Punjab-Haryana High Court
Sandeep vs State Of Haryana And Others on 16 May, 2011
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO. 19927 of 2009
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CIVIL WRIT PETITION NO.19927 of 2009
DATE OF DECISION: MAY 16, 2011
Sandeep
.....Petitioner
VERSUS
State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. Puneet Bali, Advocate with
Mr. Rose Gupta, Advocate.
Mr. ID Singla, Advocate.
Mr. Sanjiv Bansal, Advocate.
Mr. Sudhir Mittal, Advocate.
Mr. Sanjay Jain, Advocate.
for the petitioner(s).
Ms. Shruti Jain, AAG, Haryana
for the State.
CIVIL WRIT PETITION NO. 19927 of 2009
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Mr. Arun Walia, Advocate.
Mr. Sidharth Batra, Advocate.
Mr. Ajay Nara, Advocate.
Mr. Dinesh Nagar, Advocate.
Mr. Gaurav Mohunta, Advocate.
****
RANJIT SINGH, J.
This order will dispose of writ petition Nos.19927, 19965 and 20127 of 2009, 1605, 1637, 1646, 1647, 1648, 1649, 1650, 1651, 1652, 2272, 2837, 2838, 2839, 3742, 6940, 7980, 8594, 16675 and 16703 of 2010.
Haryana Urban Development Authority (hereinafter called HUDA) Act enacted in the year 1977 with the purpose of constituting a statutory authority in place of Department of Urban Estate with aim to ensure speedy and economic development of urban areas in the state of Haryana. One of the reasons for enacting this Act, as can be seen from the statement of Objects and Reasons, is that the Urban Estate Department being a Government Department was unable to raise resources from various lending institutions though there were such institutions in the country willing to finance urban land development. The aim was to make the development of urban areas to be self financing. Ever since that day, CIVIL WRIT PETITION NO. 19927 of 2009 -3- HUDA has undertaken the development of various urban areas with reasonable success. This has given rise to numerous other incidental problems. The urban areas development has primarily happened due to acquisition of agricultural land available in and around urban areas of the State. Majority of the acquisition of land is from farming community and agriculturist. They, accordingly, stood deprived of their valuable property though on a compensation which was never in tune with the value of land the farmers lost. All such persons faced numerous problems on account of acquisition. It may not be very appropriate to list all these problems here, but it is generally understood and appreciated that in majority of the acquisition, almost without exception, the grievances were made by the farmers for the amount of compensation awarded to them. Invariably this lead to enhancement of compensation but by the time enhanced compensation reached the farmers it become inadequate. The inflation has always over shot resources with land losers making the land losers almost unable to re-adjust themselves somewhere else.
The problem that arose on account of compulsory acquisition of land, which has lead to enrichment of the State author- ity like HUDA, was also subject matter of consideration by the Hon'ble Supreme Court in the case of State of U.P. Versus Pista Devi, AIR 1986 SC 2025. Due to far reaching observations made by the Hon'ble Supreme Court in this case, which have been referred to and relied upon by the counsel for the petitioner, various States for- mulated different policies to cater for the interest of those farmers, CIVIL WRIT PETITION NO. 19927 of 2009 -4- whose land was acquired and they became oustees from their own land. These are the policies, which are now under consideration in the bunch of these writ petitions.
Almost every day this Court or perhaps various other courts, are flooded with the claims of persons termed as oustees seeking either allotment of plots or challenging the orders/action of the respondent-HUDA in not considering their claim in terms of these policies, which HUDA itself has formulated. Seeing this tendency in large number of cases and the nature of defences that are normally projected by HUDA, it is thought appropriate to connect all these petitions together for hearing to pass a comprehensive order taking note of all the policies instructions so as to settle the issue with some reasonable certainty. I am conscious of the position that the attitude of HUDA, which it is or has been, will not result in settling the issue but still the exercise may be worth an effort. It would also be a source of some solace to those farmers, who are struggling to get some plot on the same very land, which they have lost for carving out a polished richy-rich Urban areas. The resistance on the part of the HUDA is understandable. It is a profit making business and HUDA obviously does not want to lessen its profits or to share part of it with those who are source of this enrichment. HUDA obviously would be keen to make rules to protect its interest vis-à-vis the land losers but still will make them to take recourse to legal remedy in large number of cases by not following those polices formulated by it to suit its own interest. CIVIL WRIT PETITION NO. 19927 of 2009 -5- It is noticed that the Government lately itself has re- alised the enormity of this problem. The Land Acquisition Act legis- lated in 1894 may have been an effective instrument for acquisition of land for public purpose, yet these provisions are found to be not only inadequate but archaic as well. The Government appears to have now realised the after effect of compulsory acquisition, which leads to displacement of people depriving them of their livelihood and shelter. This also leads to uprooting them from their socio-cultural en- vironment. All such people ousted due to compulsory acquisition un- dergo traumatic, psychological and socio-cultural consequences. Their re-settlement and rehabilitation has now been given a para- mount importance. This has been so noticed in the statement of ob- ject and reasons of the Land Acquisition Amendment Bill, 2007 (for short, "2007 Bill"). Attempt now is being made to define the expres- sion `public purpose' so as to restrict the scope of land acquisition for strategic purposes vital to the State and for infrastructure projects, where the benefits accrue to general public. Even the scope and am- bit of expression `person interested' is proposed to be expanded to include within its purview the tribal and other traditional forest dwell- ers. The Act also aims to attend a frequently raised question mark on the desirability of State intervention, when land can very well be ar- ranged by the Company through private negotiation on a `willing seller-willing buyer' basis. The desirability to omit provision for acqui- sition of land for Companies under the Act has accordingly been felt. A provision to acquire some land through statutory mechanism in re- gard to limited portion of the total area of the land required, when it CIVIL WRIT PETITION NO. 19927 of 2009 -6- has already been purchased on the basis of `willing seller-willing buyer' is being proposed.
Sometime ago, this Court had made some observa-
tions in this regard while deciding Civil Revision No.1087 of 2006, ti- tled as "The Improvement Trust of Khanna, District Ludhiana Versus Jagjit Singh and others", decided on 15.5.2008.
The Court had observed as under:-
"The present revision petition shall reflect a usual story of the plight of a poor farmer who loses his land due to ac- quisition by the organization like Improvement Trust and then is made to fight in the Courts for getting the ade- quate or the proper compensation for such land. Agreed that the provisions of Land Acquisition Act may have justi- fication keeping in mind the welfare activities of the State and it being in the good of public at large but some thought is required to be spared for a farmer who is made to part with his land, compulsorily, which is `Mother Land' for him.
One may even question as to why there should be compulsion in acquiring somebody's property. There may be a justification for the action of the State or the Trust in ac- quiring property for planned, development on no profit no loss basis but the provisions entitling the State to acquire farmers' land for setting up industries would really not be comprehensible. If any industrialist wants to set up an in- dustry and is interested in a particular land, this must be by CIVIL WRIT PETITION NO. 19927 of 2009 -7- negotiations with the farmers and on his agreeing to sell rather than by a compulsory acquisition. Not only the land is acquired but farmer is then left high and dry to make rounds in the Court starting from the Acquisition Collector. He is made to repeat his rounds even after settlement of the rates about compensation while seeking to realise the same. By the time, he gets the amount, value of the money is negligi- ble. He, thus, loses land and is unable to get anything. He is ruined literally."
Even there is re-thinking on this Bill. May be, it is because of the recent upheaval of the farmers, objecting to such compulsory acquisition for private builders. Earlier, the land was acquired even for a purpose to set up Golf Course and commercial complexes which was termed as a `public purpose'. The Govern- ment policy of forcible acquiring private property for public purpose is certainly different from market purchase of land. The amendment introduced in 2007 Bill was primarily meant to address aspect of compensation and resettlement of displaced persons. The project useful to the general public where 70% of the land has already been purchased from willing sellers through free market only could lead to compulsory acquisition of the remaining pockets. Even this of 70:30 formula, is not found acceptable to those opposing the compulsory acquisition for such purposes and it is being suggested that only 10% to 15% of the land required, should be put to com- CIVIL WRIT PETITION NO. 19927 of 2009 -8- pulsory acquisition if the private person is able to purchase 90% of the remaining land. The resettlement and rehabilitation of such oustees has found a primary concern of the Government and one of the process of re-settlement is the allotment of a plot either com- mercial or residential to the land losers, which has accordingly been formulated by various States on the basis of law laid down by Hon'ble Supreme Court.
Note: "Before this judgment could be issued, it is reported in Times Property of Times of India, dated 11.6.2011 that State of Uttar Pradesh has now banned all forcible acquisition and has allowed developers to buy land from farmers directly."
The objection to compulsory acquisition is well re- flected in the happenings in Orissa. It has been widely reported that the State Government has haulted land acquisition for five days, when young kids have joined Anti-Posco Stir, where they continues to have 24x7 vigil to protect their land. Young children aged between 8 to 10 years have been lying on the land instead of going to school. They are backed by their parents and the stir has forced the State to back-track 20 platoons of police force to move out. The right of the State for compulsory acquisition as such, is now a matter of serious concern and the public has come out open to lodge strong protest and are in fighting mode, forcing the Government to amend law. The issue in the present writ petition would need to be examined in this background.
On the asking of this Court, all these policies instructions have been placed on record and are being taken into consideration to decide the various limbs of issues that would arise in CIVIL WRIT PETITION NO. 19927 of 2009 -9- the defences that are generally projected. In order to appreciate the controversy in the above noted context, the facts in CWP No.19927 of 2009 may need a notice in brief.
The petitioner in CWP No.19927 of 2009 was a co-owner and co-sharer of land measuring 25 kanlas and 3 marlas falling in various Khewats, Khatonis and Rectangles in the revenue estate of Village Jharsa, Tehsil and District Gurgaon. He has approached this Court by making reference of a policy instruction issued on 10.9.1987 making a provision that oustees whose 75% land is acquired are required to be offered plots in lieu of their land so acquired on the rates prescribed for the General category. In this context, it is averred that the land to develop Sectors 44 to 46, Gurgaon, was acquired by the State Government on 20.4.1990 and in this regard, notification under Section 4 of the Land Acquisition Act (for short 'the Act') was published. This was followed by another notification under Section 6 of the Act. This evidence is to show that the above referred land in which the petitioner was co-sharer indeed was acquired in the year 1990. It is also disclosed that the policy instructions issued on 10.9.1987, known as Oustees Policy, was modified by issuing another comprehensive policy on 18.3.1992. This policy statedly was further revised on 12.3.1993. There would be a need to refer these policies as the Land Acquisition Collector had given his award in regard to this acquisition on 23.3.1993. It is claimed that the entire land belonging to the petitioner with his co- sharers, was acquired. Another clarification statedly was issued in regard to the policy on 28.8.1998. On this basis, it is urged that the CIVIL WRIT PETITION NO. 19927 of 2009 -10- oustees, whose land was acquired by the respondents, were required to be offered plot as per the provisions made in the policies. These policies as noticed above, were formulated pursuant to the observations made by the Apex Court in Pista Devi's case (supra). Reference would need to be made to various judgments passed by the Court from time to time, where different types of claim of the oustees were considered and various orders passed either allowing or disallowing the claims so as to understand the legal position.
