Punjab-Haryana High Court
Kuldeep Singh vs State Of Haryana & Anr on 20 August, 2013
Bench: Surya Kant, Surinder Gupta
CWP No.23386 of 2011 -1-
HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CWP No.23386 of 2011 (O&M)
Date of Decision: 20.08.2013
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Kuldeep Singh . . . . Petitioner
VS.
State of Haryana & Anr. . . . . Respondents
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CORAM: HON'BLE MR.JUSTICE SURYA KANT
HON'BLE MR. JUSTICE SURINDER GUPTA
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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?
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Present: Mr. Amit Jain, Advocate;
Mr. Santosh, Advocate for
Mr. Akshay Bhan, Advocate;
Mr. Vikramjit Singh, Advocate for
Mr. Aman Pal, Advocate;
Mr. Sanjay Mittal, Advocate;
Mr. Sanjeev Kodan, Advocate;
for the petitioners
Mr. SS Pattar, Sr.DAG Haryana
Mr. Ajay Nara, Advocate for HUDA
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SURYA KANT, J. (Oral)
(1) This order shall dispose of CWP Nos.23386, 23574, 23623 of 2011; 3945 of 2012; 3433, 5210, 6749, 7709, 7713, 7757 of 2013 as the cases involve common challenge to the notifications dated 18th December, 2008 and 17th December, 2009 issued under Sections 4&6 of the Land Acquisition Act, 1894 (in short, 'the Act'), respectively Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 -2- whereby land measuring 135.88 acres situated within the revenue estate of Dadri (Hadbast No.147), District Bhiwani, including the petitioners' residential houses/structures/plots, have been acquired for the development of residential Sectors 9-Part & 10-Part in the Urban Estate of Dadri, District Bhiwani.
(2) The question that arises for consideration in these writ petitions is whether the residential houses, other structures or partially-built vacant plots owned by the petitioner(s) deserve to be released from acquisition in terms of the State Government policy dated 26.10.2007 as modified on 24.01.2011?
(3) For an appropriate answer, the facts of each case may be briefly notified:
CWP-23386-2011 i. The petitioner's case is that he along with his sister Usha Rani is owner-in-possession of land comprising Rect.No.168/6/2, 7/2, 16/1, 169/20 situated within the revenue estate of village & Tehsil Dadri, Hadbast No.147, District Bhiwani. Owing to their large family they have constructed a huge residential house along with shops and a monument of his grandfather.
The construction was raised after obtaining sanction from the Municipal Council, Charkhi Dadri on file No.64 dated 3rd September, 2002. The photographs of the house have also been placed on record.Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 -3-
ii. The existence of the petitioner's residential house, a cattle-
shed, two other rooms and seven shops is admitted by the Land Acquisition Collector in Preliminary Submission No.6 of his written statement where it is further averred that :-
"After considering the said recommendations almost all the constructed areas have been left from the acquisition. The area measuring 3.20 acres of village Dadri having construction over it, was left out from acquisition. After taking the decision, the Government ordered for the declaration u/s-6 of the Act for rest of the land."
CWP-23574-2011 i. There are 11 petitioners in this case and each one of them is stated to be owner in possession of small size plots fully descripted in para 3 of the writ petition. Petitioner No.1 purchased a plot measuring 200 sq.yard (5 marla) vide registered sale deed dated 13th November, 2000 and built his residential house with A-class construction. The plot size of petitioner No.2 is 10 marla and he has also constructed the house. Petitioners No.3&4 also own plots measuring 200 sq.yards each while petitioner No.5 owns a plot measuring 225 sq.yards. They too have constructed A-class residential houses. Petitioner No.6 purchased the land on 11th September, 2000 and is said to have constructed A-class house besides installing a saw machine. The size of plot owned by petitioner No.7 is 260 Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 -4- sq.yards which he purchased vide sale deed dated 31st March, 2004 and has constructed A-class residential house. Petitioner No.8 purchased two plots on 13th July, 1991 and 22nd July, 1991 and has constructed a residential house where he lives with his family. Petitioners No.9&10 purchased their respective plots vide sale deeds dated 4th September, 1997 and 14th March, 2005 and are said to have constructed houses much before issuance of Section 4 notification. The size of plot of petitioner No.11 is statedly 3630 sq.yards which he along with his brother and sister purchased vide sale deed dated 22nd July, 1998. They too have constructed a residential house. The petitioners have placed on record the photographs of their respective houses and other relevant material to support the plea that constructions were made much before the acquisition process started. ii. The Land Acquisition Collector in Preliminary Submission No.4 of his written statement has referred to the objections filed by petitioners under Section 5-A of the Act against acquisition of their residential houses. The written statement further reveals that:-
"After giving full opportunity of hearing, the then Land Acquisition Collector made a report on individual objections and sent the report with recommendations to the Government for final decision. Although the Joint Site Inspection Committee recommended for not releasing the Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 -5- existing structures as they were not in a compact block but at scattered locations but as per policy of the Government to exempt structures prior to notification under Section 4 of the Act, the area measuring 3.20 acres of village Dadri having construction over it, were left out from acquisition."
iii. It is not discernible from the written statement whether or not the constructed portions of all the petitioners have been released, and if so, what is the size of 'released area' of each petitioner.
