Punjab-Haryana High Court
Aggarwal Paper Board And Allied ... vs The State Of Haryana And Another on 22 November, 2010
Author: Jasbir Singh
Bench: Jasbir Singh, Augustine George Masih
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.18365 of 2001
Date of decision: 22 .11.2010
Aggarwal Paper Board and Allied Industries
.....Petitioner
versus
The State of Haryana and another
......Respondents
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mr.Justice Augustine George Masih
Present: Mr.Ashok Aggarwal, Senior Advocate with
Mr.Mukul Aggarwal and Mr.I.S.Brar,
Advocate for the petitioner(s)
Mr.Kamal Sehgal, Addl.A.G. Haryana
Jasbir Singh, J.
This order will dispose of 14 writ petitions bearing CWP Nos.6318, 6319, 6320, 6321, 6322, 6324, 18365, 19935 of 2001, 4839, 5516, 5916, 6884, 6973, 7631 of 2002, involving similar questions of law and facts.
By filing these writ petitions, the petitioners have laid challenge to a notification dated 21.12.1998, issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act), proposing to acquire 158.24 acres of land for a public purpose, namely, 'development and utilization of land for residential and commercial area' at Fatehabad. Further challenge is Civil Writ Petition No.18365 of 2001 2 to a notification issued under Section 6 of the Act dated 20.12.1999, declaring intention of respondent No.1 to acquire an area measuring 142.22 acres.
In some of the writ petitions, besides as above, challenge has also been made to award passed by the Land Acquisition Collector on 19.12.2001.
Before dealing with the merits of these cases, it is necessary to note here that Civil Writ Petition Nos.6318 to 6324 of 2001 were dismissed in liminie by a Division Bench of this Court by passing a detailed order on 10.5.2001. The petitioners therein went to the Hon'ble Supreme Court and on 26.5.2007, Special Leave Petitions filed by the petitioners therein were allowed by passing the following order:-
"Heard learned counsel for the parties.
Delay cononed.
In view of the pendency of nine cases before the High Court involving similar dispute, we set aside the impugned orders, without expressing any opinion on the merits so that the writ petitions can be heard along with the said nine cases, details of which have been given the rejoinder affidavit filed on behalf of petitioner No.2. They are: CWP No.18365 of 2001, CWP No.19587 of 2001, CWP No.19935 of 2001, CWP No.4839 of 2002, CWP No.5516 of 2002, CWP No.5916 of 2002, CWP No.6884 of 2002, CWP No.6973 of 2002 and CWP No.7631 of 2002.
The special leave petitions are, accordingly disposed of."Civil Writ Petition No.18365 of 2001 3
It is how all these writ petitions have been put up for hearing together.
For the purpose of dictating order, facts are being mentioned from CWP No.18365 of 2001.
It is case of the petitioner that it has purchased 41 kanal 8 marla of land in the year 1980, which falls within the Municipal limits of Fatehabad city. After getting necessary permission to set up an industry, to manufacture straw board and other allied products, it has spent about more than ` 45 lacs to run that factory. On issuance of notification under Section 4 of the Act on 21.12.1998, the petitioner submitted its objections under Section 5-A of the Act, making prayer for release of its land. The Land Acquisition Collector made the following recommendations in its report:-
"Applicant was heard and spot was inspected. The applicant has constructed Card Board factory on the above- mentioned land. On the spot he told that investment of Rs.60 to 70 lacs on machinery has been made and this is sole source of income. In this factory a treatment plant for controlling the pollution is being installed so that the residents of the area are not adversely affected by pollution. Keeping in view the agricultural development of the area this land should be excluded from acquisition."
However, ignoring that recommendation, land of the petitioner was ordered to be acquired by issuing a notification under Section 6 of the Act.
It is how, this writ petition has been filed.
