Punjab-Haryana High Court
M/S Usha Stud And Agricultural Farms ... vs State Of Haryana And Others on 27 January, 2012
Author: Augustine George Masih
Bench: Jasbir Singh, Augustine George Masih
CWP No. 3822 of 1991 and other connected cases 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision: 27.01.2012
1. CWP No. 3822 of 1991
M/s Usha Stud and Agricultural Farms Private Limited
..... PETITIONER
VERSUS
State of Haryana and others
..... RESPONDENTS
2. CWP No. 3820 of 1991
Veena Mehra
..... PETITIONER
VERSUS
State of Haryana and others
..... RESPONDENTS
3. CWP No. 3821 of 1991
Admiral S.M.Nanda s/o Sh. Mathura Das Nanda through
Sh. G.P.Gupta
..... PETITIONER
VERSUS
State of Haryana and others
..... RESPONDENTS
4. CWP No. 3823 of 1991
Major P.K.Mehra
..... PETITIONER
VERSUS
State of Haryana and another
..... RESPONDENTS
5. CWP No. 1152 of 1994
M/s Usha Stud and Agricultural Farms Private Limited and others
..... PETITIONERS
VERSUS
State of Haryana and others
..... RESPONDENTS
CWP No. 3822 of 1991 and other connected cases 2
6. CWP No. 1153 of 1994
Major P.K.Mehra
..... PETITIONER
VERSUS
State of Haryana and others
..... RESPONDENTS
7. CWP No. 1154 of 1994
Adm. S.M.Nanda (Retd.) son of Shri M. Nanda
..... PETITIONER
VERSUS
State of Haryana and others
..... RESPONDENTS
8. CWP No. 1155 of 1994
Smt. Veena Mehra
..... PETITIONER
VERSUS
State of Haryana and others
..... RESPONDENTS
CORAM:HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. Ashok Aggarwal, Sr. Advocate,
with Mr. J.S.Sidhu, Advocate,
Mr. Vikas Bahl, Advocate,
for the petitioner(s)
Mr. Kamal Sehgal, Addl. A.G. Haryana.
Mr. Anish Batish, Advocate,
for Mr. Arun Walia, Advocate
for respondent No. 2.
***
CWP No. 3822 of 1991 and other connected cases 3
AUGUSTINE GEORGE MASIH, J.
By this order, we propose to decide eight writ petitions. In CWP Nos. 3820, 3821, 3822, 3823 of 1991 challenge is laid to the notification issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'), dated 07.12.1988, notification under Section 6 of the Act dated 06.12.1989 and notices under Section 9 of the Act dated 27.11.1990 and in CWP Nos. 1152, 1153, 1154 and 1155 of 1994, challenge is to the Award dated 05.12.1991 and the supplementary Award dated 25.08.1993 passed by the Land Acquisition Collector in the acquisition under challenge in the first four writ petitions.
Petitioner in CWP No. 3822 of 1991 is a Private Limited Company incorporated under the Companies Act, 1956 and petitioners in CWP Nos. 3820, 3821 and 3823 of 1991 are the Directors of the Company whose private land stands notified for acquisition under challenge. The total land in all these writ petitions is 52.74 Acres, out of which 40.8125 Acres is owned by the Company and the rest belongs to the other petitioners, which is situated in Daulatpur Nasirabad (Carterpuri) Tehsil and District Gurgaon. For convenience sake, pleadings are being referred to from CWP No. 3822 of 1991 as common facts and law points are involved and the arguments were also addressed by the counsel for the parties taking the pleadings mentioned therein as the basis for making their submissions.
CWP No. 3822 of 1991 and other connected cases 4
Earlier to the present impugned notifications, this very land was sought to be acquired through notification dated 13.11.1981 issued under Section 4 of the Act, which was for development and utilization of land as residential-cum-commercial area as shown in development plan under the HUDA Act. It was followed by a notification under Section 6 dated 15.11.1984 measuring 52.74 Acres along with other land, which included land belonging to M/s Rani Shever Poultry Farm, M/s Omega Commercial Pvt. Ltd., Anand Purifier (now M/s Enfilco Ltd.), Indo Swiss Time Ltd., M/s Jawala Textile Mills, purportedly for the purpose of development of Sectors 21, 22 23, 23-A of Gurgaon. These notifications were challenged by the petitioner-Company through CWP No. 5623 of 1984 filed in this Court. These very notifications were challenged by others as well and one of the writ petitions was dismissed by this Court vide order dated 16.07.1985. Writ petition preferred by the petitioner-Company was dismissed by this Court vide order dated 24.10.1985 in the light of the earlier judgment dated 16.07.1985.