CWP-23623-2011 i. The first petitioner is owner in possession of a plot measuring 7 marlas (210 sq.yards) comprising 7/730 share in Khasra No.189//3, Khewat No.136 and Khatauni No.147 situated within the revenue estate of Dadri. She has constructed a two- room house over that plot. Petitioner No.2 owns a plot measuring 1555 sq.yards comprising part of Khasra No.168//12, 18/1 & 19, Khewat No.14 min, Khatauni No.14 min situated within the revenue estate of Dadri. She too has raised a temporary structure besides boundary wall of the said plot. Petitioner No.3 is owner in possession of plot measuring 1088 sq.yards comprising part of Khasra No.168//19, 22, & 19, Khewat/Khatauni No.14 min situated within the revenue estate of Dadri. She has also constructed a two-room house Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 -6- over the plot. The petitioners have placed on record photographs of their respective structures. ii. The fact that the petitioners raised construction before issuance of Section 4 notification is not denied as the Land Acquisition Collector - respondent No.2 in para 5 of written statement has averred that :-
"...the constructed area along-with proportionate area of the petitioner NO.1&3 has been released from acquisition under Section 5A of the Act. The land measuring 72 square yards of petitioner No.1 and 156 square yards of petitioner No.3 has been released, so the present Civil Writ Petition deserves to be dismissed on this score also."
iii. It appears that the plot of petitioner No.3 has not been released as her 'temporary structure', according to the respondents, does not fall within the ambit of Government Policies. CWP-3945-2012 i. Petitioner No.1 owns 140 sq.yards land comprising Khewat No.120/121 and Khatauni No.131 which he purchased vide sale deed dated 16th July, 2003 and thereafter constructed a residential house over there. Petitioners No.2&3 who are real brothers are owners of land measuring 24K-13M comprising part of Khasra No.146//21/2, 22, 23 and 171 and have constructed A-class residential house on a part of their land Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 -7- which was purchased by their father about 60 years ago. The respective land of the three petitioners fall within the revenue estate of village Dadri.
ii. The factum of construction of houses by the petitioners is admitted by Land Acquisition Collector in Preliminary Submission No.5 of the written statement except in the case of petitioner No.3 whose land was found vacant at the time of survey. It is, however, further admitted in written statement that petitioners No.2&3 are living together as a joint family. CWP-3433-2013 i. There are 13 petitioners in this case who are owners in possession of the land described in para 3 of the writ petition. While petitioners No.2,3,4,5,6,7,8,9,10&11 have constructed A- class residential houses on their respective piece of land, petitioner No.1 has also partly constructed his plot measuring 8 ½ marla where his two sons are running some business activities. Petitioners No.12&13 have not averred construction of any residential house by them.
ii. The Land Acquisition Collector in preliminary submission No.4 of his written statement has given details of the objections filed by each petitioner under Section 5-A of the Act and the decision taken thereupon. Thereafter he has averred as follows:- Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 -8-
"Although the Joint Site Inspection Committee recommended for not releasing the existing structures as they were not in a compact block but at scattered locations. Since it is the policy of the Government to exempt structures prior to notification under Section 4 of the Act, the area measuring 0.07 acres of village Dadri having construction over it prior to notification u/s-4 of the Act, were left out from acquisition. After taking the decision, the Government ordered for the declaration u/s-6 of the Act for rest of the land."
iii. It thus can't be made out from the written statement whether the constructed portion of all the petitioners have been released, and if so, what are the details of the released area? CWP-5210-2013 i. The petitioner owns land measuring 13 bigha 1 biswa as per the details given in para 4 of the writ petition which he purchased vide sale deed dated 20th November, 1968. The petitioner is said to have constructed A-class residential house as per the photograph (Annexure P4).
ii. The factum of residential house of the petitioner is admitted by the Land Acquisition Collector in Preliminary Submission No.5 of his written statement where he says that :-
"As per report under Section 5A of the Act there was a residential house measuring 40' x 40', cattle shed of 20' x 40' and a room of 15' x 15' in khasra Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 -9- No.171//7, which were constructed after the issuance of notification under Section of the Act.
