Punjab-Haryana High Court
Om Parkash & Ors vs State Of Haryana & Ors on 29 November, 2013
Author: Surya Kant
Bench: Surya Kant, Surinder Gupta
CWP No. 10183 of 2013. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH.
CWP No. 10183 of 2013. [O&M]
Date of Decision:29th November, 2013.
[1]. CWP No. 10183 of 2013
Om Parkash & Ors. Petitioners
Versus
State of Haryana & Ors. Respondents.
***
[2]. CWP No. 12644 of 2013
M/s Kamdhenu Enterprises Ltd. Petitioner
Versus
State of Haryana & Ors. Respondents.
***
[3]. CWP No. 14190 of 2013
M/s Sidharth Mercantile Ltd. & Ors. Petitioners
Versus
State of Haryana & Ors. Respondents.
***
[4]. CWP No. 19521 of 2013
Ajay Bhatia & Ors. Petitioners
Versus
State of Haryana & Ors. Respondents.
***
[5]. CWP No. 20419 of 2013
M/s Luthra Metal Industries Pvt. Ltd. Petitioner
Versus
State of Haryana & Ors. Respondents.
***
CORAM:HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE SURINDER GUPTA
***
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?
***
Present: Mr. Akshay Bhan, Advocate, for the petitioners in
CWP Nos. 10183, 12644 and 20419 of 2013.
Mr. Hemant Bassi, Advocate for the petitioner in
CWP No. 14190 of 2013.
Mr. K.S.Dhaliwal, Advocate, for the petitioners in
CWP No. 19521 of 2013.
Mr. S.S.Pattar, Sr. DAG, Haryana.
Mr. Kamal Sehgal, Advocate for HSIIDC.
***
SURYA KANT, J.
Gupta Dinesh 2014.01.14 10:47 This order shall dispose of CWP Nos. 10183, 12644 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-2-::
14190,19521 and 20419 of 2013 as common questions of law and facts are involved in these cases. All the petitioners impugn the notifications dated 13th and 19th March, 2010 and notification dated 12th May, 2011 [published on 20th May, 2011] issued under Sections 4 and 6 of the Land Acquisition Act, 1894, respectively [in short 'the impugned notifications'], whereby their land/properties have been acquired for expansion of Sectors 15, 16 and 17 and to develop Industrial Complex and other Allied Infrastructure at Dharuhera, District Rewari. For the effective adjudication of issues canvassed on behalf of the parties, it would be appropriate to briefly notice the facts of each case.
CWP No. 10183 of 2013 [Om Parkash & Ors. Vs. State of Haryana & Ors.]:-
[2]. The petitioners are four sons of Chet Ram who seek quashing of the impugned notifications besides the notices issued under Section 9 of the Act, as well as the order dated 06th March, 2013 whereby the application for grant of Licence for development of IT Park Colony moved by respondent No. 6 - Builder-cum-Developer in collaboration with the petitioners has been rejected. [3]. The petitioners are owners in possession of the land measuring 137 kanals 7 marlas, fully described in Para 2[i] of the writ petition. The above stated land was proposed to be acquired against which the petitioners submitted objections dated nil under Section 5- A [Annexure P-4]. They meanwhile entered into a Collaboration Agreement dated 04th May, 2011 with respondent No. 6 - a Builder- cum-Developer, to develop their land as an IT Park. The Builder-cum- Developer along with petitioners moved an application on 09th May, Gupta Dinesh 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-3-::
2011 for the grant of licence under the Haryana Development Regulation of Urban Areas Act, 1975.
[4]. The objections filed by the petitioners under Section 5-A did not find favour with the State Government who notified the declaration under Section 6 on 12th May, 2011 and published it on 20th May, 2011.
