Punjab-Haryana High Court
Dharampal & Ors vs State Of Haryana & Ors on 3 September, 2014
Author: Harinder Singh Sidhu
Bench: Ashutosh Mohunta, Harinder Singh Sidhu
CWP No. 24762 of 2013 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No. 24762 of 2013
Date of Decision: 03.09.2014
Dharampal and others
#Petitioners
Versus
State of Haryana and others
....Respondents
CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA
ACTING CHIEF JUSTICE and
HON'BLE MR. JUSTICE HARINDER SINGH SIDHU
Present: - Mr. Jasbir Singh Malik, Advocate
for the petitioners.
Ms. Palika Monga, Deputy Advocate General, Haryana.
Mr. Sikander Bakshi, Advocate
for respondents No. 3 and 4.
Mr. Puneet Bali, Sr. Advocate
with Mr. Vibhav Jain, Advocate
for respondents No. 5 and 6.
--
HARINDER SINGH SIDHU, J.
The petitioners, who are 68 in number, have filed the present writ petition praying for quashing notification dated 17.04.2002 (Annexure P-1) issued under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act'), notification dated 20.04.2003 (Annexure P-2) issued under Section 6 of the Act, the award dated 25.06.2004 and all subsequent follow up actions pursuant thereto.
CWP No. 24762 of 2013 [2]
The petitioners are the residents of village Barkatabad, Tehsil Bahadurgarh, District Jhajjar. Petitioners No. 1 to 30 were owners in possession of land measuring 60 Kanal 11 Marla, petitioners No. 31 to 40 were owners in possession of land measuring 29 Kanal 18 Marla, petitioners No. 41 to 46 were owners in possession of land measuring 25 Kanal 8 Marla, petitioners No. 47 to 68 were owners in possession of land measuring 41 Kanal 15 Marla all situated within the revenue estate of village Barkatabad, Tehsil Bahadurgarh, District Jhajjar.
The Government of Haryana vide notification dated 17.04.2002 issued under Section 4 of the Act proposed to acquire land for public purpose, namely, for residential, commercial and institutional for Sectors 1(Part) 10-11 (Part) 12 and 13, Bahadurgarh under the Haryana Urban Development Authority Act, 1977 by the Haryana Urban Development Authority. This notification was for land measuring 314.78 acres. Declaration under Section 6 of the Act was issued on 20.04.2003 for land measuring 309.99 acres. The award was announced on 25.06.2004. Thereafter, petitioners preferred reference under Section 18 of the Act before the Additional District Judge, Jhajjar, who pronounced his award on 29.01.2011. Some other references were decided by the Additional District Judge, Jhajjar on 04.08.2011. Appeals for enhancement of the compensation have been preferred by the land owners including the petitioners, which CWP No. 24762 of 2013 [3] are pending before this Court.
On 17.12.2009, an exchange deed (Annexure P-4) was executed between Haryana Urban Development Authority (HUDA) and respondents No. 5 and 6, namely, M/s NCR Residency Pvt. Ltd. and M/s Anmol Residency Pvt. Ltd. respectively, whereby the land measuring 3338.86 sq. yards comprised in Rect. & Killa No. 12/19, 20/2 and 21 situated in the revenue estate of village Barkatabad, Tehsil Bahadurgarh, District Jhajjar, which is part of the acquired land, was exchanged with the land measuring 3344 sq. yards comprised in Rect. and Killa No. 11/23/2 and 24 min west situated in the revenue estate of village Barkatabad, Tehsil Bahadurgarh, District Jhajjar, belonging to respondents No. 5 and
6. As per recitals in the exchange deed, the first party (HUDA) is in the process of developing a green belt on National Highway No. 10 bye-pass at Bahadurgarh and respondents No. 5 and 6 are in the process of acquiring change of land use from the Government of Haryana for the development of residential/commercial/ industrial projects in the land adjoining the aforesaid property and in order to implement their schemes in a proper, systematic and effective manner, the parties mutually agreed and decided to exchange their respective lands in public interest and in the interest of integrated urban planning to achieve the objective of harmonious development.
The petitioners claim that their lands, which were CWP No. 24762 of 2013 [4] acquired, except the land given in exchange by HUDA , is lying vacant and is in the cultivating possession of the petitioners. Though the exchange was effected vide exchange deed dated 17.12.2009, the petitioners claim that this fact came to their knowledge on 13.05.2013 and thereafter they have filed the present writ petition impugning the notifications dated 17.04.2002 and 20.04.2003. They have also questioned the exchange effected by the HUDA with respondents No. 5 and 6 as being fraudulent and alien to the purpose of acquisition and being beyond the powers of HUDA. Claiming that they are still in possession of the acquired land except the exchanged lands they have relied on the provisions of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short '2013 Act') to contend that the acquisition stands lapsed in terms thereof.
