Punjab-Haryana High Court
Surinder Kumar & Others vs State Of Haryana & Others on 26 April, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, A.N. Jindal
Civil Writ Petition No.11847 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.11847 of 2011
Date of decision:- 26.04.2012
Surinder Kumar & others ...Petitioners
Vs.
State of Haryana & others ...Respondents
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. M.L.Sharma, Advocate,
for the petitioners.
Mr. Palika Monga, DAG, Haryana,
for respondent Nos.1, 2, 4 to 6.
Mr. Kamal Sehgal, Advocate,
for respondent No.3.
HEMANT GUPTA, J.
Challenge in the present writ petition is to the notification dated 16.12.2010 (Annexure P-2) issued under Section 4 read with Section 17 of the Land Acquisition Act, 1894 (for short 'the Act') and the declaration dated 27.12.2010 (Annexure P-3) issued under Section 6 read with Section 17 of the Act. The petitioners have sought quashing of the acquisition proceedings said to be illegal, arbitrary, irregular and unconstitutional.
The petitioners claims to be owner of land described in para 1 of the petition situated in Village Gogjaka, Tehsil Tauru, District Mewat. A notification dated 16.12.2010 was issued under Section 4 Civil Writ Petition No.11847 of 2011 2 read with Section 17 of the Act and published in the Gazettee for intending to acquire land measuring 12 acres 4 kanals 18 marlas, which includes the land measuring 47 Kanals 08 Marlas of the petitioners for construction and development of wayside amenities on Kundli- Manesar-Palwal Express Highway (hereinafter referred to as 'the KMP Expressway') connecting National Highway Nos.1, 10, 8 and 2 in Village Gogjaka, Tehsil Taoru, District Mewat. The State also invoked urgency provisions under Section 17(2)(c) of the Act. Thereafter, notification dated 27.12.2010 under Section 6 read with Section 17(2)
(c) of the Act was published. Subsequently, the petitioners were served with a notice under Section 9 of the Act to appear before the Land Acquisition Collector on 16.05.2011. The said notice also recited that the award will be announced on the said date.
Some of the petitioners submitted a representation on 08.06.2011 (Annexure P-5) pointing out that the land measuring 34 Kanals 10 Marlas has been left out from acquisition for which no passage has been given and that they have a right to seek passage. It is also averred that the acquiring authority came on the spot to take possession, but they resisted the same, as they have their houses and no award has been announced for the crop as well. It is averred that they have not received the compensation and not going to receive the same and that they should be provided passage either from the main road or from any side.
The writ petition came up for hearing before this Court on 12.07.2011, when the learned State counsel was asked to get instructions; as to whether it is possible to provide an opportunity of Civil Writ Petition No.11847 of 2011 3 hearing to the petitioners at this stage. On 18.07.2011, learned State counsel states that it is not possible to give opportunity of hearing to the petitioners and that present writ petition having been filed after pronouncement of award and taking possession of the land in question, is thus, not maintainable. The parties were directed to maintain status quo regarding construction and possession. It is, thereafter, the petition has come up for final hearing before this Court.
In the written statement filed on behalf of the State, it has been pointed out that the writ petition has been filed in July, 2011 much after the date of announcing of award and the the Land Acquisition Collector has taken possession of land vide rapat rojnamcha No.398 dated 16.05.2011. The petitioners have submitted before the Land Acquisition Collector that they had no objection in taking compensation and giving possession of the acquired land; that they should be given interest from the date of notification under Section 4 of the Act till the date of award and that they should be given compensation @ Rs.2 crore per acre instead of the awarded amount. A copy of the statement made and signed by the petitioners has been produced with the written statement as Annexure R-1. It is further pointed that the KMP Expressway is a project of national importance and the progress on this project is being monitored by the Hon'ble Supreme Court through a Monitoring Committee appointed for this purpose. Five National Highways namely NH-1, NH-2, NH-8, NH-10 & NH-24 converge to the ring road in NCT of Delhi and leads to heavy congestion not only on the ring road, but the entire area of Delhi and New Delhi. Therefore, in order to direct this out-bound traffic Civil Writ Petition No.11847 of 2011 4 through a bye-pass from Delhi without creating traffic congestion in the national capital, construction of peripheral expressways around Delhi are under consideration and to achieve the said object, the KMP expressway is being undertaken. It is further pointed out that the notification under Section 4 of the Act was published in two daily newspapers namely "The Tribunal (English)" dated 23.12.2010 and "Jan Satta (Hindi)" dated 24.12.2010, whereas notification under Section 6 of the Act was also published in two daily newspapers namely "Indian Express (English)" dated 03.01.2011 and "Punjab Kesari (Hindi)"dated 01.01.2011 apart from the publication in the official Gazette. It is also pointed out that the State Government has formulated a policy for Rehabilitation and Resettlement of land-owners notified on 07.12.2007 subsequently revised on 09.11.2010. As per the policy, the land-owners are entitled to an Annuity for their long terms sustenance according to which over and above the one time compensation paid to the land-owners, an amount of Rs.21,000/- per acre is to be paid every year to the land-owners for a period of 33 years. The amount of Rs.21,000/- is increased at the rate of Rs.750/- every year. The policy also makes provision for the allotment of residential/commercial plots to the owners and that free technical education in Government run ITIs and Polytechnics to the affected persons.
