Punjab-Haryana High Court
Dr. Jagdish Singh Sarkaria And Others vs State Of Haryana And Others on 12 November, 2009
Equivalent citations: AIR 2010 (NOC) 322 (P. & H.), 2010 AIHC (NOC) 470 (P. & H.)
Bench: T.S. Thakur, Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.3855 of 1982
Date of decision: 12th November, 2009
Dr. Jagdish Singh Sarkaria and others
... Petitioners
Versus
State of Haryana and others
... Respondents
Civil Writ Petition No.3673 of 1983
Charan Singh and others
... Petitioners
Versus
State of Haryana and another
... Respondents
Civil Writ Petition No. 3065 of 2008
Aarushi Cooperative Group Housing Society and another
... Petitioners
Versus
Chief Administrator, HUDA and others
... Respondents
CORAM: HON'BLE MR. JUSTICE T.S. THAKUR
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Rajiv Atma Ram, Senior Advocate with
Mr. Arjun Partap, Advocate and
Mr. B.N.S. Sharma, Advocate; and
Mr. M.L. Sarin, Senior Advocate with
Mr. Hemant Sarin, Advocate and
Mr. Suveer Sehgal, Advocate
for the petitioners.
Mr. Hawa Singh Hooda, Advocate General Haryana with
Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 2
Mr. Randhir Singh, Additional Advocate General Haryana
for the State.
Ms. Vandana Malhotra, Advocate for HUDA.
KANWALJIT SINGH AHLUWALIA, J.
1. Chandigarh, the city beautiful, was developed and created in an area spread over 114.59 square kilometers in the footsteps of Shivalik hills as new capital for the State of Punjab after partition. In the words of Jawahar Lal Nehru, Chandigarh represented vision of modern India "Unfettered by the traditions of the past, a symbol of nation's faith in future". In 1966, re-organization of the State of Punjab took place and Chandigarh was declared as capital for both the States of Punjab and Haryana. Chandigarh also became border city for Punjab and Haryana. Eastern Chandigarh bordered Haryana, while to the west was Punjab. The greenbelt created around Union Territory, Chandigarh to check the haphazard urban growth lost its effectiveness, as Haryana developed a new town of Panchkula, whereas Punjab developed S.A.S. Nagar, Mohali. Both, Panchkula and S.A.S. Nagar, Mohali are described as satellite towns of Chandigarh.
2. A writ petition bearing Civil Writ Petition No. 3065 of 2008 titled as 'Aarushi Cooperative Group Housing Society and another v. Chief Administrator, HUDA and others' came up for hearing before a Division Bench of this Court. In this writ petition, the residents of two Cooperative Societies, which are situated in Sector 20, Panchkula, invoked public interest jurisdiction of this Court by impleading the Chief Administrator, Haryana Urban Development Authority (hereinafter referred to as, 'HUDA'); the Director, Health Services Haryana and the Chairman, Haryana State Pollution Control Board and prayed that the Chief Administrator, HUDA Complex, Panchkula be directed not to pollute and Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 3 discharge sewerage in their locality, especially on the road in front of main gates of the petitioner societies. The petitioner societies made a grievance that HUDA has not laid down proper sewerage and storm water disposal system. Thus, sewage and contaminated polluted water accumulates in open space on the road adjoining the petitioner societies and in front of Economically Weaker Section houses and plots. According to petitioners HUDA had ignored weaker section of the society by not connecting the sewage system laid for sector 20, Panchkula with the sewage treatment plant. To support this contention, photographs were also annexed. The Division Bench of this Court, while issuing notice, observed that this petition cannot be entertained as public interest litigation, but in the larger interest of the environment and its effect on the members of the societies, it be treated as a writ petition under environmental laws. In response to a notice issued to it, HUDA filed its counter affidavit and stated therein that though the answering respondent had laid proper sewage and storm water disposal system for the petitioner societies, houses and plots of economically weaker section in Sector 20, Panchkula, because of grant of stay of dispossession by this Court, in favour of the land owners, whose land was sought to be acquired, sewerage lines cannot be laid and connected with the sewage treatment plant, and made functional. Therefore, on September 30, 2008, it was ordered by this Court that CWP No. 3673 of 1983 titled 'Charan Singh and others v. State of Haryana and another' be heard along with CWP No. 3065 of 2008. It was reported by the office that CWP No.3673 of 1983 was ordered to be heard along with CWP No.3855 of 1982 titled 'Dr. Jagdish Singh Sarkaria and others v. State of Haryana and others'. Therefore, that writ petition was also listed along with CWP No.3065 of 2008.