While issuing notice of motion on 13.11.2013, this Court had directed the parties to maintain status quo regarding possession and construction.
In response to notice, short reply has been filed on behalf of respondents No. 1 and 2 and written statement has been filed on behalf of respondents No. 3 and 4.
An application under Article 226(3) of the Constitution of India was filed by respondents No. 5 and 6 praying for vacation of status quo order.
CWP No. 24762 of 2013 [5]
A short reply has been filed on behalf of respondents No. 1 and 2 mainly confined to the prayer of the petitioners claiming that the acquisition proceedings have lapsed under Section 24(2) of 2013 Act. It has been stated that the State of Haryana issued notification dated 17.04.2002 under Section 4 of the Act for acquiring the land measuring 1326.04 acres for public purpose, namely, for development of Sectors 1-10-11-12 & 13, Bahadurgarh by HUDA. After considering the report of the Land Acquisition Collector on the objections filed by the land owners under Section 5-A of the Act, the State Government notified 1238.15 acres of land vide declaration dated 20.04.2003. Subsequently, the Land Acquisition Collector announced the award of the land measuring 1227.13 acres on 25.06.2004 and the possession of the land was handed over to Estate Office, HUDA on the same day. Entry to this effect was made in the Rapat Rojnamacha vide No. 456 dated 25.06.2004 of village Sarai Aurangabad and Barkatabad No. 484 dated 25.06.2004 of village Balore No. 1318 dated 25.06.2004 of village Bahadurgarh. Total amount of compensation of awarded land measuring 1227.13 acres was worked out to be Rs. 72,57,04,098/-. It is further stated that the compensation amount has already been tendered by the Land Acquisition Collector to the petitioners and the compensation has been received by them. The petitioners have approached the Reference Court for enhancement of compensation under Section 18 of the Act and their reference CWP No. 24762 of 2013 [6] has been decided by the Reference Court.
Elaborating on the aspect of the stage of utilisation of the acquired land, it is stated that to achieve the notified public purpose, planning of the acquired land has already been finalized by the HUDA. The revised layout-cum-demarcation plan of Sector- 13 Part-A, Bahadurgarh was approved by CA, HUDA (T.P. Wing), Panchkula conveyed by CTP HUDA, Panchkula vide memo dated 13.07.2007. Subsequently, plots were floated (applications were invited from the general public to allot plots through draw of lot) by HUDA on 18.01.2008. In this Sector, HUDA has carved 1272 residential plots, out of which 1131 plots already stand allotted. It is further stated that as per revised layout-cum-demarcation plan of Sector-13 (Part-A), Bahadurgarh, the acquired land of the petitioners is earmarked for setting up partly, area of 75 meters wide existing bye-pass, 100 meters green belt on both sides of bye- pass and Public and Semi-Public Zone in Sector-13, Bahadurgarh. Layout plan showing the status of completion of development works by HUDA has also been annexed. It is further stated that after issuance of notification under Section 4 of the Act, the petitioners did not file objections under Section 5-A of the Act and after announcement of the award on 25.06.2004, the possession of the land has been vested with the HUDA. It has also been stated that the petition filed by the petitioners is belated and deserves dismissal on that score alone.
CWP No. 24762 of 2013 [7]
In the application filed on behalf of respondents No. 5 and 6, it has been stated that factum of ownership of HUDA was duly recorded in the revenue records and this fact is even mentioned in the Jamabandi for the year 2009-10, which has been relied upon by the petitioners and annexed as Annexure P-5. It is pointed out that respondent No.5 was incorporated on 31.10.2008 and it entered into a development/collaboration agreement on 15.11.2011 with M/s H.L. Residency Private Ltd. with respect to land measuring 46 Kanal 16 Marla situated in village Barkatabad, Tehsil Bahadurgarh, District Jhajjar. Respondent No. 6 was incorporated on 31.10.2008 and it entered into a development/collaboration agreement on 15.11.2011 with M/s H.L. Residency Private Ltd. with respect to land measuring 33 Kanal 13 Marla situated in village Barkatabad, Tehsil Bahadurgarh, District Jhajjar. It has been specifically mentioned that no portion of land belonging to respondents No. 5 and 6 was part of the land acquisition proceedings under challenge in this petition. M/s H.L. Residency Private Ltd. was granted licence dated 27.09.2012 under the Haryana Development and Regulation of Urban Areas Act, 1975 over an area measuring 54.76 acres in the revenue estate of village Nuna Majra and Barkatabad, Sector-37, Bahadurgarh, District Jhajjar for development of residential colony. As per approved lay out plan, the land measuring 3338.86 sq. yards was part of 18 meters wide road connecting the proposed residential CWP No. 24762 of 2013 [8] colony with Bhadurgarh Bye-Pass Road.
