Punjab-Haryana High Court
Kishan Sahai & Ors vs State Of Haryana And Ors on 26 March, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, A.N.Jindal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 26.3.2012
CWP No. 14299 of 2006
Kishan Sahai & ors ......Petitioners
vs.
State of Haryana and ors .....Respondents
Present: - Mr. S.K.Garg Narwana, Advocate for the petitioners.
Ms. Palika Monga, DAG, Haryana Mr. Gitish Bhardwaj, Advocate for respondents No. 2 & 4. CORAM: -HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE A.N.JINDAL HEMANT GUPTA, J Challenge in the present petition is to the notifications under Section 4 dated 9.6.2003 and Section 6 dated 2.6.2004 of the Land Acquisition Act, 1894 (for short the 'Act'), acquiring the land of the petitioner comprising in Khasra No. 1440 (Min) situated in village Wazirabad, Tehsil and District Gurgaon.
Petitioners were the owners of the land measuring 3 bigha 4 biswas comprising in Khasra No. 1440(0-12) and 1454 (2-12). Petitioners claims that they have constructed the residential houses on the aforesaid land and are living for the last more than 25 years.
Earlier, 2 bigha 9 biswas, 15 biswasi was acquired out of land comprising in Khasra No. 1454 measuring 2 bigha 12 biswas by the respondents vide the Award No. 8 dated 5.7.1990. Out of the said land, land measuring 2 biswas 5 biswasi was released having constructed area vide the communication dated 5.9.1995 (Annexure P-2). The said communication reads as under: -
You are hereby informed that the total land of Khasra No. 1454 in Sector 55-56, Village Wazirabad is 2 bigha 12 biswas, out of which 2 bigha 9 biswas 15 biswasi was acquired vide Award No. 8 CWP No. 14299 of 2006 -2- dated 5.7.1990. The remaining land of above said Khasra No. measuring 2 biswas 5 biswasi on which there is a house constructed have been left out from the acquisition.
Subsequently, vide the notification dated 24.8.2000 under Section 4 of the Act, the remaining land of Khasra Nos. 1454 and 1440 was intended to be acquired. Petitioners filed their objections under Section 5-A of the Act to the effect that there is constructed portion in Khasra No. 1440.
In the notification dated 22.8.2001 under Section 6 of the Act, the constructed portion comprising in Khasra No. 1454 was acquired. The petitioners have filed the Civil Writ Petition No. 16156 of 2001, challenging the acquisition in respect of the land comprising in Khasra No. 1440. The said writ petition was disposed of on 5.9.2002 (Annexure P-3) when the following orders were passed: -
"Challenge in this petition is to notifications under Sections 4 and 6 of the Land Acquisition Act dated 24.8.2000 and 22.8.201, respectively.
The only ground that has been pressed during the course of arguments is that even though petitioners have made construction on the property in dispute i.e., residential house, the same has been acquired, whereas the land pertaining to 'number of persons, who too, like the petitioners have made constructions, has been left from the purview of acquisition.
In response to the notice, respondents No. 1 and 5 have filed reply.
Para 2 of preliminary objections of written statement reads thus: -
"2. That the petitioner owned the land measuring 0-6 bearing Khasra number 1440 min and Khasra number 1454 (2-12), A & B Class house existed over the land comprising Khasra number 1440 prior to issue of notification under Section 14 of the Act. The constructed portion along with proportionate open area has been released from acquisition. The land comprising in Khasra number 1454 measuring 2- 10 was acquired earlier in Sector 55-56. Rest of the land measuring 0-2-5 falling in Sector Road has now been CWP No. 14299 of 2006 -3- acquired. The Civil Writ Petition filed by the petitioner merits dismissal on this ground also".
No replication has been filed to controvert the averments made in the written statement, as extracted above.
In view of the averments made in the written statement, we find no merit in the petition and the same is hereby dismissed.