Petitioner-Company preferred a Special Leave Petition before the Supreme Court by filing SLP No. 2302 of 1986. During the pendency of this petition before the Supreme Court, a negotiated compromise formula with the respondents was worked out, whereby the respondents agreed to release most of the land of the petitioner- Company, however, the petitioner was required to withdraw the Special Leave Petition. In the light of the compromise, which was negotiated, Special Leave Petition was withdrawn by the petitioner- CWP No. 3822 of 1991 and other connected cases 5 Company and its Directors on 11.08.1986. As per the terms of the settlement, an agreement dated 08.06.1987 was entered into between the petitioners and the Estate Officer, Gurgaon, acting through Chief Administrator, Haryana Urban Development Authority (hereinafter referred to as 'the HUDA"), Mani Majra (U.T.), Chandigarh. According to this agreement, land measuring 47.74 Acres was released to the petitioners for the reason that the petitioner-Company had irregular boundary, which had to be regularized for the better planning of the area. Thus, 4.77 Acres of the land was left out from the total land of the petitioners. Other conditions were also imposed, one of which was that they had to deposit the development charges.
Not only the land of the petitioners was released but land of M/s Rani Shever Poultry Farm, M/s Omega Commercial Pvt. Ltd., Anand Purifier (M/s Enfilco Ltd.), Indo Swiss Time Ltd., M/s Jawala Textile Mills, was also released on the basis of separate compromise entered with them also. As a matter of fact, the case of the petitioner- Company was equated and land released, as the facts of the case of the petitioners and that of these Companies were found to be similar. Haryana Urban Development Authority formally conveyed a decision to release the land on 05.09.1986 regarding release of 47.74 Acres of land out of the petitioners' total land of 52.74 Acres. Petitioners requested the respondents to determine the exact development charges to be paid by the petitioners. Reminders were sent on 23.02.1988 and 01.03.1988 for calculation of the amount due. On CWP No. 3822 of 1991 and other connected cases 6 that, a letter dated 03.05.1988 was received by the petitioners asking them to deposit ` 1 lac on account of development charges under the agreement. First instalment of ` 1 lac, as demanded, was deposited on 03.05.1988 by the petitioners. Petitioners received a letter dated 25.05.1988 from the HUDA stating that the land is being renotified by the Government for acquisition. This, the petitioner allege, was done by the respondents and in particular respondent No. 2-HUDA as the adjacent land, which was developed by it, fetched prices quite high in auction of the plots. Because of this, the agreement entered into between the parties was breached and fresh notification seeking to acquire the land measuring 55.10. Acres, out of which 52.74 Acres is land of the petitioners, was issued under Section 4 of the Act on 07.12.1988 for the same public purpose, for which earlier notification in the year 1981 was issued i.e. for development and utilization of land as residential-cum-commercial area as shown in development plan under the HUDA Act.
Petitioners preferred objections under Section 5-A of the Act on 04.01.1989. The Land Acquisition Collector, Urban Estate, Gurgaon-respondent No. 3, after considering the objections of the petitioners, vide his report dated 17.11.1989 to the State Government recommended that the land of the petitioners may not be notified under Section 6 of the Act as the same had been released earlier from acquisition proceedings on the basis of an agreement/settlement arrived at between the petitioner-Company and the respondents. The same was not accepted and a notification CWP No. 3822 of 1991 and other connected cases 7 under Section 6 of the Act was issued on 06.12.1989. Petitioners thereafter received a letter dated 11.10.1990 from the Accountant, HUDA, Gurgaon, which was accompanied by a cheque for a sum of ` 1 lac alleged to be payment of excess money received from the petitioners. On receipt of this letter, petitioners sent a letter to the respondents stating that the cheque was deposited for the development charges as per the agreement. Another reminder dated 23.10.1990 was sent to the respondents, wherein petitioners sent the cheque received by them earlier from them by cancelling the same. However, the Estate Officer, vide his letter dated 29.10.1990, again sent the petitioner-Company another cheque of ` 1 lac, which cheque was again sent back by the petitioners vide letter dated 10.11.1990.