[5]. Respondent No. 6 and the petitioners were meanwhile informed that as per Government Policy a licence for setting up IT Park could be granted up to a maximum of 15 acres. Hence they reduced their project by 2.186 Acres. Thereafter, they were asked to submit the revised Schedule of land and after some intra- departmental correspondence, respondent No. 6 was asked to appear before the Director General, Town and Country Planning for personal hearing. The petitioners and their Builder-partner are said to have made another representation to point out that the impugned notifications were issued subsequent to their Collaboration Agreement and application for the grant of licence. Nonetheless, the Director General, Town and Country Planning rejected their application vide order dated 06th March, 2013 [Annexure P-14]. The petitioners have preferred an appeal to the State Government against the above stated order but pending consideration of the appeal, notices under Section 9 of the Act were also issued, prompting them to approach this Court.
[6]. Chief Town Planner from the Department of Town and Country Planning, Haryana has filed written statement on behalf of Gupta Dinesh respondents No. 2 and 7, maintaining that no licence could be 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-4-::
granted to respondent No. 6 and the petitioners as they have no clear title on the land which has since been acquired. It is explained that the Land Acquisition Collector has already announced the Award on 10th May, 2013 and possession of the land was handed-over to HSIIDC on the same day, i.e., before the passing of the interim order dated 16th May, 2013 by this Court. The policy dated 24th January, 2011 relied upon by the petitioners is statedly inapplicable in the case of acquisition by the Industries and Commerce Department as it applies only to the acquisitions made by the Urban Estates Department. It is further explained that respondent No. 6 - a Builder- cum-Developer was asked vide letter dated 27th July, 2011 to obtain requisite approval of the IT Project from the Committee constituted by the Government in the Information Technology Department which was a pre-requisite for the grant of licence but no such permission was obtained by the Collaborator. So far as the acquisition-process is concerned, it is averred that the procedure as prescribed in law has been minutely followed and the acquisition has been made for a bona-fide public purpose, namely, expansion of the existing Industrial Area of Dharuhera which is a well-known industrial township. CWP No. 12644 of 2013 [M/s Kamdhenu Enterprises Ltd. Vs. State of Haryana & Ors.]:-
[7]. The two petitioner-Companies-M/s Kamdhenu Enterprises Limited and M/s Cecil Webber Engineering Limited are duly incorporated under the Companies Act, 1956. While petitioner No. 1 owns land measuring 149 kanals, petitioner No. 2 owns 53 kanals land in village Kapriwas, Tehsil & District Rewari. Their above Gupta Dinesh 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-5-::
mentioned land has been included in the impugned notifications. The petitioners on coming to know of the proposed acquisition, filed objections under Section 5-A of the Act and also submitted representations to various higher authorities seeking release of their land as they were desirous of setting up IT and ITES Industry besides Warehouses on their land. The objections or the representations given by the petitioners having been turned down by the Authorities, they seek quashing of the impugned acquisition. [8]. The foremost contentions of the petitioners are that:- [i] the adjoining lands owned by Sukhbir Chhabra and Parkash Tapase have been released under the garb of renewal of their Change of Land Use ['CLU'] though the lands were lying unused since several years and CLU to Sukhbir Chhabra was granted on 13th July, 2010 after issuance of Section 4 notification; [ii] Dharuhera is a fully developed industrial town and further industrialisation would deteriorate the environmental and ecological balance as the acquired land is very close to the Aravali Range; [iii] the acquisition has been made on pick and choose basis and without any rationale; [iv] there is no public purpose behind acquisition except to benefit and promote the interest of private Companies to whom allotments shall be made. [9]. The Divisional Town Planner of HSIIDC-respondent No. 5 has filed a common short reply/affidavit explaining that the acquired land of petitioner No. 1 - Company [M/s Kamdhenu] is lying vacant and is being used for agricultural purposes only. The Land Acquisition Collector recommended to acquire the entire land. Similarly, the land Gupta Dinesh owned by petitioner No. 2 [Cecil Webber] measuring 53 kanals was 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-6-::
purchased by it before 1988 and was still being used for agricultural purposes. There was no structure on the land of both the petitioners. No objections under Section 5-A were filed by both the petitioners, though they represented after issuance of Section 6 notification but the same was rejected for the reason that Change of Land use permission was applied on 7th March, 2011, i.e., ten months after the date of issuance of Section 4 notification.