It is case of the petitioner that recommendation was rejected without any reasoning whatsoever. By filing Civil Miscellaneous Civil Writ Petition No.18365 of 2001 4 application No.573 of 2010, an attempt was made to show to this Court that land of many other land owners, who were similarly situated, was left out of acquisition, whereas, the said relief was not granted to the petitioner. It was further said in that application that there is no question of causing any pollution in the area by the petitioner because the petitioner has been granted requisite permission to run that factory, by the Haryana State Pollution Control Board under the provisions of Air (Prevention and Control of Pollution) Act, 1981 (in short, Air Act) and also Water (Prevention and Control of Pollution) Act, 1974 (in short, Water Act).
Following seven writ petitions were filed after passing of the award on 19.12.2001:-
CWP Nos.19935 of 2001, 5516, 5916, 6884, 6973, 7631, 4839 of 2002.
In the normal course, as per law, these writ petitions could not have been entertained, however, in all these cases, an attempt has been made to show to this Court that land of many other land owners was released from acquisition, even after passing of the award on the above said date. By stating as above, an attempt has been made to assail acquisition of the land being violative of Article 14 of the Constitution. Specific instances of release of land have been given in civil writ petition No.5916 of 2002. In the writ petitions, which were filed after passing of the award, besides ground of discrimination, it was also stated that award having been pronounced without getting any prior approval of the State Government, as is mandatory under Section 11 of the Act, deserves to be quashed.
By filing reply in this case, it has been stated that after getting report of the Joint Inspection Committee, stating that existing of factory is causing pollution, in the area, the land was ordered to be acquired. Civil Writ Petition No.18365 of 2001 5
It was further stated that qua some of the petitioner in these writ petitions, some portion of the land was released and the rest which was needed for proper development was ordered to be acquired. It was further stated that no discrimination has been done with the petitioner, land of some land owners was released from acquisition taking note of situation at the spot and further that the award was passed as per law after meeting all the requirements as are mandatory under the Act.
Heard counsel for the parties.
In all these writ petitions, it is primary contention of the petitioners that by not releasing their land discrimination has been done to them because land of others, who were similarly situated, was released from acquisition. In CWP No.5916 of 2002, paragraph No.10 reads thus:-
"10. That the Land Acquisition Collector announced Award No.1 for the year 2000-2001 on 19.12.2001 vide which land measuring 141.11 acres including the lands of the petitioners was acquired. As already stated above in the body of the writ petition, vide declaration under Section 6 of the said Act, total land measuring 142.22 acres of land was declared for acquisition, whereas in the process of award, land measuring 141.11 only was acquired and the area of M/s Maruti Service Station was left out of the purview of the said award. A true copy of the said award is annexed herewith as Annexure P7. When the Collector had made an award under Section 11 of the said Act on 19.12.2001, possession of land measuring 141.11 acres was taken, whereafter the land vested absolutely in the State Government free from all encumbrances. The possession of the said land measuring 141.11 acres was then Civil Writ Petition No.18365 of 2001 6 transferred to the HUDA for being vested in the same. It may be mentioned here that vide the aforesaid award, which was made without the previous approval of the State Government in terms of Section 11 of the said Act, lands of some persons, namely, M/s Rajiv Kumar Harish, Rajesh and Gulshan comprised in Khasra No.170//5 and 6/1 measuring 7 kanals 11 marlas as also of M/s Bajaj Products Biscuits Limited, comprised in khasra Nos.182//14/3, 15/2, 16/4, 17/1/1 and 17/2/4 measuring 5 kanals were also acquired and possession taken of, meaning thereby not only that the award was announced with regard to the aforesaid land but the possession was also taken of, where upon it vested with the State Government and thereafter in the HUDA free from all encumbrances. The aforesaid two parcels of land are situated in quite proximity of the land of the petitioners. A true map plan showing the entire acquired land including the land of the petitioners as also that of aforesaid persons, namely, Rajiv Kumar etc. and M/s Bajaj Products Biscuits Factory is annexed already as Annexure P1. A bare perusal of the said plan shows that the area of M/s Bajaj Products Biscuits Factory, Rajiv Kumar and others is situated just in close proximity of the land of the petitioners. The area of M/s Maruti Service Station is situated towards Western side of the land of the petitioners in its immediate vicinity. A plan showing the area of M/s Rajiv etc. and the construction raised thereon is also annexed herewith as Annexure P8. A perusal thereof would also show that only small construction existed Civil Writ Petition No.18365 of 2001 7 in the said area of Rajiv Kumar etc. which is not substantial in nature and yet the same has been released from acquisition for the reasons best known to the respondents and that of the petitioners which is huge one has been acquired as is clear from site plan, Annexure 1A."