Based on the precedent as well as on the policy, the petitioner approached this Court through CWP No.7252 of 2009, which was disposed of on 14.5.2009 with direction to the respondents to consider the claim of the petitioner for allotment of a plot under Oustees Policy. The HUDA, however, rejected the representation of the petitioner on 2.9.2009 and accordingly, the petitioner has filed this writ petition.
The respondent-HUDA has tried to justify its action in the reply filed in response to the notice. HUDA has not denied that the land owned by the petitioner was acquired for carving out Sectors 44 to 46. It is stated that booking for Sector 45 commenced on 20.5.1997 and booking for residential plot and oustees plot in Sector 46, Gurgaon, had commenced on 11.9.1995. It is conceded that the petitioner was eligible as per the policy dated 9.5.1990 to apply for plot in the same sector in which his land was acquired. Copy of policy dated 9.5.1990 is annexed with the reply. It is stated that there were five co-shares including the petitioner whose land was so acquired, but none of them had applied for plot. On this basis, it is CIVIL WRIT PETITION NO. 19927 of 2009 -11- submitted that the writ petition is liable to be dismissed on the short ground that the petitioner has approached this Court by concealing material facts and has also not disclosed his share in the total land, which was acquired for development of Sectors 44 to 46. Mention is also made that a Committee was constituted to consider the claim of the petitioner for allotment of the plot as per the oustees policy of HUDA. The copy of minutes of this meeting along with the list of oustees applications for allotment of plots in Sectors 49-50, Gurgaon, is also attached with the reply as Annexure R-2/3, where the name of the petitioner figured at Sr. No.6. It is observed that the petitioner is not entitled for the allotment of plot in Sector 49-50, Gurgaon.
In the light of facts as aforementioned, the petitioner has claimed for allotment of plot as an oustee. It is pleaded that in the policy instructions issued from time to time, it has been provided that land owners are entitled for allotment of plot as oustees. Counsel for the petitioner, accordingly, pleads that action of the respondents in rejecting the claim of the petitioner is not justified.
As may be noticed, the claim of the petitioner is declined primarily on the ground that HUDA had commenced the booking for plots in Sector 45 on 20.5.1997 and in Sector 46 on 11.9.1995. The petitioner though a co-sharer, but none of the co- sharer had applied for allotment of plot. It is, thus, stated that writ petition be dismissed on the ground of concealment of material facts.
The stand taken in the reply is contrary to the contents of the rejection order (Annexure P-7). The reasons disclosed for rejecting the claim of the petitioner in Annexure P-7 is CIVIL WRIT PETITION NO. 19927 of 2009 -12- that he did not apply for allotment of a plot at the time of floating of Sectors 44 to 46 with 10% earnest money in terms of conditions of the advertisement. It is mentioned in the impugned order that the petitioner waited far too long in making his claim and in support reliance is placed on an order passed in CWP Nos.103 of 2001 and 5706 of 2005, where some observations are made to the effect that the authorities are not expected to wait for more than 4 years and the person cannot apply at his convenience and seek allotment of plots as oustees.
The reasons advanced to decline the claim of the petitioner has made it necessarily to consider all the policies formulated by HUDA from time to time to see if claim of the petitioner could be declined on the ground as urged either in the written statement or due to those reasons which are contained in the impugned order (Annexure P-7).
Delay seems to be ground pressed for rejecting the claim of the petitioner. In the reply, somewhat different stand is taken to say that the petitioner had concealed the material facts and that he is only a co-sharer and other co-sharers had not approached for allotment of plot. These reasons are different than those contained in impugned order. Would these reasons be valid to reject the claim of petitioner-oustees? This will have to be examined in the light of policies, which have been formulated by HUDA from time to time. Since large number of writ petitions have been connected together for decision through this common judgment, the other reasons advanced to reject the claims of the oustees are also being CIVIL WRIT PETITION NO. 19927 of 2009 -13- considered in the light of various policies that are framed from time to time.
The process of forming policy initially commenced with the advent of Pista Devi's case (supra). In this case, notification to acquire the land for city of Meerut was under
challenge. The said notification was set aside on the ground that the emergency provision under Section 5-A of the Act was invoked but there was delay of one year between the publication of notification under Section 4 and the date of declaration made under Section 6 of the Act. That order was challenged by the State of UP before the Hon'ble Supreme Court. It was urged before the Supreme Court that many of the persons from whom the land was acquired were those, who were without houses or sites for shops and if they were to be thrown out of their land, they will be exposed to serious prejudice. It was, accordingly, urged that since the land was being acquired for providing residential accommodation to those, who were being expropriated on account of the acquisition proceedings would also be eligible for same relief at the hands of the Meerut Development Authority. The Supreme Court then made reference to the provisions contained in Section 21(2) of the Delhi Development Act, 1957 and observed as under:-
"Although the said section is not in terms applicable to the present acquisition proceedings, we are of the view that the above provision in the Delhi Development Act contains a wholesome principle which should be followed by all Development Authorities throughout the country when they acquire large tracts of land for the CIVIL WRIT PETITION NO. 19927 of 2009 -14- purposes of land development in urban areas. We hope and trust that the Meerut Development Authority, for whose benefit the land in question has been acquired will as far as practicable provide a house site or shop site of reasonable size on reasonable terms to each of the expropriated persons who have no houses or shop buildings in the urban area in question".
The counsel for the petitioner submits that these observations formed the basis for various States to formulate policies for allotment of plots to those whose land was acquired. The State of Haryana apparently came out with policy of allotment of residential plots/commercial sites to the oustees in the various Urban Estates being set up by HUDA. The first policy seems to have been formulated on 10.9.1987. It was decided that the plots to the oustees be only offered if they were owner of the land proposed to be acquired for one year before the issue of notification under Section 4 of the Act and that the plots could be allotted only if 75% of the land owned by the landowners was acquired. In this regard, following provisions were made in the policy:-
"(i) Among others, those who own lands upto 500 sq. yards should be offered a plot of 100 sq. yards, those who own land more than 500 sq. yards to one acre, should be offered plot of 250 sq. yards and owners of larger lands should be offered plots of 350 sq. yards.
(ii) If there are a number of owners for particular land, effort should be made to accommodate them subject to the limit of one plot of 250 sq. yards for CIVIL WRIT PETITION NO. 19927 of 2009 -15- every acre of land acquired. Such plots should be offered to the person, whom he files an affidavit to the effect that he does not hold any house/shop or plot in that town. This condition will be in confor-
mity with the decision of the Hon'ble Supreme Court in Pista Devi's case."
Thus, the person whose land upto 500 sq.yards was acquired was to be offered a plot of 100 sq. yards and whose land was more than 500 sq. yards to one acre, was to be offered a plot of 250 sq. yards. The owners of larger tracts of lands were to be offered plots of 350 sq. yards. It is clearly noticed that the policy was formulated due to observations made in Pista Devi's case (supra) as is noted in the policy itself. These conditions were to be in conformity with the decision of the Hon'ble Supreme Court in Pista Devi's case (supra), reference of which was made in the Policy itself. The landowners were also to be given compensation for their land, which was acquired and they were to pay for these plots at the normal allotment rate of HUDA. Those persons, who had houses in the area acquired and if these were released were to pay development cost for portion of their land so released. The persons whose part of land or some houses have been released from the acquisition and the remaining land was acquired were not to be considered in the category of oustees for allotment of plots.
It would be significant to notice as to what obligation was put on the part of the HUDA in this regard as is mentioned in the policy. It is provided in the policy that on the basis of number of cases decided by the Hon'ble Supreme Court, land should be allotted CIVIL WRIT PETITION NO. 19927 of 2009 -16- for a house/shop to all those persons, whose land had been acquired. Legally, it became the responsibility of HUDA to allot/reserve some commercial sites for oustees. Though the commercial sites/buildings were to be sold by auction, but such sites/building could also be considered for allotment to the oustees on reserved price when the auction for the same was held. The relevant part of the policy in this regard is as under:-
"The Hon'ble Supreme Court has also decided in a number of cases that land should be allotted for a house/shop to all those persons, whose land has been acquired. Legally, it becomes the responsibil- ity of Haryana Urban Development Authority to al- lot/reserve some commercial sites for oustees. (emphasis added) The commercial sties/buildings are sold by auction and under these circum-
stances, such sites/buildings could be considered for allotment to oustees on reserve price and when the auction for the same is held. As and when these sites/buildings are put to auction, the ous- tees who want to purchase the sites/buildings could represent forehand for allotment so that req- uisite number could be reserved for them."
The Policy instructions dated 10.9.1987 were further fine tuned by another policy instructions issued on 9.5.1990. It is noticed in this policy that there appeared to be certain ambiguities in the instructions of the Authority to give plots in lieu of oustees land acquired on certain conditions. This policy was, accordingly, issued to remove these ambiguities in the decision, which formed the basis of the earlier policy instructions. It was CIVIL WRIT PETITION NO. 19927 of 2009 -17- provided as under:-
i) Plots to the outstees may be offered if the land proposed to be acquired is under the ownership of the oustee for a continuous period of five years be-
fore the publication of the Notification under Sec- tion 4 of the Land Acquisition Act and if 75% or more of the total land owned by the landowners in that Sector is acquired.
ii) Oustees whose land acquired is :
a) Less than 500 sq.yards would be of-
fered a plot of 40 sq.yards.
b) Between 500 sq. yards and one acre would be offered a plot of 250 sq. yards.
c) More than one acre should be offered a plot of 350 sq. yards.
Iii) In case, there are a number of co-sharers for the land acquired, such co-sharers be accommo-
dated by offering one plot each of 250 sq. yards subject to the condition that the land acquired is at- least one acre. In case acquired land of the co-
sharer is less than one acare, then only one plot of 250 sq. yards may be allotted in the joint name of the co-sharers.
iv) Such plots should be offered to the oustees only if he does not own any house/shop/plot in any of the Urban Estates of that town.
v) The persons whose house or part of land has been released from acquisition shall not be consid- ered under the category for allotment of such plots.
vi) Allotment of plots to the oustees will be made at the normal sector rates of HUDA.
CIVIL WRIT PETITION NO. 19927 of 2009 -18- As regards allotment of commercial sites to the oustees, the matter is under re-examination and the decision as and when arrived at would be communicated.
Claims of the oustees shall be invited be-
fore the Sector is floated for sale. (emphasis added by me) These instructions may be brought to the notice of the all concerned."
Two significantly changes can be noticed. One is relating to the area of plot to be so offered and other regarding the right of the co-sharer. It was provided that all the co-sharers would be accommodated by offering one plot each of 250 sq. yards, subject to the condition that land acquired was at least one acre. In case, the land acquired was less than one acre, then only one plot of 250 sq. yards was to be offered. A condition that the oustees should be offered plot only if he did not own a house or plot in any Urban Estates was also imposed. The persons whose house or part of land was released were not to be considered for allotment. Though earlier a provision to allot commercial site was made, but in these instructions it was provided that matter regarding allotment of commercial sites was under re-examination and the decision as and when arrived was to be communicated. Important aspect introduced in this policy also was that HUDA was obligated to invite claim of the oustees before the Sector was floated for sale, as emphasised above.