CWP NO. 14190 OF 2013 [M/s Siddarth Merchantile Ltd. & Ors. Vs. State of Haryana & Ors.]:-
[10]. The petitioners - M/s Siddarth Mercantile Limited [now known as Rajdhani Nurseries Limited] and M/s Tower Leasing and Finance Limited have been incorporated under the Companies Act, 1956 and are duly registered with the Registrar of Companies, NCT Delhi and Haryana. Petitioner No. 1 is owner of land measuring 84 kanals 1 marla, while petitioner No. 2 owns 94 kanals 16 marlas of lands, situated in the revenue estate of village Kapriwas, Tehsil & District Rewari as described in Para 3 of the writ petition. [11]. Their above mentioned lands have been acquired vide the impugned notifications after rejecting their objections under Section 5-A of the Act. The aggrieved petitioners are thus before this Court.
[12]. The petitioners' case is that they are engaged in the commercial activity of Organic Farming and production of Seeds over the subject-land where they are said to have set up 12 Warehouses along with a huge production unit with the state-of-the-art imported equipment. The petitioners claim to be producing chemical free Gupta Dinesh 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-7-::
vegetables and germinating seeds in an advanced and scientific manner with the help of drip irrigation. They are said to be the regular suppliers to Corporate Houses like Walmart and Reliance Fresh etc. It is also averred that residential houses have also been constructed for the employees and the Estate Manager by spending over `32 lacs. A sum of over `50 lacs is said to have been spent on the construction of Drainage System, boundary wall etc. More than 2500 trees of China Orange, Grape fruits, Kinnu, Malta, Teek and Shisham with an estimated value of about `2 Crores have also been planted. A big nursery with popular and exotic varieties of plants has also been set up.
[13]. The petitioners vide application dated 04th May, 2011 applied for change of land use permission under Section 7 of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 for developing the land into an 'agro-based industrial project' but the same did not find favour with the Authorities.
[14]. The petitioners consequently challenge the acquisition of their lands inter-alia alleging that [i] the entire land is already being used as a part of the agro-industry; [ii] as the petitioners' land is being used for industrial purposes, there is no rhyme or reason to acquire the same for industrialisation; [iii] the impugned acquisition is mala-fide and has been made on pick and choose basis for extraneous considerations; [iv] there is a vast difference between the land which was proposed to be acquired under Section 4 and the Gupta Dinesh land finally declared under Section 6 and a huge chunk of land has 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-8-::
been released indiscriminately; [v] the objections under Section 5-A have been rejected mechanically; [vi] the petitioners are victims of hostile discrimination as the land of M/s Chetak Logistics Limited [respondent No. 6] has been released from acquisition even without any objections having been filed under Section 5-A by that Company; [vii] the acquisition of the petitioners' land would not serve any public purpose due to its location; [viii] the proposed expanded industrial sector would be a big nuisance and health hazard to the thickly populated residential area close to the land of petitioners. [15]. The Divisional Town Planner, Haryana State Industrial and Infrastructure Development Corporation has filed a short reply- affidavit pointing out that M/s Siddarth Mercantile Limited [Rajdhani Nurseries Limited] did not file any objections under Section 5-A, yet land measuring 21 kanals 12 marlas has not been acquired and only the vacant land [149 kanals 5 marlas] where there exists no structure has been acquired. The Site Plan [Annexure R-1] has been appended depicting the location of petitioners' land and the manner in which it is proposed to be utilised for the notified public purpose. CWP No. 19521 of 2013 [Ajay Bhatia & Ors. Vs. State of Haryana & Ors.]:- [16]. Petitioners No. 1 to 4 are sons of late Ram Lal Bhatia while petitioner No. 5 is their firm. All of them have filed this petition through their Special Power of Attorney challenging the impugned notifications to the extent of acquisition of part of their land, fully described in Para 4 of the writ petition and situated in the revenue estate of village Kapriwas, District Rewari. The petitioners filed Gupta Dinesh objections under Section 5-A on 16.06.2010 and were heard 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-9-::
