 of the Act was issued. Had there been any house existing over the plots which were the subject matter of two sale deeds dated 30.3.2009 (Annexures P-16 & P-17 respectively), reference to the same must have made therein.
(13) Petitioners have placed on record certain photographs to allege the existence of a house at the spot, however, there is no date on these photographs and there is nothing on file to connect these photographs to reach a conclusion as to whether these are situated on the Eastern or Western side of Khasra No. 2290/4.
The photographs rather reflect as if several families are residing Satyawan 2013.07.30 13:48 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 1173 of 2013 8 over this property and gives a look of one room quarters, let out to the working class.
(14) From the above discussion, the admitted facts which emerged on the file are as follows:-
(i) Mohit and Ajay sons of, and Smt. Pooja Singh daughter of Shri Ajit Singh were the original owners of the suit property at the time of issuance of notifications under Section 4 & 6 of the Act;
(ii) The objections under Section 5-A of the Act were filed by the original owners, which were dismissed and this reflect that they were aware of the publication of notification under Section 4 of the Act.
(iii) Petitioners have purchased the land of Khasra No. 2290/4 vide two separate sale deeds after the declaration under Section 6 of the Act dated 06.01.2009;
(iv) In the sale deeds the property purchased by the petitioners is not shown to have any house constructed over it, rather it pertain to the purchase of vacant land;
(v) The judgment in the writ petition No. 13217 of 2009 is a judgment in personum and not in rem and the notifications under Section 4 & 6 of the Act relating to the present acquisition were Satyawan 2013.07.30 13:48 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 1173 of 2013 9 quashed by a Division Bench of this Court only qua the petitioners in that writ petition.
(vi) The award in this case was passed on 29.12.2010;
(vii) Petitioners after the purchase of the property till the passing of the award and thereafter till moving petition under Section 13-A of the Act (Annexure P-10) on 07.02.2011 never agitated this factum of alleged error regarding location of house in the report of respondent No.2, recommending the release of the residential house on the land proposed for acquisition before any authority.
(15) From the above facts it appears that modes adopted by the petitioners by purchasing the suit property during the process of acquisition was a ploy to defy the entire acquisition proceedings due to their ulterior motives. The land has been acquired for public purpose i.e. for the development of Shree Mata Shitla Devi Shrine Complex and other public utilities. The site plan of the acquired property (Annexure P-3) showed that this property is adjoining the site of temple and can be well utilised for the development of the temple. The bona fides of the purpose of acquisition are beyond doubt and there is no allegation of malice in the process of acquisition. This fact is not denied that the land, which is the subject matter of this writ petition falls within the 900 meters periphery of Air Force Ammunition Depot. In CWP Satyawan 2013.07.30 13:48 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 1173 of 2013 10 No. 13217 of 2009 (supra) which relate to the present acquisition, this fact has been elaborately discussed and the directions were issued to the State of Haryana and Assistant Solicitor General of India as follows :-
"After giving our thoughtful consideration to this matter, at the present instance, a direction is issued to the Commissioner-cum-Secretary, Urban Local Bodies Department, Director, Town & Country Planning, Haryana and Union of India, Ministry of Defence- respondent Nos. 2, 4 and 6 respectively, to file a report with regard to the ownership, nature, extent and date of construction and how these construction(s) in existence or made within the 900 meters restricted area of the Ammunition Depot is/are in accordance with law. The report be submitted within a period of two months from today. Copy of this order be given dasti to the counsel for the respondent-State of Haryana and Mr. Anmol Rattan Sidhu, Assistant Solicitor General of India, under the signatures of the Court Secretary of the Bench, today for compliance."
(16) In view of the above discussion, we find no merits in this writ petition and the same is dismissed.
(SURYA KANT) (SURINDER GUPTA)
JUDGE JUDGE
23.07.2013
'Satyawan'
Satyawan
2013.07.30 13:48
"I attested to the accuracy and
integrity of this document"
High Court Chandigarh