Punjab-Haryana High Court
Anil Kakkar And Another vs State Of Haryana And Others on 28 January, 2011
Bench: Jasbir Singh, Augustine George Masih
CWP No. 19595 of 2005 and other connected cases 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of decision: 28.01.2011
CWP No. 19595 of 2005
Anil Kakkar and another ..... PETITIONERS
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 5074 of 2004
Bal Kishan and others ..... PETITIONERS
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 13198 of 2004
Ramkesh
..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 14399 of 2004
Deepak Singh ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 17628 of 2005
Mahindra Digital ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No.17630 of 2005
Magnum Strips and Tubes Pvt ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19595 of 2005 and other connected cases 2
CWP No.17910 of 2005
Prem Singh and others ..... PETITIONERS
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No.18000 of 2005
M/s Sarvpriya Industries Ltd. ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No.18007 of 2005
Khazan Singh ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 18018 of 2005
M/sMonarch Tapes Ltd. ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 18056 of 2005
M/s Sunbeam Auto Ltd. ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19595 of 2005 and other connected cases 3
CWP No. 18376 of 2005
Dharam Singh ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 18508 of 2005
Jagwati and others ..... PETITIONERS
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 18557 of 2005
Vijay Kumar and others ..... PETITIONERS
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No.19072 of 2005
Mangal Singh and others ..... PETITIONERS
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19091 of 2005
Sushila and others ..... PETITIONERS
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19595 of 2005 and other connected cases 4
CWP No. 19104 of 2005
M/s V & S (I) Pvt. Ltd. ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19230 of 2005
M/s Cosmic Packers ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19252 of 2005
SM Manufacturing Co. P. Ltd. ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19317 of 2005
Rama Rani and others ..... PETITIONERS
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19330 of 2005
M/s Tempo Alliances Pvt. Ltd. ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19595 of 2005 and other connected cases 5
CWP No. 19369 of 2005
Ranbir Sagar ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 20127 of 2005
Jagdish Chander Malhotra ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 807 of 2006
Vinod Kumar Sehgal ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 842 of 2006
Kirti Goel ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 911 of 2006
Vinod Kumar Aggarwal ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 942 of 2006
M/s MVS Engineering Ltd. ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 952 of 2006
M/s Kumar Fastners ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19595 of 2005 and other connected cases 6
CWP No. 1009 of 2006
Rakesh Jain
..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 1090 of 2006
Santosh Plywood ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 1138 of 2006
Indian Chemical Works ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 1145 of 2006
M/sAgemco Metal Works ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 1211 of 2006
Ram Karan Dass Gupta
..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 1222 of 2006
M/s Kumar Engineering Works
..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19595 of 2005 and other connected cases 7
CWP No. 1223 of 2006
M/s Kumra Pharama Pvt. Ltd. ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 1377 of 2006
M/s Shades Plus and others ..... PETITIONERS
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 1650 of 2006
Umesh Aggarwal ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 7435 of 2006
M/s Brown Kaffee India Ltd. ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 9308 of 2006
M/s Dhruv Holdings Pvt. Ltd. ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19595 of 2005 and other connected cases 8
CWP No. 9312 of 2006
M/s Shivani Estates Pvt. Ltd. ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 12313 of 2006
M/s BS Flow Systems Pvt.Ltd. ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 15711 of 2006
Deepak Saini ..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 1042 of 2007
Pritam Singh
..... PETITIONERS
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 2821 of 2007
Rajwati and others
..... PETITIONERS
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 19595 of 2005 and other connected cases 9
CWP No. 16835 of 2009
Jai Pal s/o Sardar Singh
..... PETITIONER
VERSUS
State of Haryana and others ..... RESPONDENTS
CWP No. 7352 of 2010
Ravi Dutt and others
..... PETITIONERS
VERSUS
State of Haryana and others ..... RESPONDENTS
CORAM:HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. Shailendra Jain, Advocate,
for the petitioners.
Mr. M.L.Sharma, Advocate,
for the petitioners (in CWP Nos. 19369, 20127 of 2005, 807,
842, 911, 952, 1009, 1145 and 1222 of 2006)
Mr. G.K.Chawla, Advocate, (in CWP No. 19091 of 2005)
Mr. N.D.Achint, Advocate,
Mr. C.M.Munjal, Advocate,
and Mr. Pawan Malik, Advocate (in CWP Nos. 942, 952, 1090,
1138, 1223, 1377, 1621 and 1650 of 2006)
Mr. Kamaljit Singh Advocate,
for Mr. R.P.S. Khosla Advocate.
Mr. Raghuwinder Singh, Advocate
and Mr. Vibhav Jain Advocate,
for Mr. Puneet Bali, Advocate,
for the petitioner(s).
Mr. Ajay Nara, Advocate,
for HUDA (in CWP No. 7435 of 2006)
Mr. A.K. Pathania, Advocate,
for HSIIDC.
Mr. Arun Walia, Advocate,
for HUDA (in CWP Nos. 9308 and 9312 of 2006)
Mr. J.L.Malhotra, Advocate,
for respondent No. 8 (in CWP No. 19252 of 2005)
Mr. Kamal Sehgal, Addl. A.G. Haryana.
***
CWP No. 19595 of 2005 and other connected cases 10
AUGUSTINE GEORGE MASIH, J.