pursuant thereto. It is averred that the Land Acquisition Collector vide report dated 06th January, 2011[P-4] recommended the release of their land as they were running a Small Scale Industry, namely, a Saw Mill which was installed after obtaining Change of Land Use certificate [CLU] dated 28th October, 1983. The petitioners claim that the entire land is used for industrial purposes as the open space is needed for natural seasoning of the wood products. It is also averred that the Small Scale Industry of the petitioners is duly registered with the Industries Department; it regularly pays excise duty and has also obtained the licence from the Forest Department. [17]. The petitioners, thus, contend that recommendations made by the Land Acquisition Collector have been mechanically over-looked while including their land in the declaration notified under Section 6 of the Act and that their entire land having been utilised in running a Small Scale Industry, its acquisition for industrialisation would serve no public purpose. The plea of discrimination in the matter of release of the acquired land has also been raised. [18]. It is pertinent at this stage to refer to the recital of the notarised copy of Special Power of Attorney dated 17th August, 2013, executed by the petitioners in favour of one Ravinder Singh Dhaka, which reads as follows:-
"1. That the property is situated in the Industrial Area and its surrounded by a Boundary. The State Government through HSIIDC has issued notices u/s 4, 6 and 9 of Land Acquisition Act for acquisition of the above said land. The acquisition proceedings were initiated in May, 2010. Now Shri Ravinder Singh Dhaka shall have full Gupta Dinesh 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-10-::
power of an owner to arrange and run the affairs of the said land at administrative as well as Court level including the writ petitions, suit before Hon'ble Supreme Court of India, Punjab & Haryana High Court, Land Acquisition Officer for getting the land released from the acquisition.
2. That in case the land acquisition is released by the State vide court order in that case Shri Ravinder Singh Dhaka shall have all powers and right to retain the land or to sell the land or to deal with the subjected land according to his whims and desire.
3. That in case the land is not released from the purview of Land Acquisition Act, in that event Shri Ravinder Singh Dhaka will have the authority to receive compensation which may be awarded by the statement at any stage and further Shri Ravinder Singh Dhaka will be competent to litigate for the enhancement of compensation or any other benefit annexed to the acquisition.
4. That in case any ambiguity is found in the terms of the present S.P.S., the same may be interpreted in favour of SPA holder Shri Ravinder Singh Dhaka neither party will have authority to flout the terms of the present SPA". [Emphasis applied].
[19]. When we asked learned counsel for the petitioners as to how have they 'sold' the land or how the SPA holder has assumed "full power of an owner" it was informed that the petitioners have since executed a Sale Deed also in favour of the SPA holder. [20]. The Divisional Town Planner, HSIIDC, in his common reply has explained that the industrial unit of the petitioners i.e., the Saw Mill is located on the land measuring 24 kanals which was not acquired and only the vacant land measuring 61 kanals has been Gupta Dinesh 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-11-::
acquired. It has been clarified that after obtaining CLU for the land measuring 80 kanals in the year 1983-84, the petitioners did not utilise the land for that purpose, hence their objections were rejected. It has been averred further that as per the layout plan [R-1], a substantial part of the petitioners' land is earmarked for public utilities like three roads of 20, 24 and 30 Meter width as well as the Parking Space.
CWP NO. 20419 OF 2013 [Luthra Metal Industries Pvt. Ltd. Vs. State of Haryana & Ors.]:-
[21]. The petitioner is a Company incorporated under the Companies Act, 1956. It owns 12 Acres of land in the revenue estate of village Malpura, Tehsil & District Rewari, fully described in Para 2[i] of the writ petition. It is averred that the petitioner has constructed RCC shed with an LPG Cylinder Plant and a Gas Filling Plant besides the office building, which has been leased out to a Group Company of the petitioner, who in turn, has further sublet it to M/s Aditya Fuels Limited. It is averred that Change of Land Use permission was obtained on 4th March, 1983 and thereafter the building plan was approved by the Director, Town and Country Planning vide letter dated 22nd July, 1983. Since the petitioner- Company's land comprising Khasra Nos. 20/18min, 19 and 23min have been acquired, hence this challenge.