At this stage, Mr. Sharma states that leaving out the constructed portion from the purview of acquisition, may be in such a way that the petitioners may not have any access to the constructed area. Mr. Sanjay Vashisht, learned Deputy Advocate General and Ms. Raminder Godhoke, who appear in this matter on behalf of respondents No. 1 and 5 and 2 to 4, respectively, state that passage to the petitioners in the constructed are shall be ensured." Petitioners filed an appeal bearing No. Civil Appeal No. 1145 of 2003, Jagdish Chand & another vs. State of Haryana and another, before the Hon'ble Supreme Court, which was disposed of on 22.8.2004 (Annexure P-4), giving liberty to the land owners to submit the objections so as to exclude the land occupied by the structures and open area around the said structures. In pursuance of the said directions, petitioners have filed the objections on 18.11.2004. Relevant extract from the objections reads as under: -
4. That in view of the above directions made by the Hon'ble Supreme Court of India, the applicants are filing the present representation/objections and categorically state that the construction of the applicants is prior to the notification under Section 4 of the Act and they have constructed 40 rooms along with Varanda, Kitchen, Latrine, Bathroom. The Site Plan prepared by the applicants/objectors, which was annexed with the Petition in Hon'ble High Court and Hon'ble Supreme Court of India is also annexed herewith for your kind perusal.
The Financial Commissioner and Principal Secretary to Government, Haryana, Town and Country Planning Department passed an order on 4.1.2006 (Annexure P-6), wherein, it was noticed that 6 biswas of land comprising in Khasra No. 1440 having construction prior to CWP No. 14299 of 2006 -4- notification under Section 4 of the Act has been released whereas in respect of Khasra No. 1454, it was noticed that the said land falls within the area of 60 meters master plan road and therefore, for the construction of the road, acquisition of this piece of land is in public interest.
In the meantime, another notification, the subject matter of challenge in the present writ petition was published. The petitioners have not filed any objection in pursuance of the notification under Section 4 of the Act. In the present writ petition, in the written statement, it was averred that the construction along with the proportionate vacant land is not the subject matter of the present acquisition proceedings as out of 12 biswas, 6 biswas of land was acquired and in respect of which Award No. 16 dated 20.12.2005 was announced. It has been categorically asserted in para 8 of the written statement that the rest of the land measuring 6 biswas in Khasra No. 1440 was totally vacant at the relevant time which has been acquired in the present acquisition proceedings. Relevant extract reads as under: -
8. That in reply to para No. 8 of the Civil Writ Petition, it is submitted that there was construction of the petitioners in Khasra No. 1440 to the extent of 4 rooms, varanda, kitchen and latrine total measuring 50'x60', one kothi total measuring 40'x30, one tin shed measuring 30'x12'. The said construction along with proportionate vacant land of the petitioners total measuring 6 biswas which was released earlier is not the subject matter of present acquisition proceedings. Rest of the land measuring 6 biswas in Khasra No. 1440 which was totally vacant at the relevant time has been acquired vide present acquisition proceedings.
11. That in reply para No. 11 of the Civil Writ Petition, it is submitted that there was construction of the petitioners in Khasra No. 1440 to the extent of 4 rooms, varanda, kitchen and latrine total measuring 50'x60', one kothi total measuring 40'x30', one tin shed measuring 30'x12'. The said construction along with proportionate vacant land of the petitioners total measuring 6 biswas which was released earlier is not the subject matter of present acquisition proceedings. Rest of the land measuring 6 CWP No. 14299 of 2006 -5- biswas in Khasra No. 1440 which was totally vacant at the relevant time has been acquired vide present acquisition proceedings.
Earlier, the present writ petition was disposed of on 16.11.2007 in view of the averments made in the written statement but subsequently, on a review application, the order was recalled and the writ petition was restored to its original number. It is thereafter, the present petition has been placed before us.