In the written statement filed on behalf of respondent Nos.1, 2 and 4, the above said paragraph has been replied as under:-
"10. That the contents of para No.10 of the Civil Writ Petition are admitted to the extent that the award in question was announced after prior approval of the state Govt. on 6.11.2001. As rergards the land of M/s Rajev Kumar, Harish, Rajesh etc., and Bajaj Biscuits etc. mentioned in the C.W.P., it is submitted that the land in question was released by the State Govt. after considering the facts, situation and as per rule and regulation and released on the terms and condition of the Govt. It is wrong to say that the above mentioned released land are quite proximity of the land in dispute and area far away from the land of petitioners. So far as question of the disputed land is concerned, as replied in earlier paras of the written statement, it was necessary to acquire the disputed land for proper planning in view of the proposed sector. Hence does not deserve to be released from the acquisition. As such contentions raised by the petitioners are baseless."
In this writ petition also, by moving Civil Miscellaneous No.573 of 2010, similar ground of discrimination was raised and order passed in favour of Rajiv Kumar etc. and M/s Bajaj Products Biscuits Civil Writ Petition No.18365 of 2001 8 Limited, releasing their land was brought on record. It was further said that the land under many other factories was kept out of the purview of notification issued under Section 4 of the Act, which were situated at close proximity to the land owned by the petitioner. By taking note of release of land in favour of some of the land owners, a Division Bench of this Court in CWP No.6973 of 2002 on 7.8.2003, passed the following order:-
"We have heard learned counsel for the parties. Prima facie, the exemptions granted by the State to some individuals/ institutions and its refusal to grant similar exemption to the petitioners appear to be contrary to the doctrine of equality enshrined in Article 14 of the Constitution.
In the normal course, we may have struck down the exemptions already granted, but keeping in view the larger public interest and the planned development of the area, we have impressed upon the learned counsel for the respondents that it would be just and proper to adjust the petitioners within the existing development plan. If their land falls within the industrial or commercial zone, they may be adjusted without disturbing the present structures and if their land falls in the residential area, then the State/ Haryana Urban Development Authority can allot them alternative site and give sufficient time for shifting.
Learned counsel for the respondents requests for time to seek instructions.
Put up on 8.9.2003."
Thereafter, it appears that an exercise to exclude some parcels of land which could be released from acquisition was done. Report from the Civil Writ Petition No.18365 of 2001 9 Committee was sought and an affidavit of Rajesh Jogpal, Land Acquisition Collector was filed in this writ petition on 10.12.2003. Regarding rejection of prayer of the petitioner to release its land, facts earlier mentioned were reiterated. Regarding release of land of other owners, it was stated as under:-
"4. That the land of M/s Narain Motors Workshop and M/s Bajaj Products were released by the Govt. in view of the recommendation of the committee and both were in running condition. The building plan of the Maruti Service Station was sanctioned. Their land was released on conditions that they will demolish the constructions within 30 mtr. Wide prohibited strips of the green belt parallel to the national highway No.10. Moreover they will also spare the land which effects the planning of the HUDA for the green belt. So far as question of releasing the land of Sh.Rajeev Kumar etc. is concerned, that was left out from the acquisition by the Government as per condition mentioned above."