[22]. This writ petition came up for preliminary hearing on the date when connected cases were listed for the final hearing, hence on the joint request of learned counsel for the parties, the following order was passed:-Gupta Dinesh
2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-12-::
"........Learned counsel for the parties are ad-idem that the writ petitions challenging the same acquisition have already been argued and the order is reserved.
The order in the instant writ petition is also reserved, however, with liberty to the respondents to hand-over a copy of the site plan depicting the land of the petitioner in dispute by tomorrow".
[23]. In deference thereto, Shri Kamal Sehgal, learned counsel for the HSIIDC has handed-over a copy of the Layout Plan depicting the location of the petitioner's land. It is apparent that 80% of the petitioner's land stands released/exempted from acquisition and only a small part of vacant land needed for 30 meter wide road or green belt abutting the National Highway No. 8 has been acquired. [24]. Having heard learned counsel for the parties and after going through the records, it appears that the following issues arise for determination:-
[i] Whether objections under Section 5-A filed by some of the petitioners have been considered and decided in accordance with law?
[ii] Whether those petitioners who did not submit objections under Section 5-A can be permitted to challenge the acquisition of their land/properties?
[iii] Whether the acquisition or release of the land/properties has been made discriminately and on pick and choose basis?
Issue No.[i]:- Whether objections under Section 5-A filed by some of the petitioners have been considered and decided in accordance with law:-Gupta Dinesh
2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-13-::
[26]. The record reveals and is not denied by the respondents also that the petitioners in CWP No. 10183 of 2013 [Om Parkash's case] filed objections dated 25th March, 2010 [P-4] contending that they have "constructed houses" and that this is the only land to "earn livelihood" and that they wanted to "establish a Warehouse in the said land". The petitioners do not dispute that no CLU permission was ever applied for construction of a Warehouse nor any residential house has been found at the site. The agricultural land was lying vacant. No photographs or any other proof of a residential house is brought on record. It was when Section 6 notification was likely to be issued that respondent No. 6-Builder-cum-Developer intruded and got executed 'Collaboration Agreement' dated 04th May, 2011, on the basis of which the release of the land to set up an IT Park was sought. It is obvious that the documentation was done only as a ruse to get the land released. The respondent-Builder possibly devised the idea of I.T. Park project for his private gains as the petitioners, who are agriculturists, could not have thought of it. The Land Acquisition Collector found the land purely agricultural, hence recommended its acquisition. All the relevant facts were thus duly considered before rejecting the objections filed u/s 5-A. In Ajay Bhatia's case, i.e., CWP No. 19521 of 2013 also the petitioners filed objections. Their objections were accepted in part and the land to the extent where the industrial unit was set up, has been released. The owners-petitioners are now left with no cause of action for the remaining land as they have sold/transferred their rights in favour of Gupta Dinesh SPA, who in turn has got no locus-standi to question the acquisition, 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-14-::
it being a post-acquisition vendee. The writ petition has been filed de-facto by the SPA and can be dismissed on this short ground only, following the principles laid down in Meera Sahni Vs. Lieutenant Governor of Delhi & Ors. [2008] 9 SCC, 177. The rest of the other writ-petitioners did not bother to file objections under Section 5-A of the Act. The first issue is thus answered against the petitioners. ISSUE No.[ii] :Whether those petitioners who did not submit objections under Section 5-A can be permitted to challenge the acquisition of their land/properties?
[27]. There can hardly be any quarrel that if the expropriation of a property is challenged on the ground of post-acquisition discriminatory action of the State, the aggrieved owner can not be non-suited on the hyper-technical plea of non-filing of objections under Section 5-A of the Act. The Hon'ble Supreme Court in Rajinder Kumar & Ors. Vs. State of Haryana & Ors., 2013[1] HLR, 514 has protected the right to avail constitutional remedy of a discriminated owner in such like situation even if no objections under Section 5-A are filed. Most of the petitioners did not file objections under Section 5-A of the Act in these cases. Nonetheless, they are held entitled to agitate their grievances in view of their specific allegation that the land[s] of M/s Chetak Logistics [a Company of Mr. Parkash Tapase] and Sukhbir Chhabra have been released while issuing Section 6 notification even though they too had not filed objections under Section 5-A of the Act. The respondents too have admitted the fact that the owner of at-least one of the released property did not file any objections under Section 5-A of the Act. Gupta DineshSince the respondents have chosen to release the land, for the 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-15-::
reasons to be dealt with in the later part of this order, even in the absence of objections under Section 5-A, we are of the view that the petitioners too have locus-standi to invoke the jurisdiction of this Court for consideration of their claim on merits. This issue stands answered accordingly.