Learned counsel for the petitioners has vehemently argued that the petitioners have raised construction on the entire Khasra No. 1440 which is also evident from the site plan (Annexure P-1) appended with the present petition as well as the Khasra Girdawari (Annexure P-7) which proves the existence of the makaan (house) on the entire Khasra number. Therefore, such construction is to be excluded from acquisition in view of the policies of the State Government as well as the judgment in Jagdish Chand's case (supra). It is pointed out that the objections (Annexure P-5) were filed in terms of the orders passed in Jagdish Chand's case (supra), but they were relevant for the purpose of present acquisition as well.
On the other hand, learned counsel for the respondents has pointed that it is categorical stand of the respondents that remaining 6 biswas of Khasra No. 1440 was lying vacant and has no construction at the time of publication of the notification under Section 4 of the Act. It is pointed out that it is not the case of the petitioners that any construction was raised by the petitioners after the publication of the earlier notification under Section 4 of the Act dated 24.8.2000 and the present notification under Section 4 of the Act dated 9.6.2003, the subject matter of the present petition. The objections filed after the orders of Hon'ble Supreme Court related to the notification published in the year 2000 only. Therefore, the present petition has no merit.
CWP No. 14299 of 2006 -6-
In respect of the land of the petitioners comprising in Khasra No. 1454, there is no subsisting dispute, as the said land having construction, was found necessary for the purpose of the master plan road. Therefore, in terms of the orders passed in Jagdish Chand's case (supra), no dispute can be permitted to be raised in respect of such Khasra number. In fact, the petitioners have not raised any challenge to the acquisition of land comprising in Khasra No. 1454.
The entire dispute is in respect of remaining 6 biswas of land of Khasra No. 1440. We have called for the records of CWP No. 16156 of 2001, Kishan Sahai and ors vs. State of Haryana and ors and also perused the site plan attached with the said petition, wherein, the plea of construction in Khasra No. 1440 was raised. The relevant extract reads as under: -
2. That the brief facts leading to the writ petition are that petitioners are the owners of land comprising in Khewat No. 251/174 min Khatauni No. 277 min Khasra No. 1440 (0-12) and Khasra No. 1454 (2-12) total measuring 3 bighas 4 biswas to the extent of ¼ share of petitioner No. 1 and ¾ share each of petitioners No. 2 to 4 situated in the revenue estate of village Wazirbad, Tehsil and Distt. Gurgaon
3. That the petitioners have raised the construction on the above said land and are living there for the last 20 years. The construction is 'A' class construction. Copy of the site plan showing the construction is annexed as Annexure P-1 with this petition.
That petitioners are also having the electricity construction in their houses constructed in the above said Khasra Nos. Copy of the electricity bill is annexed as Annexure P-2 with this petition. The site plan dated 15.9.2000, attached with aforesaid writ petition shows that the construction is said to be raised in Khasra No. 1454. Even it is assumed that there is mistake in describing Khasra No. 1454, it should be 1440, but the fact remains that there is no averment either in present writ petition or in CWP No. 16156 of 2001 that the entire Khasra CWP No. 14299 of 2006 -7- No. 1440 has construction. The site plan produced in CWP No. 16156 of 2011 is materially different than what was produced in the present petition. Still further, there is no averment that the petitioners raised any fresh construction between the dates of notification under Sections 4 dated 24.4.2000 and the notification, subject matter of challenge under Section 4 of the Act dated 9.6.2003 (Annexure P-8). Petitioners have not alleged any fresh construction even in the objections filed in terms of the liberty granted to them in view of Jagdish Chand's case (supra).
Therefore, the plea that remaining 6 biswas of land comprising Khasra No. 1440 has construction prior to publication of notification under Section 4 is not tenable. It is the plea to seek release of the land by twisting and misleading the facts.
Consequently, we do not find any merit in the present petition. The same is hereby dismissed.
(HEMANT GUPTA) JUDGE (A.N.JINDAL) JUDGE 26.3.2012 preeti