Punjab-Haryana High Court
Harmail Singh And Others vs State Of Punjab And Others on 28 February, 2013
Author: Surya Kant
Bench: Surya Kant
CWP No. 1714 of 2012 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
1. CWP No. 1714 of 2012 (O&M)
Harmail Singh and others
..... Petitioners
Versus
State of Punjab and others
..... Respondents
2. CWP No. 2383 of 2012
Bhajan Singh and others
..... Petitioners
Versus
State of Punjab and others
..... Respondents
3. CWP No. 6228 of 2012
Ajit Singh and others
..... Petitioners
Versus
State of Punjab and others
..... Respondents
4. CWP No. 24639 of 2012
Harjinder Singh
..... Petitioner
Versus
State of Punjab and others
..... Respondents
CWP No. 1714 of 2012 -2-
5. CWP No. 9109 of 2012
Jarnail Singh and others
..... Petitioners
Versus
State of Punjab and others
..... Respondents
6. CWP No. 9203 of 2012
Ranjit Singh and others
..... Petitioners
Versus
State of Punjab and others
..... Respondents
7. CWP No. 12649 of 2012
Karnail Kaur and others
..... Petitioners
Versus
State of Punjab and others
..... Respondents
Date of decision: 28.1.2013
CWP No. 1714 of 2012 -3-
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR.JUSTICE R.P. NAGRATH
PRESENT: Mr. Naresh Kaushal and Mr. Sher Singh Rathore, Advocates
for the petitioners
(in CWP Nos. 1714, 2383, 24639, 9109, 9203 and
12649 of 2012).
Mr. Kanwaljit Singh, Senior Advocate with
Mr. BBS Randhawa,Advocate for the petitioners
(in CWP No. 6228 of 2012).
Mr. Manoj Bajaj, Additional Advocate General, Punjab.
Mr. D.V. Sharma, Senior Advocate with
Mr. Harit Sharma, Advocate for respondents No. 2 to 4.
(in CWP Nos. 1714, 2383, 24639, 9109 and 12649 of 2012).
Mr. M.S. Virk, Advocate for
Mr. P.S. Shekhon, Advocate for respondents No. 2 to 4
(in CWP No. 9203 and 6228 of 2012).
SURYA KANT, J. (ORAL)
This order shall dispose of CWP Nos. 1714, 2383, 6228, 24639, 9109, 9203 and 12649 of 2012 as the point in issue involved in these cases is common in nature. The facts are extracted from CWP No. 1714 of 2012.
2. The petitioners seek quashing of letters-cum-orders issued on different dates in September/October, 2011 placed on record as Annexure P-7 (Colly), whereby the Greater Mohali Area Development Authority (in short 'GMADA') has rejected their claim for allotment of residential plots under the Oustee Policy. The petitioners also seek a mandamus to direct GMADA to treat them at par with other oustees of the same acquisition process and consequently allot them the plots of the size, which is due to them as per their entitlement.
3. To appreciate the controversy in its right perspective, suffice CWP No. 1714 of 2012 -4- it would be to mention that the petitioners are expropriated owners whose land(s) situated in villages Mauli Baidwan, Chilla, Raipur Khurd, Kumbra and Manauli, Tehsil and District SAS Nagar, Mohali were acquired by the State of Punjab through its Department of Housing and Urban Development vide notification dated 23.1.2004 (Annexure P-4) issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'). The land of the petitioners as also of other owners of the above-mentioned villages was acquired for the following public purpose:-
"---- Whereas it appears to the Governor of Punjab that land is likely to be required to be taken up by Punjab Government, at public expenses, for a public purpose, namely for the planned development and for the setting up of Urban Estate in the Areas of tehsil Mohali, district Rup Nagar, it is hereby notified that land in the locality described below is required for the above purpose.
This notification is made under Section 4 of the Land Acquisition Act, 1894 to all whom it may concern."
(emphasis applied)
4. After issuing the notification under Section 6 of the Act, the land of the petitioners was finally acquired vide Award dated 26.12.2006 (Annexure P-5), the opening part whereof also refers to the "public purpose" for which it was acquired. It reads as follows: CWP No. 1714 of 2012 -5-
"Land acquisition proceeding in village Mauli Baidwan, Hadbast No. 4, Tehsil and District SAS Nagar (Mohali).