Without responding to the petitioner's letter dated 09.10.1990 and the reminders thereto, the Land Acquisition Collector served notices under Sections 9 and 10 of the Act upon the petitioners, to which the petitioners filed their claim on 17.12.1990 and it was mentioned therein that while the acquisition was illegal and not warranted by law, the petitioners may be willing to waive their right of challenging the notifications being illegal if the respondents paid a fair compensation against delivery of possession of the land. A letter dated 02.01.1991 from the Estate Officer, Gurgaon, along with a bank draft for a sum of ` 1 lac, alleged to be the excess payment received from the petitioner-Company on account of development charges was received by the petitioner-company. CWP No. 3822 of 1991 and other connected cases 8
It is in these circumstances that the petitioners approached this Court and filed writ petitions bearing CWP Nos. 3820, 3821, 3822, 3823 of 1991, which came up for hearing on 11.03.1991 and while issuing notice of motion, status quo with respect to possession was directed to be maintained. These petitions were admitted vide order dated 02.12.1991 and the status quo order was directed to continue till further orders.
During the pendency of these writ petitions, Award dated 05.12.1991 was passed and thereafter, a supplementary Award dated 25.08.1993 was passed, which was challenged by the petitioners through CWP Nos. 1152, 1153, 1154 and 1155 of 1994. These writ petitions were also admitted to be heard along with earlier writs filed by the petitioners.
Reply to CWP No. 3822 of 1991 was filed by the respondents in April, 2011, to which, after obtaining information under the Right to Information Act, 2005, petitioners have filed replication which details out further information. In the replication, it has been pleaded that the petitioners filed objections under Section 5-A of the Act, wherein the plea of discrimination was also taken as the land of similarly placed companies was not re-acquired i.e. M/s Rani Shever Poultry Farm, M/s Omega Commercial Pvt. Ltd., Anand Purifier (M/s Enfilco Ltd.), Indo Swiss Time Ltd., M/s Jawala Textile Mills. However, on the basis of the objections raised by the petitioners, lands released to these companies were also notified for acquisition but all these lands have again been released. CWP No. 3822 of 1991 and other connected cases 9
The land of M/s Rani Shaver Poultry Farm was not notified after release but was subsequently re-notified for acquisition vide notification dated 11.09.1990 under Section 4 of the Act which was challenged through CWP No. 11679 of 1993. Before issuance of Section 6 notification, 175 kanals 9 marlas of land stood released and only 24 kanals 9 marlas of land was notified for acquisition under Section 6 of the Act. However, ultimately a total of 191 kanal 16 marlas of land was released, thus, acquiring only a small chunk of land. Writ Petition was thus withdrawn by M/s Rani Shaver Poultry Farm.
As regards M/s Indo Swiss Time Limited, it has been contended that a fresh notification dated 11.09.1990 was issued qua the land owned by this company, which was released as per the earlier agreement, which was challenged through CWP No. 10456 of 1993. The writ petition was admitted, however, during the pendency of the writ petition, the respondents entered into an agreement with this company in July, 1999 for releasing the land. On the basis of the said agreement, the writ petition was withdrawn through an application, which was allowed by this Court vide order dated 24.09.1999.
In case of M/s Jawala Textile Mills, who were similarly placed as the petitioners, notification under Section 4 was issued qua their land on 11.09.1990. This notification was impugned by M/s Jawala Textile through its successors i.e. M/s Kanoria Petroproducts Ltd. by filing CWP No. 3942 of 1992. On an agreement for release of CWP No. 3822 of 1991 and other connected cases 10 the land, an application for withdrawal of the writ petition was moved, which was allowed by this Court vide order dated 18.05.1994.
On this basis, it is alleged that fresh notifications/declarations in the years 1988 to 1990 qua these companies were merely an eye wash and a cover up operation to nullify the grounds taken by the petitioners in their objections under Section 5-A of the Act about discrimination.
On the basis of the official notings received by the petitioners on the objections raised by them under Section 5-A of the Act, it has been contended that the objections have not been considered in the right earnest nor all the objections have been taken care of. All through the officials had recommended the case of the petitioner for non-issuance of notification under Section 6 of the Act on the ground of discrimination but the Minister concerned ultimately had directed that the land of others be also acquired, qua whom the ground of discrimination has been raised. There is no consideration or reasoning given for rejection of the objections of the petitioners regarding the numerous points raised by the petitioners including that they were running a world class stud farm and there were numerous constructions including residential houses on the land of the petitioners but only objection regarding discrimination has been dealt with by ordering re-acquisition of the released land of others. However, subsequently, the release of lands of these companies show legal malice and colourable exercise of the powers by the respondents qua the petitioners and the petitioners have not been CWP No. 3822 of 1991 and other connected cases 11 granted the same benefit although they are similarly placed as M/s Rani Shever Poultry Farm, M/s Omega Commercial Pvt. Ltd., Anand Purifier (now M/s Enfilco Ltd.), M/s Indo Swiss Time Ltd., M/s Jawala Textile Mills.