Through this order, we propose to decide CWP Nos. 19595 of 2005, 5074, 13198 and 14399 of 2004, 17628, 17630, 17910, 18000, 18007, 18018, 18056, 18376, 18508, 18557, 19072, 19091, 19104, 19230, 19252, 19317, 19330, 19369 and 20127 of 2005, 807, 842, 911, 942, 952, 1009, 1090, 1138, 1145, 1211, 1222, 1223, 1377, 1650, 7435, 9308, 9312, 12313 and 15711 of 2006, 1042 and 2821 of 2007, 16835 of 2009 and 7352 of 2010 (46 cases), wherein notifications issued under Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the L.A. Act') dated 15.11.2002 (Annexure P-12) and 12.11.2003 (Annexure P-15), report of the High Powered Committee dated 10.11.2005 (Annexure P-19) and Award dated 18.11.2005 stand challenged.
It was agreed between the counsel for the parties on 01.11.2005 that CWP No. 19595 of 2005 shall be treated as a lead case thus, the facts are being taken from it.
M/s Aryan Exports-petitioner No. 2 (hereinafter referred to as 'petitioner firm') is a partnership firm. The land in dispute measuring 4 Kanals 2 Marlas comprised in Khasra No. 28/20/2/2/1 situated in the revenue estate of village Begampur Khatola, Tehsil and District Gurgaon was purchased vide registered sale deed dated 08.09.1995. The land, after purchase, was leased out to the petitioner firm vide registered sale deed dated 30.01.1996 for 99 years i.e. up to 29.01.2095. Entries to that effect was made in the revenue records and mutation was also sanctioned. The original owner, namely, Sh. Ram Lal Kakkar died and on the basis of the registered will, petitioner No. 1-Anil Kakkar stepped into his shoes and became the owner of the land.
CWP No. 19595 of 2005 and other connected cases 11 Petitioner No. 2 was initially constituted in the year 1978 and was reconstituted vide a partnership deed dated 01.04.1997. The petitioner firm was to raise a building of its own, which was to be completely self-contained unit and was to accommodate all the departments, including quality control and inspection, stores, maintenance and accounts office etc. in addition to main production department and a show room. The nature of the business of the petitioner firm was of Creator and Exporters of Fashion wear. The petitioner firm applied for necessary permission for Change of Land Use (for short 'CLU') to the District Town Planner, Gurgaon in the year 1996. As formalities could not be completed, fresh application was submitted by the petitioner firm for permission on 05.08.2002 on a prescribed proforma. Site inspection was done by the District Town Planner (Enforcement), Gurgaon. Meanwhile, the project report was got registered with the District Industries Centre, Gurgaon and provisional Small Scale Industries certificate dated 23.09.2002 for manufacture of readymade garments was obtained on provisional basis by the petitioner firm. An application to the Pollution Control Board, Haryana for the grant of Water and Air Pollution Certificate was also submitted on 26.09.2002. The application for CLU of the petitioner firm was returned by the District Town Planner, Headquarters, Chandigarh vide letter dated 14.02.2003 on the ground that the land, for which the CLU was sought, stands acquired and the papers may be resubmitted after obtaining a No Objection Certificate from the Industries Department.
The State of Haryana issued notification dated 15.11.2002 (Annexure P-12) under Section 4 of the L.A. Act for acquisition of 389 Acres 4 Kanal 17.79 Marla of land in Villages Begampur Khatola, Narsingpur and Khandsa, Tehsil and District Gurgaon. The land was CWP No. 19595 of 2005 and other connected cases 12 needed by the Government at public expenses for public purpose, namely, for development of integrated complex for industrial, institutional, commercial, recreational and other public utilities i.e. to set up Industrial Sectors 34 and 35, Gurgaon. This was done keeping in view the economic activities particularly in the district of Gurgaon, where many industries have set up their units. A large number of domestic and foreign companies were ready and willing to set up their industries in Haryana and more particularly in District Gurgaon. To achieve the intended goal of economic development through industrialization, the Government of Haryana formulated Industrial Policy providing financial/fiscal incentives and also laid emphasis of strengthening of basic infrastructure. To meet this responsibility, the Haryana State Industrial Development Corporation Ltd., main industrial infrastructure developing agency through the State of Haryana intended to acquire the above-mentioned land for making optimum use of land for systematic growth of the industry.
Objections under Section 5-A of the L.A. Act were filed by the petitioner firm. These objections were considered and rejected by the Land Acquisition Collector, Gurgaon. The State of Haryana issued a declaration dated 12.11.2003 under Section 6 of the L.A. Act (Annexure P-15) acquiring 340 Acre, 7 Kanal, 8.79 Marla of land. Vide the said declaration, land of the petitioners was sought to be acquired. However, vacant land belonging to several industrial units were not included in the declaration under Section 6 of the L.A. Act , such as that of M/s Nanu Enterprises, M/s Kaizen Products. The land of the petitioners was similarly situated and, therefore, they pressed the ground of discrimination.