Yet another policy was issued on 18.3.1992. This CIVIL WRIT PETITION NO. 19927 of 2009 -19- policy issued after consideration in a meeting, which was chaired by the then Hon'ble Chief Minister. A decision was taken to offer plots to oustees, if they were owner of the proposed land to be acquired on the following terms and conditions:-
"i) Plots to the oustees would be offered if the land proposed to be acquired is under the ownership of the oustee prior to the publication of the Notifica-
tion under Section 4 of the Land Acquisition Act and if 75% or more of the total land owned by the landowners in that Sector is acquired.
ii) Oustees whose land acquired is:
a) Less than 500 sq. yards would be offered
a plot of 50 sq. yards.
b) between 500 sq. yards and one acre
would be offered a plot of 250 sq. yards.
c) from one acre and above should be of-
fered a plot of 500 sq. yards or where 500
sq. yards plot are not provided in the Lay-
out plan, two plots of 250 sq. yards each
may be given.
iii) the above policy shall also apply in case there are a number of co-sharers of the land, which has been acquired. If the acquired land measurers more than one acre, then for the purpose of grant- ing benefits under this policy, the determining fac- tor would be the area owned by each co-sharer re-
spectively as per his/her share in the joint holding. In case the acquired land of the co-sharer is less than one acre, only one plot of 250 sq. yards would be allotted in the joint name of the co-sharers.
iv) If the land of any landowners is released from acquisition, he/she would not be eligible to avail of CIVIL WRIT PETITION NO. 19927 of 2009 -20- any benefit under this policy (irrespective of the area of land released).
v) As per the policy, the oustee shall be entitled to a developed plot/plots. The size of which would de- pend upon the area of his acquired land, subject to a maximum of 500 sq. yards. The oustee shall be entitled to this benefit under this policy only once in the same town where his land was situated/lo-
cated. However, in case where the land of a per-
son situated in the same town is acquired in pock- ets at different times, the owner shall be entitled to claim the benefit on account of the entire area ac- quired (at different times) for purpose of claiming the benefit under this policy.
vi) Allotment of plots to the oustees will be made at the allotment rates advertised by the Haryana Ur- ban Development Authority for that sector. Land owners will be given compensation for their land which is acquired.
Claims of the oustees for allotment of plots under this policy shall be invited by the Estate Officer, Haryana Urban Development Authority concerned before the sector is floated for sale. (emphasis added)
vii) the commercial sites/building are sold by auc- tion. The sites/buildings be also allotted to oustees on reserve price as and when the auction of the same is held. While putting such sites/buildings to public auction, the oustees who want to purchase the sites/buildings could represent before hand for allotment, so that requisite number could be re- served for them. However, if the area acquired of the commercial site is equivalent or less to the area of booth/shop-cum-flat being auctioned by CIVIL WRIT PETITION NO. 19927 of 2009 -21- HUDA, they may be given a booth/SCO sites keep-
ing in view the size of acquisition under this policy." There were a few noticeable changes made in this policy, but the obligation on the part of HUDA to invite claims of the oustees was continued in this policy instruction as well. The determining factor for deciding the area of a co-sharer in a joint holding was also provided. If the land acquired was less than one acre, only one plot of 250 sq. yards was to be allotted in the joint name of the co-sharers. The allotment of plots to the oustees was required to be made as per the allotment rates advertised by HUDA. Landowners were entitled to compensation for the land acquired. Instructions also contained a provision for allotment of commercial/ building sites to the oustees on reserve price. The oustees were given a right to represent if he wanted to purchase the site/building, so that requisite number could be reserved for them. If the area acquired for the commercial sites was equivalent or less to the area of booth/shop-cum-flat, then the oustees could be given a booth/S.C.O. sites keeping in view the size of the area acquired.
Then came another policy on 12.3.1993. This primarily was issued to provide for procedure to examine claims, which were found to be open ended. A decision was taken that the benefit under the oustees policy is not to be allowed to those oustees who have got residential/commercial plots from HUDA in that Urban Estate. This restriction was not to apply to those oustees, who might have acquired property there otherwise. Benefit under this policy was restricted to one plot according to the size of holding irrespective CIVIL WRIT PETITION NO. 19927 of 2009 -22- of the number of co-sharers. Through this policy, it was provided that Screening Committee should settle the claims within the time frame as indicated in the policy. A monthly progress report was also to be sent to the Head Office by the respective Administrators in respect of each Urban Estates on the proforma attached with the policy and the claims were required to be settled promptly. In this regard, it was provided:-
"It may also be ensured that future claims are settled promptly to ward-off un-necessary correspondence and litigation in the matter."
Along with this policy, a format of the application for making a claim was also provided. In addition, a detailed procedure for inviting, scrutinizing and deciding the claims and mode of allotment to the oustees, was laid down in Annexure A annexed with the policy. It would be appropriate to notice the same and this was as under:-
"(i) Filing of Claims.
L.A.O. concerned will prepare a list of eli-
gible oustees at the time of announcement of award and send the same to the Estate Officer for reference and record. The Estate Officer con-
cerned shall invite the claims through press/new- papers for allotment of plots under the oustees pol- icy much before floatation of the sector.
(emphasis added) Each applicant would be required to send the application in the prescribed proforma, alongwith the supporting documents and earnest money equivalent to 10% of the cost of the plot of the sector in question and if the price has not been determined till then, of the previous CIVIL WRIT PETITION NO. 19927 of 2009 -23- sector floated in the same urban estate.
(ii) The allotment of plots under oustee policy be restricted to the claimants within the sector for which the land has been/is being acquired.
(iii) The past claims which have also been
received in different offices of HUDA/Urban
Estates for allotment of residential plots under Oustee policy be scrutinized by the proposed Committee in terms of the policy applicable at the relevant time. Such past claims will be considered and got decided within a time-frame of 4 months, as one time measure.
(iv) The onus to file the claims under oustee policy shall rest with the claimants and Estate Officer concerned will publish a public notice through press/New Paper for inviting such claims within one month of taking possession of the land. However, the record of LAO's office will be consulted for verification of these claims by a Screening Committee, constituted for the purpose.
(v) Scrutiny and acceptance of claims.
The documents received with the
application will be scrutinized with reference to the record supplied by LAO. For the purpose a Screening Committee is proposed to be constituted, which will make its recommendations within one month of the last date of filing of the claims:-
1. Zonal Administrator Chairman (concerned)
2. Land Acquisition Officer Member of the area
3. District Town Planner Member of the area
4. Estate Officer of the Member CIVIL WRIT PETITION NO. 19927 of 2009 -24- Urban Estates Secretary The Committee shall forward its recommendations to the Chief Administrator for accepting the claims of such applicants.
(vi) Mode of allotment
After the claims have been finally
accepted by the Competent Authority, the
applicant's claim will be kept in a live register and applicants shall be asked to deposit the earnest money equivalent to 10% of the cost of the plot as and when sector scheme is to be floated. The allotment of plots to such claimants shall normally be done prior to or atleast alongwith other applicants, who have been declared successful in the draw of lots after the floatation of the scheme.
By doing so, the number of plots, which are to be offered in general draw will be identified after the claims of the oustees have been scrutinized/accepted and the residual plots are earmarked for the general draw. Those allottees who do not prefer their claims within the stipulated period alongwith requisite information will have no right for consideration of their claims after the general draw is over in respect of that sector."
From above, it can be noticed that LAO concerned was under obligation to prepare a list of eligible oustees at the time of announcement of award and sent the same to the Estate Officer concerned for reference and record. The Estate Officer was to invite the claims through press/News-papers for allotment of plots under the oustees policy much before floatation of the sector. This aspect CIVIL WRIT PETITION NO. 19927 of 2009 -25- of the policy would need to be noticed with special emphasis as there was some debate in regard to the requirement or obligation on the part of the HUDA, in regard to the manner of inviting claims. Undoubtedly, the policy itself provided that the Estate Officer shall invite the claims through press/News-papers and the Estate Officer was to do so much before floating of the sector. Of-course the oustee was required to make an application on the prescribed proforma as referred to above along with supporting documents as well as 10% of the cost of plot. The onus to file claim rested with the claimant but only when the Estate Officer had invited claim by way of public notice through press/News-Papers within one month of taking possession of the land. Screening Committee was constituted to make recommendation. The claim when finally accepted by the competent authority was to be kept in a live register and the applicant was to be asked to deposit the earnest money equivalent to the 10% of the cost of the plot as and when the sector scheme was to be floated. The allotment of the plots to such claimants was normally to be done prior to or at least along with other applicants, who had been declared successful in the draw of lots after the floatation of the sector. The plots, which were to be offered in general draw could be identified only after the claims of the oustees had been scrutinized/accepted and the residual plots were to be earmarked for the general draw. Those allottees, who did not prefer their claims within the stipulated period along with requisite information were to loose their right for consideration of their claims after the general draw was over in respect of that sector.
CIVIL WRIT PETITION NO. 19927 of 2009 -26- During this time, only yet another development took place in the form of case of Savitri Devi Versus State of Haryana and others, 1996 PLJ 449. Savitri Devi was a claimant of allotment of a plot being oustee for her land, which was acquired between the year 1982-86. She had filed a writ petition seeking direction for allotment of plot in lieu of her land under the policy framed by the Government and on the basis of law laid down in Pista Devi's case (supra). The question whether the erstwhile holder would be entitled to allotment of a site, thus, came up for consideration in this case. Hon'ble supreme Court after noticing a part of one policy held that oustee would be entitled to be considered for allotment. Merely because the land was not utilized after acquisition, would not automatically disentitle an oustee to an allotment. Subject to certain guidelines, their claims could be considered. Savitri Devi was, thus, held entitled to file application before the competent authority, which was to consider the same and dispose it off in accordance with rules/policy.
Then came to another policy dated 28.8.1998. This was mainly to change the policy which had earlier contained a provision to restrict the allotment within the sector for which the land was acquired. This restriction had created some practical problems at the implementation stage. It was, therefore, decided that if the plot under policy can not be offered to the oustees in the same sector, they had to be offered a residential/commercial plot in the next residential sector of that Urban Estate, which may be floated and developed by HUDA. The reasons for this to an extent were also CIVIL WRIT PETITION NO. 19927 of 2009 -27- noticed in the policy. If some land was acquired for development other than residential/commercial like recreational sector or group housing societies and industrial purposes etc. then the oustees/landowners were left totally out of the purview of the policy for allotment of plots and this was to address to this anomaly.
On 27.3.2000, another policy was issued in partial modification of the existing oustee policy and for extending scope thereof. The necessity to issue this policy seems to have arisen because of a decision by this Court in the case of Suman Aneja Versus State of Haryana, 1993 (3) PLR 377. The issue before this Court related to those oustees whose land was acquired on or before 10.9.1987 and their eligibility to seek a residential plot. This Court had viewed that where the land was acquired prior to 10.9.1987 and the plots were still available, then while floating the plots of such land, the oustees claim was also to be invited and they were to have prior right for the allotment of plots.
