Punjab-Haryana High Court
Abw Infrastructure Limited And Others vs State Of Haryana And Others on 23 May, 2011
Bench: Jasbir Singh, Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Misc. No. 7424-25 of 2011 in/and
Civil Writ Petition No. 8627 of 2011
Date of decision:23rd May, 2011
ABW Infrastructure Limited and others
.......Petitioners
Versus
State of Haryana and others
........Respondents
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present: Mr. Chetan Mittal, Senior Advocate with
Mr. Naveen S.Bhardwaj, Advocate and
Mr. J.S.Ahlawat, Advocate
for the petitioners.
1. Whether Reporters of local papers may be allowed to see
the judgment? Yes/No
2. To be referred to the Reporters or not?Yes/No
3. Whether the judgment should be reported in the Digest?
Yes/No
Jasbir Singh, J.(Oral)
Civil Misc. No. 7424-25 of 2011 Allowed as prayed for.
Affidavit of Shri Rajender Saini son of Shri R.C.Saini, ABW Infrastructure Liminited, 208-210, 2nd floor, Rectangke -1, D-4, Saket District Centre, Saket, New Delhi along with Annexure Nos. P-20 and P-21 is taken on record.
Civil Misc. No. 7424-25 of 2011 in/and 2Civil Writ Petition No. 8627 of 2011 CWP No. 8627 of 2011 Petitioners have filed this writ petition with a prayer to quash a notification issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) on 27.12.2005,(P-4), proposing to acquire 24 acres 4 Kanal and 5 Marlas of land for the purpose of setting up of 'Chaudhery Devi Lal Industrial Model Township, to be planned as an integrated complex for residential, recreational and other public utilities' in village Manesar, Tehsil and District Gurgaon by Haryana State Industrial Development Corporation Limited. Further challenge has been made to a notification issued under Section 6 of the Act on 15.09.2006 (P-5), finally ordering acquisition of the above said land.
This writ petition has been filed by stating that the petitioners are a group of companies registered under the Companies Act 1956. In the list of dates and events, it is mentioned that the companies are the associate companies. It is averred that initially, a huge chunk of land was proposed to be acquired by the State of Haryana vide notification issued under Section 4 on 27.08.2004 (P-2) for the purpose of setting up of Chaudhery Devi Lal Industrial Model Township, stated above. Thereafter, a notification under Section 6 of the Act was issued on 25.08.2005, to acquire the left out area, for the same purpose, vide the impugned notifications.
It is stated by counsel for the petitioners that many land owners came to this Court by filing the writ petitions wherein they had laid challenged the notifications, issued under Sections 4 and 6 of the Act on 27.08.2004, 25.08.2005 under Section 486 of the Act, Civil Misc. No. 7424-25 of 2011 in/and 3 Civil Writ Petition No. 8627 of 2011 respectively.
Vide order dated 9.10.2007, on a statement made by the Advocate General for the State of Haryana, that the project has been dropped, all those writ petitions were disposed of as having become infructuous.
It is contention of counsel for the petitioners that once the main project has been shelved, no purpose will be served by acquiring 24 acres of land in dispute.
So far as the public purpose is concerned, the State authorities are the best judge to say whether the land is needed for the purpose for which it was acquired or not. The courts cannot substitute its opinion to the opinion expressed by the experts. It is not a case of the petitioners that notifications under Sections 4 and 6 were not issued as per the mandatory provisions of the Act. If that is so, technically these notifications cannot be set aside merely because the other similar notifications were quashed.
Be that as it may, it is an admitted fact that when an opportunity was granted to the petitioner to file objections under Section 5-A of the Act, it failed to do so.
In terms of the ratio of judgment of the Hon'ble Supreme Court in the case of Delhi Administration v. Gurdip Singh Urban & ors. etc. 1999 AIR (Supreme Court) 3822, this writ petition cannot be entertained.
It is further not in dispute that an award was passed on 26.06.2008 and this writ petition was filed in the month of May, 2011 Civil Misc. No. 7424-25 of 2011 in/and 4 Civil Writ Petition No. 8627 of 2011 i.e. after about three years of the date of passing of that award. The land was lying vacant. In the award, it is specifically stated that except in those cases where stay has been granted by this Court possession of rest of the land has been obtained and it was handed over to HSIDC department. It is further observed that the land of which the possession has been taken, after offering compensation, now vests in that department free from all encumbrances.