The matter was agitated by a large number of running industrial units and land owners by filing writ petitions in this Court, taking CWP No. 19595 of 2005 and other connected cases 13 the basic plea of discrimination and grant of no opportunity of hearing by the Land Acquisition Collector while considering their objections filed under Section 5-A of the L.A. Act. State of Haryana, vide notification dated 13.02.2004 (Annexure P-16), constituted a Sub-Committee to consider the submissions of the said land owners regarding possibility of release of their land acquired through the aforesaid notifications. The writ petitions were disposed of with directions that they may file representation before the Sub-Committee. The said Sub-Committee invited the representations from the land owners through Industrial Associations of Gurgaon and by giving press note in the leading newspapers of the area. After giving personal hearing to the land owners, the Sub-Committee submitted its report to the Government, which was, after consideration, accepted.
Some of the land owners, whose land or a part thereof was not recommended for release by the Sub-Committee, filed writ petitions in the High Court. The petitioners filed CWP No. 8173 of 2005. The writ petition preferred by the petitioners along with several other writ petitions filed by various land owners challenging the notifications issued for acquisition of land as also against the report of the Sub-Committee qua their cases, were taken up together for hearing when a common consented order was passed by this Court on 16.07.2005 (Annexure P-17). This order was passed on the statement of the learned Advocate General Haryana that the State Government intended to constitute a High Powered Committee to consider the cases of the petitioners in the writ petitions for release of their land. The High Powered Committee shall examine the various grievances raised by the writ petitioners and if the petitioners file a detailed representation highlighting their grievances along with supporting documents, the same shall be gone into and the petitioners shall be CWP No. 19595 of 2005 and other connected cases 14 granted an opportunity of personal hearing. The High Powered Committee shall take a decision thereon. The Court further ordered that the writ petitioners shall be at liberty to approach this Court yet again in case any further grievance is left after the final decision of the Committee. The writ petitions were disposed of in terms of the consented order.
In pursuance of the above order dated 16.07.2005, the petitioners filed detailed representations. The High Powered Committee considered the representations of the petitioners, who preferred to do so and submitted its report dated 10.11.2005 (Annexure P-19). On the basis of the said report, a Survey-cum-Layout Plan of Sectors 34-35, Phase VII was prepared by the State. The representations of the petitioners were rejected on the ground that the site is lying vacant and it is required for continuity and integrated planning. Thereafter, Award under Section 11 of the L.A. Act was pronounced on 18.11.2005 (P-32) by the Land Acquisition Collector.
Faced with this situation and aggrieved by the above report, the petitioners again approached this Court and filed the present writ petition, wherein notifications under Sections 4 dated 15.11.2002 (Annexure P-12) and 6 dated 12.11.2003 (Annexure P-15) issued under the L.A. Act and the report submitted by the High Powered Committee dated 10.11.2005 (Annexure P-19) as also the Award dated 18.11.2005 (Annexure P-32) passed by the Collector have been assailed. The basic ground for challenge is the discrimination meted out to the petitioners.
It is contention of the petitioners that the State of Haryana has released even vacant lands belonging to several industrial units such as that of M/s Nanu Enterprises measuring 4 Kanal 6 Marlas comprised in Khewat No. 126, Khata No. 187, Killa No. 7, Khasra No 17/1, M/s Kaizen CWP No. 19595 of 2005 and other connected cases 15 Products comprised in Rect. No. 8, Killa Nos. 11/2, 10, Rect. No. 7, Killa Nos. 6/1, 6/2/1, which land is situated in Village Narsingpur, against which even permission for CLU had not been sought or granted at the time of publication of the notification under Section 4 of the L.A. Act. The land belonging to M/s Orient Crafts Limited measuring 4.25 Acres was released from acquisition despite the fact that the said land was lying totally vacant. Thus, prayer for release of the land is made.
Upon notice having been issued, the respondents have filed their reply. The factual aspect, as asserted by the petitioners, has not been disputed. The only stand, which has been taken by the State of Haryana for justifying the rejection of the claim of the petitioners is that the existing working units, which were adjustable from planning and continuity point of view, were not notified for acquisition while issuing the notification under Section 4 dated 15.11.2002 under the L.A. Act.
On consideration of the objections, some lands were released at the time of issuance of notification under Section 6 of the L.A. Act on recommendations of the Land Acquisition Collector, Gurgaon and Haryana State Industries Department. Sub-Committee, which was constituted vide notification dated 13.02.2004, considered the representations of the land owners and submitted its report, which was duly accepted by the State of Haryana. Thereafter, as per the statement given by the learned Advocate General, Haryana order dated 16.07.2005 was passed and accordingly, a High Powered Committee was constituted, which after giving personal hearing to the land owners, who submitted their representations for consideration and after visiting the site to confirm the ground realities, submitted its report, which was considered and accepted by the State Government. Hence, there is no illegality nor any unjust, arbitrary CWP No. 19595 of 2005 and other connected cases 16 discrimination has been done by the High Powered Committee nor any provisions of the L.A. Act have been contravened which would call for quashing of the report submitted by the High Powered Committee. The Committee considered the representations of the petitioners and finding that the land is lying vacant, had recommended acquisition for integrated planning of the Industrial estate.
