Punjab-Haryana High Court
Praveen Kumar And Another vs State Of Haryana And Others on 11 September, 2013
Bench: Surya Kant, Surinder Gupta
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.14384 of 2011
Date of Decision: September 11, 2013
Praveen Kumar and another ......Petitioners
Versus
State of Haryana and others ......Respondents
CORAM : HON'BLE MR.JUSTICE SURYA KANT.
HON'BLE MR.JUSTICE SURINDER GUPTA.
Present : Mr.Ram Chander, Advocate, for the petitioners.
Ms.Palika Monga, Deputy AG, Haryana.
Mr.Kamal Sehgal, Advocate, for respondent No.3.
---
1. Whether Reporters of Local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Surya Kant, J. (Oral)
The petitioners impugn the notifications dated 1.4.2010 (Annexure P-16) and 4.4.2011 (Annexure P-18) issued under Sections 4 & 6 of the Land Acquisition Act, 1894 (hereinafter referred to as, 'the Act'), respectively qua the acquisition of their land measuring 6 kanal fully descripted in para No.2 of the writ petition, situated within the revenue estate of village Rampur, Tehsil Kharkhauda, District Sonepat. 2] As per their case, the first petitioner started his business under the name and style of M/s Rana Adhesives Manufacturing Company having its manufacturing and storage site on the subject land, for which he obtained Explosive licence on 10.03.1997. The State Pollution Control Board issued 'No Objection Certificate' on 1.07.1997 and a further 'No Objection Certificate' from Senior Town Planner, Gurgaon, was obtained on 15.01.1998. The District Magistrate, Sonepat also Kumar Mohinder 2013.10.09 11:51 I attest to the accuracy of this order Chandigarh CWP No.14384 of 2011 [2] gave him 'No Objection Certificate' on 1.4.1998 and on that basis, the Chief Explosive Controller, Explosive Department, Nagpur, vide an order dated 22.09.1998 (Annexure P-6) approved the site and lay out plan for installation of the firm, now being run by both the petitioners. The firm thereafter applied for its registration under the Central Sales Tax (Registration and Turnover) Rules, 1936 and got that certificate issued on 20.02.2001, followed by allotment of future corresponding file by the Joint Chief Explosives Controller.
3] The petitioners' firm was then registered as a Small Scale Industry by the General Manager, District Industries Centre, Sonepat on 31.1.2002 and since then, it is statedly an assessee under the Haryana Value Added Tax Act, 2003. 4] The petitioners assert that they are carrying on the business of manufacturing and storage of adhesives in the industrial unit since the year 2001 and their licence has been renewed from time to time. The firm is statedly filing Central Sales Tax returns regularly and a copy of one of such return for the financial year 2010-2011 has been duly appended. The electricity bills from November, 2010 to April, 2011 are also placed on record.
5] The State of Haryana through its Industries and Commercial Department expressed its intention to acquire the agricultural land measuring more than 3364 acres 5 kanal 2 marlas falling within the revenue estates of 10 villages including villages Gopal Pur and Rampur, for the public purpose, namely, "development of Industrial Model Township (IMT) at Kharkhauda', for which notification under Sections 4 Kumar Mohinder 2013.10.09 11:51 I attest to the accuracy of this order Chandigarh CWP No.14384 of 2011 [3] of the Act was issued on 1.4.2010 (Annexure P-16). The land measuring 6 kanal of the petitioners was also included in the said purpose.
6] The petitioners filed objections which did not find favour, hence their land was included in the notification issued under Section 6 of the Act on 4.4.2011 (Annexure P-18). 7] The aggrieved petitioners have approached this Court questioning the acquisition of their land/property primarily on the ground that they are running industrial unit and since their land is also sought to be acquired for the same very purpose, it deserves to be exempted. Reliance is placed on Government Policy dated 26.10.2007 as modified on 24.1.2011, the relevant portions whereof read as follows:-
"The Government has framed a comprehensive policy as detailed below:-
1) No request will be considered after one year of award. Only those requests will be considered by the Government where objections under Section 5-A were filed.
2) Any request or application where structures have been constructed will only be considered for the release under Section 48 (1) provided the structure exists prior to section 4 and is inhabited.
3) Any factory or commercial establishment which existed prior to Section 4 will be considered for release.
4) Any religious institution or any building owned by community will also be considered for release.