The then Land Acquisition Collector recommended "Sector is commercial. So it would not be useful to spare the building for residential purpose. Acquisition is proposed". After giving full opportunity of hearing, the then Land Acquisition Collector made a report on individual objections and sent the report with recommendations to the Government for final decision. The area measuring 0.07 acres of village Dadri having construction over it prior to issuance of notification under Section 4 of the Act, was left out from acquisition in Sector 10 Part Transport, Commercial & Communication and Road, Dadri. After taking the decision, the Government ordered for the declaration u/s-6 of the Act for rest of the land."
iii. The above-reproduced evasive plea taken by the Land Acquisition Collector does not enlighten as to how much area of the petitioner has been released from acquisition. CWP-6749-2013 i. The petitioner purchased the land descripted in para 4 of the writ petition vide registered sale deed dated 15th February, 2008. She statedly constructed a residential house of A-class construction along with shops where her family is running the Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 - 10 - business. Photographs of the house and the shops are appended with the petition.
ii. Since no notice was issued to the respondents and the case was ordered to be heard along with other related petitions, there is no admission or denial by the respondents with regard to the factual assertions made by the petitioner.
CWP-7709-2013 i. The petitioners are husband and wife who purchased land measuring 180 sq.yards vide two sale deeds dated 8th July, 2003 and 10th December, 2003 as per details given in para 4 of the writ petition. They are said to have constructed a residential house over the said plot as per the photograph (Annexure P5).
ii. Since no notice was issued to the respondents and the case was ordered to be heard along with connected cases, there is no admission or denial by the respondents with regard to the factual assertions made by the petitioner.
CWP-7713-2013 i. The petitioners are real brothers. They purchased two plots measuring 363 sq.yards and 300 sq.yards vide registered sale deeds dated 26th May, 2004 and 25th February, 2005, respectively. The description of the land is given in para 4 of the writ petition. They are said to have constructed residential Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 - 11 - houses though photograph of only one house is appended as Annexure P6.
ii. Since no notice was issued to the respondents and the case was ordered to be heard along with the connected writ petitions, there is no admission or denial by the respondents with regard to the factual assertions made by the petitioner. CWP-7757-2013 i. The petitioner along with Phoolpati and Veena Sangwan, purchased land measuring 1100 sq.yards vide registered sale deed dated 11.04.2007 as per the description given in para 4 of the writ petition. The petitioner(s) thereafter allegedly constructed a residential house as depicted in the photograph (Annexure P4).
ii. Since no notice was issued to the respondents and the case was ordered to be heard along with the connected writ petitions, there is no admission or denial by the respondents with regard to the factual assertions made by the petitioner. (4) It emerges from the above-stated brief facts that most of the petitioners purchased small pieces of plots out of agricultural land falling within the revenue estate of Village Dadri, now a Municipal area and for whose regulated urbanization the impugned acquisition has been made. It is also evident that most of the petitioners constructed their residential houses and other structures Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 - 12 - much before initiation of the impugned acquisition. The fact that the petitioners bona-fidely purchased the small size plots and have constructed residential houses as a measure of social security, indeed cannot be disputed. There is rather a candid admission by the Land Acquisition Collector that most of the houses/structures were found in existence at the time of survey conducted before issuance of Section 4 notification.
(5) It is also not in dispute that in purported compliance to the Government policies relied upon by petitioners, constructed portion of their properties [except temporary shed or vacant plots] have since been released by the respondents. There is, however, uncertainty and the petitioners are groping in the dark as to how much area(s) belonging to each one of them has been released from acquisition.
(6) It may be apposite at this stage to give a brief reference to the State Government's policy dated 26th October, 2007 whereunder the claim of landowners for the release of their residential houses/structures can be accepted. The salient features of this policy are as follows:-
"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.Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 - 13 -
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.
5) Any land in respect of which an application under Section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975, has been made by the owners prior to the award for converting the land into a colony, may also be considered for release subject to the condition that the ownership of the land should be prior to the notification under Section 4 of the Act.
6) That the Government may also consider release of land in the interest of integrated and planned development for the lands where the owners have approached the Hon'ble Courts and have obtained stay dispossession.
Provided that the Government may release any land on the grounds other than stated above under Section 48(1) of the Act under exceptionally justifiable circumstances for the reasons to be recorded in writing..."
(7) The afore-stated policy was modified on 24th January, 2011 to a limited extent but without any bearing on the point in issue.