The Punjab Government in the Housing & Urban Development Department vide Notification No. 6/9/2000-1HGI/501 dated 23-01-2004 published in the Punjab Government Gazettee (Extra) on 23-01-2004 notified 828 Kanal 10 Marla (103.56 acres) land of village Mauli Baidwan under section 4 of the Land Acquisition Act, 1894 for the acquisition of land at public expenses, for a public purpose, namely, for the planned development and for setting up of a urban estate in the Areas of Tehsil Mohali, District Rupnagar (now Distt. SAS Nagar).------"
(emphasis by us)
5. Soon after passing of the Award on 26.12.2006, the petitioners applied in the year 2007 for allotment of residential plots to them as per their entitlement under the 'Oustee Policy' which was in vogue at the relevant time. Their applications, however, have been turned down vide impugned orders of different dates issued in September/October 2011, in terms of the new Oustee Policy dated 25.5.2011 (Annexure P-6), on the ground that "there is no condition in the new Oustee Policy dated 25.5.2011, with regard to allotment of plots to the oustees, whose land have been acquired for Sector-81 and Water Treatment Plant, for SAS Nagar, Mohali....."
CWP No. 1714 of 2012 -6-
6. It was way back on 17.4.1974 that the Government of Punjab notified the "Policy For the Future Development of Urban Estates in Punjab" (Annexure P-1). The said policy contained a clause to provide reservation for various categories including "all oustees whose lands have been acquired for setting up of an estate--------". Para 8 (i) of the aforesaid policy reads as follows:-
"Reservation Policy:
8. It has been decided to revise the existing policy of reservation as follows:-
(i) Before any plots are allotted, all oustee whose land has been acquired for the setting up of an Estate shall be accommodated within the frame work of the income criteria (prescribed) mentioned above. Further, all war widows will also be accommodated on cent-percent basis and plots allotted to them as per their requirements and social needs."
7. Thereafter came another policy dated 26.5.1983 (Annexure P-2) and in respect of the oustees the said policy prescribed to the following effect:-
"Accommodation of Oustees"
The policy regarding the allotment of plots to oustees will be as under:-
CWP No. 1714 of 2012 -7-
i) The plot should be allotted to an oustee in the Urban Estate for his bonafide residence;
ii) No application from the oustee should be entertained after a period of three years from the date of taking possession of his acquired land. This would, however, apply to the future oustees. The present oustees would be given one year's time to apply for the allotment of plots;
iii) An oustee would only be allotted a plot on the following basis:-
Land Acquired Size of Plot
(a) ½ acre to 3 acres 100 Sq. Yds.
(b) Between 3 to 5 acres 200 Sq. Yds.
(c) Above 5 acres 500 Sq. Yds.
(Unless he asks for a smaller plot) EXPLANATION:
However, if on the land acquired there was a dwelling unit, 100 sq. yds. plot may be allotted even though the area acquired may be less than ½ acre.
(iv) The price chargeable for allotment of plots to the oustees would be same as for general category.CWP No. 1714 of 2012 -8-
(v) All oustees of any Joint Khata would be entitled to one plot only."
8. After about 11 years, the Punjab Housing Development Board, reconsidered the existing policy of 1983 and took a fresh policy decision dated 26.9.1994 (Annexure P-3) "Regarding Disposal of Residential Plots in Urban Estates". Clause 6 of this policy pertains to the 'oustees' and reads as under:-
"6. POLICY FOR OUSTEES Policy for allotment of plots to Oustees would be as under:-
i) The plot would be allotted to an Oustee in the Urban Estate for his bonafide residence.
ii) The application from the oustee will be entertained after a period of one year from the date of taking possession of his acquired land. Iii) An oustee would only be allotted a plot on the following basis:
Land acquired Size of plot
a) ½ acre to 3 acre 100 sq. yds.
b) Between 3 to five acres 200 sq. yds.
c) Above 5 acres 500 sq. yds.
However, if on the land there is a dwelling unit, 100 sq. yds. plot may be allotted even though the area acquired may be less than ½ acres.
iv) The price chargeable for allotment of plots to CWP No. 1714 of 2012 -9- the oustees would the same as for general category.
v) All oustees of any joint khata would be entitled to one plot only."
9. Admittedly, it was the policy dated 26.9.1994 (Annexure P-3) which held the field and was operative at the time of acquisition of the petitioners' land. The respondents (GMADA), however, maintains that the afore-said policy is inapplicable and the petitioners are not entitled to the benefit flowing from it.