It has been further stated that the land given to respondents No. 5 and 6 in exchange is being utilized by the said respondents only for the said 18 metres wide road and no construction whatsoever is being made on the said land. It has been reiterated that barring the said 3338.86 sq. yards, no part of the land for which licence was granted to M/s H.L. Residency Private Ltd. was part of the acquisition proceedings under challenge. It has also been pointed out that the exchange had been carried out in the year 2009 but it was only in 2013 that the said exchange has been challenged at a stage when this land has become part of the licence granted to M/s H.L. Residency Private Ltd. Further the land acquisition proceedings were initiated in the year 2002, culminating in the award dated 25.06.2004 and the present petition to impugn the said proceedings after 11 years is barred by delay and laches. It is also alleged that petition has been filed with malafide intention by the petitioners to try and extract their pound of flesh.
Learned counsel for the petitioners has raised the following contentions:
(i) Land was acquired for public purpose, namely, residential, commercial and institutional. It could not be transferred to respondents No. 5 and 6 and HUDA had no authority in law to transfer the same by way of CWP No. 24762 of 2013 [9] exchange with respondents No. 5 and 6. He has relied on the judgment in the case of Royal Orchid Hotels Limited and another v. G.Jayarama Reddy and others (2011) 10 SCC 608.
(ii) Though the land was acquired in the year 2002, but even after a decade, the land is lying vacant. There is no development on the land. The possession of the land, except the portion that has been exchanged with respondents No. 5 and 6, is with the petitioners. Hence, the case of the petitioners is covered by Section 24 (2) of 2013 Act and the land acquisition proceedings are liable to be declared as having lapsed. Learned counsel has relied on the judgments in the cases of Banda Development Authority, Banda v. Moti Lal Agarwal and others (2011) 5 SCC 394 and Prahlad Singh and others v. Union of India and others (2011) 5 SCC 386 and contended that no evidence of taking over possession has been produced by the respondents.
(iii) Adverting to the conditions incorporated in the licence granted to M/s H.L. Residency Private Ltd.
(annexed as Annexure A-3 with the application filed by respondents No. 5 and 6), it has been stated that construction has been started in violation of conditions 2
(h) and 2 (j) regarding getting approval/NOC from the CWP No. 24762 of 2013 [10] Ministry of Environment and Forest in terms of clause 2(h) and from the competent authority under the Punjab Land Preservation Act, 1900 in terms of clause 2(j).
To the contrary, Mr. Bali, learned Senior counsel appearing for respondents No. 5 and 6 and Ms. Palika Monga, Deputy Advocate General, Haryana, appearing for respondents- State have contended that the present petition is barred by delay and laches. The acquisition proceedings were initiated in the year 2002, culminating in the award dated 25.06.2004 and the present petition to impugn the said proceedings after 11 years is not maintainable.
The contention of the learned counsel for the petitioners regarding their being in possession of the land is controverted. It has been contended that even the Jamabandi for the year 2009- 2010 (Annexure P-5) relied upon by the petitioners to show their possession belies their claim as in the remarks column thereof, it is mentioned that the total land has been acquired. Reliance has been placed on the reply filed on behalf of respondents No. 1 and 2 to state that notified public purpose for acquiring the land has been finalized by HUDA. Revised layout cum Demarcation Plan of Sector 13 Part A has been approved. 1272 residential plots have been carved out. Substantial number of plots have been allotted and the acquired land of the petitioners has been earmarked for setting up 75 meters wide existing bye-pass, 100 meters green belt CWP No. 24762 of 2013 [11] on both sides of bye-pass and Public and Semi Public Zone in Sector-13, Bahadurgarh. It has been contended that the petitioners have accepted the compensation and after the decision of the reference under Section 18 of the Act, have filed the appeals for enhancement of compensation which are pending in this Court. Regarding the exchange of land, it has been stated that only a small area of 3338.86 sq. yard of land has been exchanged in public interest and in the interest of integrated urban planning to achieve the objective of harmonious development. Hence, the allegation of diversification of purpose of the acquired land is not made out.
Mr. Bali, learned Senior counsel has specifically referred to the prayer clause in the writ petition and stated that there is no specific prayer for quashing of exchange of land. He has contended that such a prayer made in 2013 after a lapse of 4 years when exchanged land has already become a part of the licence granted to M/s H.L. Residency Private Ltd., cannot be entertained.
We have heard the learned counsel for the parties and with their assistance gone through the record.
The primary contention of the petitioners is that they are still in possession of the acquired land and that the exchange of 3338.86 Sq. yards of the acquired land with 3344 sq. yards of lands of respondents No. 5 and 6 is illegal.