On 15.10.1995, an application was submitted by the petitioners for developing a Group Housing Colony, which was duly considered by the competent authority. Official noting dated 22.05.1997 indicates such consideration and the case of the petitioners was considered in the light of release of the land of the similarly placed companies. Noting dated 29.05.1997 by the Additional Director, Urban Estate, about consideration of the release of the land, states that the Government is required to take a decision with regard to the release of the land measuring 52.70 Acres from acquisition proceedings and issuance of license for Group Housing Colony on the same land. On considering the discrimination meted out to the petitioners and also keeping in view the objective of HUDA for acquisition of the land which was for residential purposes and the petitioners were also seeking the release of the land for the same purpose conforming to the Master Plan for HUDA, the matter was again recommended by the Additional Director, Urban Estate, HUDA on 23.06.1997. On 18.08.1997, the Director, Urban Estates had directed that the site of the petitioners land be visited for an actual proposal of release while keeping in mind that it should be beneficial for HUDA. The report was submitted to the Director, which was positive, wherein it was recommended that the land of the petitioners CWP No. 3822 of 1991 and other connected cases 12 was not affecting the planning of sectors in question. The Director, Urban Estates marked it to the Additional District Attorney for legal comments on 07.04.1998. The Additional District Attorney opined that the matter is subjudice and, therefore, the petitioners had no legal ground for asking the department to de-notify the land for acquisition. However, if the department felt that the stay by the High Court is going to affect the other development works in the area, compromise out of Court can be made if it is in the interest of HUDA/Government. The matter was considered by the Director, Urban Estates on the same day and it was decided to await the decision of the High Court in the writ petition and no negotiation should be held with the petitioners at that stage and an application for early hearing of the case be moved.
It has been pleaded, on this basis, that the case of the petitioners for similar benefit as in the case of M/s Enfilco Ltd. should have been considered where also as in the case of the petitioners, the matter was subjudice when an agreement was entered into by the respondents with the Company and on that basis the appeal was disposed of. In the case of M/s Enfilco Ltd., re-notification of the land earlier released under Section 4 was issued on 11.09.1990, which was challenged through CWP No. 10304 of 1993. This writ petition was dismissed by this Court, which was challenged in the Supreme Court. During the pendency of the Special Leave Petition No. C- 14488 of 1993, which was after grant of leave numbered Civil Appeal No. 4359 of 1994 (Annexure P-38), an agreement was entered into CWP No. 3822 of 1991 and other connected cases 13 between the appellants-M/s Enfilco Ltd. and others and respondent- HUDA, appellants were to gift, at its expenses, the land, which was required for building 30 metre wide road across the land of the appellants and they were given one year time to complete the housing scheme, which was to be developed by them as envisaged by the respondents. On the basis of the agreement entered into between the parties, the appeal was disposed of in the year 1994 itself.
The respondents, in their reply, have not disputed the basic facts involved in the present case except that the objections filed under Section 5-A of the Act by the petitioners were duly considered at various stages and a final decision thereon was taken by the highest authorities. It has been contended that the Land Acquisition Collector is only to bring the true facts to the knowledge of the Government, which is the competent authority to take a decision thereon, with regard to the inclusion or exclusion of the land for acquisition while issuing notification under Section 6 of the Act.
Mr. Ashok Aggarwal, learned Senior Counsel on behalf of the petitioners has argued that when the earlier notification dated 13.11.1981 under Section 4 of the Act and notification dated 15.11.1984 under Section 6 of the Act were issued for acquisition of this very land and the same was released by the respondents during the pendency of the Special Leave Petition preferred by the petitioners in the Supreme Court, no change in circumstances has occurred, which would necessitate second acquisition which was CWP No. 3822 of 1991 and other connected cases 14 also for the same purpose, for which the earlier notifications under Sections 4 and 6 were issued. He contends that at the time when notification dated 07.12.1988 under Section 4 of the Act was issued, the land of the similarly placed companies was not included therein, which clearly depicts discrimination qua the petitioners and based on legal mala-fides especially when the public purpose, for which the acquisition is now being sought, is the same. In support of this contention, counsel has relied upon the judgments of the Supreme Court in the cases of Hisar Ram Nagar Co-op. House Building Society Ltd., Hisar vs. State of Haryana and others, 2010 (2) PLR 59 and RCP Karn vs. Union of India, (2003) 3 PLR.