To the reply submitted by the State of Haryana, replication was preferred by the petitioners, wherein it was stated that after the filing of the writ petition, four pieces of land have further been released from the purview of acquisition, which were vacant i.e. land belonging to Naresh Kumar son of Shri A.N. Budhiraja and two others comprised in Khasra No. 1173, 1174 (1 Bigha 12 Biswas) vide letter dated 23.08.2006 (Annexure P-
34) and land of Mrs. Bina Mehra and others comprised in Khasra No. 1173 (7 Bighas 6 Biswas) vide letter dated 23.08.2006 (Annexure P-37) situated in Village Khandsa. Similarly, land of M/s APS Industries comprised in Khasra No. 6//8, 19/2, 20/3/2, 22/1,26,22/2 (25 Kanals 9 Marlas) vide letter dated 23.08.2006 (Annexure P-35) and the land of Sh. Kamal Gupta, comprised in Rect. No. 6, Khasra No. 10/2 (6 Kanals 3 Marlas) vide letter dated 23.08.2006 (Annexure P-36) also situated in Village Begampur Khatola, have been released from acquisition.
It is the contention of the petitioners that the petitioners' land is similarly situated and, therefore, deserves similar treatment. It has further been undertaken by them that in case the land of the petitioners is released from the array of acquisition, the petitioners are ready and willing to comply with the conditions, which may be imposed by the respondents, as have been imposed in the cases of the aforesaid persons, whose land has been released. The entire area to be laid out for Sectors 34-35 of Gurgaon is CWP No. 19595 of 2005 and other connected cases 17 already dotted with industrial activities and a large number of industrial units have already been adjusted in the layout plan. The above-mentioned cases of release of land from acquisition are of vacant areas and there is no justification to pick and choose and acquire the area of the petitioners and others, whose writ petitions are pending in this Court.
The whole bunch of 60 cases came up for hearing before this Court on 21.11.2008 when, on consideration of the pleadings and the submissions made by the counsel for the parties, Officers Committee comprising of the Financial Commissioner and Principal Secretary to Government of Haryana, Industries Department, Managing Director, HSIDC and Director of Industries, Haryana was constituted. The Court while constituting the aforesaid Committee, observed that having regard to the specific stand taken by the petitioners, the claim of each of the petitioners required fresh consideration by the said Committee. The petitioners, in all the writ petitions, were given liberty to submit their representations within 15 days in the office of the Managing Director, HSIDC to be put up before the Officers Committee,which shall consider and dispose of each case individually by passing a speaking and reasoned order. A consolidated report was required to be placed on the record by way of an additional affidavit on or before 23.02.2009, the date next fixed. Thereafter, the case was taken up on 23.02.2009 and 16.04.2009 leading to the submission of the consolidated report/recommendations of the Officers Committee constituted by this Court vide order dated 21.11.2008 on 21.7.2009 in the Court.
Some of the writ petitions were disposed of by this Court having been rendered infructuous in the light of the above report of the Officers' Committee and the present remaining bunch of writ petitions is one in which relief was not granted to the petitioners and they had filed CWP No. 19595 of 2005 and other connected cases 18 objections to the Report.
Counsel for the petitioners have submitted that after constitution of the High Powered Committee, a Ministers Committee was constituted which further released the land owned by M/s Common Export Pvt. Ltd., M/s Dhingra Motors, M/s Gabriel India Limited, M/s Asia Investment Pvt. Ltd. and M/s Purolator India Limited despite recommendations to the contrary made by the Sub-Committe and the High Powered Committee. He contends that apart from the earlier released lands, which are mentioned in the writ petitions are those pieces of lands, which were vacant and where no industry/factory is in operation. The discrimination qua the petitioners is writ large and the petitioners also deserve the same relief as has been granted to M/s Orient Crafts Limited, Naresh Kumar son of Shri A.N. Budhiraja, M/s APS Industries, Sh. Kamal Gupta, Mrs. Bina Mehra, M/s Common Export Pvt. Ltd., M/s Dhingra Motors, M/s Gabriel India Limited, M/s Asia Investment Pvt. Ltd. and M/s Purolator India Limited.
In support of this contention, counsel for the petitioners has relied upon a Division Bench judgment of this Court passed in CWP No. 2546 of 2006 titled as Smt. Raj Bala vs. State of Haryana and others decided on 14.12.2006 (Annexure A-37). Civil Appeal No. 7023 of 2009 preferred by the State of Haryana and Civil Appeal No. 7021 of 2009 preferred by the Haryana State Industrial Development Corporation (A-38) were dismissed by the Hon'ble Supreme Court on 22.10.2009 by a detailed order, wherein it was held that there can be no discrimination while considering the claim of the similarly placed claimants and violation of the same would be hit by Article 14 of the Constitution of India. Reliance has also been placed on a Division Bench judgment of this Court in CWP No. 17685 of 2005 titled as M/s titled as M/s Imperial Fasteners vs. State of CWP No. 19595 of 2005 and other connected cases 19 Haryana and another decided on 02.05.2007 (A-39), wherein this Court, while considering the claim of the writ petitioners in that writ petition vis-a
-vis the released land of Bina Mehra and Naresh Kumar, held the action of the respondents to be not passing the test of equality. Special Leave to Appeal Civil No. 12802 of 2008 preferred by the State of Haryana was dismissed by the Hon'ble Supreme Court vide order dated 22.09.2008 (Annexure A-40). Referring to the judgment of the Hon'ble Supreme Court in the cases of Hari Ram vs. State of Haryana and others, 2010 (3) SCC 621 and BEML Employees House Building Cooperative Society Ltd., 2005 (9) SCC 248, counsel for the petitioners has prayed that the writ petition preferred by the petitioners be allowed and the land of the petitioners be exempted from acquisition as in the cases of persons referred to above.
