Punjab-Haryana High Court
Mahinder Yadav And Others vs State Of Haryana And Others on 3 October, 2013
Bench: Surya Kant, Surinder Gupta
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.13277 of 1999
Date of Decision: October 03, 2013
Mahinder Yadav and others .....Petitioners
versus
State of Haryana and others .....Respondents
CORAM : HON'BLE MR.JUSTICE SURYA KANT.
HON'BLE MR.JUSTICE SURINDER GUPTA.
Present : Mr.Girish Agnihotri, Senior Advocate with
Mr.Vijay Pal, Advocate, for the petitioners.
Mr.Baldev Singh, Additional AG, Haryana.
-.-
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 are legal heirs of late Kishan Chand. It is stated that petitioner No.4-Tara Devi widow of late Kishan Chand has also passed away during the pendency of this writ petition. Since her legal heirs are already the petitioners, we do not deem it necessary to again seek their impleadment.
The grievance of the petitioners is against acquisition of their land measuring 16 kanal 9 marlas comprising in Khasra Nos.11/25, 12/20, 12/21, 12/22 & 13/1, situated within the revenue estate of village Kadipur, Tehsil and District Gurgaon.
The principal contention of the petitioners is two- fold. Firstly, it is urged that three sides of their land/properties is surrounded by the left-out/released lands, hence no 'public Kumar Mohinder 2013.11.07 12:41 I attest to the accuracy of this order Chandigarh CWP No.13277 of 1999 [2] purpose' can be achieved by retaining a small piece of the petitioners' land particularly when the acquisition was made for the development of a residential and commercial sector. Secondly, the petitioners allege discrimination as, according to them, the land has been released from acquisition or left-out on pick and choose basis.
We have heard learned counsel for the parties at some length and gone through the site plan relied upon by the respondents (Annexure R-1).
There is indeed no doubt that the properties/land on three sides of the petitioners' land already stands released/exempted from acquisition. On one side of the petitiones' land, the structures raised by their close relative have also been released. Similarly, Khasra Nos.12 & 20 also appears to have been released. If that is so, it is difficult to accept that the subject land can be put to any use of the notified public purpose. However, no final opinion in this regard need be formed by us and suffice it would be to direct the respondents to re-consider whether the small piece of land owned by the petitioners is still required for a bonafide public purpose? It may be mentioned here that the entire area by now must have been developed by the respondents as dispossession of the petitioners was stayed by this Court vide order dated 17.09.1999 and thereafter the State counsel was directed to file affidavit in view of the following order dated 18.10.2000:-
"....Ms.Palika Monga, prays for an adjournment to enable her to verify the factual position and to obtain instructions. In particular, she would file an affidavit to justify Kumar Mohinder 2013.11.07 12:41 I attest to the accuracy of this order Chandigarh CWP No.13277 of 1999 [3] the acquisition of the land of the petitioners while the remaining area surrounding it on all the three sides has been left out. To come up on November 14, 2000...."
The site plan (Annexure R-1) does not indicate that the subject land has been earmarked for any public purpose. If the respondents, on re-consideration, are of the view that no public purpose can be achieved by retaining the subject land under acquisition, it is directed that the same shall be released. However, if the respondents form a bonafide opinion that the acquired land can still be utilized in part or entirety for a public purpose, in that event the petitioners shall be entitled to allotment of a site/plot in view of the Government policy dated 9.11.2010, the salient features whereof read as under:-
"D. Rehabilitation and Resettlement Policy:
5. Allotment of residential plots in cases where a self-occupied residential house is acquired for unavoidable reasons:
Recognising the sensitivity involved in acquisition of built-up residential houses/structures for unavoidable reasons, the Government has decided to accord the highest priority to the resettlement of this category of persons. In the first instance, all efforts will be made by the acquiring departments to leave out the residential structures existing in the form of clusters from acquisition except where it becomes absolutely unavoidable either due to its stand-alone character or its location being within the Right of Way of infrastructure projects such as roads, canals, railway line etc.; Accordingly, it has been decided that wherever Kumar Mohinder 2013.11.07 12:41 I attest to the accuracy of this order Chandigarh CWP No.13277 of 1999 [4] any self-occupied residential structure/ house has to be acquired for unavoidable reasons in the process of acquisition of land by the Government for any purpose, such owners of built-up residential structures would be offered assured allotment of residential plots as per the following scale:
Scale of residential plots in cases where an existing self-occupied house/residential structure is acquired Scheme applicable upto 06.09.2010 Scheme revised w.e.f. 07.09.2010 Size of the Size of residential Size of the Size of residential house plot to be allotted residential house residential plot acquired acquired to be allotted Upto to 100 50 sq.yards Upto 150 sq.yards 90 sqm sq.yards Above 100 but upto 100 sq.yards Above 150 but 150 sqm 200 sq. yards upto 200 sq. yards Above 200 but upto 150 sq.yards Above 200 but 200 sqm 300 sq. yards upto 250 sq. yards Above 250 but 250 sqm upto 300 sq. yards Above 300 but upto 200 sq.yards Above 300but upto 300 sqm 400 sq. yards 400 sq. yards Above 400 but upto 250 sq.yards Above 400 but 350 sqm 500 sq. yards upto 500 sq. yards Above 500 sq.yards 350 sq.yards Above 500 450 sqm sq.yards As the affected persons would be entitled to compensation on account of acquisition of land and the structures constructed thereon, the price/ cost of the plots to be allotted in favour of the affected persons as per above scale would be payable by the allottee;
The benefit of allotment of a residential plot in this category would be admissible only if the acquired residential house/ structure was self-occupied and was in existence on the date of issue of Section 4 Notification, and further subject to the condition that such residential house had not been constructed by way of any encroachment on the Kumar Mohinder 2013.11.07 12:41 I attest to the accuracy of this order Chandigarh CWP No.13277 of 1999 [5] public/ community/ government land. The self- occupation of such house by the landowner's family as their regular residence would be an essential condition for this purpose. Residential structures used for rental purposes or those in the form of kothras in the fields would not be reckoned as 'residential houses' for this purpose; While assessing the entitlement for size of the plot to be allotted, the land under the existing residential house only would be taken into account and not the appurtenant facilities for other farm operations. Further, while computing the area under such Residential House, the plinth area of the constructed house and equal area towards admissible open space shall be taken into account. Appendix-4 may be referred for the basis of calculation of area;
xx xx xx xx xx........"
It is directed that in the event of second eventuality, the alternative site shall be allotted to the petitioners simultaneously and/or within a period of three months from the date of receiving a certified copy of this order. Till then, both the parties are directed to maintain status-quo.
The writ petition stands disposed of accordingly. Dasti.
[SURYA KANT]
JUDGE
October 03, 2013 [SURINDER GUPTA]
Mohinder JUDGE
Kumar Mohinder
2013.11.07 12:41
I attest to the accuracy of this
order
Chandigarh