The next ground, which has been pressed into service and with full force, is the ground for discrimination, in support of which he has contended that only the land of the petitioners was initially notified and when an objection under Section 5-A of the Act was taken by the petitioners qua non-acquisition of the land of similarly placed companies, the land of those companies was also sought to be acquired but as depicted in the pleadings, those lands stand again released whereas the case of the petitioners is not being considered on the ground of pendency of the present writ petition. Reliance has been placed on the judgment of the Supreme Court in the case of Hari Ram and another vs. State of Haryana and others, 2010 (3) SCC 621 and a judgment of this Court in the case of M/s Aggarwal Paper Board and Allied Industries vs. The State of Haryana and another , CWP No. 18365 of 2001, decided on CWP No. 3822 of 1991 and other connected cases 15 22.11.2010, Chandu Singh vs. State of Haryana, CWP No. 1593 of 1991 decided on 03.08.2010 and Anil Kakkar vs. State of Haryana, CWP No. 19595 of 2005 decided on 28.01.2011.
Counsel for the petitioners has further pressed into service the principle of estoppel by contending that once qua the land of the petitioners, which stood notified for acquisition, an agreement has been entered into between the parties resulting in the release of the land of the petitioners and they have complied with their mandate as per the agreement, re-acquisition of the land of the petitioners, without change in circumstances or violation of the terms of agreement by the petitioners, would be hit by the principle of promissory estoppel. In support of this contention, reliance has been placed upon the judgments of the Supreme Court in the cases of M/s Motilal Padampat Sugar Mills Co. Ltd. vs. State of Uttar Pradesh and others, (1979) 2 Supreme Court Cases 409, Union of India and others vs. Godfrey Philips India Ltd., (1985) 4 Supreme Court Cases 369, Eros City Developers Private Ltd. vs. State of Haryana and others, (2008-2) PLR 492.
His further submission is that all the grounds taken by the petitioners in their objections under Section 5-A of the Act have not been dealt with by the Government especially when the Land Acquisition Collector has dealt with the facts and has rather stated the facts which when considered in the right perspective would have led to the non-inclusion of the land of the petitioners for issuance of notification under Section 6 of the Act. Further the right of CWP No. 3822 of 1991 and other connected cases 16 consideration of objections under Section 5-A of the Act is not merely statutory in nature but in the light of Article 300-A of the Constitution is akin to a fundamental right as the property of the petitioners is being acquired by the State exercising its authority being in a dominant position. His further contention is that the Collector was required to make a recommendation, which has not been done by him and, therefore, his recommendation could not have been relied upon by the Government to take a decision which only placed the facts before the Government.
His further contention is that the petitioners have been discriminated against by the respondents by deferring consideration of the application submitted by the petitioners for permission to develop a Group Housing Colony on the land in question on the ground that the case is pending in Court, when such permission has been granted in the case of M/s Enfilco Ltd. and that too, during the pendency of the case before the Supreme Court after dismissal of the writ petition by this Court. He, on this basis, prays for the present petition to be allowed by quashing the impugned notifications.
As regards CWP No.1152 of 1994 and other connected cases wherein challenge is to the Award and the supplementary Award passed by the Land Acquisition Collector, counsel for the petitioners contends that the said Awards cannot sustain in the light of the submissions made by him, as noticed above. He, however, could not dispute the fact that after passing of the Award, petitioners had preferred reference before the Land Acquisition Tribunal, which CWP No. 3822 of 1991 and other connected cases 17 stands decided, against which Regular First Appeals are pending before this Court for adjudication, however, no amount, which has been granted as compensation, has been received/withdrawn by the petitioners till date.
On the other hand, counsel for the State has, while referring to the provisions of The Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (hereinafter referred to as Scheduled Roads Act, 1963'), contends that the petitioners have violated the provisions of the said Act, as construction has been made without seeking permission of the competent authority and the change in the land use has been brought about after the publication of the notification on 03.07.1964 and, therefore, petitioners are not entitled to any claim made in the present writ petition as they are law breakers. His further contention is that the petitioners are involved in the rearing and breeding of horses, which is purely a commercial enterprise, for which petitioners were required to seek Change of Land Use of the land, which the petitioners have not even applied for permission what to say of granting it. As regards the contention of the counsel for the petitioners that the land once released cannot be acquired subsequently, reliance has been placed on a Full Bench judgment of this Court in the case of Ghanshyam Dass Goyal and others vs. State of Haryana and another, AIR 1986, Punjab and Haryana 207, wherein it has been held that there is no bar to the subsequent acquisition of the land once the same has been released nor is there CWP No. 3822 of 1991 and other connected cases 18 a bar for issuance of successive notification for acquisition of the land. Reliance has also been placed on a Division Bench judgment of this Court in the case of M/s Balwant Singh Sher Singh Rice Mills vs. State of Haryana and another, 2007 (3) RCR (Civil) 839, wherein it has been held that the land can be acquired subsequently for the same reason for which earlier notification was issued and that there was no bar to subsequent acquisition.