In a separate reply filed on behalf of respondent No.3, the proceedings for possession in respect of Award No.04/2011 dated 16.05.2011 has been produced as Annexure R-3/2. The proceedings are to the effect that after announcing of the award and distributing the Civil Writ Petition No.11847 of 2011 5 compensation amount to the concerned persons, the proceedings for possession have been completed.
Mr. Sehgal, learned counsel appearing on behalf of respondent No.3, has raised a preliminary objection that the petitioners have not disclosed the fact that the petitioners were present at the time of announcement of the award in the writ petition filed. The petitioners have signed the proceedings of taking over the possession. The demand of the petitioners was compensation at the rate of Rs.2 crores per acre as well as interest from the date of notification under Section 4 of the Act. The present petition has been filed almost after two months and that too after concealing material facts. It is further argued that the KMP Expressway is a project of national importance and that the Award was announced on 16.05.2011 and compensation disbursed, but the petitioners have chosen not to receive the amount of compensation. Therefore, the action of the petitioners in not accepting the amount of compensation is not a ground on the basis of which acquisition proceedings can be said to be unwarranted. Still further, the respondents have completed the acquisition proceedings within five months of the publication of the notification under Section 4 of the Act and such period cannot be said to be long, unjustified and unfair to conclude that there was no urgency in completing the acquisition proceedings.
The petitioners have not disclosed the fact that they were present at the time of announcement of the Award and have given statement demanding a particular compensation. Non-disclosure of such fact though alleging the same to be under misrepresentation and Civil Writ Petition No.11847 of 2011 6 fraud in replication is a afterthought. Since the petitioners have invoked the equitable jurisdiction of this Court, the petitioners were expected to disclose all the material facts in the writ petition. The petitioners were bound to disclose that they have given a statement, which according to them is under force. Having not done so, the plea of coercion raised in the replication cannot be relied upon. The statement in the proceedings of possession, reads as under:
"Today, dated 16.05.2011, the file for award of Village - Gogjaka, Tehsil - Tawru, District Mewat, rgarding acquisition of land for the provisions of development and public utilities on the sides of KMP Expressway was presented for pronouncement of award. The statements of the landowners be taken.
Sd/-
District Revenue Officer-cum-
Land Acquisition Collector, Mewat, Nuh The statements of the landowners of village Gogjaka are present. Everyone has stated that their land was notified under Section 4 on 16.12.2010. Therefore, we should be paid interest from the date of issuance of notification under Section 4. We have no objection in accepting the amount of compensation and handing over the possession of the land to the concerned Department, and the cost of the land be awarded Rs.2 crore per acre instead of awarded amount.
1. Surinder Kumar son of Shri Om Parkash Sd/-
2. Prem Parkash Bajaj son of Shiv Dyal Bajaj Sd/-
xxx xxx xxx
12. Roshan Lal son of Ch. Chajju Ram Sd/-"
In view of the said statement, we find that the possession of the land was taken on the date of the award, as the land was vacant on the said date.
Learned counsel for the petitioners relies upon Raghbir Singh Sehrawat Vs. State of Haryana & others AIR 2012 SC 468, to Civil Writ Petition No.11847 of 2011 7 contend that by mere entry in rapat rojnamcha, the respondents cannot claim to be in possession of the acquired land. It is submitted that the petitioners have pleaded in the replication that notices under Section 12 (2) and 17(2) proviso of the Act were not been served upon the petitioners. The said provision contemplates that whenever there is construction of building, the possession of same cannot be taken without giving 48 hours notice or any reasonable time to the occupier.
It is also pointed out that though the respondents have attached the statement of the petitioners, but the award has not been produced and that 80% of the compensation of the awarded amount has not been paid to the land-owners. It is stated that the statement has been fraudly taken from the petitioners. It is stated to the following effect:
"...The respondents are estopped from blowing hot and cold by the same mouth by alluring the petitioners to give the statement that the compensation will be given @ Rs.2 crores per acre along with all statutory interest and subsequently withdrew from the same statement and used the same statement against the petitioners, who were allured to give the statement in order to get possession, therefore, such statement cannot be put into operation against the petitioners and the State is estopped from putting in operation the statement given by the petitioners with the condition that the acquisition is acceptable when the Land Acquisition Collector gives the compensation @ Rs.2 crores per acre along with statutory interest. Therefore, to say that the petitioners have given the statements and now the petitioners challenged the acquisition proceedings is not sustainable, wrong, false and denied. It is further stated that the statement has been fraudulently taken from the petitioners in order to take away the right of the petitioners to challenge the acquisition proceedings and this has been proved on record that till today no award is announced."