While all this was happening, the Ministry of Rural Development Department of Land Resources, Government of India came out with the National Rehabilitation and Resettlement Policy in the year 2007. This policy seems to have made drastic change in the field of resettlement and of fair compensation which till then have generally been neglected. It is noticed that acquisition of private property leads to involuntary displacement of people, depriving them of their land, livelihood and shelter. Such acquisition restricts the access of farmer to traditional resource base, and uprooting them from their socio-cultural environment. It was then noticed that for a CIVIL WRIT PETITION NO. 19927 of 2009 -28- traumatic, psychological and socio-cultural consequences on the affected population, there was a need to call for protecting their rights in particular of the weaker sections of society including the members of Scheduled Castes, Scheduled tribes or Marginal farmers and women. Reference is also made to National Policy of Resettlement and Rehabilitation for project affected Families, which was formulated in the year 2003. It is noticed that there were many issues addressed by the policies, which needed review. As given in the policy, there should be a clear perception through a careful quantification of the cost and benefits that will accrue to the society at large of the desirability and justifiability of each project. The adverse impact on the affected families, economic, environment, social and cultural was needed to be assessed in a participatory and transparent manner. It was, accordingly, noticed that a National Policy must apply to all projects, where involuntary displacement takes place. One of the considered purpose of the policy was to ensure minimize the large-scale displacement by acquiring minimum areas of land. Desirability of setting up the project on the waste land, degraded land or un-graded land, as far as possible, was advocated. Acquisition of the agricultural land for non-agricultural use in the project was to be kept to the minimum and multi-cropped land was to be avoided to the extent possible. Irrigated land, if unavoidable for possession, was to be kept to the minimum. It was further noticed that where large number of families are to be affected, it must be made mandatory rule for social assessment and provide all required infrastructural facilities and amenities in the resettlement area. CIVIL WRIT PETITION NO. 19927 of 2009 -29- Where the Scheduled Tribes people were to be displaced in sizeable numbers a well thought out Tribal development Plan was to be put in place. A time frame was to be specified for implementing the rehabilitation package as well as utilization of the land. Many State Governments, Public Sector Undertakings or agencies, and other requiring bodies were given liberty to put in place greater benefit levels than those prescribed in the policy so formulated. The objectives of the National Rehabilitation and Resettlement Policy are contained in Chapter II, which can be summarized as follows:-
"(a) to minimize displacement and to promote,
as far as possible, non-displacing or least-
displacing alternatives;
(b) to ensure adequate rehabilitation package
and expeditious implementation of the rehabilitation process with the active participation of the affected families;
(c) to ensure that special care is taken for protecting the rights of the weaker sections of society, especially members of the Scheduled Castes and Scheduled Tribes, and to create obligations on the State for their treatment with concern and sensitivity:
(d) to provide a better standard of living, making concerted efforts for providing sustainable income to the affected families;
(e) to integrate rehabilitation concerns into the development planning and implementation process;
and
(f) where displacement is on account of land
acquisition, to facilitate harmonious relationship between the requiring body and affected families through mutual cooperation."
CIVIL WRIT PETITION NO. 19927 of 2009 -30- The definition of various expressions used in this policy is contained in Chapter III. Issue of social impact assessment is referred to in Chapter IV. Chapter V deals with appointment of Ad- ministrator and Commissioner for rehabilitation and resettlement and their functions. Chapter VI deals with rehabilitation and resettlement plan. Chapter VII deals with rehabilitation and resettlement benefits for the affected families. It is important to notice that for this policy the resettlement benefits are to be extended to all the affected fami- lies which are eligible on the date of publication of declaration. A pro- vision has been made to the extent that any affected family owning house or whose house has been acquired or lost may be allotted free of cost house site to the extent of actual cost of area of the acquired house but not more than 250 sq. mtrs of the land in rural area or 150 sq. mtrs of land in urban areas as the case may be for each nuclear family. The provision was also made for the below poverty line fami- lies, which are without homestead land and which have been residing in the affected area continuously for a period not less than three years preceding the date of declaration of the affected area. In case of irrigation or hydel projects, the affected families are to be given preference in allotment of land-for-land in common area of the proj- ect, to the extent possible. The land or houses allotted to the affected families under this policy shall be free from all encumbrances. There are large number of such beneficial provisions made in this policy. The provisions have also been made for rehabilitation or resettlement benefit for the project affected families belonging to Scheduled Tribes and Scheduled Castes. Then, there is also a provision for amenities CIVIL WRIT PETITION NO. 19927 of 2009 -31- and infrastructural facilities provided at the resettlement areas. The provision was also made for grievance redressal mechanism and pe- riphery development. The provision for monitoring mechanism was also provided in this policy. This policy apparently had made another departure in the field of land acquisition and development under rural areas. It has made an attempt to cater for the needs and necessity of the farmers, who are dislodged on account of compulsory acquisition.
The details provided in the policy as noticed above would clearly reveal the purpose and thinking of the Government in this regard. Primarily, keeping this policy in view, the State of Hary- ana has also issued a notification dated 7.12.2007 making a provi- sion for rehabilitation and resettlement of land owners-land acquisi- tion oustees. Landowners were to be now paid annuity for 33 years over and above the usual land compensation. The amount of annuity will be ` 15000/- per annum. It will be increased by a fixed sum of ` 500/- every year. Where the land is acquired in terms of the Land Ac- quisition Policy for setting up Special Economic Zone/Technology Cities, Technology Parks, then in addition to rehabilitation and reset- tlement package a sum of ` 30000/- per acre per annum was to be paid for the period of 33 years by private developers and this annuity will be increased by ` 1,000/- every year. The policy is also made applicable to all cases of land acquisition by the Government except land acquired for defence purposes.
In this policy, allotment of plots by Haryana Urban Development Authority and Haryana State Industrial Infrastructure Development Corporation Ltd.( HSIIDC) was also noted. Allotment CIVIL WRIT PETITION NO. 19927 of 2009 -32- was to be made to each co-sharer depending upon his share in the land acquired for HUDA and HSIIDC. The plots were to be offered if the land acquired is under the ownership of oustees on the date of publication of notification under Section 4 of the Land Acquisition Act and if 75% or more of the total land was owned in the Urban Estate was acquired. The benefit given was only one time, though the land may be acquired in different pockets at different times. If the land owner becomes entitled for a bigger size plot due to subsequent ac- quisition then the differential of the plot already allotted to him was to be allowed. If it was not allowed in those cases, where the land is re- leased the maximum size was noticed. Since livelihood of the farmer predominantly depends upon his agriculture, so in order to provide the affected land owners/farmers a long term sustainable source of income, commercial sites measuring 2.75X2.75 mtr. in addition to the residential plot, may also be allotted by HUDA. Such allotment again was to be made to each of the co-sharer provided the share exceeds 2.5 acres. Otherwise, all co-sharers was to get single site allotment. When the land was acquired for the purpose other than residential sectors, then the plots as mentioned were to be allotted in the resi- dential sector to be developed next in that Urban Estate. Provision was also made for setting up a village social infrastructure. The sale price of residential plots was to be kept as the issue price of the re- spective plot and in respect of commercial area the sale price was to be three times from the normal price of the residential plot. The policy was also to apply to the landowners whose residential structure/houses/dwelling units fall within alignment of essential infra- CIVIL WRIT PETITION NO. 19927 of 2009 -33- structure and was acquired under urgency clause. The sizes of the plots for allotment vis-a-vis the acquisitions were also laid down in the policy instruction.
Though issued in the year 2007, the policy was made applicable and effective w.e.f. 5.03.2005. On the basis of this policy issued by the State of Haryana, it was made applicable to the HUDA as well. The HUDA also issued separate instructions for fram- ing a policy for rehabilitation and resettlement of land acquisition. This was on the basis of a communication dated 28.4.2008 issued by the Chief Administrator, HUDA, whereby reference was made to the policy issued by the State Government on 7.12.2007. This policy was made applicable to HUDA w.e.f. date mentioned in the notification. Besides detailed guidelines were issued for reevaluation of this pol- icy. The salient features of the same may need a notice.
Speedy and organized economic development of urban area may have necessitated various Governments to consti- tute authorities to look into this aspect. Provisioning of facilities for public at large or providing infrastructure may have necessitated the exercise of legal powers by the State under the principle of Eminent Domain for acquisition of private property but no thought was ever apparently given to the plight of those who were involuntarily dis- placed and were deprived of their land, livelihood, shelter etc. These were those persons whose traditional base was agriculture and com- pulsory acquisition of their land not only deprived them of their re- source base but led to their uprooting from their socio-cultural envi- ronment in which they were living for centuries together. Such down- CIVIL WRIT PETITION NO. 19927 of 2009 -34- trodden and poor agriculturists had borne the warrant of the State power silently for number of years. The Government authorities or lately the private builders build empires at the cost of these poor downtrodden farming communities. The recent violent trend on their part seems to be the outburst of this oppression, which has contin- ued far too long. As already noticed, this Court, sometime ago, had made some observations in regard to the State exercising power of eminent domain to acquire an agriculture land for the benefit of urban development or for some private developers by expressing as to why the Government should acquire such land and hand over to a private builder. Why such person should not be asked to approach the owner of the land, if he was interested in disposing it off at a rate which is acceptable and agreed by land loser? The National Rehabili- tation and Re-settlement Policy issued in the year 2007, which has been noticed in detail above, appears to have addressed this prob- lem. What happened to such compulsory acquisitions in some of the States, perhaps may have woken up the authorities from the slumber and there is now even a move to introduce amendment in the Archaic Land Acquisition Act legislated in the year 1894.
The problem confronting this Court in large number of petitions while dealing with the oustees claim is to be analyzed, examined and decided in the background of this changing trend and thinking and not by confining to the strict corners of certain policies that may have been framed from time to time, which have been fine tuned with the passage of time. The latest policy introduced by the State of Haryana has taken into consideration the hapless plight of CIVIL WRIT PETITION NO. 19927 of 2009 -35- such marginal farmers, who are land losers by making a provision for grant of annuity. Though introduced in the year 2007, the policy has been given a retrospective effect with effect from 5.3.2005 and is to cover all those cases of acquisition in which awards of compensa- tions were announced on or after 5.3.2005. Majority of the petitioners presently before this Court may not be covered by this policy. Their claims have to be considered in the light of relevant policies and in terms of the case law that has been cited before the Court, which would regulate some aspects of these policies. It would, thus, be ap- propriate to sum up the gist of these policies and the changes that have taken place so as to properly appreciate and consider the claim of the petitioners before the Court.
Observations made by the Hon'ble Supreme Court in Pista Devi's case (supra), primarily led to formation of these poli- cies. What was viewed was very significant and the Court had ex- pressed its hope and trust that the authorities concerned for whose benefit the land was acquired, would provide a house, site or a shop site of a reasonable size on reasonable terms to those who were the land losers and had no house or a shop, building in an urban area in question. These observations made in the year 1986, led to first pol- icy on 10.9.1987 (for short, "1987 policy"). Apart from laying down conditions and eligibility for allotment of a plot, whose land was ac- quired, the policy made a provision in regard to the responsibility of HUDA to allot/reserve some commercial sites for oustees. Though, it is stated in the policy that as and when these sites/buildings are put to auction, the oustees who want to purchase the sites/buildings CIVIL WRIT PETITION NO. 19927 of 2009 -36- could represent forehand for allotment so that the requisite number could be reserved for them but there was no provision made as to how such persons would apply and how they were to be informed of the proposed or impending auctions. Once the responsibility was fas- tened on to the HUDA to consider and allot the claims of land losers, the responsibility ought to be that of HUDA alone to invite applica- tions in some form to give a reasonable and fair chance and opportu- nity to all those who were desirous of getting such allotments. It would need to be observed here that it was not any favour being shown to such land losers. Rather they were really the losers and the aim was only to compensate them or to rehabilitate or re-settle them. No doubt, they were to receive compensation for the land acquired but the allotment to such persons of the plots was to be at a normal allotment rate.
