Punjab-Haryana High Court
Date Of Decision: 31.10.2013 vs State Of Haryana & Ors on 31 October, 2013
Bench: Surya Kant, Surinder Gupta
CWP No.11332 of 2000 -1-
HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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1. CWP No.11332 of 2000 (O&M)
Date of Decision: 31.10.2013
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Sunnyvilla Cooperative . . . . Petitioner
House Building Society Ltd.
VS.
State of Haryana & Ors. . . . . Respondents
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2. CWP No.13129 of 2001 (O&M)
Date of Decision: 31.10.2013
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The Saraswati Kunj Co-Operative . . . . Petitioner
House Building Society Ltd.
VS.
State of Haryana & Ors. . . . . Respondents
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3. CWP No.7880 of 2002 (O&M)
Date of Decision: 31.10.2013
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The Saraswati Kunj Co-Operative . . . . Petitioner
House Building Society Ltd.
VS.
State of Haryana & Ors. . . . . Respondents
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4. CWP No.18805 of 2006 (O&M)
Date of Decision: 31.10.2013
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Sunnyvilla Cooperative . . . . Petitioner
House Building Society Ltd.
VS.
State of Haryana & Ors. . . . . Respondents
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5. COCP No.1332 of 2004
Date of Decision: 31.10.2013
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Sunnyvilla Cooperative . . . . Petitioner
House Building Society Ltd.
VS.
Bhaskar Chatterjee etc. . . . . Respondents
Vishal V
2013.12.10 17:44
I attest to the accuracy and
integrity of this document
CWP No.11332 of 2000 -2-
CORAM: HON'BLE MR.JUSTICE SURYA KANT
HON'BLE MR. JUSTICE SURINDER GUPTA
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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?
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Present: Mr. Aashish Chopra, Advocate for the petitioner(s)
Mr. Kamal Sehgal, Addl. AG Haryana
Mr. DV Sharma, Senior Advocate with
Mr. Raman Gaur, Advocate and
Mr. Harit Sharma, Advocate for HUDA
Mr. Shailendra Jain, Advocate
for the applicants (in CM-14530-2012)
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SURYA KANT, J.
This order shall dispose of CWP Nos.11332 of 2000; 13129 of 2001; 7880 of 2002; 18805 of 2006 and COCP No.1332 of 2004. While CWP Nos.11332 of 2000 and 18805 of 2006 are filed by Sunnyvilla Cooperative House Building Society Ltd., the other two cases i.e. CWP Nos.13129 of 2001 and 7880 of 2002 are at the instance of Saraswati Kunj Cooperative House Building Society Ltd. COCP No.1332 of 2004 has also been filed by Sunnyvilla Cooperative House Building Society Ltd. alleging willful breach of interim order dated 25th April, 2001 passed in CWP No.11332 of 2000. Though different notifications issued under Sections 4&6 of the Land Acquisition Act, 1894 (in short, 'the Act') are impugned in these four writ petitions but the grounds of challenge being somewhat common and overlapping that we propose to decide them Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 -3- together by a common order. However, for better appreciation of the controversy, the brief facts of each case are noticed below:- (2) CWP No.11332 of 2000
(i) The petitioner-Sunnyvilla Cooperative House Building Society Ltd. is a Cooperative Society registered and incorporated under the Haryana Cooperative Societies Act, 1984. It impugns the notifications dated 8th September, 1997 and 7th September, 1998 (Annexures P5 & P7) issued under Sections 4&6 of the Act to the extent of inclusion of its land measuring 89.5 acres in the acquisition of over 575 acres of land acquired for the development and utilization of residential, commercial, institutional and open space area in Sectors 26A, 27, 28, 42 & 43 at Gurgaon. The petitioner-society also seeks a mandamus to direct the Town and Country Planning Department to grant 'Licence' under Section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975 to enable it to develop its land as a residential colony.
(ii) The petitioner-Society is stated to have 381 members who constituted it to purchase and acquire land for their individual as well as collective benefits etc. The Society claims to have got 181 bighas, 8 biswas and 17 biswansis (equivalent to 101.5 acres) within the revenue estate of Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 -4- village Wazirabad though Sale-Deeds only for the land measuring 31 bighas 7 biswas and 15 biswansis are executed in its favour. It is averred that the Society is in process of getting more sale deeds registered for the land measuring 11 bighas 7 biswas and 12 biswansis, while for the remaining land measuring 138 bighas, 13 biswas and 10 biswansis, it had entered into "agreements to purchase" with the owners.