Narration of facts and orders, mentioned above, clearly indicates that land of some of the land owners was left out of acquisition, who were similarly situated like the petitioner in this case. We have seen the site plan annexed with CWP No.5916 of 2002, which shows that released land is situated near to the land owned by the petitioner. In many writ petitions, it has been admitted by the respondents that construction raised by the land owners do exists at the spot. It appears that the authorities have not properly appreciated the situation at the spot when ordering release of land to some and declining the same relief to the others. In the affidavit filed by the Land Acquisition Collector dated 10.12.2003, it Civil Writ Petition No.18365 of 2001 10 has vaguely been stated that property of M/s Narain Motors Workshop and M/s Bajaj Products Biscuits Limited was released by the government as per the recommendation made by the Committee as both the units were in the running condition. It is further stated that land of M/s Maruti Service Station was released subject to a condition that the land owner shall demolish the construction falling within 30 meters wide prohibited strips of green belt situated parallel to the national highway No.10. Regarding release of vacant land in favour of Rajiv Kumar etc., it was only stated that it was released by the government as per conditions imposed upon them. What were those conditions, was not mentioned in the affidavit.
A Division Bench of this Court in order dated 7.8.2003, in CWP No. 6973 of 2001 has clearly said that primia -facie the exemptions granted by the State to some individuals and its refusal to grant similar exemption to other land owners, appears contrary to the doctrine of equality enshrined in Article 14 of the Constitution. It was further said that in the normal course, the land acquisition under challenge could have been struck down, however keeping larger public interest in mind and planned development of the area, the respondents were directed to adjust petitioners in that writ petition within development plan and if not possible they shall be granted alternative sites and sufficient time be given to them to shift their residences etc. To comply with the above said order, many dates were sought and ultimately, on 12.12.2003, it was brought to the notice of the Court that the State government is not prepared to exempt land of the petitioners in CWP No.6973 of 2002, as directed by this Court vide order dated 7.8.2003.
We are of the opinion that once order dated 7.8.2003 has become final, it was incumbent upon the authorities to comply with the Civil Writ Petition No.18365 of 2001 11 same and give requisite relief to the land owners. However, that was not done in a very arbitrary manner. Their Lordships of the Hon'ble Supreme Court in B.E.M.L. Employees House Building Co-operative Society Ltd. v. State of Karnataka and others, AIR 2004 Supreme Court 5054, by noting that the land owners whose land was not released were similarly situated with those land owners whose land was released, observed as under:-
"Neither the appellant, nor the State Government has been able to show us any rational distinction between the case of the fifth respondent and the cases of the other land owners, whose lands were excluded from the acquisition. When this is so, it appears to us that the vice of hostile discrimination infects and vitiates decision taken by the State Government to continue with the acquisition against the fifth respondent's land."
In a latest judgment of the Hon'ble Supreme Court in Hari Ram and another v. The State of Haryana and others,JT 2010 (2) SC 235, taking note of adopting separate parameters by the authorities in releasing land in favour of some and not releasing land in favour of the others, who were similarly situated, it was observed as under:-
40. As a matter of fact, lands of more than 40 landowners out of the same acquisition proceedings have been released by the State Government under Section 48 of the Act. Some of the release orders have been passed in respect of landowners who had not challenged the acquisition proceedings and some of them had challenged the acquisition proceedings before the High Court and whose cases were not recommended by Joint Inspection Committee for withdrawal Civil Writ Petition No.18365 of 2001 12 from acquisition and whose writ petitions were dismissed.
