Punjab-Haryana High Court
Columbia Holdings Private Limited And ... vs The State Of Haryana And Others on 10 August, 2010
Bench: Jasbir Singh, Augustine George Masih
CWP No. 7090 of 2009 and other connected matters 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of decision: 10.08.2010
CWP No. 7090 of 2009
Columbia Holdings Private Limited and others ......PETITIONERS
VERSUS
The State of Haryana and others ..... RESPONDENTS
CWP No. 8114 of 2009
Kishan Chand son of Jal Singh alias Zile Singh ......PETITIONER
VERSUS
The State of Haryana and others ..... RESPONDENTS
CWP No. 8858 of 2009
Kishan Chand son of Jal Singh alias Zile Singh ......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. Amitabh Chaturvedi, Advocate,
and Mr. Adarsh Jain, Advocate,
for the petitioners.
Mr. Rajiv Kataria, Advocate,
for the applicant (in C.M. No. 13341 of 2009)
Mr. Kamal Sehgal, Addl. A.G. Haryana,
for respondents No. 1 to 4.
***
AUGUSTINE GEORGE MASIH, J.
By this order, we propose to decide CWP No. 7090 of 2009 tilted as Columbia Holdings Private Limited and others vs. The State of Haryana and others, CWP No. 8114 of 2009 titled as Kishan Chand son CWP No. 7090 of 2009 and other connected matters 2 of Jal Singh alias Zile Singh vs. The State of Haryana and others and CWP No. 8858 of 2009 titled as Kishan Chand son of Jal Singh alias Zile Singh vs. The State of Haryana and another, as the acquisition proceedings, vide which the land of the petitioners in these writ petition is being sought to be acquired, are the same and common questions of fact and law are involved. Counsel for the parties have made a statement to this effect.
In these writ petitions, Government of Haryana issued notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ' the L.A. Act') and published the same in the Haryana Government Gazette dated 06.06.2006. As per the said notification, land measuring 4.44 Acres in village Sarhaul, H.B. No. 70 and 1.08 Acres of land in village Sukhrali, H.B. No. 71, Tehsil and District Gurgaon, was sought to be acquired for a public purpose, namely, development and utilization of land for residential, commercial, Sector 25 at Gurgaon, as shown in the development plan under the Haryana Urban Development Authority Act, 1977 ( hereinafter referred to as 'the HUDA Act, 1977) by the Haryana Urban Development Authority. Objections to the acquisition of the land in writing were invited within a period of 30 days' of publication of the notification in the official gazette, which could be filed before the Land Acquisition Collector, Urban Estate, Haryana, Sector 14, Gurgaon. It would not be out of way to mention here that these writ petitions only pertain to the area falling in village Sarhaul. The petitioners did not prefer any objections under Section 5-A of the L.A. Act. Declaration under Section 6 of the L.A. Act was issued and published in the Government gazette on 05.06.2007. It has been pleaded that since the provisions, as contained CWP No. 7090 of 2009 and other connected matters 3 under Section 4 of the L.A. Act, were not complied with, the petitioners have been deprived of their right to file objections under Section 5-A of the L.A. Act. As mandated under Section 4 of the L.A. Act, publication has not been done in the two newspapers nor has the Collector caused public notice of the substance of the notification to be given at convenient places in the locality. Notification under Section 6 of the L.A. Act cannot be sustained on two grounds, firstly because of non-compliance of the provisions of Section 4 of the L.A. Act and secondly the mandate with regard to the publication of the declaration in two daily newspapers and causing public notice of the substance of such declaration at convenient places in the locality by the Collector has not been done. The petitioners could not come to know of the acquisition proceedings and the publication of the notifications and thus have approached this Court by preferring these writ petitions for quashing of these notifications under Sections 4 and 6 of the L.A. Act.