(iii) The petitioner-Society on 17th June, 1990 applied for the grant of licence under Section 3 of the 1975 Act but its application was returned being incomplete as the Society had "no ownership rights over the land". It re-submitted the application on 14th March, 1991 but the licence was neither granted nor refused by passing a speaking order.
(iv) Meanwhile, the impugned notification under Section 4 of the Act proposing to acquire a huge chunk of land including 313.36 acres of village Wazirabad itself including the petitioner-Society's land, was issued.
(v) The petitioner-Society statedly submitted its objections under Section 5-A on 24th September, 1997 (Annexure P6) but those were mechanically rejected and the declaration under Section 6 was made vide notification dated 7th September, 1998.
Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 -5-
(vi) It appears that due to some bickerings and groupism amongst members, the Managing Committee of the petitioner-Society resigned on 1st October, 1997 and the Registrar, Cooperative Societies, Haryana appointed an Administrator, under whose supervision, fresh election was held on 13th September, 1998. The newly-elected President of the Society unfortunately fell ill and died on 25th January, 2000. Due to these unforeseen circumstances, the Society could challenge the impugned acquisition only on 28th August, 2000 but soon thereafter, the Awards dated 6th September, 2000 (Annexure P14 & P15) were passed which are also now under challenge by way of an amended writ petition.
(vii) The Land Acquisition Collector, Urban Estates, Gurgaon has filed written statement on behalf of the respondents to the amended writ petition taking a preliminary objection that the petitioner did not file any objections under Section 5-A of the Act, hence the question of giving opportunity of hearing did not arise. It is asserted that after the passing of the Award No.17 dated 6th September, 2000, possession of the land was taken and handed over to HUDA on the same date.
(viii) It is maintained that the subject land has been acquired for a bona fide public purpose and the mandatory Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 -6- procedure prescribed under the 1894 Act has been minutely followed.
(ix) The Haryana Urban Development Authority (HUDA), through its Administrator, Gurgaon has also filed an affidavit dated 25.09.2008 explaining that after taking over the possession of the acquired land, sites for public utilities and infrastructural facilities like Electric Sub- Station, Water-Works, Sewerage Treatment Plants, Group Housing Sites etc. and plots of 1-kanal category have been carved out and allotted as per the lay-out plan of Sector 43, Gurgaon.
(x) The petitioner in its rejoinder has reiterated that objections under Section 5-A were sent by the registered AD on 24th September, 1997 photocopy whereof is already on record. It is averred that statuary requirements envisaged under the Act have not been complied with.
(xi) Civil Misc.Application No.14530 of 2012 moved under Order 1 Rule 10 CPC by some Applicants for their impleadment also deserves a mention. The Applicants are the owners of land in village Wazirabad as per jamabandi for the year 1991-92. They allege that the petitioner-Society is claiming ownership qua their land on the basis of "forged and fabricated alleged General Power of Attorneys dated 30.12.1992 and Patta Deed Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 -7- dated 30.12.1992...". They further allege that they being owners-in-possession of the acquired land, handed over its possession to the State Government on passing of the Award. The title or interest of the petitioner-Society qua their land is refuted by the Applicants.
(3) CWP No.18805 of 2006
(i) In its second petition, the Sunnyvilla Cooperative House Building Society Ltd. assails the notifications dated 20th June, 2005 and 19th June, 2006 issued under Sections 4&6 of the Land Acquisition Act, 1894 (in short, 'the Act'), respectively, to the extent of acquisition of its land measuring 7 bigha, 5 biswa and 7 biswansi of village Wazirabad which forms part of more than 372 acres of land in village Wazirabad and Haiderpur Viran, Tehsil and District Gurgaon acquired for the development and its utilization for residential, commercial, institutional and open spaces for Sectors 52A, 53 & 54 at Gurgaon. It is averred that despite objections dated nil (Annexure P2) filed by the petitioner pointing out that it intends to utilize the land for the same purpose for which it is sought to be acquired, the declaration under Section 6 was made.