Per contra, counsel for the respondents submits that the report submitted by the Officers' Committee constituted by this Court is a complete document containing the factual aspect along with the recommendations in accordance with an objective set of principles enunciated for the said purpose. The Officers' Committee has gone into the representations made by the petitioners, heard them personally and visited the site to view the actual and factual position at the site and then has submitted the report. This report, therefore, is fully justified and does not call for any interference by this Court. The petitioners, whose cases have not been recommended by the Officers' Committee for release, will be offered a preferential allotment of industrial plots and would also be eligible for benefits available under the policy for Rehabilitation and Resettlement of land owners/oustees,which has been notified by the Department of Revenue and Disaster Management dated 07.12.2007. The CWP No. 19595 of 2005 and other connected cases 20 petitioners were given ample opportunities by the Government and their contentions for submitting their claim were duly considered by various Committees constituted by the Government i.e. the Sub-Committee, the High Powered Committee, the Officers' Committee. Some representations were also considered by the Ministers' Committee and relief granted to the genuine and deserving land owners. A uniform criteria was adopted by the Officers' Committee and there was no discrimination between the petitioners and those land owners whose representations were accepted by the Officers' Committee. He further contends that the petitioners in CWP Nos. 18018, 18056 and 19091 of 2005 have not filed any objections under Section 5-A of the L.A. Act and, therefore, writ petitions deserve to be dismissed on this ground alone.
As regards the submission made by the counsel for the petitioners of discrimination, referred to in the preceding para, he contends that there can be no discrimination in land acquisition matters and each case has to be dealt with on its own merits. He has relied upon a judgment of the Hon'ble Supreme Court in the case of Bondu Ramaswamy and others vs. Bangalore Development Authority and others, (2010) 7 SCC 129 to contend that there can be no negative equality while claiming similar treatment on the basis of illegal actions and no mandamus can be issued directing repetition of such illegal acts, if any committed by the authorities. While applying the principle of equality, Article 14 guarantees equality before law and not equality in subverting law nor in securing illegal benefits can be asserted.
Counsel for the State has not been able to distinguish the cases of M/s Orient Crafts Limited, Naresh Kumar, M/s APS Industries, Sh. Kamal Gupta, Mrs. Bina Mehra, M/s Common Export Pvt. Ltd., M/s CWP No. 19595 of 2005 and other connected cases 21 Dhingra Motors, M/s Gabriel India Limited, M/s Asia Investment Pvt. Ltd. and M/s Purolator India Limited. The only explanation, which he could put forth with regard to M/s APS Industries, Sh. Kamal Gupta, Naresh Kumar Budhiraja and Smt. Bina Mehra, is that since the State Government had accepted the recommendations of the Sub-Committee as well as of the High Powered Committee and at no point of time, the State Government considered nullifying the recommendations made by the Sub-Committee, the cases of these land owners, which were recommended for release by the Sub-Committee and not accepted by the High Powered Committee, were ordered to be released as the High Powered Committee was not constituted to supersede the recommendations of the Sub-Committee. As regards M/s Dhingra Motors, M/s Gabriel India Limited, M/s Asia Investment Pvt. Ltd. and M/s Purolator India Limited, he submits that as they had entered into an agreement with the Maruti Udyog Ltd. for supply of auto components, keeping in view the huge potential of employment generation, their cases were considered by the Ministers Committee and the land was released from acquisition.
We have heard counsel for the parties and with their able assistance, have gone through the records of the case.
The question, which has been pressed into service by the petitioners, primarily is that the petitioners are being discriminated vis-a- vis others whose vacant land has been released. It is their contention that they deserve similar treatment at the hands of the authorities, especially when different Committees were constituted which have not applied the same yardstick and have arbitrarily declined the claim of the petitioners despite they being similarly situated.
There can be no dispute with regard to the assertion of the CWP No. 19595 of 2005 and other connected cases 22 petitioners that Article 14 of the Constitution applies to matters of Government Policy or action while dealing with a particular category of persons. If any action of the Government fails to satisfy the test of reasonableness, it would be unconstitutional and if discrimination is asserted and the same is not negatived by the Government by supporting its action by cogent and justifiable reasons, the same would fail the test of equality, as enshrined in Article 14 of the Constitution of India. Any Policy decision made has to be implemented and applied equally to all and the claims of the persons required to be fairly considered. State must act validly for a discernible reason, not whimsically for any ulterior purpose. The test to be applied in such cases is to see whether there is any discernible principle emerging from the impugned action and if it is not so, then the said action cannot be upheld. When certain parameters have been drawn, the same need to be implemented and adopted, in unison, any deviation or application of the same in different manner while treating the claim of equals cannot pass the test of reasonableness and equality enshrined in Article 14 of the Constitution of India and, therefore, the Courts must interfere in such circumstances to do justice.