It has been pleaded that except for this land, the entire area has been developed by the private developers in Sector 25 and does not constitute a public purpose as development of an isolated pocket of land by the Government in a sector and acquisition for such a purpose is nothing but a colourable exercise of power as the contemplated public purpose under the impugned notification would not be served or achieved by the acquisition. The land of large number of other developers, who were similarity situated as the petitioners, have been kept out of acquisition without any valid reason or justification. The respondents have failed to prepare the Functional Plans with the assistance of the Committee constituted under the National Capital Region Planning Board Act, 1985 CWP No. 7090 of 2009 and other connected matters 4 (hereinafter referred to as 'the NCR Act') and in consultation with and under the guidance of the Board. Without complying with the provisions of the NCR Act, the respondents have proceeded to initiate proceedings for acquisition of the land of the petitioners. Sub-Section (1) of Section 29 of the NCR Act prohibits and states that after a Regional Plan is in operation, no development in the region shall be made which is inconsistent with the Regional Plan. No residential project can be taken up on the land in dispute as the minimum requirement of setting up a residential sector is 10 acres whereas the land under acquisition only is 4.44 Acres.
It has further been pleaded that the acquisition proceedings are mala-fide and without application of mind on the ground that initially in the 1990, the land in dispute was sought to be acquired by the respondents without there being any proposal for its utilization vide notification dated 30.03.1990 issued under Section 4 of the L.A. Act , which was followed by a declaration under Section 6 of the Act dated 27.03.1991. The public purpose, as per the notification, was for development and utilization of land for residential and commercial area of Sector 29 (part) at Gurgaon. The said acquisition was challenged by the land owners and predecessors of the petitioners on the ground that the land was not part of any planned development of the urban area and could not be utilized for any public purpose and that the same was situated in Sector 25 whereas the land was being acquired alleging the same to be a part of Sector 29, Gurgaon. In these writ petitions, which were filed in this Court challenging the acquisition, interim stay of dispossession was ordered by the High Court. The State Government reconsidered the matter and vide notification dated 16.04.2004 (Annexure P-9) in exercise of powers conferred by Section 48 CWP No. 7090 of 2009 and other connected matters 5 of the Act withdrew from the proceedings for acquisition of the land in pursuance of the notification dated 30.03.1991 and declaration under Section 4 dated 27.03.1991 qua the land in dispute. It is, on this basis, that the petitioners have challenged the acquisition proceedings before this Court.
In response to notice , the respondents have filed reply to the writ petitions, wherein it has been pleaded that the notification under Section 4 of the Act was issued on 06.06.2006, which was published in the Haryana Government Gazette on the same day. The entry of the notification was made by the Patwari Halqa Roznamcha Wakayati vide rapat No. 644 dated 10.07.2006 for the land situated in the revenue estate of village Sarhaul. The substance of notification under Section 4 of the Act was published in two daily newspapers viz. (1) Amar Ujala (Hindi) dated 10.06.2006 (2) National Herald (English) dated 10.06.2006. The substance of the said notification was pasted on the notice board of the Halqua Patwar Khana and Tehsil Office. Munadi was also done through Village Chowkidar by beat of empty tin in the village and in the vicinity of the land to be acquired. No objection under Section 5-A of the Act was received from the petitioners despite the fact that the same were invited under the notification issued under Section 4 of the Act. Declaration under Section 6 of the Act was issued on 05.06.2007. This declaration was published in two daily newspapers viz. (1) The Tribune (English) dated 09.06.2007 (2) Amar Ujala (Hindi) dated 13.06.2007. The entry of the declaration was made in the Roznamcha Wakayati Halqa Patwari vide rapat no. 287 dated 05.07.2007 for the land situated in revenue estate of village Sarhaul. The substance of the declaration under Section 6 of the CWP No. 7090 of 2009 and other connected matters 6 L.A. Act was pasted on the notice board of Halqa Patwar Khana and Tehsil Office. Munadi of the said declaration was made by village Chowkidar by