(ii) The Land Acquisition Collector initially filed the written statement dated 31st July, 2007 taking a self- Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 -8- contradictory plea that the petitioner did not deliberately file objections under Section 5-A and yet in para 12 of the written statement it was claimed that "the petitioner was given full opportunity of personal hearing of objections". Thereafter, another written statement dated 11th October, 2007 has been filed explaining as follows:-
"That the petitioner filed the objections U/s 5-A of the L.A. Act. The same were received in the office of answering respondent on 22.7.05 which was entered in the receipt Register at Sr.No.1963 on the same day id. 22.7.05. The photo copy of the receipt Register is attached as Annexure R-1 for kind perusal of the Hon'ble High Court. The notices of hearing were given to all the land owners/interested persons, including the petitioner, who filed the objections U/s 5A of the L.A. Act, the notices of hearing of the petitioner was dispatching on 7.3.06 vide dispatch No.10958 and sent to the petitioner on the same day by post. The petitioner was called for personal hearing of objections on 23.3.06 at 11.00 A.M. in the office of answering respondent. The copy of the notice sent to the petitioner and the photo copy of dispatch Register are attached as Annexure R-2 and R-3 respectively. Neither the petitioner nor his representative appeared before the Land Acquisition Collector on the date of hearing of objections U/s-5A i.e. 23.3.06. The land owners/interested persons who filed the Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 -9- objections and appeared before the Land Acquisition Collector were heard at length. The objection filed by the land owners were considered as per the provisions of the Act. After considering the objections U/s 5-A of the Act, the Land Acquisition Collector sent its report to the Govt. for taken further decision. Copy of the decision taken in the case of petitioner is attached as Annexure R-4."
(Emphasis applied)
(iii) The petitioner-Society during the pendency of these writ petitions is said to have collaborated with a Builder- cum-Developer, namely, M/s Niho Construction Ltd. for setting up a Group Housing Colony on its land measuring about 19 acres, for which it applied for the grant of 'licence' in prescribed Form LC-I on 6th August, 2007 (Enclosure-D) but the same has been declined vide memo dated 17th October, 2007 (Enclosure-E) on the ground that the land has already been acquired and that Cooperative Societies cannot be granted licence on the self-acquired land.
(4) COCP No.1332 of 2004
(i) These contempt proceedings are initiated by Sunnyvilla Cooperative House Building Society Ltd. against the then Officers-in-charge at different levels of State Government, inter alia, alleging that the interim order Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 10 - dated April 25, 2001 directing the respondents not to take any further steps in respect of the acquisition of the land of the petitioner has been deliberately and willfully violated by them.
(ii) The respondents have filed their replies/affidavits maintaining that the Award was passed and possession of the acquired land was taken on 06.09.2000 i.e. much before the issuance of the interim order by this Court and the possession was further handed over to HUDA on 06.09.2000 itself vide rapat No.25 (Annexure R1/2).
(iii) The then Administrator, HUDA in his reply/affidavit has explained that after taking possession of the land on 06.09.2000, the acquisition process came to an end much before passing of the interim order and that the earmarking or allotment of plots is not a part of the 'acquisition proceedings'. On this premise, the respondents have averred that there is no breach of the interim directions much less any willful or deliberate attempt on their part.
(5) CWP No.13129 of 2001
(i) The petitioner - Saraswati Kunj Cooperative House Building Society Ltd. is a Cooperative Society registered on 31st March, 1983 under the Punjab Cooperative Societies Act, 1961. The Society is said to be consisting Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 11 - of 6000 members and as per its bye-laws, it was constituted to purchase and acquire land for the individual as well as collective benefit of its members. The petitioner-Society purchased a huge chunk of land by way of registered sale deeds and was granted Licence No.3 on 30th June, 1995 to set up a residential colony over the land measuring 115.86 acres where 950 residential plots as against the requirement of 6000 plots for its registered members were carved out. The petitioner-Society applied for the grant of licence for additional land measuring 192 acres to extend its residential colony but out of that 33.44 acres of land has been acquired vide the impugned notifications. The objections submitted by the Society under Section 5-A are alleged to have been rejected summarily overlooking the fact that it intended to develop the land for the same purpose for which it was acquired.
(ii) The aggrieved petitioner impugns the notifications dated 8th September, 1997 and 7th September, 1998 (Annexures P6 & P9) issued under Sections 4&6 of the Act, respectively, to the extent of inclusion of its land measuring 33.44 acres in the total acquisition of more than 575 acres land made for the development and its utilization for residential, commercial, institutional and Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 12 - open space area comprising Sectors 26A, 27, 28, 42 & 43 at Gurgaon.
(iii) The Land Acquisition Collector has filed his written statement on behalf of the State, inter alia, pointing out that the petitioner-Society was granted licence for an area of 115.86 acres which is not included in the impugned notifications. It is maintained that only the vacant land for which no licence was granted has been acquired for a bona fide public purpose.