It is true that Article 14 of the Constitution is not meant to perpetuate an illegality and Courts cannot issue a direction perpetuating such illegality on the ground of discrimination or hardship. Any action contrary to law does not confer any right upon any person for similar treatment. Article 14 provides for positive equality and not negative equality but if the Government, while defending its stand where allegations have been made of discrimination, asserts that the action has been taken in accordance with law, the similarly placed person would be entitled to press for similar relief, if he has been deprived of the same. The CWP No. 19595 of 2005 and other connected cases 23 Government is under obligation to act with substantial fairness and consistency in considering the claim of such persons. It cannot adopt a policy of pick and choose by granting the benefits to some persons and denying the same benefits to others by creating artificial distinction. The State is obliged to apply same standards while exercising its powers in accordance with law. These principles, the State has to give effect to while exercising its powers under Section 48 of the L.A. Act. On representations made by some land owners, the State released their lands from acquisition, similarly placed land owners are entitled to claim the same relief and they cannot deny similar benefit, as has been granted to other land owners unless such denial can be justified for discernible reason(s).
The Hon'ble Supreme Court has, in the cases of Hari Ram (supra) and BEML Employees House Building Cooperative Society Ltd. (supra), also laid down the above principles and has, in those cases, proceeded to grant the benefit to the land owners by issuing directions to the respondent-State to issue appropriate order(s) concerning the land owners in same terms and in same manner, as has been done in the cases of other similarly placed land owners whose lands were released by the State.
A Division Bench of this Court in CWP No. 2546 of 2006 titled as Smt. Raj Bala vs. State of Haryana and others decided on 14.12.2006 (A-37) arising out of the same acquisition of land as in the present cases, on the basis of the relief granted to M/s Orient Crafts Limited, considered the prayer made by the petitioner therein and held as follows:-
" From the site plan and other facts on record, we are in agreement with the argument raised by learned counsel for the petitioner that the release of land in favour of M/s Orient CWP No. 19595 of 2005 and other connected cases 24 Craft appears to be a simple act of favouritism without there being any legal or constitutional justification for the same. The State was not in a position to rebut the submissions made by learned counsel for the petitioner that the petitioner's case stands on better footing but he has been discriminated against M/s Orient Craft. In view of the above, we are of the considered opinion that the case of the petitioner is not only at par but on a better footing to that of M/s Orient Craft. Therefore, the land of the petitioner is also liable to be released on the same terms and conditions on which the land of M/s Orient Craft has been released."
Civil Appeal No. 7023 of 2009 preferred by the State of Haryana and Civil Appeal No. 7021 of 2009 preferred by the Haryana State Industrial Development Corporation (A-38) were dismissed by the Hon'ble Supreme Court on 22.10.2009. While deciding the case, the Hon'ble Supreme Court, in paras 10 to 12, held as follows:-
"10. The task of such authority is no doubt to ensure the smooth execution of the development plans and since they have a first hand knowledge of the ground realities, they are surely in a better position than anyone else to decide as to which land is to be acquired and which is to be released. But when there has been a guideline laid down for the same task and it has been approved and notified, the issue becomes a matter of policy which the authority has to follow with a reasonable amount of uniformity. In the given facts of the case, CWP No. 19595 of 2005 and other connected cases 25 the respondents have alleged discrimination thereby attracting Article 14 of the Constitution of India. As held in the case of Union of India Vs. International Trading Co. (2003) 5 SCC 437, Article 14 applied to matters of government policy and such policy or action would be unconstitutional if it fails to satisfy the test of reasonableness. This Court observed:
"......It is law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. While the discretion to change the policy in exercise of the executive power, when not trammeled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give impression that it was so done arbitrarily on by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review CWP No. 19595 of 2005 and other connected cases 26 only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary."
The discretion to change a policy in exercise of the executive power, which appears to be the case in the present matter, must be exercised fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. It has been observed by this Court, as noted herein above, that a question whether the impugned action is arbitrary or not, is to be ultimately answered on the facts and CWP No. 19595 of 2005 and other connected cases 27 circumstances of the given case. It was rightly held that where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary.
11. Thus in the given facts of the case, the action of the Committee in releasing the lands of M/s Orient Craft would not be arbitrary in so far as it has deviated from the procedure laid down in the form of guidelines approved for the same purpose, provided a principle discerned from the deviation is within the bounds of the reasonableness test. From a perusal of the facts of the case, it is clear that the release of the land of M/s Orient Craft may be said to be based on the logic that as the undertaking of M/s Orient Craft to release their land as desired by the department had fulfilled the lands needed by the HSIDC, so the deviation in releasing the same has a justifiable reason. So, we may safely say that such deviation from the procedural guidelines is not unjustified in the present situation. This leads us to the question as to why such a reasonable principle was not applied in the case of the lands of the respondent, though the same were contiguous and adjoining the lands of M/s Orient Craft and thereby releasing the land of the respondent also.
12. As the deviation from the guidelines in releasing the land of M/s Orient Craft has been found to be not wrongful, there is no question of committing two wrongs by applying the same yardstick to release the lands of the respondents. As CWP No. 19595 of 2005 and other connected cases 28 such, we do not find anything wrong in the decision of the High Court to release the lands of the respondents from acquisition."