3. It is in the above backdrop that CWP No.3855 of 1982 titled 'Dr. Jagdish Singh Sarkaria and others v. State of Haryana and others'; Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 4 CWP No. 3673 of 1983 titled as 'Charan Singh and others v. State of Haryana and another' and CWP No.3065 of 2008 titled as 'Aarushi Cooperative Group Housing Society and another v. Chief Administrator, HUDA and others' were heard together and shall stand decided by the common order. Fourth writ petition, i.e. CWP No.7882 of 2007 titled as 'Dr.O.P. Munjal and another v. State of Haryana and others' filed by residents of Panchkula in public interest with a prayer that the Deputy Commissioner, Panchkula and Municipal Councilor, Panchkula be directed to upkeep and maintain the city of Panchkula by ensuring overall hygiene, pollution free atmosphere accompanied by basic amenities, though ordered to be heard along with these cases, shall be decided separately.
4. As noticed above, three writ petitions, viz. CWP No.3065 of 2008; CWP No.3855 of 1982 and CWP No.3673 of 1983 pertain to Sector 20, Panchkula, which before development of the city, was known as village Kundi, Hadbast No.366, Tehsil Kalka, District Ambala. For redressal of grievance raised in CWP No.3065 of 2008 that sewage system be provided, two writ petitions, viz. CWP No.3855 of 1982 and CWP No.3673 of 1983 are required to be decided, as according to the authorities, order of stay of dispossession is an impediment in ensuring overall growth and development of the Sector. Therefore, we proceed to decide these two writ petitions, in the first instance.
Civil Writ Petition No.3855 of 1982
5. Ten persons, namely Dr. Jagdish Singh Sarkaria, his wife Smt.Bhupinder Kaur, his son Karanbir Singh Sarkaria, petitioners No.1, 2 and 3 representing one family; Sarabjit Singh and Smt.Swaranjit Kaur, brother sister, petitioners No.4 and 5 representing another family; Jagvinder Singh and his mother Smt.Mohinder Jaspal Singh, petitioners No. 6 and 7 representing third family; along with Jatinder Pal Singh, Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 5 Birinder Pal Singh and their father Gurbhagat Singh, petitioners No.8, 9 and 10 representing fourth family, filed Civil Writ Petition No.3855 of 1982 with a prayer that Notification dated 24th June, 1980 issued under Section 4 (1) of the Land Acquisition Act, 1894 (hereinafter referred to as, 'the Act') along with two subsequent Notifications dated 17th October, 1980 and 30th July, 1982 respectively, issued under Section 6 of the Act be quashed.
6. It will be necessary for us to briefly set out the factual backdrop, in which present writ petition has been filed, so that the rival contentions and issues raised are decided by us.
7. Government of Haryana, on 24th June, 1980, issued a preliminary Notification under Section 4 of the Act declaring that a large extent of land measuring 335.39 acres situated in village Kundi, Tehsil Kalka, District Ambala was likely to be required for the purpose of development and utilization for residential, commercial and industrial area by the Haryana Development Authority Act, 1977. The total extent so notified for acquisition includes an area measuring 81.62 acres belonging to the petitioners and situated in survey number included in the preliminary Notification. A declaration under Section 6 of the Act made on 17th October, 1980 was then issued in respect of total area of 100.31 acres, out of which an extent of 11.76 acres was owned by the petitioners and the rest by other owners of the village. A second declaration under the same provision followed on 13th July, 1982 in respect of a total area of 230.37 acres, out of which an area of 58.26 acres was owned by the petitioners.