(iv) The District Town Planner (Headquarter) has filed a separate written statement dated 02.09.2002 explaining that the Society had applied for licence for the land measuring 142.0 acre but it was granted licence for 115.86 acres of land for which it possessed clear title. As regard to the later application dated 06.10.1997 for the grant of licence for the land measuring 192 acres, it is averred that the Society submitted ownership documents for 100.526 acres of land only for which Licence No.1 dated 07.01.2000 was granted to it. The Society could not prove its title for the remaining land. (6) CWP No.7880 of 2002
(i) The petitioner - Saraswati Kunj Cooperative House Building Society Ltd. impugns the notifications dated 24th August, 2000 & 22nd August, 2001 (Annexure P9 & Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 13 - P12) in respect of acquisition of its land measuring about 54 acres for the 'public purpose' of development of residential, commercial and institutional area of Sector 57, Gurgaon. It also seeks a mandamus to direct the Town and Country Planning Department to grant it licence for the remaining land measuring 91.5 acres in accordance with provisions of the Haryana Development and Regulation of Urban Area Act, 1975.
(ii) The acquisition is impugned on the grounds identical to those taken by the petitioner-Society in CWP No.13129 of 2001. It is averred that though the society has been granted Licence No.1 dated 07.01.2000 for an additional area of 100.526 acres but keeping in view the bona fide requirement of all the members of the petitioner-Society, it is imperative upon the respondents to grant licence for the remaining land measuring more than 91 acres also which is under acquisition.
(iii) The Land Acquisition Collector in his written statement has defended the acquisition, inter alia, maintaining that no licence was granted for the acquired land. The District Town Planner (Headquarter) has also filed a separate written statement explaining that licence for the remaining land measuring 91.5 acres was not Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 14 - granted for want of documents of clear title and the same has since been acquired by the State Government. (7) Learned counsel for the parties were heard and the original records produced by the respondents pertaining to consideration of objections under Section 5-A, have been perused. The brief written submissions have also been taken into consideration.
(8) On the basis of the pleadings and the submissions made on behalf of the parties, following common questions do arise for determination in these cases:-
(i) Whether acquisition of land of Sunnyvilla Cooperative House Building Society Ltd. vide notifications dated 08.09.1997 & 07.09.1998 is vitiated for non-
consideration of its objections filed under Section 5-A of the Act?
(ii) Whether the petitioners 'Sunnyvilla' and 'Saraswati Kunj' Cooperative House Building Societies Ltd. are entitled to challenge the acquisition of land for which they have entered into only 'Agreements to Purchase'?
(iii) Whether the respondents are competent to acquire the land for which the petitioner - Cooperative Societies have applied for the grant of Licence with or without collaboration with a private Builder-cum-Developer? Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 15 -
(iv) Whether objections under Section 5-A submitted by the petitioner - Sunnyvilla Cooperative House Building Society Ltd. against the acquisition of its land made vide notifications dated 20th June, 2005 and 19th June, 2006 have been considered in accordance with law?
(v) Whether action of the respondents in not releasing the land of petitioner-Societies is discriminatory and arbitrary?
(9) The principle of 'eminent domain' embedded in the Land Acquisition Act, 1894 is undoubtedly subject to the limitations which find mention in the Statute itself as well as those imposed by our Constitution. Being an Expropriatory Legislation, its provisions are required to be construed strictly so as to save the right(s) guaranteed under Article 300-A of the Constitution. The only valuable right given by the Statute to an owner is to submit his objections under Section 5-A of the Act. Not only such objections be filed against acquisition of one's property, but the affected landowner can also question the legitimacy of the 'public purpose' for which his property is sought to be expropriated. Since Section 6 of the Act does not contemplate assignment of reasons in the notification of final declaration, it is the solemn duty of the 'appropriate Government' to objectively consider objections of the affected landowners in accordance with law. Failure to perform or Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 16 - any casual or perfunctory approached while deciding the objections filed would thus vitiate the entire acquisition process. (10) In Hindustan Petroleum Corporation Ltd. vs. Darius Shahpur Chenia & Ors. (2005) 7 SCC 627, lays down that Section 5-A confers a valuable important right and the State is required to apply its mind not only on the objections filed by the owner of the land but also on the report submitted by the Collector. (11) The legitimate cause of the affected owner has been eloquently expounded in Surender Singh Brar & Ors. vs. Union of India & Ors., (2013) 1 SCC 403, holding that:-
"The hearing required to be given under Section 5-A(2) of LA Act to a person who is sought to be deprived of his land and who has filed objections under Section 5A(1) of LA Act must be effective and not an empty formality. The Collector/LAO who is enjoined with the task of hearing the objectors has the freedom of making further enquiry as he may think necessary. In either eventuality, he has to make report in respect of the land notified under Section 4(1) of LA Act or make different reports in respect of different parcels of such land to the appropriate Government containing his recommendations on the objections and submit the same to the appropriate Government along with the record of proceedings held by him for the latter's decision. The appropriate Government is obliged to consider the report, if any, made under Section Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 17 - 5A(2) of LA Act and then record its satisfaction that the particular land is needed for a public purpose. This exercise culminates into making a declaration that the land is needed for a public purpose and the declaration is to be signed by a Secretary to the Government or some other officer duly authorised to certify its orders. The formation of opinion on the issue of need of land for a public purpose and suitability thereof is sine qua non for issue of a declaration under Section 6(1) of LA Act."