beat of empty tin in the vicinity of the land sought to be acquired and in the village. The land in dispute was vacant at the time of issuance of notification under Section 4 of the L.A. Act and the same has been acquired for a public purpose and in the public interest on the basis of demarcation carried out by the District Town Planner, Gurgaon in accordance with law and Award dated 04.06.2009 has also been announced. However, the possession of the land in dispute could not be taken due to the order of stay of dispossession of the petitioners passed by this Court in May, 2009. The acquisition of the land is for a public purpose i.e. for development and utilization of land for residential and commercial area Sector 25, Gurgaon. The first development plan of Gurgaon was published in the year 1971 and the revised Draft Development plan was published in 1982. Sector 25, Gurgaon was part of the Draft Development Plan i.e. prior to the NCR Act, 1985 and the Regional Plan came much later. Therefore, the provisions of the NCR Act/Regional Plan are not applicable to the said sector. The NCR Act does not provide for preparation or approval of the development plans, which was enacted mainly to coordinate the planning activities of Delhi with that of the adjoining States. The 'land' as a subject, comes under the 'State List' as per the Seventh Schedule of the Constitution of India and 'Urban Planning including Town Planning' comes under Twelfth Schedule of the Constitution of India. The compliance of any suggestion on the development plan made by the NCR Planning Board is neither a mandatory requirement as per the NCR Act, 1985 nor is the same in line CWP No. 7090 of 2009 and other connected matters 7 with constitutional provisions. The land has been acquired for HUDA for planned development of the unacquired/unlicensed pockets. HUDA is also entrusted with the responsibility of providing town level infrastructure facilities for which such isolated land pockets can also be utilized. Even plots can be carved out by HUDA on such pockets in integration with layout plan of colonizers surrounding the acquired land. It has been thus pleaded that the writ petition is without any merit and deserves to be dismissed.
In the light of the above pleadings, counsel for the petitioners has not pressed into service the challenge to notifications under Sections 4 and 6 of the L.A. Act for non-compliance thereof but has pleaded that even if no objections have been filed by the petitioners under Section 5-A of the L.A. Act but still the petitioners would be entitled to agitate before this Court the issue that the purpose, for which the land is being acquired, is not a public purpose. In support of this contention, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Delhi Administration vs. Gurdip Singh Uban and others, (2000) 7 SCC 296. He contends that the purpose, for which the land is being acquired by the respondents, cannot be fulfilled as the land available for development is only just 4.44 acres, all of which is surrounded by land developed by a private developer which cannot be put to use for which the same is being acquired. For a residential area to be developed, the minimum requirement is 10 acres of land. Since the land cannot be put to use for which it is being sought to be acquired, the acquisition itself cannot be sustained and deserves to be quashed. He further contends that Sector-25 of Gurgaon has all been developed by a private builder and not by the Government and when the petitioners have already applied for the CWP No. 7090 of 2009 and other connected matters 8 development of the area for commercial colony, the land in question should have been released in favour of the petitioners and they should have been given an opportunity to develop the same.
He contends that the respondents are acquiring the land in violation of the Regional Plan prepared under the N.C.R. Act. Section 29 of the N.C.R. Act prohibits and states that after a Regional Plan is in operation, no development in the region shall be made. It is inconsistent with the Regional Plan, thus, the acquisition cannot be sustained. He contends that the petitioners have been discriminated against as they have not been permitted to develop the land while complete Sector-25 has been developed by the colonizers, who have been granted license by the respondents. Only land of the petitioners is being acquired leaving the other areas, which have been developed by the private developers and the isolated pocket belonging to the petitioners, which is lying vacant, has been chosen by the respondents for acquisition. He, on this basis, contends that the acquisition is bad in law and, therefore, deserves to be set aside.