ISSUE No.[iii]:Whether the acquisition or release of the land/ properties has been made discriminately and on pick and choose basis?
[28]. The petitioners' moot point is that after acquiring huge chunk of land, the respondents have released various parcels of land without following any transparent or uniform criteria. Two instances of M/s Chetak Logistics and Sukhbir Chhabra whose land/structures have been released from acquisition without their objections under Section 5-A of the Act, have been highlighted. The Government records relating to consideration of objections filed by some of the petitioners or other landowners as well as the original record pertaining to the land[s] of above mentioned two owners have been summoned and perused. The information culled out from the government record, however, does not match with the allegations made by the petitioners. We may elaborate the facts of both the instances.
Land of Sukhbir Chhabra:-
[29]. The record reveals that Sukhbir Chhabra purchased land measuring 45 kanals 2 marlas in village Kapriwas, District Rewari through different registered Sale Deeds including dated 19th March, 2008. On 27th March, 2008 and 11th July, 2008 he applied for the Gupta Dinesh grant of Change of Land Use permission for setting up an Industrial 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-16-::
building. The Director, Town and Country Planning granted him CLU permissions vide Memo dated 09th July, 2008 and 07th August, 2008 respectively. After depositing different statutory charges including external development charges, Sukhbir Chhabra applied for approval of building plans of the Industrial building on 07th July, 2009 to erect the industrial unit on the area measuring 22586.33 square meters for which CLU permission was granted. His building plans were approved by the Directorate of Town & Country Planning vide Memo No. 8149 dated 15th October, 2010.
[30]. During the pendency of application of Sukhbir Chhabra seeking sanction of Building Plans, the notification under Section 4 was issued on 13th May, 2010 proposing acquisition of his land. Sukhbir Chhabra submitted objections under Section 5-A on 11th June, 2010 which were duly entered at Sr. No. 26 [Page 1-72]. He has specifically averred in the objections that the land was purchased, CLU obtained and other necessary steps were taken by him for establishing the industrial unit and that he has no other land to set up the same. His objections were accepted by the State Government and the land was released from acquisition in terms of Government Policy dated 26th October, 2007 which enables the State Government to release the land for which CLU permission has already been obtained.
[31]. The facts would, thus, speak for themselves that soon after the purchase of the land, Sukhbir Chhabra wanted to set up an industrial unit and took necessary steps in that direction including the Gupta Dinesh CLU permission. It was not a case where he kept the CLU 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-17-::
permission under the carpet for speculative gains awaiting price rise of his land. Those petitioners who obtained CLUs in 1980s or 1990s and did nothing for over 20 years towards setting up any industrial unit, can not claim parity nor their claim is comparable with that of Sukhbir Chhabra. The allegation that the land of Sukhbir Chhabra was released without his objections having been filed under Section 5-A is also factually incorrect.