xxx xxx xxx "To put it differently, the satisfaction recorded by the appropriate Government that the particular land is needed for a public purpose and the declaration made under Section 6(1) of LA Act will be devoid of legal sanctity if statutorily engrafted procedural safeguards are not adhered to by the authorities concerned or there is violation of the principles of natural justice. The cases before us are illustrative of flagrant violation of the mandate of Sections 5-A(2) and 6(1) of LA Act."
(12) To trace out as to whether these principles have been observed in the instant cases, we may now deal with the issues formulated in para 8 of this order.
(i) Whether acquisition of land of Sunnyvilla Cooperative House Building Society Ltd. vide notifications dated 08.09.1997 & 07.09.1998 is vitiated for non-
non-consideration of its objections under Section 5-A?
Vishal V2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 18 - (13) The crucial issue that arises for consideration is whether the petitioner-Society ever submitted its objections under Section 5-A, and if so, what happened to those objections? It is averred in para-7 of the writ petition that "as the area proposed to be acquired in Annexure P/5 included 143 bighas 4 biswas 11 biswansi, equivalent to 89.5 acres, out of the total land of the petitioner-Society (hereinafter referred to as 'substantial area'), it filed objections under Section 5-A of the Act before respondent no.2 on September 24, 1997, a copy of which is annexed with this writ petition as Annexure P/6.". (emphasis applied). The Land Acquisition Collector, in preliminary objection No.1 has, in no uncertain terms, averred that "the petitioner did not file any objection and therefore, the question of giving opportunity of hearing does not arise.". Again in para 7 of the written statement, it is reiterated that "the petitioner-Society did not file any objection under Section 5-A of the Land Acquisition Act.". The petitioner-Society has filed its rejoinder to the amended written statement of the Land Acquisition Collector claiming that "it is admitted that a notification under Section 4 of the Land Acquisition Act was issued on 8.9.97 and in pursuance of the said notification a valid legal objection was sent under Section 5A of the Land Acquisition Act on 24.9.97 by Registered A/D. A photocopy of the same is already placed on the Court record for kind perusal of this Hon'ble Court.".
Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 19 - (14) It is pertinent to mention that neither the postal receipt of registered letter nor the 'acknowledgement card' have been appended with the Rejoinder. Photocopy of the purported objections (Annexure P/6) does not mention that the same was sent by the Registered post. No such averment is made in the writ petition. The original Receipt Register produced by the respondents does not indicate that any 'registered letter' dated 24.9.97 was received in the office of the Land Acquisition Collector. In this view of the matter, when the respondents have expressly denied the receipt of Objections from the petitioner and have discharged their onus to that extent by producing the original records, it was for the petitioner to prove that the objections under Section 5-A were actually submitted by it. The petitioner having failed to do so, there can be no other conclusion except that the acquisition of Sunnyvilla Society's land vide notification dated 8th September, 1997 and 7th September, 1998 cannot be invalidated on the ground of non-consideration of its alleged objections. (15) In Delhi Administration vs. Gurdip Singh Uban, (1999) 7 SCC 44, the Supreme Court held that if the owners or persons interested in the land have not filed objection under Section 5-A, in principle, it must be accepted that they had no objection against Section 4 notification in respect of acquisition of their property and they cannot be allowed to contend that Section 5-A Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 20 - enquiry was bad or that consequently Section 6 declaration must be struck down.
(ii) Whether the petitioners Sunnyvilla and Saraswati Kunj Cooperative House Building Societies Ltd. are competent to challenge the acquisition of the land for which they had only entered into 'agreements to purchase'?