As regards the contention of the counsel for the petitioners that the Collector had not made any recommendation while submitting his report to the Government on the objections filed under Section 5-A of the Act by the petitioners, he contends that the Collector is required to give his report and the competent authority to take a decision thereon is the Government. The Collector had submitted his report on the facts as it existed on the spot, on which the final decision was required to be taken by the Government, which has been taken by the competent authority and, therefore, there is no illegality committed by the competent authority while deciding the objections filed under Section 5-A of the Act. In support of this contention, reliance has been placed upon a judgment of this Court in the case of Dharam Pal and another vs. State of Haryana and others, 2007 (4) PLR 299.
As regards the contention of discrimination, counsel contends that it can only be pleaded qua the same acquisition. No land in the acquisition notification involving the land of the petitioners stands released and, therefore, there is no question of any CWP No. 3822 of 1991 and other connected cases 19 discrimination. Reliance has been placed upon a judgment of the Supreme Court in the case of Bondu Ramaswamy and others vs. Bangalore Development Authority and others, (2010) 7 Supreme Court Cases 129.
As regards the ground of applicability of the principle of estoppel is concerned, he contends that there can be no estoppel when it pertains to the exercise of the powers which are conferred on the State under a Statute as there cannot be any waiver thereof. Referring to the challenge to the notifications under Sections 9 and 10 of the Act, he submits that the petitioners have, in their representation/claim made under these provisions, claimed reasonable and appropriate compensation which the petitioners have been granted by the Collector in his Award and, therefore, the challenge to these notices is unsustainable.
With regard to CWP No. 1152 of 1994 and other connected cases, wherein Award has been challenged, his submission is that the petitioners having availed of the reference under Section 18 of the Act and on decision of the same thereafter, having filed appeal, which is pending adjudication in this Court, these writ petitions are not maintainable.
Responding to the arguments raised by the counsel for the State, Mr. Aggarwal while referring the Scheduled Roads Act, 1963, submitted that the petitioner is undertaking an activity which would be covered by the definition as provided under Section 2 (1) 'Agriculture' which includes horticulture, dairy farming, poultry farming CWP No. 3822 of 1991 and other connected cases 20 and the planting and upkeep of an orchard. He contends that as the petitioners are engaged in rearing of horses and it is a Stud Farm, the buildings which have been constructed are all related to the purpose and smooth carrying out of the work, for which the Stud Farm has been running. The Stud Farm was registered with the Ministry of Agriculture on 23.08.1982 and thus, there is no violation of the Scheduled Roads Act, 1963, as has been contented by the counsel for the respondents. Accordingly, he prays for rejection of the contentions, as has been raised by the counsel for the State.
We have heard the counsel for the parties and have gone through the records of the case.
The facts, as narrated above, are not much in dispute. Earlier a notification was issued on 13.11.1981 under Section 4 of the Act followed by a notification under Section 6 of the Act on 15.11.1984. These notifications were challenged by the petitioners, which challenge was rejected by this Court dismissing CWP No. 5623 of 1984 on 16.07.1985. During the pendency of the Special Leave Petition before the Supreme Court, an agreement was entered into between the petitioners and the respondents-HUDA and on the basis of the said agreement, SLP No. 2302 of 1986 was withdrawn by the petitioners on 11.08.1986. An agreement dated 08.06.1987 was entered into between the parties but before the agreement could be given effect to, although the petitioners have deposited a tentative amount of ` 1 lac towards development charges but the same was not accepted by the respondents and a fresh notification under CWP No. 3822 of 1991 and other connected cases 21 Section 4 of the Act was issued on 07.12.1988 followed by a notification under Section 6 dated 06.12.1989. Challenge to this notification has been raised on the ground that successive notification for acquisition of the land cannot be permitted as the purpose, for which the acquisition is made, remains the same and there is no change in circumstances.