While considering the validity of the conditions imposed by the High Court for release of their land, the Hon'ble Supreme Court has concluded, in paras 17 to 19, as follows:-
"17. Leaving the land for the HSIDC to develop a green belt is different from that of requiring the private person to maintain the green belt since that will be an unnecessary burden on that person. Since we have sought to rely on the averment made by M/s Orient Craft in order to bring parity between the status of the lands of the respondents and M/s Orient Craft, we believe that the same criteria should be applied in releasing these lands from acquisition. The most important issue is that the process of development and industrialization as planned and approved by the legislature should not meet a dead end because of a small stretch of land. As such, the land of the respondents shall be released from acquisition as was the case with M/s Orient Craft, but the same shall be done on same grounds as was applied for the land of M/s Orient Craft. Accordingly, affirming the judgment of the High Court, we only modify the conditions for fulfilment on the part of the respondents so that their land is released from acquisition. These are:-
i. They will release the land which is needed by the HSIDC for maintaining the green belt, undisturbed and such land shall CWP No. 19595 of 2005 and other connected cases 29 be not more than the 50 meters prescribed for the Green Belt. ii. They will pay the proportionate external and internal charges to the HSIDC as and when it is required by the authorities.
18. Apart from the modifications that we have made in the conditions imposed by the High Court in the impugned judgment as mentioned above, we do not find any merit in these appeals.
19. For the reasons aforesaid, the appeals are disposed of with the aforesaid modification of the impugned judgment of the High Court. There will be no order as to the costs."
Similarly, another Division Bench of this Court in CWP No. 17685 of 2005 titled as M/s Imperial Fasteners vs. State of Haryana and another decided on 02.05.2007 (A-39) while considering the claim of the petitioners vis-a-vis the release of land of Bina Mehra and Naresh Kumar, held as follows:-
" We have examined the merits of the petitioner vis-a-vis the respective merits of the cases of Bina Mehra and Naresh Kumar. We find that the petitioner's case for release of land is on much sounder footing. The petitioner is a genuine manufacturer who had set up the unit which is functioning and which was set up long before the acquisition proceedings began. The petitioner had been granted change of land use for its unit. It is true that this unit does not come under acquisition but the genuineness of the petitioner's claim cannot be doubted when one considers the merits of Bina Mehra's case. Neither of these two parties had any construction on the CWP No. 19595 of 2005 and other connected cases 30 acquired land or on any unacquired land adjacent to it. The properties of both these parties had been recommended for acquisition but on reconsideration released by the Government. This fact stands fully established from Annexure P-36 and P-37. Consequently, we need not delve too deeply into the matter because we are convinced that the petitioner was unfairly treated by the Committee when recommendations were made for acquisition of its property. If the properties of Bina Mehra and Naresh Kumar could be released from acquisition then there was no reason why the petitioner's property should be acquired. We feel that a similar order should have been passed in the case of the petitioner as well. We, therefore, allow this petition and direct the release of the petitioner's property but only that part of it which does not come under the roads or the narrow strip beyond the road. For this purpose the accuracy of the layout plan Annexure P-32 must necessarily be determined before actual release is ordered.
This petition is allowed subject to the petitioner being required to observe all the conditionalities mentioned in Annexures P-36 and P-37. "
Special Leave to Appeal Civil No. 12802 of 2008 preferred by the State of Haryana was dismissed by the Hon'ble Supreme Court both on the ground of delay and also on merits vide order dated 22.09.2008 (Annexure A-40).
In view of the above judgments of this Court and the Hon'ble Supreme Court where the Courts had proceeded to hold that the State had CWP No. 19595 of 2005 and other connected cases 31 violated the principles of equality, the same very cases of discrimination have been pressed into service by the petitioners in the present set of writ petitions. The principles enunciated in the above orders passed by the Courts, would be fully applicable to the claim of the petitioners as well.
Apart from three instances, namely, M/s Orient Craft Limited, Bina Mehra and Naresh Kumar, instances of Vijay Kumar, Mrs. Promila, M/s APS Industries, Kamal Gupta, M/s Common Export Pvt. Ltd., M/s Dhingra Motors, M/s Gabriel India Limited, M/s Asia Investment Pvt. Ltd. and M/s Purolator India Limited, are other instances where again State of Haryana has exercised its powers under Section 48 of the L.A. Act for release of lands, which were vacant and where no industry/factory was in operation. The claim of the petitioners is also the same as in the cases of above-mentioned land owners. The petitioners have undertaken that in case their land is released from the array of acquisition, they are ready and willing to comply with the conditions, which may be imposed by the respondents.
The writ petitions came up for hearing before this Court on 12.08.2010 when following order was passed:-
" Learned counsel for the petitioner states that vide letters dated 23.8.2006, (Annexures A-24, A-25, A-26, A-27), four vacant plots were released from acquisition, after passing of the award, by invoking the provisions of Section 48 of the Land Acquisition Act, 1894 (for short 'the Act'), despite recommendations made to the contrary by the High Powered Committee vide its report (Annexure A-22). It is further noticed that land of Orient Gravier measuring 4.25 acres was released from acquisition by the High Powered Committee after passing CWP No. 19595 of 2005 and other connected cases 32 of the Award, despite recommendation to the contrary by the sub committee, which is a vacant piece of land where no industry/factory is in operation. Similarly, land owned by M/s Dhingra Motors, M/s Gabriel India Ltd., M/s Asia Investment Pvt. Ltd. and M/s Puroltan India Ltd. was released from acquisition after passing of the award, on recommendation by the Ministers Committee, in spite of recommendation to the contrary, made by the sub committee and the High Powered Committee vide recommendation/minutes dated 10.7.2007, 31.7.2007. In the case of M/s Comet Exports Pvt. Ltd., land was released despite rejection of prayer for release by the sub committee, and High Powered Committee, after passing of the award. Counsel states that a vast track of land was left out of acquisition of those owners who are not running any industry within the land proposed to be acquired. Neither the owners have applied for change of land use certificate, nor they have submitted any plan to start any industrial concern, in the property in dispute.