(16) For an answer to this question, firstly reference may be made to Section 3(b) according to which "the expression 'person interested' includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land". Section 5-A(1) entitles "any person interested in any land which has been notified under Section
4...", to object the acquisition of the land or of any land in the locality. Sub-Section (3) of Section 5-A clarifies that "for the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.". Thus, a person who is entitled to receive compensation shall be deemed to be a 'person interested' even if such person is not the true owner of acquired property.
(17) The own case of Sunnyvilla Society in CWP No.11332 of 2000, is that it was owner of land measuring 31 bighas 7 biswas and 15 biswansis by virtue of the registered sale deeds while the land measuring 11 bighas 7 biswas and 12 biswansis "is under Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 21 - process of registration...". In respect of the remaining land measuring 138 bighas 13 biswas and 10 biswansis, it is averred that "the petitioner-Society has entered into an agreement to purchase the same from its owners". Some of the original landowners have sought their impleadment as party respondents questioning the General Power of Attorneys etc. executed in favour of the Society on their behalf.
(18) In the case of Saraswati Kunj Society also, the District Town Planner (Headquarter) has come up with a plea that licence was not granted to the Society in respect of land measuring 91.5 acres for want of clear title qua the said land. (19) An agreement to sell/purchase is not a transfer of any rights in immovable property nor does it create any right to seek compensation under the Act. Immovable property can be legally and lawfully transferred, sold or purchased only by registered deed of conveyance. Transactions of nature of GPA sales or sale- agreement transfers neither convey title nor can they be recognized as valid mode of transfer of immovable property. Hence purchase/sale-agreements cannot be treated as completed transfers or conveyances [Ref: Suraj Lamp and Industries Pvt. Ltd. v/s State of Haryana and another (2012) 1 SCC 656]. To say it differently, a contract for sale or purchase merely creates a right to obtain the instrument of sale-deed duly registered in accordance with law. A contract for sale or purchase is a right created in Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 22 - personam and not in the estate. No privity in estate can be deduced therefrom which can bind the estate. A bilateral agreement is enforceable against the party to such agreement and not against the strangers. At best, such an agreement may entitle the prospective vendor to seek apportionment of the compensation under Sections 29 & 30 of the Act and nothing beyond that. Since on acquisition of a property, an 'agreement to sell' in respect thereto becomes void or voidable, the affected party may have its remedy under the civil law only and not under the 1894 Act. We are thus of the view that the petitioner-Societies cannot challenge the acquisition in respect of the land for which no valid title was acquired by them.
(iii) Whether the respondents are competent to acquire the land for which the petitioners - Cooperative Societies had applied for the grant of Licence with or without collaboration with a private Builder-
Builder-cum-
cum-
Developer?
Developer?
(20) The Sunnyvilla Society had applied for the grant of licence under the Haryana Development & Regulation of Urban Areas Act, 1975 on 17th June, 1990 but its application was returned with objections which were duly removed and the application was re-submitted on 14th March, 1991. The Society thereafter collaborated with a Builder-cum-Developer M/s Niho Construction Ltd. and again applied on 6th August, 2007 for the grant of licence to set up a multi-storied residential complex but its application was not entertained for the reasons contained in the letter dated 17th Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 23 - October, 2007. It was urged that on the joint application submitted by the Society and the Builder, the licence deserves to be granted as per the Government Policy issued subsequently on 15th September, 2008.
(21) On behalf of Saraswati Kunj Society also, it was arged that since the Society had applied for the grant of licence for its land measuring 91.5 acres much before the acquisition, it was incumbent upon the respondents to exempt that land and allow the Society to utilize it for the purpose for which it was sought to be acquired.