Counsel for the respondents has submitted that the acquisition is being made for development and utilization of land for residential, commercial, Sector-25 at Gurgaon as per the Development Plan prepared under the HUDA Act, 1977 by the Haryana Urban Development Authority. The acquisition is for the public purpose. The Haryana Urban Development Authority is entrusted with the responsibility of providing town level infrastructure facilities, for which such isolated land pockets can be utilized. The Plan already exists and existed even before the coming into force the Regional Plan under the NCR Act and other private builders have already built the area around the land in question as per the plan prepared CWP No. 7090 of 2009 and other connected matters 9 under the HUDA Act, 1977 by the Haryana Urban Development Authority. It is in furtherance to the said plan only that the present acquisition is being made. There is no bar under the Act for the respondents to acquire the land in an isolated pocket. He relies upon the judgment of the Hon'ble Supreme Court in the case of Talson Real Estate Pvt. Ltd. vs. State of Maharashtra, 2007 (13) SCC186 to contend that the petitioners having chosen not to file objections under Section 5-A of the L.A. Act, cannot be allowed to challenge the notifications issued under Sections 4 and 6 of the L.A. Act.
An additional ground has been pleaded by the petitioners in CWP No. 7090 of 2009. Land measuring 16 Kanal is owned by petitioner No. 3. Petitioner No. 3 entered into an agreement dated 09.05.2001 with petitioners No. 1 and 2, who are engaged in the development and construction of properties in New Delhi for the development of the above land by way of construction of multi storeyed commercial building. A special power of attorney was given by petitioner No. 3 on 02.08.2001 to petitioners No. 1 and 2.
The development agreement required certain acts to be done by petitioners No. 1 and 2 on one hand and petitioner No. 3 on the other. After completion of the initial requirements as per the development agreement and in furtherance to the development agreement and to give effect to the said agreement, an application in Form LC-1 under the Haryana Development and Regulations of Urban Areas Act, 1975 (hereinafter referred to as 'Urban Areas Act, 1975) to set up a commercial colony over area measuring 2 acres i.e. the land in the name of petitioner No. 3 was submitted by petitioners No. 1 and 2 on 28.05.2001 (Annexure P-7). The land, which was a joint holding, was got partitioned and mutation CWP No. 7090 of 2009 and other connected matters 10 in respect of the partition was got sanctioned on 30.10.2003. The said application has not been yet decided by the respondent-State, which was filed before the acquisition proceedings and, therefore, the land deserves to be released in the light of the policy decision of the Government of 1991.
In response to this plea, as raised by the petitioners, the respondents have submitted that under the Urban Areas Act, 1975, which was enacted to regulate use of land in order to prevent ill planned and haphazard urbanization in and around towns in the State of Haryana, licenses for setting up of residential plotted, group housing, cyber city/parks, commercial and industrial colonies to private developers is provided. Comprehensive policy for release of land from acquisition proceedings has been framed at the instance of the High Court in CWP No. 10412 of 2007. As per the said policy regarding release of land, it is necessary that the case should fit into the integrated planning of the sector/urban area. The merit of each case is to be examined vis-a-vis the requirement of the land notified for acquisition for HUDA or need to develop it through a private sector for its integration within a sector. It is not necessary that the land is to be released from acquisition proceedings in every case whenever a party applied for grant of license for development of Residential/Commercial/Industrial Colony. The application by the petitioners was submitted on 28.05.2001 for grant of license to develop a commercial colony on the land measuring 2 acres and deposited an amount of Rs. 51,21,500/- on account of license fee and scrutiny fee. On the receipt of the application, the same was considered by the Director, Town and Country Planning, Haryana-respondent No. 4 and it was found that the same was not complete and there were many shortcomings in the CWP No. 7090 of 2009 and other connected matters 11 same. The application was returned to petitioner No. 3 under Rule 7 of the Haryana Development and Regulation of Urban Area Rules, 1976 (hereinafter referred to as 'Rules, 1976) vide letter dated 20.07.2001. The application was resubmitted vide letter dated 11.12.2001 and additional