We find that judgment relied upon by the petitioners is not applicable to the facts of the present case inasmuch as on 16.05.2011, Civil Writ Petition No.11847 of 2011 8 there was no crop standing on the land in question. At that time, the harvesting is complete and fresh crop is yet to be sown. Therefore, in respect of vacant land, the possession goes with the title. Therefore, the ratio of the aforesaid judgment is not applicable to the facts of the present case. The plea that statement was taken by fraud has been asserted in the rejoinder and not in the writ petition. Such material fact was required to be disclosed in the writ petition itself. The plea raised in the rejoinder is an after thought and cannot be relied upon, as the petitioners have not alleged at the first available opportunity.
Learned counsel for the petitioners has also relied upon another judgment reported as Darshan Lal Nagpal (dead) by LRs Vs. Government of NCT of Delhi & others AIR 2012 SC 412, wherein it has been held that the State must exercise the power to acquire property for public purposes with great care and circumspection. At times, compulsory acquisition of land is likely to make the owner landless. The degree of care required to be taken by the State is greater when the power of compulsory acquisition of private land is exercised by invoking the provisions like the one contained in Section 17 of the Act because that results in depriving the owner of his property without being afforded an opportunity of hearing. It has been further held that urgency provisions can be justified only if there exists real emergency which cannot brook delay of even few weeks or months. In other words, the urgency provisions can be invoked only if even small delay of few weeks or months may frustrate the public purpose for which the land is sought to be acquired.
In the present case, the construction of KMP Expressway Civil Writ Petition No.11847 of 2011 9 is being monitored by the Hon'ble Supreme Court. In fact, the said project has been undertaken in pursuance of the directions issued by the Hon'ble Supreme Court on 17.12.2004 in Writ Petition (Civil) No.13029 of 1985, when the Court directed the Cabinet Secretary of the Central Government to convene a meeting of all the concerned officers from the Ministry of Finance, Urban Development, Road Transport or any other Ministry or Department, which may be deemed just and proper and Chief Secretaries of Delhi, Haryana and UP to thrash out the report filed by the Solicitor General of India with regard to construction of Easter and Western Peripheral Expressways around Delhi. The Government of Haryana nominated the Haryana State Industrial and Infrastructure Development Corporation Ltd. as a nodal agency for development and construction of 135.65 kms. long access controlled 4/6 lane dual carriage way/expressway with a right of way of 100 mtrs. The work has been awarded to the Concessionaire M/s KMP Expressway Ltd. with a concession period of 23 years and 9 months including 3 years of construction period. The original scheduled date of completion of construction was 29.07.2009. It is pointed out that the acquisition of the land in dispute was really urgent, as the project is to be completed in time bound manner, but due to factors beyond the control of the participating stake-holders, the period of 5 months taken by the Department for announcing of the Award cannot be said to the period, which can be said to be unjustified. The said period is the period required for determining the amount of compensation, approval of the same from the competent authority and payment thereof.
Learned counsel for the petitioner also relies upon another Civil Writ Petition No.11847 of 2011 10 judgment reported as Ramji Veerji Patel & others Vs. Revenue Divisional Officer & others (2011) 10 SCC 643, wherein the Court has observed that the provisions of the Land Acquisition Act, 1894 do not adequately protect the interest of the land-owners/persons interested in the land and that law making process for a comprehensive enactment with regard to acquisition of land is required to be undertaken.
Learned counsel for the petitioners refers to another judgment reported as M/s Delhi Airtech Services Pvt. Ltd. & another Vs. State of UP & another AIR 2012 SC 573, wherein the matter has been referred to Larger Bench in view of the difference of opinion amongst the Members of the Bench in respect of scope of Section 17 of the Act. The matter is still pending decision by the Court. In the absence of any concluded opinion, no reliance can be placed upon any of the part of the said judgment.
The plea that there was construction and notice were not issued, is again without any basis. The photographs (Annexure P-10) show only temporary construction seems to be in existence primarily used for agricultural operations. Such temporary construction can be used as an excuse to resist the process of acquisition.
In view of the above, we do not find any merit in the present writ petition. The same is accordingly dismissed.
(HEMANT GUPTA)
JUDGE
April 26, 2012 (A.N. JINDAL)
Vimal JUDGE