(8) The enforceability of these policy decisions is also no longer res integra as the Hon'ble Supreme Court in Patasi Devi Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 - 14 - versus State of Haryana and others, (2012) 9 SCC 503 has ruled that :-
"19. Before this Court it has been pleaded that on the date of issuance of preliminary notification the appellant's land was vacant, but, this statement cannot be relied upon for denying relief to her because no such averment was made in the counter- affidavit filed before the High Court. The policy framed by the Government of Haryana clearly stipulates release of the land on which construction had been raised prior to issuance of Section 4 notification. The appellant's case is covered by that policy. Therefore, her land ought to have been released as was done in the case of M/s Sharad Farm and Holdings (P) Ltd......"
(Emphasis applied) (9) The left out grievance of the petitioner(s) is that the policy dated 26th October, 2007, reproduced above, appears to have been construed by the respondents like a Statute and only their actual 'constructed portion' on measurements has been released. They contend, and rightly so, that unless sufficient open space is also released along with the constructed structures, they cannot in any way utilize or enjoy their released residential properties. (10) It is also urged that the action of non-releasing the partly constructed houses, temporary sheds or the plots ready to be utilized for construction of houses, suffers from the vice of artificial Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 - 15 - classification between 'A', 'B' or 'C' class constructions and has been strongly deprecated by the Hon'ble Supreme Court in (i) Sube Singh & Ors. vs. State of Haryana & Ors. (2001) 7 SCC 545; & (ii) Jagdish Chand & Anr. vs. State of Haryana & Anr., (2005) 10 SCC 162. According to petitioners such an action cannot stand the test of Articles 14 of the Constitution, hence all the subject-properties deserve to be released from acquisition.
(11) The State counsel or the officers of the Department who are present in Court, have not been able to furnish the accurate measurements of released properties of each petitioner. Since there is a reference in the written statement of the exact measurements of some of the released structures, it can be safely inferred that the respondents have released the area(s) of actual structures only. Similarly, partly built, temporary sheds or vacant small plots have not been admittedly released.
(12) After giving our thoughtful consideration to the respective submissions made by counsel for the parties, it appears that the object and import of the policy dated 26th October, 2007, cannot be artificially restricted or curtailed only to release the 'existing structure' without any open space for the meaningful, proper and effective utility of the released properties. Any rigid construction of the policy can even take away the most sacrosanct fundamental right, to live with human dignity, within the meaning of Article 21 of Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 - 16 - the Constitution. While there can be no hard and fast rule in this regard but a uniform criteria to release the open space near or equivalent to the size of the constructed portion subject to the total area under acquisition of the owner, can be a just and fair guiding factor. Similarly, the respondents need to take a holistic view whether partially built or vacant small size plots can also be released without affecting the 'public purpose' of acquisition, say when an isolated small plot cannot be utilized for any 'public purpose' and the owner is willing to deposit external/internal or other statutory charges.
(13) We are, however, not inclined to issue any general directions in terms of what has been stated above. We say so for the reason that in some of the cases no notice was issued to the respondents and correctness of their factual averments were not ascertained. Similarly, in the case of a few petitioners, the respondents have disputed the existence of any partially built residential house/structure. In a such like situation, it would be appropriate to lay down broad principles to be followed by the respondents for the release of small size properties of the petitioners subject to the directions to be issued hereinafter. (14) Since, correct facts at the spot in respect of the claim of each petitioner must be verified before re-determination of the actual area of their respective properties released or to be released, we Vishal V 2013.09.23 11:48 I attest to the accuracy and integrity of this document CWP No.23386 of 2011 - 17 - dispose of these writ petitions with a direction to the respondents to conduct fresh survey of the property(ies) owned by each petitioner and thereafter re-determine the area released/to be released in terms of the directions and observations issued/made hereinabove. (15) Similarly, wherever the petitioner(s) is/are owner in possession of the plots measuring 250 sq.yards or less than that and if no public purpose can indeed be achieved by acquiring those vacant plots except that it is not needed for a 'public utility' like road, greenbelt, sewerage etc., let the claim for release of those plots be also considered.
(16) The parties shall maintain status quo in respect of further construction or sale etc. till appropriate orders are passed by the respondents preferably within a period of four months from the date of receipt of a certified copy of this order.
(17) With these observations and directions, the writ petitions stand disposed of.
(18) Ordered accordingly. Dasti.
(Surya Kant)
Judge
20.08.2013
20.08.2013 (Surinder Gupta)
vishal shonkar
Judge
Vishal V
2013.09.23 11:48
I attest to the accuracy and
integrity of this document