(22) It could not be disputed by learned counsel for the petitioners that Licence under the 1975 Act for the development of 'residential' or 'commercial area' can be granted only in favour of the true owner of the land. The policy circulars relied upon by the petitioners are devised by the Executive to benefit private Builders- cum-Developers so as to legitimize their post-acquisition sale transactions by invoking the power under Section 48 of the 1894 Act and releasing transacted land. The Sunnyvilla Society sought Licence on the basis of 'agreements to purchase' only as it was not the 'true owner' of the land in the year 1990 when the license was applied for. As regard the land purchased by it through registered sale deeds and for which the society collaborated with a Builder- cum-Developer, we are of the view that the characteristics of a Cooperative Society completely disappeared on entering into a Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 24 - profit-motive agreement. It was the Builder-cum-Developer behind the veil who attempted to get the land released from acquisition simply for its private gains. The acquired land has been admittedly given to HUDA who carved out and allotted residential plots as well besides the commercial sites. The allotment of residential plots by a Government Agency is not for a 'profit-motive' and there is essentially an element of public welfare behind such allotments, which must get precedence over the business interest of a private Builder. We are thus of the view that the State Government rightly refused to grant Licence for the land which was not owned by Sunnyvilla Society. The Licence sought by the Society in collaboration with private Builder-cum-Developer could not be prioritized as it was against larger public interest. Similarly, Saraswati Kunj Society cannot grumble against the non-grant of Licence for its land measuring 91.5 acres for want of a clear title. Admittedly, the Department granted Licence No.3 of 1995 to it for the land measuring 115.86 acres and again Licence No.1 of 2000 was granted for the land measuring 100.526 acres. Since the title qua the remaining land was under cloud and meanwhile it had been acquired for the development of residential sectors 53 and 54 by HUDA, the petitioner - Saraswati Kunj Society who was already beneficiary of two Licences cannot be permitted to allege discrimination against it.
(iv) Whether objections objections under Section 5- 5-A submitted by Vishal V the petitioner - Sunnyvilla Cooperative House House 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 25 - Building Society Ltd. against the notifications dated 20th June, 2005 and 19th June, 2006 have been considered in accordance with law?
(23) The respondents in their second written statement dated 11.10.2007 have candidly acknowledged the fact that the petitioner filed objections under Section 5-A against the notification dated 20th June, 2005. According to them, notice was sent on 7.3.2006 asking the petitioners to be present for personal hearing on 23.3.06 at 11.00 A.M. Since representative of the petitioner did not turn up, the objections were considered and rejected by the Land Acquisition Collector vide decision (Annexure R4). In Column No.3 of the report (Annexure R4) it is mentioned that objections of the petitioner-Society through Dr.RP Wadhwa, resident of 4, DDA Complex, Nanakpura, New Delhi-21 were received. The description of the land is mentioned in Column No.4 of the report and in Column No.5, it is mentioned that the land was 'vacant'. Column No.8 of the report refers to the objections briefly and on translation it reads: "the applicant in his objection petition has stated that against acquisition of this land, stay has been granted in CWP No.11332/2000 and that this land shall be utilized in the same manner as is proposed to be used by HUDA, hence it deserves to be exempted from acquisition". The Land Acquisition Collector in Column No.9 recommended that it would be proper to acquire the land as the same was lying vacant.
Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 26 - (24) The original record comprising the Despatch Register has been produced and perused. It appears that the notice for personal hearing was sent to the petitioner-Society. Its representative though did not appear for personal hearing, yet it cannot be said that the objections were not considered. There is no other significant plea taken by the petitioner-Society in its objection petition. Nonetheless, it was for the State Government to decide whether or not the subject land was needed for the notified 'public purpose'. The petitioner's land was admittedly lying vacant and is contiguous to the other acquired land. Since the entire chunk of land has been utilized by a Government agency (HUDA) for the notified public purpose, we do not see any procedural error of substantive or incurable nature committed by the respondents which may vitiate the acquisition process.
(25) Contrary to it, the very object of the petitioner-Society to utilize the subject land for its members on 'no-profit-no-loss' basis has evaporated into thin air with the 'Co-operative movement' landing/falling into the hands of a private Builder-cum-Developer. The subject acquisition thus cannot be interfered with on equitable considerations as well.
(v) Whether action of the respondents in not releasing the land of petitioner-
petitioner-Societies is discriminatory discriminatory and arbitrary?
(26) Some of the similarly-placed landowners challenged the notifications dated 20th June, 2005 and 19th June, 2006 in CWP Vishal V No.2779 of 2007 (Om Parkash Yadav & Ors. vs. State of Haryana & 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 27 - Ors.) alleging indiscriminatory treatment and pointed out that the land of private colonizers was released from acquisition on pick and choose basis. A Division Bench of this Court vide order dated 10th September, 2007 rejected the contention observing as follows:-
"The above arguments, in our considered opinion, are insufficient to quash or set aside the notifications of acquisition. Though the petitioners land measures only 2 biswas, but by the impugned notifications, the State has acquired land measuring 295.14 acres in village Wazirabad and 162.40 acres in village Haiderpur Viran, Distt. Gurgaon. It is true that the petitioners' land abuts a private colony but this fact alone is insufficient to infer any malafides on the part of the respondents, or a colourable exercise of power. As regards the existing construction, the fact that it possesses sentimental value for the petitioners, in our considered opinion, is insufficient to set aside the acquisition proceedings. The photographs appended with the writ petition, Annexures P-4 and P-5, appear to suggest an abandoned structure."