This contention of the counsel for the petitioners cannot be accepted in the light of the Full Bench judgment of this Court in the case of Ghanshyam Dass Goyal and others (supra), wherein this Court held that the same could be done and there is no legal bar for reacquisition of same land. It is not in dispute that the earlier notification was issued by the respondents for development of the land for residential-cum-commercial purposes, which is the same purpose for subsequent acquisition as well, however, the agreement, which has been entered into between the parties appears to have gone against the purpose, for which the land was planned to be acquired and the same was against the said public purpose. The agreement thus being not in consonance with the said public purpose for which the land was acquired leading to issuance of a fresh notification for acquisition of the land of the petitioners, which cannot be said to be in violation of any of the provisions of the Act. The judgment relied upon by the counsel for the petitioners in the case of Hisar Ram Nagar Co-op. House Building Society, Hisar (supra) is distinguishable on the facts as in that case, the land, which was earlier acquired and thereafter, released, was being used for the CWP No. 3822 of 1991 and other connected cases 22 same purpose, for which the acquisition was sought to be made in the first instance and in the re-acquisition notification, the purpose being the same, this Court proceeded to hold the same to be not permissible as the purpose for which the land was being acquired stood achieved and the release was found to be in consonance with the purpose of the acquisition. In the case of Roshan Lal and others (supra), the facts were different where the land stood exempted for establishment of residential, commercial and institutional areas on objections filed by the petitioners. In that case, the petitioners had raised construction over the land after such exemption for residential purposes and keeping in view these facts, the Court had proceeded to quash the notification issued by the Government for acquisition for the same purpose as noted above in the facts and circumstances of that case. Thus, these judgments would not be of any help to the petitioners case.
Principle of Estoppel is being sought to be enforced against the respondents by the petitioners by contending that once the petitioners and respondents have entered into an agreement for release of the land, respondents cannot retract from the same and acquire the land, which has already been released from acquisition. It has been contended that the petitioners have performed their part of contract. According to the agreement, the petitioners were to surrender 4.77 Acres of land and the land measuring 47.74 Acres of the petitioners was to be released out of the total land of 52.74 Acres which was to be acquired. Apart from this, petitioners were required CWP No. 3822 of 1991 and other connected cases 23 to deposit development charges which the petitioners have offered as first instalment and forwarded a cheque of ` 1 lac. There being no violation of any terms and conditions of the agreement by the petitioners, respondents are estopped from backing out of the agreement and re-acquiring of the land of the petitioners through the notifications under challenge in the present writ petition. The principle of estoppel, as laid down by the Supreme Court in the case of M/s Motilal Padampat Sugar Mills Co. Ltd. (supra), Union of India and others vs. Godfrey Philips India Ltd. (supra) and a Division Bench judgment of this Court in the case of Eros City Developers Private Ltd. (supra) would not be attracted in the case in hand as in those cases the petitioners had been put to disadvantage. The principle, as laid down in these judgments, would be applicable where the Government makes a promise knowing or intending that it would be acted on by the promisee and, in fact, the promisee acting in reliance on it, alters his position and that too its disadvantage, in such a situation Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisee, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution.
In the present case, no prejudice has been caused to the petitioners as the amount of ` 1 lac, which was advanced voluntarily by the petitioners as tentative development charges, had been CWP No. 3822 of 1991 and other connected cases 24 refunded. 4.74 Acres of land, which the petitioners were to surrender, is still in possession of the petitioners. Total land belonging to the petitioners i.e. 52.74 Acres is in their possession. Thus, the petitioners have not been put to any disadvantage, meaning thereby that they have not altered their possession which is prejudicial to their interest, therefore, this contention of the petitioners cannot be accepted.
As regards the contention of the counsel for the petitioners that since the Land Acquisition Collector has not made any recommendation in his report while considering the objections filed by the petitioners under Section 5-A of the Act, the same only requires to be noted and rejected for the simple reason that the Collector is not the competent authority to decide the objections under Section 5-A of the Act raised by the land owners against the acquisition. He is required to submit his report as it existed on the spot as he is required to enquire into the objections, record the statements of the parties, inspect the sites and send his report to the State Government. Along with his report he may make recommendation or may not do so because it has no bearing as the competent authority to take decision on the objections is the State Government. Thus, for the failure to make any recommendation by the Collector, acquisition proceedings cannot be quashed on the ground that it violates the procedure or deny the rights conferred on the land owners under Section 5-A of the Act. The law as laid down by this Court in the case of Dharam Pal and another (supra) is approved.