Kumar Mohinder 2013.10.09 11:51 I attest to the accuracy of this order Chandigarh CWP No.14384 of 2011 [4]
5) xx xx xx xx
6) xx xx xx xx"
(emphasis applied) 8] The afore-stated policy has been modified by a later policy decision dated 24.1.2011 which, inter-alia, provides as follows:-
"After careful consideration of the facts and circumstances, the Government has felt the need to review the policy referred to above. The amended policy regarding release of land will be as under:-
1. Only those requests will be considered by the Government for release of land under Section 48(1) where objections under Section 5-A were filed in following cases:-
a) Any request or application where structure has been constructed provided the structure existed prior to Section 4, is inhabited and is being used by the owner for his own residential purposes.........."
9] On 5.09.2012, this Court passed the following order:-
"The land of the petitioners has not been released from acquisition for the reason that a structure alongwith a boundary wall exists at the site but the factory is not operational.
Learned counsel for the petitioners has produced some of the documents in support of his assertion that the factory was operational and that the petitioners were assessee under the Haryana Value Added Tax Act, 2003.
Kumar Mohinder 2013.10.09 11:51 I attest to the accuracy of this order Chandigarh CWP No.14384 of 2011 [5] Mr.Sehgal, has pointed out that electricity bills pertains to the period after the issuance of the notification under Section 4 of the Land Acquisition Act, 1894 (for short the' Act') and the VAT returns are undated.
Learned counsel for the petitioners seeks some time to produce documents in respect of his plea that the factory was operational prior to notification under Section 4 of the Act including the returns of the payment of excise duty.
Let the needful be done within three weeks......"
10] Therefore, on 16.07.2013, we impressed upon Mr.Sehgal, learned counsel for respondent No.3-HSIDC to have instructions in the following terms:-
"After going through the documents on record and the previous order passed by this Court, we have impressed upon Mr.Kamal Sehgal, counsel for respondent No.3 as well as the State counsel to have instructions whether the industrial plot of the petitioners can be released from acquisition subject to the conditions that:-
(i) if not functional, the industrial unit shall be put into operations in a time bound manner; and
(ii) the lay out plan, if any, of the industrial area for which the subject acquisition Kumar Mohinder 2013.10.09 11:51 I attest to the accuracy of this order Chandigarh CWP No.14384 of 2011 [6] has been made is not disturbed or violated......"
11] Mr.Kamal Sehgal, learned counsel for respondent No.3 has filed an additional affidavit of Devender Pal Singh, District Town Planner, HSIDC, alongwith the lay out plan of IMT, Kharkauda (Annexure A-1).
12] On perusal of the averments made in the affidavit read with the site plan (Annexure A-1) we are satisfied that the existing site of the petitioners cannot be released from acquisition as a part of it falls on 30 meters wide road which essentially needs to be constructed. The remaining part of the petitioners' property completely disturbs the lay out of a big size industrial plot. We have, however, find that towards southern side of the petitioners' land, there is a piece of land "to be planned later on". The said piece of land adjoins the released/un-acquired land on one side, 30 meters road on the other side and plot Nos.1291/1292/1293 on third side. The petitioners have no objection if they are shifted to the said piece of land in lieu of their acquired property. It appears to us that the above-mentioned piece of land "to be planned later" is otherwise of no use for HSIDC. The other alternative can be to make the proposed industrial plot of 5.88 acres (which includes the land of the petitioners) square and a portion of which adjoining to the released/un-acquired land and the land "to be planned later", can be given to the petitioners in lieu of their acquired land/property. This would, of course, slightly reduce the size of the proposed industrial plot measuring 5.88 acres. It must however be ensured that the alternative released land of the petitioners has access to Kumar Mohinder 2013.10.09 11:51 I attest to the accuracy of this order Chandigarh CWP No.14384 of 2011 [7] the road. The above-stated offer is acceptable to the petitioners. As an abundant pre-caution, we also clarify that if the petitioners have any hesitation in the offer made above, they may apply for the industrial plot in IMT Kharkhauda and the same shall then be allotted to them as per their eligibility in terms of the Government Policy notified on 9.11.2010. The order for allotment of alternative released site shall be passed within a period of two months from the date of receiving a certified copy of this order.
With these observations, the writ petition stands disposed of.
Dasti.
(SURYA KANT)
JUDGE
September 11, 2013 (SURINDER GUPTA)
Mohinder JUDGE
Kumar Mohinder
2013.10.09 11:51
I attest to the accuracy of this
order
Chandigarh