Punjab-Haryana High Court
Kuldeep Singh And Others vs Haryana Urban Development Authority ... on 26 September, 2012
Bench: Jasbir Singh, Rameshwar Singh Malik
CWP No.3295 of 2009(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.3295 of 2009(O&M)
Date of decision: 26.09.2012
Kuldeep Singh and others
.....Petitioners
versus
Haryana Urban Development Authority and others
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Rameshwar Singh Malik
Present: Mr.sanjay Bansal, Senior Advocate with
Mr.Durgesh Aggarwal, Advocate for the petitioners
Mr.Ashwani Markanday, Advocate
Mr.Vinod S. Bhardwaj, Additional Advocate General, Haryana
Jasbir Singh, J. (Oral)
Land of the petitioners through their father was acquired in the year 1975 to the extent of 49 kanal 16 marla for establishment of a brick kiln by the Department of Urban Estates State of Haryana.
It is on record that when notification under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) was issued, 51 kanal 16 marla of land was made subject matter of acquisition, however, notification under Section 6 of the Act was issued only for 49 kanal 16 marla of land. In a way 2 kanal of land which was under a Bara (outhouse for keeping the animals etc.) was kept out of acquisition.
The petitioners moved an application to get a residential plot under the oustees Policy dated 18.3.1992. Their prayer was declined vide order dated 30.5.2008 (P11) on a ground that when land of the petitioner was acquired Policy to allot plots to the oustees was not in existence. CWP No.3295 of 2009(O&M) 2 Before that prayer of the petitioners was also rejected by the Apex Appellate Body, in oustees Lok Adalat on 3.8.2007 on a ground that no plot was available in the area in which land of the petitioners was situated. However, a right was given to the petitioners to apply for allotment of a plot as and when fresh floatation takes place in Sector 4 MDC Panchkula. The petitioners came to this Court stating that plots had been allotted to many other land owners whose land was acquired at the same time when petitioners' land was acquired whereas the said relief was declined to the petitioners without any justification.
After notice of motion, reply was filed by the respondents, wherein it was submitted that relief cannot be granted to the petitioners because as per Policy referred to above, the petitioners were entitled to get One kanal of plot whereas they had applied for allotment of 14 marlas plot only. It was further averred that because Policy to allot plots to the oustees was not in existence when land of the petitioners was acquired so plot cannot be allotted to them. Both these objections were negated by this Court by passing order dated 18.4.2011 which reads thus:-
"I have considered the pleadings of this case. The HUDA has been most unjustified in declining the prayer of the petitioner on the grounds as pleaded. It was firstly pleaded that the petitioner had applied for a plot of lesser size than his entitlement. This cannot be a valid ground to deny the claim as a person, who is unable to pay a value of plot of his entitlement, could certainly ask for smaller size plot. The petitioner had not asked for something, which was more than CWP No.3295 of 2009(O&M) 3 his entitlement. The second reason given is that the policy of Oustees came into being after the acquisition of this land. That also cannot be considered as valid reason to deny claim. Earlier this land was acquired for setting up the brick-kiln and subsequently, has been acquired by HUDA and hence, on the date of acquisition, the policy of Oustees was very much available. Even that ground is considered unjustified. Faced with the situation, counsel for HUDA prays for two weeks' time to have necessary orders for allotting the plot under the oustees quota to the petitioner."
In pursuance to an order mentioned above allotment letter dated 3.10.2011 was issued in favour of the petitioners. The petitioners also deposited an amount of Rs.9,32,250/- in response thereto. Thereafter an attempt was made to deny relief to the petitioners by making reference to an order dated 30.9.2011 passed by the Estate Officer, HUDA Panchkula stating that at the time when land was acquired 2 kanal of land owned by the petitioners was not included when notification under Section 6 of the Act was issued. The relevant portion of the order reads thus:-
"The petitioners have based their claim on land falling in khasra nos.33//55/2, 34//1/1, 53/5/3, 31/3 situated in village Bhainsa Tibba.
It is pertinent to mention that notification under Section
4 of the Land Acquisiton Act, 1894 was issued on 27.8.1981 in which land of the petitioner (as shown in petition and jamabandi) comprising in khasra nos 33/5/2 (4-0), 34/1/1 (2- CWP No.3295 of 2009(O&M) 4
13), 53/31/3 (0-2), 159(1-3), 155(0-17) was notified for acquisition. Thereafter notification under Section 6 of the Land Acquisition Act, 1894 was issued on 10.1.1983 in respect of the land falling in Khasra Nos.33/5/2 (4-0), 34/1/1 (2-13), 53/31/3(0-2). However, khasra nos 159 and 155 were not declared as notified and were released from acquisition. The award no 3 dated 2.2.1984 was passed in respect of this land.
The petitioner has based his claim for allotment of a plot under the Oustees quota on the basis of the Oustees Policies of HUDA. The oustees policy clearly provides that land of a land owner should not have been released from acquisition. Therefore, it will be relevant to mention the relevant applicable clause of the Oustees Policy dated 18.3.1992.
Clause IV of the Oustees Policy dated 18.3.1992 is reproduced hereinunder for kind perusal of this Hon'ble Court:
"If the land of any land owners is released from acquisition, he/ she would not be eligible to avail of any benefit under this policy( irrespective of the area of land released)."
In the present case, the land of the petitioners falling in khasra nos 155 (1-3) and 159 (0-17) situated in vilalge Bhainsa Tibba measuring 2 kanal in total was released from acquisition. Therefore, in view of the condition of the policy, the petitioners are not entitled for allotment of any plot. But the petitioners with a view to mislead the Hon'ble High Court and the HUDA CWP No.3295 of 2009(O&M) 5 authorities did not disclose the fact of release of their land in their petition or any earlier occasion.