Some of these landowners had only vacant plots of land and there was no construction at all. In most of these cases, the award has been passed and, thereafter, the State Government has withdrawn from acquisition. It is not the case of the respondents that withdrawal from acquisition in favour of such landowners has been in violation of any statutory provision or contrary to law. It is also not their case that the release of land from acquisition in favour of such landowners was wrong action on their part or it was done due to some mistake or a result of fraud or corrupt motive. There is nothing to even remotely suggest that the persons whose lands have been released have derived the benefit illegally. As noticed above, prior to October 26, 2007, the State Government did not have uniform policy concerning withdrawal from acquisition. As regards the guidelines provided in the letter dated June 26, 1991, this Court has already held that classification on the basis of nature of construction cannot be validly made and such policy is not based on intelligible differentia and a rational basis. What appears from the available material is that for release of the lands under the subject acquisition, no policy has been adhered to. This leads to an irresistible conclusion that no firm policy with regard to release of land from acquisition existed. It is true that any action or order contrary to law does not confer any right upon any person for similar treatment. It is equally true that a landowner whose land has been acquired for public purpose by following the Civil Writ Petition No.18365 of 2001 13 prescribed procedure cannot claim as a matter of right for release of his/her land from acquisition but where the State Government exercises its power under Section 48 of the Act for withdrawal from acquisition in respect of a particular land, the landowners who are similarly situated have right of similar treatment by the State Government. Equality of citizens' rights is one of the fundamental pillars on which edifice of rule of law rests. All actions of the State have to be fair and for legitimate reasons. The Government has obligation of acting with substantial fairness and consistency in considering the representations of the landowners for withdrawal from acquisition whose lands have been acquired under the same acquisition proceedings. The State Government cannot pick and choose some landowners and release their land from acquisition and deny the same benefit to other landowners by creating artificial distinction. Passing different orders in exercise of its power under Section 48 of the Act in respect of persons similarly situated relating to same acquisition proceedings and for same public purpose is definitely violative of Article 14 of the Constitution and must be held to be discriminatory. More so, it is not even the case of the respondents that release of land from acquisition in favour of various landowners, as noticed above, was in violation of any statutory provision or actuated with ulterior motive or done due to some mistake or contrary to any public interest. As a matter of fact, vide order dated August 19, 2008, this Court gave an opportunity to the State Government to consider the Civil Writ Petition No.18365 of 2001 14 representations of the appellants for release of their land and pass appropriate order but the State Government considered their representations in light of the policy dated October 26, 2007 ignoring and overlooking the fact that for none of the landowners whose lands have been released from acquisition, the policy dated October 26, 2007 was applied. The State Government has sought to set up make believe grounds to justify its action that development planning has been kept into consideration and that the appellants have been offered developed plots of double the area of construction while the fact of the matter is that in some cases where the plots were vacant and had no construction, the entire plot has been released from acquisition and also the cases where one room or two rooms construction was existing, the whole of plot has been released. While releasing land of more than 40 landowners having plots of size from 150 sq. yards to 1500 sq. yards, if development plan did not get materially disturbed in the opinion of the State Government, the same opinion must hold good for the appellants' lands as well. It is unfair on the part of the State Government in not considering representations of the appellants by applying the same standards which were applied to other landowners while withdrawing from acquisition of their land under the same acquisition proceedings. If this Court does not correct the wrong action of the State Government, it may leave citizens with the belief that what counts for the citizens is right contacts with right persons in the State Government and that judicial Civil Writ Petition No.18365 of 2001 15 proceedings are not efficacious. The action of State Government in treating the present appellants differently although they are situated similar to the landowners whose lands have been released can not be countenanced and has to be declared bad in law."
Situation in the present case is also the same. Admittedly, land of some of the land owners was released before issuance of notification under Section 6 of the Act and qua some others, it was even released after passing of the award. The respondents have failed to give any plausible explanation, not to give similar relief to the petitioners in these cases. In most of the cases in this bunch, it is admitted that construction raised by the land owners exists at the spot. If that is so, as per latest Policy of the State of Haryana published on 26.10.2007, they deserve release of constructed portion of their land. Furthermore, it was mandatory/ incumbent upon the authorities to comply with the order passed by this Court on 7.8.2003 in CWP No.6973 of 2002, ordering adjustment/ release of land of the petitioners therein.
The petitioner in this case, by drawing our attention to the certificates issued by the Haryana State Pollution Control Board, granting permission under the provisions of Air Act and Water Act, argued that its units is a non-polluting unit.
In view of facts mentioned above, we are of the opinion that the petitioners' prayer for release of their land needs sympathetic reconsideration.