The problem area in this policy obviously was felt by those who could not learn about the floating of a sector and claims of some of such entitled persons were negated on the ground that they had applied late or their land was acquired prior to 10.9.1987, when there was no policy in this regard. This Court, to an extent, balanced equities in such like cases where the land was acquired prior to 10.9.1987 in the case of Suman Aneja's case (supra) by taking a view that if the sector was floated for sale prior to 10.9.1987 and the plots had not been disposed of and were still available for being allot- ted, then the oustees should have the prior right to be rehabilitated.
The policy instructions dated 9.5.1990 (for short, "1990 policy") statedly were issued to remove ambiguities in some re- CIVIL WRIT PETITION NO. 19927 of 2009 -37- spect rather introduced stringent conditions. The 1987 policy made a provision for allotment of plot to those land losers who were owners of the proposed land to be acquired for one year whereas 1990 pol- icy made this condition of ownership for continuous period of five years. There was some change in the dimensions of the plots to be allotted on the basis of the extent of land acquired. Provision was made for co-sharers and each co-sharer was to be offered 250 Sq.Yards plot where the land acquired was one acre. In this policy, the obligation, which ought to have been put on HUDA was clearly so laid down by providing that the claims of the oustees shall be invited before the sector was floated for sale. Still, there was no mechanism or manner provided for inviting such claims. This policy did not super- sede the earlier policy issued in the year 1987 and was only to amend the existing policy and was issued to remove the ambiguities. It can, thus, safely stated that responsibility to invite claim before floating the sector for sale had been visualized while issuing 1987 policy and this aspect would had fairly to be applied to the claims that may have matured between 1987 to 1990.
Both the policies were then further fine tuned on 18.3.1992 and certain changes were also introduced in regard to eli- gibility and entitlement of the plots and the sizes thereof. The plots were to be offered if the land proposed to be acquired was under the ownership of the oustees prior to publication of the notice under Sec- tion 4 of the Land Acquisition Act. Thus, the conditions of one year in the 1987 policy and five years in the 1990 policy were given go-bye. Some changes were also made in regard to right of a co-sharer. If CIVIL WRIT PETITION NO. 19927 of 2009 -38- the land acquired was more than one acre, then the area owned by each co-sharer was made the determining factor for allotment of the plots. Where the land acquired was less than one acre, then only one plot of 250 Sq.Yards was to be allotted in the joint names of all co- sharers. The allotment was to be made at the allotment rate adver- tised by HUDA. The obligation to invite claims of the oustees for allot- ment of plots was put on the Estate Officer, HUDA and was to be done before the sector was floated for sale. Again, how to invite these claims was not found reflected. One thing, however, is clear and certainly provided is that such claim was to be invited prior to floating of the sector for sale.
The doubt, if any, in this regard was clearly dis- pelled by the policy instructions dated 12.3.1993. The procedure for inviting, scrutinizing and finally selecting the claims of oustees was made and annexed with this policy as Annexure A. Since the obliga- tion was put on the Estate Officer to invite applications, this policy provided for a method to invite claim and it was to be through press/newspapers for allotment of plots under `oustees policy' and this was to be much before floating of sector. As per the mode of al- lotment, the claim of the applicants was required to be kept in a live register and the applicants were required to deposit earnest money equivalent to 10% of the cost of the plot as and when the sector scheme was to be floated. The allotment of plots to such claimants was to be done prior to or atleast alongwith other applicants who have been declared successful after the flotation of the scheme. Number of plots to be offered in a general draw were to be identified CIVIL WRIT PETITION NO. 19927 of 2009 -39- after having considered the claims of oustees and only the residual plots were to be offered for general draw of lots. Once the claims had been so invited and if any allottee had failed to prefer the claim within the stipulated period, then he was to loose right for consideration of his claim.
This Court had to deal with the situation where the respondent-HUDA in considering the claim of oustees in violation of the policies had put the name of such oustees alongwith the general draw of lots. In the case of Dharampal Vs. State of Haryana and others, 2006 (2) ILR Punjab and Haryana 291, the land of the peti- tioner was acquired on 5.11.1996. The petitioner applied for allot- ment of 10 marlas plot on 18.11.2002. His claim was considered in the draw of lots meant for General Category. The petitioner in this case pleaded that this ought to have been considered separately un- der the `oustees quota' as envisaged by the policy dated 10.9.1987 and 12.3.1993. This Court has held that the policy instructions recog- nize the right of an oustee as a separate category and none of the policies envisages consideration of oustees in a draw of lots meant for General Category. The Court then made reference to the relevant provisions of these policies and to the mode of allotment, as was pro- vided in policy instructions dated 12.3.1993. The Court in this case has observed that in none of the policies, it is envisaged that the cases of oustees were to be considered in the draw of lots alongwith General Category. The category of oustees has been considered as a distinct and a separate category requiring a different and a distinct treatment. The respondents were found to have treated both the dis- CIVIL WRIT PETITION NO. 19927 of 2009 -40- tinct categories alike, which was held to be in flagrant violation of policies. Directions, therefore, were issued to allot the residential plot to the petitioner measuring 10 marlas within a period of two months from the date the certified copy of the order was produced before the respondents.
The decision to restrict allotment of a plot to an ous- tee in a sector in which his land was acquired, was given go-bye through a policy dated 28.8.1998 on the ground that this was creating a problem at the implementation stage. It was noticed that some- times the land acquired was for the purpose other than residential, like commercial, recreation etc. and those particular sectors were to- tally out of the purview of the entitlement of land losers to an allot- ment. Through this policy, a provision was made for allotment of a plot in the next residential sector, which may be floated by HUDA. The policy instructions dated 27.3.2000 were issued as a follow up to the decision of this Court in Suman Aneja's case (supra) and deci- sion was taken to allot the plots to those oustees, whose land has been acquired prior to 10.9.1987 but plots were still available. In fact, a Division Bench of this Court in Sirya Devi Versus State of Hary- ana (Civil Writ Petition No.17565 of 2003) decided on 6.7.2004, had upheld the right of an oustee to allotment of a plot by making ref- erence and reliance on the case of Savitri Devi (supra) and Jaland- har Improvement Trust Vs. Sampuran Singh, AIR 1999 Supreme Court 1347. The denial in one of these cases was on the ground that the land had been acquired for the industrial estate and not for resi- dential colony. This Court did not accept this contention as valid de- CIVIL WRIT PETITION NO. 19927 of 2009 -41- fence and held that the petitioner shall be entitled to a residential plot. This aspect, in any case, was formalized as a policy, as already noted. Thus, the action of HUDA to deny allotment on the ground that the plot is not available in the sector where land is acquired may not be justified in the policy and the reason behind issuing this policy. This reasoning would equally apply to all the cases under considera- tion even before this policy came into being.
Having considered the policies and the law laid down, the stage is now set to consider the claim of individuals in these writ petitions in the light of policy instructions and the law that would emerge from various judgments.
Civil Writ Petition No.19927 of 2009 In this case, as already noticed, the claim of the pe- titioner has been declined primarily on two grounds that there are five co-sharers but no co-sharer has applied for plot. The right of the peti- tioner and his eligibility is not much in dispute. Defence also is that the petitioner has not disclosed his share in the total land, which has been acquired and so a Committee was constituted to consider the claim of the petitioner, which has held that the petitioner is not enti- tled to allotment of a plot in Sectors 49-50, Gurgaon. The reasons for which the Committee has held the petitioner not entitled for allotment are not forthcoming. Since this is a second approach on the part of the petitioner, his earlier writ petition having been disposed of with a direction to the respondents to decide his claim, which was rejected through Annexure P-7, the reason to an extent can be noticed from the impugned order, Annexure P-7. The delay in submitting applica- CIVIL WRIT PETITION NO. 19927 of 2009 -42- tion seems to have weighed with the authorities to reject the claim of the petitioner and in this regard, reference has been made to some of the observations made by this Court in Civil Writ Petition No.1038 of 2001, Smt.Bhagwanti Vs. HUDA and Civil Writ Petition No.5706 of 2005, Sh.Rattan Lal and others Vs. HUDA. No doubt, this Court has observed in these cases that the authority is not ex- pected to wait for more than 4 years for an oustee to apply but these observations were made in the context that fair opportunity was granted to all concerned to apply. The Court, while making such ob- servations, perhaps was not being made aware of the requirement of a policy, which had put an obligation on the part of HUDA about the manner and mode of inviting claims from oustees. As noticed above, the policies required of HUDA authority to invite the claim of the peti- tioner separately before floating of sector. That has not been done in this case. HUDA seems to have faulted in the mode of inviting appli- cations/claims of the oustees.
The applications for allotment of the plots were in- vited from the general public on 20.5.1997 and copy in this regard is annexed as Annexure R2/1. HUDA, therefore, is conceding that ex- cept for inviting claims from all through Annexure R2/1, there were no separate claims invited either through newspaper or press from the oustees. The policy instructions clearly require of HUDA not only to invite the claims from oustees separately but would require of them to call for such claims before floating of the sector. Rather, the HUDA was required to consider and allow such claims even prior to floating the scheme or at any rate allot these plots to oustees before working CIVIL WRIT PETITION NO. 19927 of 2009 -43- out availability of plots for floating the same for general public. There is, thus, clear violation of the policies by the HUDA as framed from time to time. The Government and its instrumentality can not ignore or fail to follow polices formulated and such policies would have bind- ing effect on them. Reference in this regard can be made to Swarna Singh Chand Versus Punjab State Electricity Board, 2009 (13) SCC 758. The submission by counsel for the HUDA that Annexure R2/1 would be deemed to be an invitation for the claims for the ous- tees, would clearly stand in contradiction to the requirements of the policies instructions and respondent-HUDA can not be permitted to urge so or to violate the policy formulated by itself. In any case, there is a mention made for plots reserved for general category, including oustees, in Annexure R2/1 and similar mode as adopted had not been approved by this Court in Dharam Pal's case (supra). The claim from the oustees was to be separately invited and could not have been clubbed or joined with the general category. The action of the respondent-HUDA, thus, is clearly seen as in violation of the law and policy instructions. Certainly HUDA can not plead ignorance about the judge-made-law and the policies framed by it.
This writ petition, therefore, deserves to be allowed. The respondents are accordingly directed to allot the residential plot to the petitioner as per his entitlement within a period of three months from the date of receipt of certified copy of this order after accepting the price of the plot in terms of the policy and the law as applicable for calculating such price.
Civil Writ Petition No.20127 of 2009 CIVIL WRIT PETITION NO. 19927 of 2009 -44- In this case, the land of he petitioner was acquired in the year 1983 for the purpose of carving out Sectors 31 and 32, Gurgaon. Making reference to the various policy instructions, the petitioner has made reference to his application No. 21340, which was filed on 21.8.2000 for allotment of 4 marla plot under oustees quota in Sector 45, Gurgaon. The petitioner had deposited 10% amount of the total price of the plot i.e. ` 44,402/-. The petitioner received a communication from respondent No.4 requiring him to produce the relevant record concerning ownership of the land. The petitioner complying with these directions had furnished the requisite documents. Yet another letter was received by him on 10.10.2002 requiring the confirmation of documents. Despite that matter was kept pending. When no decision was taken, the petitioner approached this court through CWP No.7365 of 2009 on 15.5.2009. The said writ petition was disposed of with direction to the respondents to consider the pending claim of the petitioner for allotment of plot under oustees policy. The respondents, thereafter, considered the claim and rejected the same through order dated 2.9.2009. The petitioner, therefore, has approached this Court through the present writ petition.