8. It was pleaded in the writ petition that the petitioners were surprised to know that notices under Section 9 of the Act have been issued in respect of land owned by them, therefore, they made enquiries and learnt that no publication, by proclamation or otherwise, had been made in the locality, of the substance of any Notification issued under Section 4 of the Act. The petitioners annexed duly translated affidavits of 16 residents Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 6 of the locality as Annexure P-4 to P-19 to say that no munadi or proclamation through Chowkidar or any other person in respect of land was made. This writ petition was filed on 29th August, 1982. Thus, a grievance was made that due to non-publication of the Notification, petitioners have been denied valuable right vested in them under Section 5A of the Act to file objections against the proposed acquisition. To fortify this plea, it was further averred that stance of the respondents that the substance of the Notification was published in the locality by beat of drum and a report to this effect was recorded, should be discarded as report so made, is a fictitious and fabricated document. The report made by the Patwari, bearing report No.349, was annexed with the writ petition as Annexure P-20. To assert that the report No.349 was ante-dated and a fabricated document, affidavits of Hardit Singh and Rabbi, two Chowkidars, were attached to say that the Chowkidars, who, according to the respondent, could have made munadi by way of beat of drum/tin (pipa), have solemnly affirmed that they had never done so. It will be apposite here to reproduce another significant averment made in the writ petition, which reads as under:
"7. That there has been a complete violation of Section 4 of the Act inasmuch as the Notification was not issued from the printing press on the date it bears for publication. The Haryana Government Printing Press and for that matter every Govt. Press has an Issuing Branch wherefrom after printing every Notification is issued and it is only after such issuing the public can be supposed to be aware of it and get the copy thereof. The Notification under Section 4(1) though purported to have been printed in the Haryana Govt. Gazette (Extraordinary) dated 24.6.1980 was not sent to the Publication/ Issuing Branch of the Press before 21.7.1980. Mere printing a Notification in the Gazette and getting the printed mater confined to the printing Branch does not amount to its publication/ issuing within the meaning of Section 4(1) of the Act. The publication/ issuing means Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 7 communication to the public or at least making available to the public.
In the instant case since it was sent to the Publication Branch about a month after its printing, the requirement of 30 clear days' period, to be given after publication amounts to a clear denial of opportunity of being heard and preferring objections under Section 5-A of the Act, which opportunity the petitioners have been denied."
9. Therefore, the present writ petition challenges the validity of the Notification on two precise grounds. Firstly, it is alleged by the petitioners that the preliminary notification under Section 4 of the Act was never published in the locality as was mandatory under the provisions of the Act. Secondly, it is alleged that the publication of the Notification in question even in the official gazette was ante-dated on 24th June, 1980, as the Notification was forwarded to the Government press much after the said date.