The contention of the petitioners with regard to their CWP No. 24762 of 2013 [12] being in possession has been repelled in the written statement of the respondents by stating that after the announcement of the award on 25.06.2004 the possession of the land was handed over to Estate Officer, HUDA on the same day and separate entries in the Rapat Roznamcha in respect of villages Sarai Aurangabad and Bahadurgarh were made on the same day. The notified public purpose for acquiring the land has been finalized by HUDA. Revised layout-cum-Demarcation Plan of Sector 13 Part A has been approved. 1272 residential plots have been carved out. Substantial number of plots have been allotted and the acquired land of the petitioners has been earmarked for setting up 75 meters wide existing bye-pass, 100 meters green belt on both sides of bye- pass and Public and Semi Public Zone in Sector-13, Bahadurgarh. It has been categorically stated that not only the petitioners have received compensation, but had filed references under Section 18 of the Act, and after the decision of such references have also filed appeals which are pending in this Court.
In the face of this, it is not possible to accept the contention of the petitioners that they are in possession of the land and have not received compensation. Hence, their claim for being entitled to benefit under the provisions of Section 24(2) of the 2013 Act is not made out and is rejected. The judgments relied on by the petitioner are of no help to him. In Banda Development Authority's case (supra), it has been clearly held that utilisation of CWP No. 24762 of 2013 [13] major portion of the acquired land for the public purpose for which it was acquired is clearly indicative of the fact that actual possession of the acquired land had been taken. In the present case, it has been clearly indicated that after handing over possession to Estate Office HUDA on 25.06.2004 the notified public purpose for acquiring the land has been finalized by HUDA. Revised layout- cum-Demarcation Plan of Sector 13 Part A has been approved. 1272 residential plots have been carved out. Substantial number of plots have been allotted and the acquired land of the petitioners has been earmarked for setting up 75 meters wide existing bye- pass, 100 meters green belt on both sides of bye-pass and Public and Semi Public Zone in Sector-13, Bahadurgarh. Thus, the claim of the petitioners that they are in possession of the land can not be accepted.
Regarding the exchange of land it has been explained that HUDA was to develop a green belt on National Highway No. 10 bye-pass at Bahadurgarh and respondents No. 5 and 6 were proposing to develop residential/commercial/ industrial projects in the land adjoining the aforesaid property. In order to implement their schemes in a proper, systematic and effective manner, the parties mutually agreed and decided to exchange their respective lands in public interest and in the interest of integrated urban planning to achieve the objective of harmonious development. It has been categorically stated by respondents No. 5 and 6 that as CWP No. 24762 of 2013 [14] per approved lay out plan, the land measuring 3338.86 sq. yards was part of 18 meters wide road connecting the proposed residential colony with Bhadurgarh Bye-Pass Road. It has been stated that the land given to respondents No. 5 and 6 in exchange is being utilized by the said respondents only for the said 18 mts wide road and no construction whatsoever is being made on the said land.
We are satisfied that only a small area of 3338.86 sq. yards has been exchanged with 3344 sq. yards of land of respondents 5 and 6 in public interest and in the interest of integrated urban planning to achieve the objective of harmonious development. This does not constitute diversification of land for a private purpose, as except for this small piece of land the remaining land has been used for the notified public purpose.
In Royal Orchid Hotels's case (supra) relied upon by the petitioner almost the entire land acquired for the Karnataka State Tourism Development Corporation had been transferred by the Corporation to a private individual and corporate entities. It was in this context that the Hon'ble Supreme Court endorsing the view of the Karnataka High Court held that it was a case where land owners were deprived of their land under cover of public purpose, but later the land was transferred to private persons and hence there was diversification of the acquired land for a private purpose which was impermissible. As explained above in the present case CWP No. 24762 of 2013 [15] only a small area of 3338.86 sq. yards has been exchanged with 3344 sq. yards of land of respondents 5 and 6 in public interest and in the interest of integrated urban planning to achieve the objective of harmonious development. The remaining part of the land has been used for the notified public purpose. Hence the judgment relied on by the petitioner is of no help to him.
The third contention of the learned Counsel for the petitioner that the construction has been started in violation of the conditions of the licence (Annexure A-3) is also liable to be rejected. There is no such pleading in the writ petition. Moreover M/s H.L. Residency Private Ltd. which has been granted the licence is not a party to the writ petition.
Thus, we find no merit in the writ petition and the same is dismissed.
(ASHUTOSH MOHUNTA) (HARINDER SINGH SIDHU)
ACTING CHIEF JUSTICE JUDGE
03.09.2014
gian
GIANENDER KUMAR
2014.09.10 13:48
I attest to the accuracy and
integrity of this document