In the reply filed, the fact that the petitioner had made application for allotment of plot under the oustees quota on 21.8.2000, is not denied. The claim of the petitioner was rejected on the ground that he had applied for allotment in Sector 45, Gurgaon and as per the policies his claim could be considered only for allotment in a sector for which his land was acquired. Another CIVIL WRIT PETITION NO. 19927 of 2009 -45- reason given to decline the claim of the petitioner, as can be seen from the impugned order Annexure P-9 is that he had delayed too long in making the present approach. The petitioner and his predecessor had failed to avail the opportunity. It is stated that the petitioner did not apply along with 10% of the earnest money as per the terms and conditions of the advertisement. The sector for which the land was acquired had already been floated since long and at that time all the land owners whose land had been acquired were at liberty to apply for the allotment under the oustees policy, which was duly mentioned in the brochures.
It is further noticed that this Court had viewed that any allotment to any oustee without any due advertisement in any case would be viewed seriously as such allotment was likely to be misused. This observation made by this Court apparently in different contexts, is being advanced to justify the action of the respondents, which is clearly in violation of the policy as has been noticed above. From the pleadings, it is not clearly coming out as to when these sectors were floated. Though the counsel through his submission has pointed out that acquisition in case the petitioner was the same as was in the case of Jhandu Singh and the Sector for general public was floated in the year 1988. The counsel further points out that there was no claim of oustees invited in the year 1988 for the petitioner to make application. This aspect can be noticed from the facts appearing in CWP No.19965 of 2009, which are noticed and dealt with in the later part of this judgment.
As has been noticed above, the responsibility to CIVIL WRIT PETITION NO. 19927 of 2009 -46- invite claim of the oustees as per the policy started from 1987 was that of the respondent-HUDA. Not only that respondents were under obligation to invite such applications before floating the sector for general public but it was to be done separately. Further the respondents were also first required to satisfy the claim of the oustees before even floating the sector. The method of inviting applications though was not specifically provided in the policy issued in the year 1987 and this position continued till the policy in the year 1992 was introduced. Some provisions were made in the policy instructions issued in the year 1993, where the obligation was put on respondent-HUDA to invite claim of oustees through press/New- Papers. The action of the respondent-HUDA even in some cases inviting such claim of the general public was not considered sufficient to satisfy the requirement of policy instructions. This would clearly indicate that the claim of the petitioner has not been fairly or properly considered in terms of the policy formulated by the respondent- HUDA. The petitioner had made an application for allotment in the year 2000. His claim is declined because he applied in a sector for which his land was not acquired. As has been noticed, the respondents cannot be heard to plead violation of the policies which they have framed. The ground of denial is in violation of the policies. The HUDA shall ever remain bound to follow the policy instructions. The petitioner could be ousted if the HUDA had invited application in proper manner. The claim of the petitioner, accordingly, is found to have not been properly dealt with and also not in a fair manner. The impugned order, therefore, cannot be sustained. Direction is hereby CIVIL WRIT PETITION NO. 19927 of 2009 -47- issued to the respondent-HUDA to consider the claim of the petitioner for allotment of a plot under the Oustees quota. Since the petitioner had earlier made an application for 4 marla plot, his claim for allotment of such a plot shall be considered now either in the sector in which his land was acquired. If no plot is available in the said sector, the claim of the petitioner shall be considered and satisfied in any of the sectors that may now be under consideration, but in the city of Gurgaon. Since the respondent-HUDA had taken inordinate long time to consider and pass an appropriate order on the claim, which was made in the year 2000, the respondents can be asked to consider the claim of the petitioner in any of the sectors which may be floated in future. The petitioner may be asked to deposit the 10% of the price of the plot when his claim is considered. Civil Writ Petition No.19965 of 2009 The petitioner in this case is also aggrieved against the action of the respondents in denying him allotment of a plot under oustees quota. The land of the petitioner was acquired under the same notification as is in CWP No. 20127 of 2009. The petitioner had made an application in the year 1990 for allotment of a plot under the oustees category. The claim of the petitioner was not considered and appropriately dealt with for considerable period of time till the year 2007. The petitioner received response to this application only on 19.2.2007 requiring him to furnish certain information as contained in (Annexure P-6). The petitioner responded to the same through his communication dated 27.2.2007. Nothing happened thereafter. Then the petitioner served a legal CIVIL WRIT PETITION NO. 19927 of 2009 -48- notice on 29.9.2007.
In fact, the stand of the petitioner in this case would reveal the ill on the part of the HUDA in not inviting claim in a proper and appropriate manner. While responding to the information sought, the petitioner in this case disclosed that he was staying in a remote village of Distt. Rohtak, where he had purchased the land out of the money paid to him due to acquisition of his land in Gurgaon. There was no supply of newspaper at his village and accordingly, he could not apply on a prescribed format. On having come to know from a co-villager, the petitioner had made an application for allotment of plot under oustees quota. This in fact would reveal the real cause of trouble in majority of cases as mostly, the farmers would not only be unaware of policies but would never get to know when sector is floated. The claim of the petitioner still was not decided for which he had to approach this Court through CWP No.7362 of 2009, which was disposed of on 15.5.2009. The impugned speaking order is identically worded in the case of the petitioner as well. Same stereotype reasons are stated in rejecting the claim of the petitioner. Mr. Bali is justified in making a grievance that all these orders have been kept in a format and routinely prepared by a 'Babu' to be signed by Officer concerned without application of mind. HUDA must make mends and the officers must apply themselves instead of leaving such issues to 'Babus'. Do Estate Officers and other officers of the HUDA need to be reminded of the background for which the oustees policies are formed? Should they not be themselves sensitive to the needs of such land loser who CIVIL WRIT PETITION NO. 19927 of 2009 -49- are involuntarily displaced and are deprived of their livelihood and shelter and who are uprooted of their socio-cultural environment? Their traumatic psychological impact perhaps has no value and place for consideration before such officer who arrogates themselves with power of lording over the plight of these hapless farmers losing their lands and livelihood.
For the reasons as already noticed, the claim of the petitioner is also found to have not been properly considered in terms of the policy. The impugned order, therefore, cannot be sustained. The same is set aside. There would not be any purpose in sending this case again for reconsideration by the respondents as they have failed to consider the claim of such persons in appropriate manner. Direction, therefore, is issued to the respondent-HUDA to allot a plot to the petitioner as per his entitlement under 1987 policy. In case, the petitioner becomes entitled to any plot of bigger dimension on account of subsequent policies introduced, his claim in that regard shall also be considered. If, there is any requirement of asking the petitioner to deposit any amount as 10% of the earnest money, the same may be asked for him.
It may also need a notice here that no claims of the oustees were invited while the sector was floated in the year 1988. The copy of the advertisement issued in the year 1988 inviting applications from general public at large is seen. It did not make any provision for reservation of oustees. The plea, therefore, raised on behalf of respondents that the petitioner did not apply in response to the advertisement made in this regard is totally misconceived and CIVIL WRIT PETITION NO. 19927 of 2009 -50- apparently aimed at misleading the Court. This is wrong information furnished in the impugned order passed, though to an extent the respondents made an attempt to correct this while filing reply to the writ petition. The respondents can be expected to be careful while submitting reply to notices issued by the Court. Let it be brought to the notice of Chief Administrator HUDA for compliance in future. Any wrong information furnished in the reply would invite serious note in future.
Civil Writ Petition No.2272 of 2010 This petitioner is a co-sharer of a land measuring 12 kanals and 3 marlas, falling under various Khewats, Khatonis and Rectangles in the revenue estate of Village Jharsa, Tehsil and District Gurgaon. His land was acquired for development of Sectors 38 to 41, Gurgaon on 22.03.1990. His grievance also is that the petitioner was entitled to allotment of plot as oustee for which no claim was ever invited. The petitioner also did not come to know of action of the respondents in floating these sectors and ultimately had made application for allotment of 1 kanal plot on 15.10.2008. He had deposited an earnest money of ` 2,91,600/- along with application form. The copy of the application form is placed on record as Annexure P-6. The claim of the petitioner has not been considered. No appropriate order has been passed. The petitioner, thus, has approached this Court through the present writ petition.
The grievance of the petitioner is that the respondents have failed to invite claim of the persons like petitioner in terms of the policies that were formulated between the years 1987- CIVIL WRIT PETITION NO. 19927 of 2009 -51- 2000 and that is why he could not make any application for allotment of a plot. Despite repeated opportunities, no reply has been filed. Notice of motion in this case was issued on 9.2.2010. Thereafter, the case was heard on 14.7.2010 the parties were directed to appear before the Registrar for completing the pleadings. Despite opportunities granted on 13.9.2010, 13.10.2010 and 12.11.2010, no reply is filed. The matter was placed before the Court, but no reply is still filed despite time granted by the Court on 18.1.2011, 27.4.2011. Thereafter, the case is taken up for hearing.
Since no reply has been filed, the averments made in the writ petition are taken to be true for the purpose of passing this order. It is, thus, assumed that the claim of the petitioner has not been considered at all. It is also required to be assumed that the respondents had not invited any claim from the oustees as was required under various policies as are noticed above. The petitioner of course is late in making this approach for allotment. The respondents have failed to act in accordance with the policies even in declining the claim of the petitioner on the ground of delay in making the approach. As already noticed, the reference made by the respondents to judgment passed by this Court was a case where the order was passed without taking note of policy instructions which required from the respondent-HUDA to invite claim. In the absence of claims having been invited in proper and appropriate form as per the policy the order rejecting claim may not be sustainable.
The delay on the part of the persons to make application for allotment of a plot, thus, cannot be considered fatal in CIVIL WRIT PETITION NO. 19927 of 2009 -52- the background as noticed. In such like cases, it will be appropriate to issue some general directions to HUDA to invite claim of all the oustees by issuing a general advertisement in this regard either through press/New-Paper or publication. The form and sufficient time should be given to the oustees to submit their claim. As per the schemes, claims of such oustees, who have either not applied or have applied or their claim are under consideration can be so considered, if the plots are still available in Sector for which their land was acquired. If for any reason, any oustee cannot be adjusted in the sector for which his land was acquired, then his claim can also be considered for allotment of a plot as per his entitlement in terms of the policy in any of the adjoining sectors. The claim of the petitioner, which he has preferred, be considered in the light of these directions. Civil Writ Petition No.7980 of 2010 The land of the petitioners in this case was acquired for the purpose of Sectors 1 & 4 in Hissar. The notification under Section 4 was issued on 20.8.1992. The share of each of the co- sharer in the acquired land was to be 23 kanals 8 marlas. The petitioners, accordingly, have filed this writ petition to make a claim for allotment of 500 sq. yards plots to each of the co-sharer in accordance with policy instructions dated 18.3.1992.
The respondents, on the other hand, would rely upon the policy, which was issued on 12.3.1993, whereby the policy dated 18.3.1992, was modified as noticed in the earlier part. The petitioners had received a notice for draw of lots on 19.1.2007. The petitioners filed a representation for allotment of an individual plot. CIVIL WRIT PETITION NO. 19927 of 2009 -53- They appeared before the Oustees Adalat on 15.3.2007. The Oustees Adalat, however, rejected their claim by observing that all co-sharers were entitled to only one plot. The petitioners were unsuccessful in appeal and accordingly, have filed this writ petition to challenge the same.