In view of the above, it can be safely held that after announcement of the award and taking possession thereof, the land shall vest in the State authorities without any encumbrance. In terms of the ratio of judgment of the Hon'ble Supreme Court in Civil Appeal no. 3779 of 2011, titled as, Prahlad Singh and others vs. Union of India and others, decided on 29.04.2011, this writ petition cannot be entertained. Furthermore, this writ petition has been filed at a very belated stage. Their Lordships of Hon'ble Supreme Court in Civil Appeal No. 3604 of 2011, titled as, Banda Development Authority, Banda vs. Moti Lal Aggarwal and others, decided on 26.04.2011 have declined to grant relief to a land owner coming to the court at a late stage. In that case, it was held as under:-
"16. It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self imposed restraint evolved by the superior courts is that he High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallized rights of the parties. If the writ Civil Misc. No. 7424-25 of 2011 in/and 5 Civil Writ Petition No. 8627 of 2011 petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits. In State of Madhya Pradesh v. Bhailal Bhai AIR 1964 SC 1006, the Constitution Bench considered the effect of delay in filing writ petition under Article 226 of the Constitution and held:
"...............It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specifically true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it........................................
It is not easy nor is it desirable to lay down any Rule for universal application. It may however be stated as a general Rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. ..........................Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the Civil Misc. No. 7424-25 of 2011 in/and 6 Civil Writ Petition No. 8627 of 2011 granting of relief under Art 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured.
The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable."
17. In matters involving challenge to the acquisition of land for public purpose, this Court has consistently held that delay in filing the writ petition should be viewed seriously and relief denied to the petitioner if he fails to offer plausible explanation for the delay. The Court has also held that the delay of even few years would be fatal to the cause of the petitioner, if the acquired land has been partly or wholly utilised for the public purpose."
It is also not in dispute that the petitioners had filed an application on 28.12.2006, to get change of land use certificate to develop a colony in the land measuring 119 acres. The said application was moved after issuance of a notification under Section 4 of the Act on 27.12.2005. The land in dispute in this writ petition was part and Civil Misc. No. 7424-25 of 2011 in/and 7 Civil Writ Petition No. 8627 of 2011 parcel of that application. As per facts on record, except 24 acres of land which is the subject mater of this writ petition qua rest of the land, separate licence(s) was granted to the petitioners to set up a colony. Once licence has been granted regarding part of the land, other than 24 acres of land, it is presumed that qua that piece of land, prayer for grant of licence has been declined. In that event, the petitioners are required to agitate their rights by filing an appeal as per the provisions of Haryana Development And Regulation of Urban Areas Act, 1975, which was done in this case.
To the contrary, in a very clever manner, the petitioners filed a civil writ petition no. 5386 of 2011 in which they had claimed that a writ of mandamus be issued to the respondents, directing them to decide their pending application filed on 28.12.2006. The said writ petition was dismissed as withdrawn on 25.03.2011 by passing the following orders:-
"The writ petition appears to be pre-
maturely filed. The counsel submits that the petitioner wishes to file representation. Therefore, the counsel seeks permission to withdraw the present petition at this stage.
Dismissed as withdrawn with liberty to the petitioner to have its alternative remedy and to representation."
In view of the above, this writ petition cannot be entertained. All the objections, to the notifications issued under Civil Misc. No. 7424-25 of 2011 in/and 8 Civil Writ Petition No. 8627 of 2011 Sections 4 and 6 of the Act and also to the award were available to the petitioners at the time when that writ petition was filed. However, deliberately or may be with a design those objections were not taken in that writ petition. Once a litigant has failed to take an objection at an appropriate time, at a subsequent stage, it is not permissible to raise that very objection. In view of the above, this writ petition cannot be entertained. The very fact that an award has been passed, shows an intention of the authorities to acquire the land for a public purpose for which it was notified.
In view of above facts, we feel that this writ petition is not maintainable and is accordingly dismissed.
In the State of Haryana, we have noted with concern that the private limited companies are mushrooming day by day and in some cases it has been noted that some of the promoter/directors have got registered 5-7 companies in a day. Tentatively, we are satisfied that this is being done to defeat the provisions of the Haryana Ceiling on Lands Holdings Act, 1972 (in short the '1972 Act') which prescribed the permissible limit upto which a land owner can retain the land or may be some tax statute.
We make it very clear that if in future the competent authority are going to look into any representation made by the petitioners, the officer concerned should look into a fact as to whether individually/collectively these companies may not be violating the provisions of 1972 Act or any other tax statute. In this writ petition the petitioners have shown themselves as an associate group Civil Misc. No. 7424-25 of 2011 in/and 9 Civil Writ Petition No. 8627 of 2011 of the companies. The officer concerned may even lift the corporate veil to look into the real character of all these companies and also to know as to which company is a main operator company. In case it is found that the land holdings of these companies are in violation of the provisions of the 1972 Act(collectively for all the licences granted/applications processed under the provisions of 1975 Act) the necessary action under the provisions of 1972 Act be initiated to declare surplus land with the petitioners.
[JASBIR SINGH] JUDGE [RAKESH KUMAR GARG] JUDGE 23rd May, 2011 Shivani Kaushik