CWP No. 3822 of 1991 and other connected cases 25 A ground of discrimination has been raised by the petitioners alleging that in an earlier acquisition in the year 1981, petitioners and other similarly placed Companies, namely, M/s Rani Shever Poultry Farm, M/s Omega Commercial Pvt. Ltd., Anand Purifier (now M/s Enfilco Ltd.), Indo Swiss Time Ltd., M/s Jawala Textile Mills, had challenged the said acquisition by filing independent writ petitions. These writ petitions were dismissed and during the pendency of the Special Leave Petitions before the Supreme Court, an agreement was entered into and the land of the petitioners as also these Companies were released from acquisition. Thereafter, while notification for acquisition of the land of the petitioners was issued, land of other companies was not re-acquired. This objection was raised under Section 5-A of the Act, which led to the issuance of the notifications for acquiring the land of other companies also. As the petitioners challenged, similarly other companies also challenged the notifications. During the pendency of the writ petitions, agreements were entered into between these companies and respondents and on the basis of these agreements, writ petitions were withdrawn by these companies as their lands stood released from acquisition except that in the case of M/s Enfilco. This contention of the petitioners can also not be accepted as it is not in dispute that the acquisition, through which the lands of these companies were acquired, was different from the notifications issued for acquisition of the land of the petitioners. The judgments relied upon by the counsel for the petitioners in the case of Hari CWP No. 3822 of 1991 and other connected cases 26 Ram and another (supra), M/s Aggarwal Paper Board and Allied Industries (supra), Chandu Singh (supra) and Anil Kakkar (supra) would not be applicable to the facts of the present case for the reason that in those cases, the land, which was being acquired and discrimination qua which was raised by the land owners, was the same whereas the notifications for acquisition are different in the present case.
It would also not be out of way to mention here that the acquisition in the case of the petitioners was for land measuring 55.10 Acres, out of which 52.74 Acres of land belongs to the petitioners. Except for the petitioners, no other land owner of this acquisition has approached this Court. No land out of 55.10 Acres stands released and Award qua total land stands pronounced by the Land Acquisition Collector. Discrimination can only be claimed qua the land(s) which is a part of the same notification for acquisition and cannot be claimed qua different notification(s) of acquisition(s). The contention of the petitioners for pressing their claim for equality on the basis of discrimination viz-a-viz the land acquired of others in different notifications for acquisition, cannot be accepted. Further the agreements, which have been entered into between the respondents and the companies are also not on record except one. Discrimination has not to be merely pleaded but has to be established on record which the petitioners have failed in the present case.
CWP No. 3822 of 1991 and other connected cases 27 It is not in dispute that notification under Section 4 (i) of the Scheduled Roads Act, 1963 was issued qua the land involved in the present case on 03.07.1964. As per this Act, after the notification qua land within the controlled area is issued, the said land could not be used for the purpose other than for those, which it was used on the date of the publication of the notification except with the permission of the Collector. It is not in dispute that the Stud Farm was established much after the issuance of the notification and the construction of the buildings and stables came into existence thereafter. This is apparent from the pleaded fact that the land was purchased in the year 1971. It is also not in dispute that no request for change of land use or permission for erection of any building had been ever applied or granted by the authorities under the Act.
If that be so, the Stud Farm has come into existence in violation of the provisions as contained under the Scheduled Roads Act, 1963. Even if registration has been obtained by the petitioners from the Ministry of Agriculture on 23.08.1982 (Annexure P-42) but still that would not regularize the violations as contained under the Scheduled Roads Act, 1963 which is a separate Act with different applicability and enforceability and the authorities also are different. No person can be permitted to take advantage of his own wrong especially when the same is in violation of the law. As the petitioners have violated the Scheduled Roads Act, 1963, they are not entitled to get any relief by invoking the provisions as contained under Article 226 of the Constitution of India. Reference in this regard can be CWP No. 3822 of 1991 and other connected cases 28 made to the judgment of the Supreme Court in the case of Shanti Sports Club vs. Union of India, 2009 (15) SC 705.
As regards the contention of the petitioners that they have been discriminated against by deferring consideration of the applications submitted by them for permission to develop a Group Housing Colony on the land under acquisition viz-a-viz M/s Enfilco Ltd. on the ground that these writ petitions are pending before this Court, does not carry weight as the said decision of the respondents is not under challenge in these writ petitions and in any case, this has no concern with the legality or otherwise of the notifications/Awards under challenge in these writ petitions. This contention is also thus, rejected.
In view of the above, it is held that there has been no violation of any of the provisions of the Statute or the constitutional or statutory rights of the petitioners which would call for grant of relief, as claimed by the petitioners in these writ petitions and accordingly, the challenge to acquisition of the land of the petitioners stand rejected.
The writ petitions are accordingly dismissed.
( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH )
JUDGE JUDGE
January 27, 2012
pj