At this stage, it will also be relevant to discuss the law laid down by the Hon'ble High Court on this condition of the policy.
Hon'ble High Court in CWP No.6129 of 2007 titled Ramo Bai and others versus State of Haryana and others and CWP No.7122 titled as Lilu Ram and other versus State of Haryana and others vide its judgments dated 17.5.2007 upheld the validity and legality of the oustees policy of HUDA dated 18.3.1992 and 12.3.1993 and it has been held that it is neither offensive nor oppressive or discriminatory. The relevant portion of the said judgment is reproduced here as under:-
"It is to be noticed that policy dated 18.3.1992 was formulated primarily with the objective to rehabilitate the oustees as to benign measure by allotting residential plots and commercial sited in various urban estates set up by the HUDA. One is not to lose sight of the fact that when the lands are acquired, compensation is paid to the land owners and it is purely a benevolent act on the part of the State or its instrumentality/ agency when it formulates a scheme to rehabilitate the oustees. In our considered view, there is no vested right which accrues to a person whose land is acquired to get an alternative accommodation as he has been adequately compensated CWP No.3295 of 2009(O&M) 6 for the same. The policies to rehabilitate the oustees are formulated keeping in view the development activities of the State and its instrumentalities / agencies."
The issue whether a person whose land has been released is entitled to the allotment of plot under the Oustees Policy in view of policy dated 18.3.1992, also came up for discussion before the Hon'ble High Court in case as Man Singh v State of Haryana & ors. 2009 (5) RCR (Civil) 659. In this case, Hon'ble High Court considered the clause (iv) of the policy dated 18.3.1992 as reproduced above and held that impugned order of the Estate Officer rejecting the claim of the petitioner on ground of his land having being released would not be eligible to avail any benefit under the Oustees Policy, does not suffer from any legal infirmity warranting interference of the court and consequently was pleased to dismiss the Civil Writ Petition in favour of HUDA."
To deny relief to the petitioners further reliance has been placed upon clause (iv) of the Policy dated 18.3.1992 which envisages that in case of release of any portion of the land of the oustees he shall not be entitled to get any plot.
Be that as it may, it is not necessary to look into above objection of the respondents in this case. It was specifically averred by the petitioners in affidavit dated 15.11.2011 that to many other land owners whose land was also acquired vide the same notification plots were allotted notwithstanding a fact that some part of their land was also released when CWP No.3295 of 2009(O&M) 7 notification under Section 6 of the Act was issued and when award was passed. Specific averment in this regard was made as under:-
"(d) That the action of the Estate Officer in filing the additional affidavit is totally a result of malafide exercise of power. It deserves to be mentioned here itself that various land owners whose land had been earlier acquired vide same notification and thereafter partly released in section 6 notification or after 6 notification as in the case of petitioners had been allotted plots under the oustees quota in the same sector. Some of the instances are given below for kind consideration of this Hon'ble Court:-
(1)The land of one Sh.Bachan Singh s/o Sh.Sunder Singh was acquired vide the same notification and some part of the land falling in khasra no.197 was released from acquisition in section 6 notification. The notifications under section 4 & 6 is annexed herewith as Annexure P14 and Annexure P15. The said Bachan Singh s/o Sh.Sunder Singh had been allotted plot no.213-R in sector 4, MDC, Panchkula vide allotment letter dt.
24.8.2004 (Annexure P16). The Jamabandi of Khewat No.87 khasra no.197 of the year 2005-2006 is annexed as Annexure P-17.
(2)The land comprising in khasra no.194 & 195 of Sh.Laxmi Chand s/o Kapoor Chand was acquired vide the same notification. Thereafter this land was CWP No.3295 of 2009(O&M) 8 released after notification under section 6. After the death of Laxmi Chand this land was inherited by his daughters Bhago Devi w/o Garja Ram, Taro Devi w/o Sita Ram, Sunita Devi w/o Ranjit Singh through a registered will. The above said L.R.'s of Sh.Laxmi Chand had been allotted a plot no.152 in sector 6 MDC Panchkula vide allotment letter dt. 18.11.2009. The allotment letter issued to the above said allottees are annexed herewith as Annexure P18. The mutation of inheritance (Virasat ka intkaal) is annexed herewith as Annexure P19.
These are only two instances, which the petitioner could gather after hard efforts. There are many more instances where the plots had been allotted to the persons, whose land had been released from acquisition as in the case of petitioner. HUDA being a statutory authority can not adopt a pick and choose policy for similarly situated persons. The persons who are near and dear to the authorities or for any other reasons had been allotted the plots and the petitioners are running from pillar to post and had not been allotted plot even after the order of the oustees adalat, only because of some corrupt officials of the HUDA."
Despite many opportunities granted above fact was not rebutted CWP No.3295 of 2009(O&M) 9 by filing an affidavit to the contrary, as was directed by a Division Bench of this Court on 13.2.2012.
To deny relief to the petitioners, counsel for the respondents has placed reliance upon a Division Bench judgment of this Court in the case of Haryana Urban Development Authority and others v. Sandeep and others, LPA No.2096 of 2011, dated on 25.4.2012. On perusal of question No.3 framed by the Division Bench in that case, we feel that ratio of that judgment is not applicable to the facts of this case.
Under the circumstances, it is presumed that the averments made in the affidavit dated 15.11.2011 are correct and the plots were allotted to other land owners whose land was released at the time of acquisition. If that is so, by not allotting a plot to the petitioners discriminatory attitude has been shown towards them which is not permissible.
In view of facts mentioned above, this writ petition is allowed and allotment of plot made to the petitioners vide letter dated 3.10.2011 is kept intact. The authorities are directed to regularize the allotment.
(Jasbir Singh)
Judge
26.09.2012 (Rameshwar Singh Malik)
gk Judge