10. Be that as it may, the State Government has notified a fresh Oustee Policy dated 25.5.2011 (Annexure P-6) which deals exclusively with the rehabilitation of those owners whose lands are acquired for various public purposes. Para 1 of the policy reads as follows:-
"1. This policy shall be applicable in cases where land is acquired for setting up of any Residential, Institutional, Industrial, or Integrated Mixed-Land use Estate by any Development Authority constituted under the Punjab Regional & Town Planning and Development Act, 1995. It shall also apply for land acquisitions undertaken for filing up any critical gaps to facilitate the development of any Residential, Institutional, Industrial or Integrated Mixed Land Use Estate by any private developer."CWP No. 1714 of 2012 -10-
11. Para 2.1 of the policy lays down the eligibility conditions of the land owners and thus says:
"2.1 A landowner whose land has been acquired for the purposes mentioned in Para 1 above, shall be eligible for being allotted a residential plot, on preferential basis as per the following table subject to such conditions as may be fixed by the Authority:-
Sr. Quantam of land Approximate Size of
acquired plot which eligible
a From ½ acre to 1 83 sq. meters
acre (100 sq. Yds.)
b Above 1 acre and 167 sq. meters
upto 2 acres (200 sq. Yds.)
c Above 2 acres and 250 sq. meters
upto 3 acres (300 sq. Yds.)
d Above 3 acres and 334 sq. meters
upto 4 acres (400 sq. Yds.)
e Above 4 acres 418 sq. meters
(500 sq. Yds.)
...................."
12. The GMADA considered the claim of petitioners for
allotment of plots as 'oustees' under the afore-stated policy dated 25.5.2011 (Annexure P-6) and has turned down the same on the plea that the policy nowhere mentions about the allotment of plots to the land owners whose land was acquired for "Sector-81 and Water Treatment Plant at SAS Nagar, Mohali".
13. It deserves mention at this stage that Sector-81, SAS Nagar, Mohali, known as the Knowledge City, has been developed as an CWP No. 1714 of 2012 -11- "institutional area" and the Water Treatment Plant for SAS Nagar, Mohali is also proposed to be set up in the same sector. According to the respondents, the petitioners are not entitled to the allotment of residential plots under the policy dated 25.5.2011 (Annexure P-6), for the reason that their land has been acquired for setting up of Sector-81 which is not a 'residential sector' and also that the afore-stated policy is prospective and does not apply to the acquisition(s) prior to 25.5.2011.
14. The aggrieved petitioners have approached this Court.
15. We have heard learned counsel for the parties and gone through the record.
16. The petitioner's precise case is that since their land has also been acquired for setting up of urban estate in SAS Nagar, Mohali and the subsequent utilization of the acquired land by the State Government or its agencies, namely, GMADA to set up the Knowledge City or Sewerage Plant is wholly inconsequential, hence, they are entitled to be treated at par with those whose lands have also been acquired along with those of the petitioners under the same acquisition and to whom residential plots under the 'Oustee Policy' have been admittedly allotted. Contrary to it, learned counsel for GMADA urges that the policy dated 25.5.2011 (Annexure P-6) is inapplicable as it has no retrospective effect and the petitioners are not entitled to any allotment under the previous policy dated 26.9.1994 (Annexure P-3) for the reason that no residential plots have been carved out on the land acquired from them. In other words, the respondents claim that the benefit of Policy dated 26.9.1994 is admissible to an oustee only if his acquired land is utilized for residential CWP No. 1714 of 2012 -12- purposes. Reliance is also placed on the decision of the Hon'ble Supreme Court in Amarjit Singh and other Vs. State of Punjab and others (2010) 10 Supreme Court Cases 43, which pertains to this very acquisition, to contend that an expropriated owner cannot claim rehabilitation through allotment of a plot as a matter of right or as a pre-condition for acquisition of his land. A pointed reference has been made to para 51 of the judgment which reads as follows:-
"51. There is, thus, no gainsaying that rehabilitation is not an essential requirement of law for any compulsory acquisition nor can acquisition made for a public purpose and in accordance with the procedure established by law upon payment of compensation that is fair and reasonable be assailed on the ground that any such acquisition violates the right to livelihood of the owners who may be dependent on the land being acquired from them."