Land of M/s Chetak Logistics:
[32]. Parkash Tapase was granted CLU permission on 17th May, 1982 for the land measuring 46 kanals 12 marlas situated in village Kapriwas, District Rewari, "for manufacturing of LPG Cylinders and ancillary unit", followed by approval of building plans on 16th September, 1982. The Industrial Unit in the name of M/s Rukmani Enterprises Private Limited was set up after obtaining loan of Rs.30 lacs from Haryana Financial Corporation. The Company, however, went into losses and could not repay the loan. The unit was taken over under Section 29 of the State Financial Corporation Act on 14th January, 1997 and after several attempts, its assets were sold through open auction/inviting bids for `3.20 Crores on 12th January, 2006. The Sale Deed was executed in the name of Jai Karan Sharma son of Jagdish Parshad Sharma, on 23rd May, 2007. [33]. It was, thus, a case where the CLU permission was actually utilised and the industrial unit was set up and made operational. The unit was sold much before the issue of Section 4 notification. The allegations of undue favouritism to Parkash Tapase Gupta Dinesh who is stated to be son of a former Governor, are indeed totally 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-18-::
against the record as he has no concern whatsoever after the HFC took over the unit in the year 1997.
[34]. It is, however, not denied by the respondents that the auction purchaser did not file objections under Section 5-A of the Act. The respondents have come up with a categoric stand that Officers' team led by Financial Commissioner and Principal Secretary, Industries and Commerce Department including Managing Director, HSIIDC etc. on 22nd April, 2011 visited the sites in respect of which objections had been filed. The purpose of the site visit was to appreciate the ground position of the constructions/existing structures as to whether such structures were being used for industrial or ancillary purposes. The officers team while visiting the Gujjar-Ghatal road where the premises of M/s Pashupati Spinning and Weaving Mills and R.L.Allied were located, noticed another huge structure in the shape of a Warehouse of M/s Chetak Logistics. The Officers Committee inspected the said premises as well, took various photographs and earmarked the location on the Shijra Plan. The Committee having found that a complete industrial unit with various Warehousing Godowns was in existence, it recommended the release of the aforesaid land and property as its acquisition would have been contrary to the Government's own Policy dated 26th October, 2007. The auction-purchaser also had submitted a representation for the release of his property though the same was submitted after expiry of the period prescribed under Section 5-A of the Act.
Gupta Dinesh [35]. It may also be mentioned here that recommendations of 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-19-::
the Officers' Committee were approved by the Cabinet Sub Committee whereafter the above mentioned land/properties was/were decided to be released. The Government-file contains the following note with respect to the property of M/s Chetak Logistics:-
"5. It is also submitted that a number of representations [flat 'A'] were received in the HSIIDC seeking release of land from instant acquisition proceedings. The recommendations of the HSIIDC are also explained in the matrix which may kindly be perused. The team observed that one M/s Chetak Logistics Hub has set up warehousing sheds and recommended to exclude their land".
[36]. It emerges from the above narrated facts that the acquisition of land and Warehousing Sheds of M/s Chetak Logistics for the purpose of 'industrialisation', would have been otherwise contrary to the principles laid down by the Hon'ble Supreme Court in a recent decision in V.K.M.Kattha Industries Pvt. Ltd. Vs. State of Haryana & Ors., 2013[10] SCALE, 346. Nonetheless, it acquires significance that the State Government volunteered to take correctional measures even without receiving objections under Section 5-A from the affected owner.
[37]. We are of the view that while there may not be any illegality in releasing the property of M/s Chetak Logistics from acquisition per-se but it is imperative upon the State Government to be considerate and extend similar treatment to all other similarly placed landowners. As has been noticed above, it was totally incidental and fortuitous that the Officers' Committee happened to Gupta Dinesh 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-20-::
visit Gujjar-Ghatal road and just found the huge structure of Warehousing Sheds belonging to M/s Chetak Logistics. As the Committee had gone to visit only those sites in respect of which objections under Section 5-A were received, it is more than possible that there may have been several other alike structures which were left un-released from acquisition. For Chetak Logistics it was a prudential escape as the visit of its site was never on the agenda of the Officers Committee. The others similarly placed may not have been so fortunate. Since no exercise was undertaken to identify the structures/buildings of other owners who though did not submit objections under Section 5-A but their properties deserved to be released under the policy dated 26th October, 2007, the authorities are obliged to re-ascertain the facts and extend the benefit of Government policy or the State Government's decision to all and one except those structures which stand isolated. Howsoever well intent may be the Government's decision to release the land and building of M/s Chetak Logistics, the denial of such benefit to other unidentified but deserving landowners would amount to denial of equality before law. We can not lose site of the fact that some of the petitioners have also not filed objections under Section 5-A but on fact-situation they might be at par with M/s Chetak Logistics. To say it differently, we hold that even if a landowner did not file objections under Section 5-A but is able to make out a case of denial of parity, he can seek equality and such consequential benefits as have been granted to other similarly placed owners.