prayer for grant of license for additional land measuring 0.125 acres, which belong to one Sh. Kishan Chand s/o Sh. Jal Singh (petitioner in CWP No. 8114 of 2009) was made. In the meantime, Sh. Brahm Yadav and Pramil Jindal made a complaint that the land owned by petitioner No. 3 was in shares and the same has not been partitioned as yet. Therefore, the case for grant of commercial license should not be considered till the land is partitioned. When the matter was under correspondence with Director Town and Country Planning, Haryana-respondent No. 4 and Special Secretary to Government of Haryana, Urban Estates, Department, Haryana Civil Secretariat, Chandigarh-respondent No. 2, petitioner No. 3, vide letter dated 20.7.2004, informed that due to some personal unavoidable circumstances, process of the case may be kept on hold till further notice. Neither copy of collaboration agreement alleged to be executed between the petitioners was submitted nor the details of the land, which was proposed to be developed, were mentioned in the undertaking, which was submitted on behalf of Sh. Shravan Gupta, Director of petitioner No. 2 and M/s Columbia Holdings Pvt. Ltd.-petitioner No. 1. Accordingly, petitioner No. 3 was directed by the respondents vide memo dated 21.12.2004 to clarify his stand on the collaboration agreement and submit a copy of the same along with his consent. As no reply was received from petitioner No. 3, a reminder was sent on 21.11.2005. When no response was received even to this letter, application submitted by petitioner No. 3 for grant of CWP No. 7090 of 2009 and other connected matters 12 license was returned in original to him vide office letter dated 28.12.2005 under Rule 7 of Rules, 1976 with direction to resubmit the same after removing the deficiencies. The petitioners did not respond to this letter even till the date of filing the reply to the writ, therefore, as there was no application pending for grant of license for development of the land, hence, there was no question of decision on the same or pendency thereof with the respondents.
As a matter of fact, a dispute arose amongst the petitioners. Power of attorney given to petitioners No. 1 and 2 was cancelled by petitioner No. 3 on 14.07.2004 and the agreement was also cancelled on 16.07.2004. Petitioners No. 1 and 2 preferred a petition challenging the cancellation of Power of Attorney before the High Court of Delhi. The operation of the cancellation of power of attorney dated 14.07.2004 was stayed vide order dated 19.07.2004. During the pendency of the petition before the High Court, the matter was referred to the Arbitrator for arbitration. Vide order dated 15.12.2005, it was ordered that the interim order dated 19.07.2004 would continue unless it is vacated or varied by the learned Arbitrator upon request of the respondents. During the pendency of the petition, Award dated 28.06.2010 has been passed by the Sole Arbitrator upholding the cancellation of the power of attorney dated 14.07.2004. Against the said Award, appeal has been filed by petitioners No. 1 and 2, which is pending adjudication before the High Court.
On the basis of these facts , an application i.e. C.M. No. 13341of 2009 has been preferred by petitioner No. 3-S.R.Builders Limited, on the basis of the said Award that S.R. Builders Limited is the sole owner of the property and, therefore, it be impleaded as petitioner No. 3 through CWP No. 7090 of 2009 and other connected matters 13 its Director Sh. Brij Bhushan Singla as the present petition was filed by petitioners No. 1 and 2 on the basis of the stay of cancellation of power of attorney dated 14.07.2004 granted by the Delhi High Court after the passing of the Award and upholding the cancellation of the power of attorney.
The question as to whether petitioners No. 1 and 2 or petitioner No. 3 is the owner of the property will not detain us any further from adjudication of the case in hand as decision on this point has no bearing on the issue involved in the present case and this is not the appropriate forum to decide the same, further their interest is common as far as the present case is concerned.
The plea that the petitioners have already applied for license under the Urban Areas Act,1975 and, therefore, they should be permitted to develop the land in question and should not be acquired, is without any basis in the light of the pleadings referred to above, wherein it has specifically been stated by the respondents that the application of the petitioners was returned in original vide office letter dated 28.12.2005 under Rule 7 of the Rules, 1976 directing them to resubmit the same after removing the deficiencies but the petitioners did not do the same and no application for grant of license is pending with the respondents.