17. After giving thoughtful consideration to the rival pleas, it appears to us that the plea taken by the respondent-GMADA that the petitioners are not entitled to the benefit of the policy dated 26.9.1994 (Annexure P-3) as their acquired land has not been utilized for 'residential purpose' is patently arbitrary and discriminatory. We say so for the reason that the land of the petitioners was a part and parcel of the big chunk of contiguous land measuring about 417 acres comprising different revenue villages which was acquired by the State of Punjab through one and the same process. The acquired land has been utilized by GMADA CWP No. 1714 of 2012 -13- for the public purpose of setting up of the Sector-81 of SAS Nagar, Mohali. It is not denied that in case the land of the petitioners was utilized for residential plots, they would have been entitled for allotment of plots under the Rehabilitation Policy dated 26.9.1994 (Annexure P-3).
18. The question that arises for consideration is whether the petitioners be deprived of the benefit of Rehabilitation Policy only because the respondents have utilized their acquired land for a purpose which is incidental or ancillary to the development and setting up of a regulated urban area?
19. In our considered view, once the land is acquired for setting up the urban estate, all the expropriated owners are entitled to be treated alike and at par, irrespective of the subsequent utilization of the acquired land. Whenever a big chunk of agricultural land is acquired to develop an urban area, it is inherent in its conceptualization that the acquired land would be utilized for different but essential purposes like (i) parks, (ii) roads, (iii) sewerage or water supply, (iv) commercial area, (v) institution area, (vi) open land for future development, (vii) green belt, (viii) residential plots, (ix) multi-storeyed apartments and various other allied purposes.
20. It is not at all within the control of a land owner to insist that in the lay out plan or 'master plan' his land be earmarked for the residential plots only. The land owner is left with no concern whatsoever except to seek compensation for his acquired land. Suffice it to observe that it is for the State authorities to decide as to what would be the optimum use of the acquired land in whom the land stands vested, free CWP No. 1714 of 2012 -14- from all incumbrances. It is for the Authorities to utilize the land for one or the other public purpose.
21. The owners, however, cannot be discriminated with and subjected to differential treatment on the basis of an incidental circumstance like utilization of their acquired land for varied purposes of an integrated urban development project. The classification sought to be brought in is neither based upon an intelligible criteria nor has any rationale with the object sought to be achieved through the Oustee Policy. The purpose of the Rehabilitation/Oustee Policy is to rehabilitate all the land owners whose lands have been acquired for the planned development and setting up of an urban estate. Once it is proved that the land of the petitioners was also acquired for that very purpose, the microscopic classification suggested by the respondents to deprive a group of land owners of the benefits of a welfare policy, cannot be accepted. Such an artificial grouping cannot stand the test of Article 14 of the Constitution.
22. The 2nd plea taken by the respondent-GMADA that the policy dated 25.5.2011 (Annexure P-6) does not apply retrospectively need not be gone into by us in the present case for the reason that we have accepted the petitioners' claim under the previous policy dated 26.9.1994 (Annexure P-3) .
23. The decision in Amarjit Singh's case (supra), in our considered view, also does not lend any support to the respondents for the reason that the question that arose for consideration before their Lordships pertained to the validity of land acquisition notification dated CWP No. 1714 of 2012 -15- 23.1.2004, issued under Section 4 of the Act and the subsequent declaration under Section 6 of the Act. One of the contention raised by land owners that their lands could not be acquired unless there was a rehabilitation policy, was rejected with reference to the doctrine of 'eminent domain' and the scope of Article 300-A of the Constitution. The Hon'ble Supreme Court laid down that the existence of the rehabilitation policy cannot be a pre-condition for the acquisition of a land for public purpose. The question whether the policy dated 26.9.1994 (Annexure P-
3) was applicable or not qua the land owners who had challenged the very acquisition of their land was not raised or decided in the cited case.
22. For the reasons afore-stated, we allow this petition, quash the impugned letters-cum-orders dated 19.9.2011, 13.9.2011, 5.9.2011, 29.9.2011, 16.9.2011, 28.10.2011 and 17.10.2011[Annexure P-7 (Colly)] and direct the respondents to consider the claim of the petitioners for allotment of residential plots strictly in accordance with the policy dated 26.9.1994 (Annexure P-3). The needful shall be done within a period of two months from the date of receipt of certified copy of this order.
23. Dasti.
( SURYA KANT )
JUDGE
January 28, 2013 ( R.P. NAGRATH )
rishu JUDGE