Gupta Dinesh [38]. Some of the petitioners, more particularly M/s Siddarth 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-21-::
Mercantile Limited [now Rajdhani Nurseries Limited] has placed on record various documents suggesting that a substantial part of its land is used for agro-based industry where over 25,000 fruit bearing trees have also been planted. Some residential quarters are also claimed to have been constructed. It is impossible to ascertain that the trees/plants depicted in the photographs on record are actually at the site of the acquired land as the Company owns another huge chunk of land in a nearby area also. The respondents have brushed aside the petitioner's claim mainly on the ground that no objections under Section 5-A were filed. Suffice it to say that if a part of the land is being actually used for organic products, it would be detrimental to the public interest to acquire such land. It, thus, becomes imperative upon the Officers Committee to visit the site and get first hand information with regard to the existence of trees, plants, herbs or the structures, if any. In Om Parkash's case [CWP No. 10183 of 2013] though the farmers have been pushed aside and a builder has stepped into their shoes, but their objections regarding "residential houses in existence" deserve to be re-verified. If they have constructed houses and are living with their families there, we find no excuse for not excluding the same from the acquisition. Some of the petitioners claim to have constructed Godown[s] etc. We are, thus, of the considered view that having entertained justified claim of M/s Chetak Logistics even in the absence of Section 5-A objections, the respondents can not deny such a just, fair and equitable treatment to other landowners including the writ petitioners and if the claim of any Gupta Dinesh one of them also falls squarely within the ambit of Government 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-22-::
Policy, they too are entitled to the release of their respective land or properties to the extent it is permissible under such policy. [39]. In all fairness, it may be mentioned that Shri Pattar, learned Sr. DAG, Haryana as well as Shri Kamal Sehgal, learned counsel for HSIIDC relied upon the decision dated 09th May, 2013 of a Division Bench of this Court dismissing CWP No. 13659 of 2012 [Om Parkash Goyal & Ors. Vs. State of Haryana & Ors.] wherein also the same acquisition was challenged and one of the pleas taken was that the petitioners had obtained CLU permission immediately after purchasing the land. This Court dealt with various contentions, however, the plea of discrimination in the matter of release of land/properties even in the absence of Section 5-A objections was neither raised nor considered in that case.
[40]. For the reasons afore-stated, the 'public purpose' of the acquisition being a salutary step towards the regulated industrialisation of the State is upheld. However, the denial of benefit of Government Policy for the release of different types of land or properties from acquisition to some of the petitioners [except the petitioners in CWP No. 19521 of 2013] or other landowners on the plea of non-submission of objections under Section 5-A is declared illegal and annulled. Similarly, in rest of the cases, the claim of parity if made out, would also require re-consideration. The respondents are consequently directed to depute the Officers' team to visit the entire area under acquisition and consider the desirability of releasing those land or properties which fulfill the criteria of the Gupta Dinesh Government Policy then applicable. The Officers' Committee shall be 2014.01.14 10:47 I attest to the accuracy and integrity of this document Hihg Court Chandigarh CWP No. 10183 of 2013. ::-23-::
at liberty to invite fresh claims in this regard but only those buildings/structures shall be considered for exemption which were in existence at the time of issue of Section 4 notification. The exercise in this regard shall be completed within a period of three months and till then status-quo with regard to the existing structures shall be maintained.
[41]. For the reasons mentioned in Para No. 26, CWP No. 19521 of 2013 is dismissed.
[42]. Disposed of. Dasti.
( SURYA KANT )
JUDGE
November 29, 2013. ( SURINDER GUPTA )
dinesh JUDGE
Gupta Dinesh
2014.01.14 10:47
I attest to the accuracy and
integrity of this document
Hihg Court Chandigarh