Counsel for the petitioners, at the very outset, submitted that the petitioners did not file the objections under Section 5-A of the L.A. Act and, therefore, on this ground, the present petition may not be maintainable with regard to the challenge of the notifications under Sections 4 and 6 of the L.A. Act is concerned except for the challenge to the acquisition on the ground that the land being acquired by the respondents is not for public CWP No. 7090 of 2009 and other connected matters 14 purpose. He could not give any reason or explanation as to how the purpose, for which the land is being acquired, is not a public purpose.
There are catena of judgments of the Hon'ble Supreme Court and of this Court as well, wherein it has been held that acquisition of a land for planned development and utilization of land for residential and commercial area is permissible as it is meant for public purpose. The land in the present case is being acquired for the said purpose and, therefore, it cannot be said that it is not for a pubic purpose.
The petitioners admittedly have not filed any objections under Section 5-A of the L.A. Act. Thus, the present writ petition challenging the notifications issued under Sections 4 and 6 of the L.A. Act would not be maintainable as held by the Hon'ble Supreme Court in the case of Delhi Administration vs. Gurdip Singh Uban and others (supra) and Talson Real Estate Pvt. Ltd. vs. State of Maharashtra (supra). The only exception, which has been carved out by the Hon'ble Supreme Court in Gurdip Singh Uban's case permitting challenge to the notifications is where the purpose, for which the land is being acquired, is not a public purpose. We have held that the purpose, for which the land is being acquired, is a public purpose. Thus, the writ petition deserves to be dismissed on this ground also.
Faced with this situation, counsel for the petitioners has pressed into service different grounds to submit that the public purpose, for which the land is being acquired, cannot be achieved and as the said acquisition cannot be done as per the requirement of law, the acquisition proceedings deserve to be quashed. Those grounds are being dealt with hereinafter.
CWP No. 7090 of 2009 and other connected matters 15 The petitioners have sought to submit that the acquired area of village Sarhaul was only 4.44 acres, which could not be utilized for the purpose for which it was being acquired as the area was only 4.44 acres, whereas for the said purpose, the requirement is of 10 acres but when seen in the larger perspective that Sector 25 of Gurgaon, where the land is situated, has all been developed for residential and commercial purposes and around the land in question also residential and commercial areas have come up. Acquisition of the land cannot be said to be impermissible when the purpose for development and utilization of the land is the same. The acquired land would be utilized for the same purpose as the surrounding area. In any case, the purpose is as per the Development Plan published in the year 1982 relating to Sector-25, Gurgaon.
As regards the contention of the counsel for the petitioners that the acquisition is in violation of the Regional Plan prepared under the NCR Act, suffice it to say that it has not been demonstrated by the petitioners as to how the purpose, for which the land is being sought to be acquired by the respondents, is violative of that plan. It would not lie in the mouth of the petitioners to assert this when they are craving for release of the land for the same purpose for which the acquisition has been made by the respondents i.e. for development and utilization of the land for residential and commercial area.
The contention of the petitioners that the area around the land in question has all been developed by the private developers and not by the State Government and, therefore, the present acquisition is bad, is devoid of any merit. Merely because the area around the land, which is sought to be acquired, has been developed by the private developers, does CWP No. 7090 of 2009 and other connected matters 16 not debar the Government from acquiring the land, especially when the same is in accordance with the plan duly published and does not, in any manner, clash with the purpose, for which the surrounding area is being used rather the utilization of the acquired land is also for the same purpose.
In view of the above and In the light of the fact that it has been held that the purpose, for which the acquisition is being made, is a pubic purpose, these writ petitions deserve to be dismissed. The writ petitions also deserve to be dismissed as not maintainable on the ground that the petitioners have not filed any objections under Section 5-A of the L.A. Act as held by the Hon'ble Supreme Court in the case of Delhi Administration vs. Gurdip Singh Uban and others (supra) and also in the case of Talson Real Estate Pvt. Ltd. vs. State of Maharashtra (supra).
Ordered accordingly.
( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH )
JUDGE JUDGE
August 10, 2010
pj
CWP No. 7090 of 2009 and other connected matters 17