It is contention of counsel for the petitioners that if land of the other land owners can be released, why the same relief cannot be granted in favour of the petitioners, especially when petitioners are ready to give an undertaking that their plots may be adjusted in the planned scheme if there is necessity to use any portion of the land for providing any infrastructure facility, the same be acquired against compensation. They also do not have any objection to the adjustment of the plots within the scheme.
Learned counsel for the petitioners states that petitioners CWP No. 19595 of 2005 and other connected cases 33 are ready to give an undertaking that they shall pay legal charges, if needed and further that petitioners shall also start industries in the plot in question within a reasonable period and will not sell the plot to anybody for a period, as may be prescribed by this Court.
It has also been brought to our notice that in CWP No. 1816 of 2007, the petitioner therein had applied for getting change of land use certificate despite noticing that fact, the land was not released. There is also a direction by this Court to reconsider the case of the petitioner in the above said petition.
In view of the above-said facts, we direct the Secretary, Industries to file an affidavit as to under what circumstances, land mentioned above was released in favour of 11 land owners. It be further specified as to how case of the petitioner is different from the land owners in whose favour release orders were passed. It be also stated as to whether land owners in whose favour land was released from acquisition, were running any industry adjoining to the plot left out of acquisition or within the area proposed to be acquired. Whether the land owners in whose favour land was released in question are similarly situated.
In view of the undertaking given by the petitioner's counsel, the petitioner shall also file an affidavit before the next date of hearing.
Adjourned to 6.9.2010.
Photocopy of the order be given to the State counsel under the signatures of the Court Secretary.
CWP No. 19595 of 2005 and other connected cases 34
Photocopy of this order be placed on each of the
connected case."
In compliance with the order passed by this Court, the petitioners have filed affidavits. The Secretary, Industries has also filed an affidavit dated 23.09.2010 and an effort has been made by him to explain the release of land in favour of above mentioned 11 land owners. The justification assigned for release of land of M/s APS Industries, Kamal Gupta, Naresh Kumar Budhiraja and Smt. Bina Mehra, is that the Sub- Committee constituted by the notification dated 13.02.2004, had recommended the release of the land of these land owners but the High Powered Committee, constituted thereafter, had recommended otherwise. Since the recommendations of the Sub-Committee as well as of the High Powered Committee have been accepted, the recommendations of the Sub-Committee were given effect to and the High Powered Committee, which was constituted thereafter, did not have the powers to supersede the recommendations made by the Sub-Committee.
As regards M/s Dhingra Motors, M/s Gabriel India Limited, M/s Asia Investment Pvt. Ltd. and M/s Purolator India Limited, it has been stated that a Ministers' Committee was constituted vide notification dated 28.06.2007 which has recommended the release of land of these land owners on consideration of their representations keeping in view the industrial growth and the potentiality of high employment generation. The State has not been able to distinguish the claim of the petitioners with these above-mentioned land owners.
On consideration of the respective contentions of the parties and the pleadings, we are of the considered view that the claim of the CWP No. 19595 of 2005 and other connected cases 35 petitioners vis-a-vis the land owners, referred to above whose land has been released from acquisition, cannot be distinguished as they are similarly placed. The State cannot adopt different yardstick while considering the claim of similarly placed land owners. Therefore, the writ petitions preferred by the petitioners deserve to be allowed.
It cannot be lost sight of the fact that haphazard growth of industries would not be conducive for the proper economic development through industrialization. The land should be put to optimum utilization for the systematic growth of industry, which requires planning and providing the basic infrastructural facilities.
We have seen the site plan and are convinced that the land of the petitioners cannot be directed to be released as a whole. The planned development of the industrial estate cannot be sacrificed merely because some discrimination has been meted out to the petitioners. The integrated planning of the Industrial Sectors 34 and 35 has to be kept in view.
Accordingly, in the light of the undertaking given by the counsel for the petitioners and affidavits filed in support thereof by the petitioners, we direct that the portion of the lands, which in the lay-out plan form part of the roads/green belts or common sites or public utility services/area, shall not be considered for release. The remaining land of the petitioners be released to them in such a manner that it conforms to the already finalized layout plan of the Industrial Sectors 34 and 35, Gurgaon by acquiring the excessive land or by allotting the deficient land as the case may be to bring it within the integrated planning. In case a petitioner(s) forgoes his claim or is unable to accept the allotted land, the land shall be deemed to have been acquired. The petitioners shall be entitled to the benefit of the Rehabilitation and Resettlement of land owners/oustees CWP No. 19595 of 2005 and other connected cases 36 Policy, if eligible. However, that shall be subject to obtaining Change of Land Use (CLU) by the petitioners and payment of applicable external and internal development charges and will be governed by the same terms and conditions as of the allottees of the plots/land except for the clause of enhancement of price of the land which is released to the petitioners. They shall not sell the land/plot for a period of seven years from the date of grant of CLU as per their undertaking given in the Court.
The writ petitions are disposed of in the above terms.
( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH )
JUDGE JUDGE
January 28, 2011
pj
CWP No. 19595 of 2005 and other connected cases 37