The respondents have contested the claim of the petitioners by making reference to the policy instructions dated 12.3.1993. As per this, benefits of the oustees policy is not to be allowed to those oustees, who have got residential/commercial plots in Urban Estate and further benefit under the Oustees Policy shall be restricted to one plot irrespective number of co-sharers. In support, the respondents have made reference to the case of Ramo Devi Versus State of Haryana, 2007(3) RCR(Civil) 711. The Division Bench of this Court in this case has observed that even Clause (iii) of the policy instruction of 1992 reveals that the acquisition of the land of the co-sharers, if less than one acre, would entitle them for allotment of one plot of 250 sq. yards, which has to be made jointly in the name of the co-sharers. The Court has further observed that by no stretch of imagination, it can be said that in cases the land acquired is more than 1 acre, then all co-sharers will be entitled to a plot measuring 500 sq. yards each in his individual name as counsel for the petitioners had submitted.
These observations of the Division Bench, in my view, would have no application in the present case. The Division Bench was making reference to those cases, where the acquisition was less than one acre. The acquisition in the present case is even CIVIL WRIT PETITION NO. 19927 of 2009 -54- more than one acre in each case of a co-sharer. Accordingly, if 1992 policy is to apply, then each co-sharer certainly would be entitled to one plot each. The issue in regard to the applicability of 1992 policy or for that which was issued in modification thereof in the year 1993 really now would be academic. Counsel appearing for the petitioners have referred to a Full Bench decision of this Court where identical condition contained in clause 6 (v) of the policy formulated by State of Punjab dated 26.09.1994 was put to challenge in CWP No.2575 of 2009, Jarnail Singh Versus Sate of Punjab, which is decided on 1.10.2010. In this, the matter has been placed before the Full Bench on the basis of judgment in the case of Ramo Devi (supra). The State of Punjab has also issued a policy in the year 1974 providing reservation of plot for various categories including the oustees. These policies were amended from time to time and a policy was issued on 26.06.1994. There was a clause in the policy restricting allotment of one plot to all co-sharers, which was subject matter of challenge in the above noted writ petition. This clause reads, "All oustees of any joint khata would be entitled to one plot only". On the basis of submissions made, following three specific questions were framed by the Full Bench:-
1. Whether the oustees form a class entitled to plot on account of acquisition of land for residential pur-
poses by State Government and/or its instrumen- talities?
2. Whether Clause 6(V) of the Policy dated 26.9.1994 restricting the right of co-owner to seek CIVIL WRIT PETITION NO. 19927 of 2009 -55- allotment of plot, is illegal, arbitrary and discrimina- tory as it has no nexus with the objective to be achieved?"
3. Whether certain percentage of plots is required to be reserved for oustees or that the oustees are entitled to preferential allotment of plots first without allotting the same to the general public?
The Full Bench after considering the submission made, has held that the oustees from a distinct class, a class where land has been acquired and they are entitled to preferential treatment. The Court has further held that Clause restricting allotment of one plot to all co-sharers is irrational, arbitrary and with no reasonable nexus with the objective to be achieved and thus, not sustainable. Accordingly, the Court has held that Clause 6(V) of the Policy dated 26.9.1994 restricting the allotment of one plot to all the co-sharers, is held illegal and void. The relevant reasoning terming the oustees class as distinct class is as under:-
" The rehabilitation and resettlement of landowners, where land has been acquired, has been held to be a facet of Article 21 of the Constitution. The Policy framed by the State Government for allotment of a plot on fulfillment of the eligibility conditions, in fact, is creating a class requiring preferential allotment. Thus, the oustees form a distinct class, a class whose land has been acquired. The Policy contemplating allotment of plots to the oustees creates a class of persons entitled to preferential allotment than the CIVIL WRIT PETITION NO. 19927 of 2009 -56- general public. The Policy of allotment to an oustee, is in fact reservation of plots to such class of eligible erstwhile land owners. If the oustees do not form a class entitled to reservation of plots, the scheme itself would be hit by the doctrine of equality enshrined by Article 14 of the Constitu- tion of India. Therefore, the Policy contemplating the plots for oustees is nothing but a reservation of plots for such class."
The finding of the Court quashing clause 6 (v) of the policy is as under:-
"We find that the restrictions of allotment of one plot to a joint khata holder is unreasonable and arbitrary as each of the land owner is entitled to rehabilitation in his individual right. The rights of co-owners have been delineated in the judgment of this Court in Sant Ram Nagina Ram's and reiterated by a Five Judges Bench judgment in Ram Chander's cases (supra). A co-owner is owner of land as much as his other co-owners are. Mere fact that two or more persons have not sought partition of their holding and/or are enjoying the joint possession, does not affect the title of each of the co-owners. The co-
owners are deprived of their title and possession by way of acquisition of land. Therefore, there is no reasonable explanation as to why a co-owner has been made ineligible, except to the extent that num- ber of co-owners would be so large, which will make the process of acquisition itself futile."
Thus, the pleas that all the co-sharers would be only entitled to one plot in terms of a policy instruction issued in the CIVIL WRIT PETITION NO. 19927 of 2009 -57- year 1993, may be in violation of law laid down by the Full Bench of this Court in Jarnail Singh's case (supra).
Another reason, which will not detain me to consider the applicability of such like policies is that even now the State of Haryana has modified this policy again to make a provision for allotment of a plot to each co-sharer irrespective of the area acquired as such. The claim of the petitioner has been considered in the year 2002. It would be debatable as to which policy would apply in this case. Notification for acquisition was issued on 20.8.1992. There would not be much justification not to consider the claim under 1992 policy which was issued on 18.3.1992. There would not be a need to consider all these aspects. It would be legally appropriate to direct that each co-sharer is entitled to allotment of a plot individually and the right could not be restricted to allotment of one plot for all the co-sharers. The present writ petition is, therefore, disposed of with direction to the respondents to consider the claim in the light of observations made above and the allotment of the plots to the petitioners be considered accordingly.
Learned counsel for the petitioners, at this stage, also submits that it may also be proper to clarify the price which the petitioners can be asked to pay for the allotment. The counsel submits that the rate would be the rates at which allotment was made when the sector was floated. In support, he has placed before me a recent decision of the Hon'ble Supreme Court in 2011 Brij Mohan and others Versus Haryana Urban Devlopemnt Authority & another 2011 (2) SCC 29. Question (ii) considered by the Hon'ble Supreme CIVIL WRIT PETITION NO. 19927 of 2009 -58- Court in this regard was as under:-
"As noticed above, the scheme requires the allottees under the scheme for land-losers/oustees, to pay the normal allotment rates for the allotted plots. The question is what is the meaning of the term "normal allotment rate". No doubt, the term would ordinarily refer to the allotment rate prevailing at the time of allotment. If an acquisition is made in 1985 and the developed layout in the acquired lands is ready for allotment of plots in 1990, and allotments are made in the years 1990, 1991, 1992, 1993, 1994 and 1995 at annually increasing rates, a landloser who is allotted a plot in 1990 will naturally be charged a lesser price. But if his application is kept pending by the Development Authority for whatsoever reason and if the allotment is made in 1992, he may have to pay a higher price; and if the allotment is made in 1995 he may have to pay a much higher price."
The Hon'ble Supreme Court negated the submission that the allotment of plot to the landloser should be at the actual cost (acquisition cost of land plus development cost). In this regard has observed as under:-
"The policy clearly states that "claims of the oustees shall be invited before the sector is floated for sale".
This is also reiterated in the subsequent scheme dated 19.3.1992 which provides that "claims of the oustees for allotment of plots under this policy shall be invited by the Estate Officer, HUDA concerned, before the sector is floated for sale". It is therefore evident that the landloser applicants for allotment should be given the option to buy first, before the applications for allotment are invited from the CIVIL WRIT PETITION NO. 19927 of 2009 -59- general public. This means that the prices to be charged will be the rate which is equal to the rate that is fixed when the sector was first floated for allotment. In this case, it is not in doubt that when the sector was floated for sale, the rate that was fixed in regard to plots of 300 sq.m. or less, was Rs.1032/- per square metre (`863/- per square yard)."
Accordingly, the claims of the petitioners are to be settled in terms of the above law laid down by the Hon'ble Supreme Court.
Civil Writ Petition No.16675 of 2010 The petitioner in this case is aggrieved against the action of the respondent-HUDA in unilaterally treating his claim for allotment of a plot in general category though he had applied for allotment in the reserved category of oustees. The land belonging to the petitioner was acquired between the years 1973-1978 on four different acquisitions. In the year 1973, 8 kanals and 8 marlas, land of the petitioner was acquired. 4 kanals and 7 marlas land was acquired in the year 1988. The total land of the petitioner, thus, was acquired in this manner for developing Sectors 7, 8 & 9 at Ambala. The respondent-HUDA had invited applications for allotment of plots in Sector 8, Ambala City in the year 2009. The petitioner had made an application for allotment of a plot in the reserved category of oustees. The copy of the application has been placed on record as Annexure P-3. This clearly shows that the petitioner had applied in the reserved category of oustees. The petitioner had also made application to the Chief Administrator HUDA with the request to CIVIL WRIT PETITION NO. 19927 of 2009 -60- consider the facts and allot him 4 marlas plot in terms of his entitlement. The petitioner, thereafter, had received a communication (Annexure P-5), where the claim of the petitioner has been considered in the general category in stead of considering his claim for allotment in the reserved category of oustees. The petitioner thereupon has filed this writ petition to challenge this order and would pray for direction to the respondents to consider his claim in the reserved category of oustees in view of facts as noticed above.
Notice of motion was issued on 16.9.2010.
Thereafter, the case was listed before the Registrar for completion of proceedings. The case was placed before the Court on 5.1.2011 and counsel for HUDA prayed for time to file reply. No one appeared for the respondent-HUDA on the next date of hearing i.e. 17.3.2011. Still, no reply has been filed. The case has been taken up for hearing.
In view of he facts as pleaded, which are not contradicted in any manner, it would clearly emerge that the petitioner is entitled to consider for allotment of a plot in reserved category of oustees. Accordingly, the action of the respondents in treating him in the category of general for consideration for allotment as intimated to him vide Annexure P-5 is legally not sustainable and is not proper. Oustees are a distinct class and cannot be clubbed with general policies of allotment of plot as held in Jarnail Singh's case (supra) and Dharampal case (supra) As per the averments made in the petition, the petitioner has made out case for allotment of plot in the reserved category of oustees. The writ petition is, CIVIL WRIT PETITION NO. 19927 of 2009 -61- accordingly, allowed. Annexure P-5, where the petitioner, has been categorized for the allotment of plot in the general category is set aside. Direction is issued to the respondent-HUDA to consider the claim of the petitioner in the reserved category of oustees. The respondent-HUDA would be at liberty to ask the petitioner to provide necessary information on the basis of which he has filed his claim for allotment of a plot in the reserved category of oustees. Civil Writ Petition No.16703 of 2010 In this case, the land of the petitioner was acquired in the year 1973. The petitioner has also made an application for al- lotment of a plot in Sector 8, Ambala City in the year 2009 when the applications had been invited including that from the reserved cate- gory of oustees. Grievance is also similar that his claim is being con- sidered in the General category instead of reserved category of ous- tees.