Further contention of counsel for the petitioners is that the award is liable to be set aside because it was passed without getting prior Civil Writ Petition No.18365 of 2001 16 approval of the Government, in terms of the provisions of Section 11(1) of the Act. Above said provisions read thus:-
"11. Enquiry and award by Collector. -1
[(1)]On the day so fixed, or any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8, and into the value of the land and[at the date of the publication of the notification under Section 4, subsection (1),] and into the respective interests of the persons claiming the compensation, and shall make an award under his hand of-
(i) The true area of the land;
(ii) The compensation which in his opinion should be allowed for the land; and
(iii) The apportionment of the said compensation among all the persons known or believed to he interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him:
2[Provided that no award shall be made by the Collector under this subsection without the previous approval of the appropriate Government Civil Writ Petition No.18365 of 2001 17 or of such officer as the appropriate Government may authorise in this behalf:
Provided further that it shall be competent for the Appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the Appropriate Government may specify in this behalf;"
Proviso 1 and 2 to sub-section 1 of Section 11 of the Act, laid down the condition subject to which, the Land Acquisition Collector, can pass an award without getting prior approval from the government or any other officer authorized by the government.
It came to our notice that the State of Haryana on 19.12.1984, passed the following instructions:-
"No.7689-R-III-84/34481:- The pursuance of the provisions contained in the second proviso of sub-section (1) of Section 11 of the Land Acquisition Act, 1894, the Governor of Haryana hereby directs the Collectors in the State of Haryana to make awards in all cases in which the amount awarded does not exceed more than 15% of the rate furnished of them by the Collector and the total amount of such difference also does not exceed 10 lakhs rupees without obtained previous approval of the State Government."
Above said instructions clearly indicate that the Land Acquisition Collector is free to pronounce award without getting its prior approval from the government where amount awarded does not exceed more than 15% of the rate furnished to the Land Acquisition Collector by the Civil Writ Petition No.18365 of 2001 18 Collector of the District and also where total amount of such difference does not exceed ` 10 lac.
We have perused the award in this case. Before pronouncing it, the Land Acquisition Collector asked the Collector to furnish rates for acquisition of the land. The District Collector appointed a Committee and after appraisal by the said committee, he supplied the rates for the land under acquisition which was accepted in toto by the Land Acquisition Collector. If that is so, in view of instructions issued on 19.12.1984, challenge made to the award cannot be appreciated.
It is not in dispute that vide the notifications, under challenge, land measuring about 142 acres was acquired. The land involved in these writ petitions is only a small part of the same. May be, during intervening period, rest of the land might have been used for the purpose, for which it was acquired.
In view of above, it is not possible for us to quash notifications, issued under Sections 4 and 6 of the Act and award at this stage. However, in view of the facts, mentioned earlier, we partly allow these writ petitions and direct the respondents to consider prayer of the petitioners for release of their land sympathetically in terms of the order passed by this Court on 7.8.2003 in CWP No.6973 of 2002. When considering their request, the same parameters be applied to them which were applied when release order was passed in favour of Rajiv Kumar etc. on 25.12.2001 and M/s Bajaj Products Biscuits Limited on 5.10.2001 and others, in whose favour land was released either before issuance of notification under Section 6 of the Act or after passing of the award. The petitioners, may be subjected to similar conditions. Their constructed buildings along with proportionate vacant area be released from acquisition, if constructions do not interfere in Civil Writ Petition No.18365 of 2001 19 the road, green belt and is not earmarked for any other public infrastructural facilities. Respondent No.1 is directed to constitute a Committee consisting of Additional Secretary to the Government of Haryana, Department of Local Bodies, Director, Urban Estates Department, State of Haryana, Chief Administrator, HUDA and the Land Acquisition Collector, Fatehabad, to consider claim of the petitioners, in terms of the observations made by us, as above. The needful shall be done within three months. It is made clear that in case it is found by the Committee that it is not possible to adjust any industrial unit on account of foul smell etc. omitted by it, the said unit be allotted an alternative site in the near vicinity on concessional rates and a reasonable time, say about six months, be granted to the unit to shift to the proposed new site.
(Jasbir Singh)
Judge
22.11.2010 (Augustine George Masih)
gk Judge