(27) SLP (Civil) No.21275/2007 against the above-stated order was dismissed by the Hon'ble Supreme Court vide order dated 01.10.2010 observing that since the acquired land was to be utilized for a public Library, no interference was called for though it was directed that the land shall be used for that very purpose only. Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 28 - Following these orders, this Court again dismissed some more writ petitions challenging the above-stated acquisition vide order dated 27th March, 2012 passed in CWP No.17824 of 2006 and other connected cases.
(28) The petitioners have also made a passing reference to a 1998 Government Scheme for allotment of sites to Group Housing Societies for the construction of multi-storied residential complexes for their members. It is maintained that as the petitioners intend to utilize the land for a similar purpose, the action of the respondents in not releasing their land runs parallel to the above stated Government Policy. Reference was made to the decision dated 26th March, 2004 of this Court in CWP No.10896 of 2002 (The Faridabad Ex-Sainik and Karamchari Cooperative House Building Society Ltd. vs. State of Haryana & Ors.). There the application of the Society seeking permission to develop its self-acquired land for construction of houses for its members was rejected on the plea that "as per the latest licensing policy of the department, the request made by the Cooperative House Building Societies on self-acquired land can be considered only in low potential towns of the State". This Court found that no such condition for the grant of license was prescribed under the Act or the Rules and the so-called policy was contrary to the legislative scheme. Consequently, a direction was issued to the competent authority to re-consider and decide the Society's application for grant of Licence. As against it, the Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 29 - application of the petitioner-Societies for the grant of licence was rejected/returned for want of valid title of the land in their favour. Meanwhile, the land was acquired. The only other plea taken by the petitioner (Sunnyvilla Society) rested upon that of its collaboration with a private Builder-cum-Developer. Similarly, Saraswati Kunj Society was granted Licence for more than 200 acres of land except for the disputed land. The petitioners thus cannot claim parity with those Societies or Companies which possessed clear title and fulfilled other eligibility conditions prescribed under the 1975 Act for grant of Licence. Inequality can be alleged only if equals are treated like unequals. Where the treatment meted out to different persons is based upon reasonable classification and when all of them do not constitute one or the same homogeneous class, the principle of equality enshrined in Article 14 of the Constitution cannot be said to have been violated. For the same reasons, we are not inclined to accept the petitioner's plea that once they applied for the grant of licence, the same should have been granted as a matter of right.
(29) For the reasons afore-stated, we do not find any merit in these writ petitions and dismiss the same. We, however, hasten to add that vide order dated 12th August, 2011 passed by a co-ordinate Bench in a bunch of writ petitions including CWP No.12848 of 2000 (Jasbir Singh Siali vs. State of Haryana & Ors.) challenging the notification dated 15th March, 2000, the claim of landowners for the Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 30 - release of their respective properties was referred to a High Powered Committee constituted by the State Government. The claim of the petitioner-Societies, if pending consideration before that Committee, may be decided as per their own parameters. (30) We further direct that no part of the acquired land shall be released, transferred or exchanged with that of a private Builder-cum-Developer or colonizer and the same shall be utilized by HUDA/any other State agency for the notified and/or any other bona fide public purpose only.
COCP No.1332 of 2004 (31) Adverting to the contempt proceedings initiated by Sunnyvilla Society, it may be mentioned that this Court vide order dated 25th April, 2001 directed that "the respondents shall not take any further steps in respect of acquisition of the land of the petitioner". The respondents in their reply/affidavit have explained that the acquisition proceedings were completed on 06.09.2000 when the Award was announced and after taking possession of the land from its true owners the same was handed over to HUDA on the same day vide rapat No.25 dated 06.09.2000. The HUDA thereafter carved out and the allotted the plots. (32) Since possession of the land was taken by the respondents before the passing of the above-stated interim order and the desired steps in respect of acquisition of the land had already been taken much before April 25, 2001 coupled with the fact that Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document CWP No.11332 of 2000 - 31 - the petitioner's claim in the main petition has not been accepted, we are satisfied that there is no willful or deliberate breach of the interim order passed by this Court. The contempt proceedings are accordingly dropped and rule discharged.
(Surya Kant) Kant) Judge 31.10.2013 (Surinder Gupta ) vishal shonkar Judge Vishal V 2013.12.10 17:44 I attest to the accuracy and integrity of this document