For the reasons as mentioned while disposing of Civil Writ Petition No.16675 of 2010, this writ petition is also dis- posed of in the same terms. The only difference in this case is that the acquisition is prior to 1987. However, the case of the petitioner for consideration in the reserved category of oustees would clearly be made out in terms of the policy instructions dated 27.3.2000. It is clearly provided herein that if the plots are still available in the Sector for which the land of the petitioner was acquired though prior to 1987, the claim of such persons should also be considered before allotting the plots to the general public at large. The petitioner, thus, has made out a case for consideration in the reserved category of ous- CIVIL WRIT PETITION NO. 19927 of 2009 -62- tees. The claim of the petitioner shall be considered for allotment in the reserved category of oustees. His entitlement to allotment would depend on the availability of the plot. The petitioner may also be re- quired to furnish necessary information, if so required, by HUDA in support of his claim as oustee.
Civil Writ Petition Nos. 1646, 1647, 1648, 1649, 1650, 1651,1652 1605, 6940, 3742, 1637, 8594 of 2010 All these 12 writ petitions referred to above raise common question of law and as such are being disposed of through this part of the order, which will commonly apply to all these cases. The facts have been taken from CWP No.1649 of 2010 for the pur- pose of convenience.
The respondents acquired the land at Village Raipur through a notification issued under Section 4 on 9.11.1992. This was for development of Sectors 7 & 8 (Part) Sonepat. The peti- tioners in all these writ petitions were the owners of land, which was sought to be acquired. No mention is made in regard to the area of land of different petitioners, which was acquired. However, it is stated that advertisement was issued for allotment of plots in Sectors 7 & 8, Sonepat on 1.1.2000. The claims of the oustees were invited along with the claim from the general public. This to an extent was in viola- tion of the policy instructions, which have been noticed in detail in the forgoing part of the judgment. Be that as it may, all the petitioners submitted their applications for allotment of plots in the reserved category of oustees. However, their claims were rejected on the ground that they had not deposited 10% of the earnest money as CIVIL WRIT PETITION NO. 19927 of 2009 -63- was required under the policy. When the claims of the petitioners were rejected, they filed separate writ petitions before this Court. The petitioner in this case filed CWP No.8135 of 2006, which was disposed of with direction to the Estate Officer, Sonepat to recon- sider the claim of the petitioner. It is also observed that if the peti- tioners are required to deposit any earnest money, the same shall be communicated to the petitioners and thereafter, their claim shall be considered in accordance with law. The operative part of the order is reproduced here as under:-
"However, from the perusal of the averments made in the present petition, we find that at no point of time the price of the plot had been fixed. In these circumstances, the petitioner obviously could not be expected to deposit any earnest money.
Consequently, we dispose of the present petition and it is directed that the Estate Officer, Haryana Urban Development Authority, Sonipat, shall reconsider the claim of the petitioners. If the petitioners are required to deposit any earnest money, the same shall be communicated to the petitioners and thereafter, their claim shall be con- sidered in accordance with law.
The necessary process in this regard shall be completed by the Estate Officer within a period of three months from the date a certified copy of this order is received."
Without intimating to the petitioners the price in any manner, the applications of the petitioners had again been rejected on the same ground that the petitioners had not deposited 10% of CIVIL WRIT PETITION NO. 19927 of 2009 -64- the earnest money. The petitioners, therefore, have now impugned this order before this Court.
The stand is the same that the petitioners had not deposited the 10% of the earnest money, which was required and was so specifically mentioned in the advertisement. It is also stated that the claims of the petitioners are delayed and hence, should be dismissed on this ground.
The counsel for the petitioners has made reference to the policy instructions issued on 12.3.1993, whereby the require- ment of depositing 10% of the earnest money has first time been pro- vided. The procedure for inviting claim has already been noticed above. The Estate Officer concerned is to invite the claims through press/News-Papers for allotment of plots under the oustees policy much before floating of Sector. If it is done, then each of the appli- cant is required to send his application in the prescribed proforma along with the supporting documents and earnest money equivalent to 10% of the cost. The manner and the mode of depositing 10% of the cost is found in para (vi) of the annexure A attached with the said policy. This clearly provides that after the claims have been finally accepted by the competent authority, the claims are to be kept in a live register. The applicant is then to be asked to deposit earnest money equivalent to 10% of the cost of the plots as and when the sector scheme is to be floated. It is thus clear that earlier part of the policy only talks of the requirement but the manner and method of depositing 10% cost is regulated under para (vi) of the policy. CIVIL WRIT PETITION NO. 19927 of 2009 -65- The respondent-HUDA had not followed this policy to invite claims from oustees separately through press or news-pa- pers. The claim of the oustees was invited while floating the scheme for allotment of plots in the sector for all eligible persons. The Divi- sion Bench of this Court has already held such a method to be in vio- lation of the policy and has directed the Estate Officer to intimate 10% cost to the petitioner, which concededly was not done. The submission that the earnest money was normally mentioned in the advertisement issued may be so, but it is for general public. Inviting claim of oustees along with general public is in violation of the policy. Such a mode was not approved by this Court in the case of Dharam- pal (supra). In Jarnail Singh's case (supra), a Full Bench of the Court has held that the oustees form a distinct class and if the oustees are not forming class then the scheme itself would be hit by doctrine of equality enshrined under Article 14 of the Constitution of India. It has to be treated as reservation policy.
That being the position, the action of the HUDA to reject the claim is unjust. This may also be so in the background that this Court had specifically issued directions to HUDA to intimate 10% cost to the petitioners, which was still not done. These questions, in my view, still are academic. If everything is taken to be as stated in the reply, number of plots are still available, as per the information furnished by the petitioners. This information obtained by the peti- tioner under the Right to Information Act is placed on record as An- nexure P-6. Rather it is clearly given out here that the vacant plots are reserved for oustees/court cases. The right of the petitioner for CIVIL WRIT PETITION NO. 19927 of 2009 -66- consideration for allotment of plot in oustees quota, thus cannot be forfeited on the ground that he had not earlier made application along with cost of 10%. The writ petitions, therefore, are allowed. Direction is hereby issued to respondent-HUDA to consider the claims of the petitioners in the reserved category of oustees. The petitioners would deposit 10% of the cost of plot as per their entitlement for which they have made applications or are intending to make applica- tions. Let this cost be deposited within a period of one month from the date of receipt of certified copy of this order. If the petitioners de- posit this cost, their claim shall be considered and the plots shall be allotted to them in terms of the policy instructions. Civil Writ Petition Nos.2837, 2838, 2839 of 2010 All these three writ petitions referred to above raise common question of law and as such are being disposed of through this part of the order, which will commonly apply to all these cases. For the purpose of convenience, the facts have been taken from CWP No.2837 of 2010.
The land of the petitioner was concededly acquired on 27.08.1987. Though the notification under Section 9 was issued on 13.01.1989 (Annexure P-1). The petitioner has made reference to the policy, which was formulated for allotment of plots under the cate- gory of oustees. The petitioner ultimately has filed a claim on 26.5.2009 along with 10% cost of the plot as earnest money. When there was no response, the petitioner has filed the present writ peti- tion to seek direction for allotment of plot in the category of oustees as per his entitlement.
CIVIL WRIT PETITION NO. 19927 of 2009 -67- The respondents have filed reply. The claim of the petitioner is being declined only on the ground that the acquisition was prior to 10.9.1987 and as such is not covered by the policy in- structions issued on the said date. This policy is statedly not having retrospective effect. This being the only defence, the same would be contrary to the law laid down in Suman Aneja's case (supra) as al- ready noticed. In view of law laid down in this case, the policy in- structions were issued on 27.3.2000 providing that the claim of all the oustees be considered irrespective of date of acquisition in case the plots are still available for allotment. Even the oustees have prior right of allotment and after satisfying their claim only the plots would be allotted to other persons. The petitioner has made averment in paragraph 12 of the writ petition to say that some plots are still avail- able in Sectors 42 & 43, Gurgaon. Rather these contents have been admitted as matter of record.
Accordingly, the case is made out for issuing direc- tion to the respondents to consider the claim of the petitioners under the category of oustees in accordance with above noted scheme and plots be accordingly allotted to the petitioners as per their entitle- ment.
General observations:-
It is noticed that HUDA has not strictly observed the requirement of the policies formulated by it from time to time. As per the law laid down by this Court, the oustees are to be treated as a separate class and their claim can not be considered, alongwith the claim of general public. Even the Hon'ble Suprme Court has also ob- CIVIL WRIT PETITION NO. 19927 of 2009 -68- served in Brij Mohan's case (supra) that the claims of oustees are to be invited by Estate Officer, HUDA before sector is floated and has, thus, impliedly approved the policy. The HUDA has also not performed its obligation in inviting the claim of oustees as laid down in the policies dated 19.3.1992 and subsequent policy. As has been noticed, the policy required of HUDA to invite claim of the oustees separately before floating any Sector. In fact land losers have option to buy first before applications are invited from the general public {see Brij Mohan's case (supra)}. In none of the cases, it was so done. It has been conceded before me that the claim of the oustees were invited while inviting claim of the general public. This clearly reveal violation of the policies and even may render the policy to be inopera- tive to an extent. The claim of allotment of a plot to general public would arise after satisfying the claim of the oustees who have first option to buy. Once the claim of oustees is invited alongwith general public, the possibility of first satisfying the claim of the oustees would stand defeated. That is why oustees have been held to be separate and distinct class. It is because of this that HUDA is required to in- vite claims of oustees before floating of the Sector. All such denial, thus, are bad in law being in violation of the policies.
Majority of the claims are being denied on the ground that application is not sent with 10% of the price of the plot. This is also not in conformity with the policy so formulated. The HUDA concededly has not kept any register to keep the claims of the oustees live. The requirement of depositing 10% of the price would arise only if the claims are first invited as per the policies and it has CIVIL WRIT PETITION NO. 19927 of 2009 -69- to be through press or news paper. The price, as per the policy in- structions dated 12.3.1993, is to be deposited once the claim is fi- nally accepted by the competent authority and when the sector scheme is floated. It is on account of these violations that majority of the oustees are being made to approach this Court through various writ petitions. In order to set the position right and as one time meas- ure, it is appropriate to direct HUDA to invite claims of all the oustees through an advertisement in the newspaper, giving them sufficient time to make applications. Those who make applications pursuant to such an advertisement may be asked to deposit 10% of the price, if the plots are still available. Their claims be considered in the light of the policies formulated by HUDA. The plots be allotted to such appli- cants in the Sector for which their land was acquired, if such plots are available in the said Sector or in the adjoining Sector in the terms of the policy and if the plots are still available. This aspect is made as a one time measure so as to satisfy the claims of those left over ei- ther because of ignorance or because of act of HUDA not following the policies in letter and spirit. As has been noticed in one of the cases, the oustee never came to learn about floating of the sector, as, there was no news paper available in the area where he had set- tled in which this advertisement was issued. It cannot be denied that majority of the land losers are illiterate and may not be having access to newspapers. It would be, thus, fair to give them one chance to ap- ply for allotment of plot which would go to lessen their miseries be- cause of compulsory acquisition. This is essential to do substantial justice and to avoid future litigation. While so directing, nothing dras- CIVIL WRIT PETITION NO. 19927 of 2009 -70- tic is being suggested. In fact, HUDA itself has considered the past claims by forming a Committee as can be noticed from the policy for- mulated on 12.3.1993. HUDA was to keep the claims in a live regis- ter which has not been done. HUDA was to demand 10% price which it has failed to do. The course as suggested is thus the only fair and appropriate method to set the wrong right.
May 16, 2011 (RANJIT SINGH) monika JUDGE