10. This writ petition came up for hearing on 1st November, 1982. A Division Bench of this Court issued notice and stayed dispossession of the petitioners. The Land Acquisition Collector, Urban Estate, Panchkula filed reply and reiterated that the substance of Notification under Section 4 of the Act was duly published in the concerned locality by way of loud voice and beat of empty tin, by Rabbi Chowkidar. An entry to this effect was made in Daily Rapat Roznamcha Wakiati of the Halka Patwari at Sr. No.349 on 25th June, 1980. The written statement denied the averment that no publication was made in response to the publication of the substance of Notification. It stated that 29 land owners had filed their objections under Section 5A of the Act. In the course of arguments, it was urged that if on account of same publication, 29 land owners could file objections, it does not lie in the mouth of the petitioners to plead that no such publication had taken place. It was further stated in the reply that Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 8 petitioners No.4, 5, 6, 7 and 10 had filed their claims under Section 9 of the Act. In support of this contention, affidavits of Rabbi Chowkidar and Kanhaiya Lal Patwari were annexed with the reply as Annexures R-1 and R-2. After the written statement was filed by the State of Haryana, on 17th November, 1982 this Court ordered that the original record be produced on 30th November, 1982 and the presence of Patwari be also ensured on that day. On 30th November, 1982, when Patwari was present along with the original record, a Division Bench of this Court proceeded to record statement of Kanhaiya Lal Patwari. It will be necessary to reproduce the statement so recorded, as both sides have advanced arguments touching the statement recorded by the Court. The statement of Kanhaiya Lal Patwari recorded on 30th November, 1982 reads as under:
"Statement of Kanhya Lal, Patwari Halqa Madalpur, Tehsil Kalka, District Ambala, on S.A.:-
I have seen the original report entered in the Roznamcha Waqiati. The Report at Serial No.349 has not been made by me. The entire entry has been made by Om Raj, Patwari, Land Acquisition. I have seen the original affidavit, Annexure R-2 attached with the written statement. The verification, as well as the affidavit bear my signatures in Urdu. Question: In para 2 of the affidavit, you have specifically stated that "An entry to this effect has been entered by me in the daily Report Roznamcha Waqiati at Serial No. 349 on 25th June, 1980."
What have you to say?
Answer: What is stated in para 2 and reproduced above in the question, is not correct. What I have stated now in the Court on oath is correct.
I myself got this affidavit attested from Shri S.S. Rana, Advocate, Oath Commissioner, Chandigarh.
Entry at Serial No.350 is in my hand. That entry has nothing to do with the report entered at Serial No.349. The portion encircled in red pertains to Entry 350 and has nothing to do with Entry No.349. The thumb-impression of Babu Ram is a Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 9 part of Entry 350 and has no concern with Entry 349. The report at Sr.No.349 does not bear signatures or thumb- impression of any person.
Hardit Chaukidar has not put any signature on the Report entered at Serial No.350. I do not know English, and, hence, I cannot say as to how in my affidavit it has been written that the thumb impression to be of Hardit Chaukidar related to Entry No.350. I have seen the certified copy, Ex.P.20 at Page 53 Part B of the file. I had prepared this copy correctly from the original Report Roznamcha. It bears my signatures. In this copy, I have mentioned "Nishan Angootha Hardit Chaukidar". I have also certified the copy to be a true copy of the original. It is correct that I had copied out the copy from the original.
The witness has been confronted with the original report Roznamcha, wherein the thumb-impression of Hardit Chaukidar does not appear. On this, the witness states that he had inadvertently mentioned in the true copy- the thumb-impression of Hardit Chaukidar.
I did not get the substance of notification under Section 4 published in the concerned locality through Rabi Chaukidar. I have wrongly stated in para 2 of my affidavit, Annexure R-2, that I got the substance of notification published through Rabi Chaukidar. Again said, that the publication was made by Rabi Chaukidar. It is correct that whatever is stated in my affidavit, Annexure R-2, is incorrect. But I do not know English."
We are informed that Kanhaiya Lal Patwari has died. A perusal of his statement shows that no opportunity was given to the State of Haryana to cross-examine this witness.
11. From 1982 (when the writ petition was filed) till 2009 (when it was taken up for final disposal), within the span of 27 years, many developments and events have taken place, which are required to be noticed, as they were brought on the case file by filing numerous Misc. Applications and additional affidavits. It will be necessary to detail these developments and events briefly, so that the entire spectrum and the whole conspectus of the case is put on record:
Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 10
(i) In pursuance of the Notification (Annexure P-1) issued under Section 4 of the Act and Notifications (Annexures P-2 and P-
3) issued under Section 6 of the Act, final award was announced on 17th September, 1986 in respect of 9.23 acres of land. Since there was stay of dispossession in respect of the land of the petitioners to the three writ petitions, the matter had not proceeded ahead qua the land of the petitioners.
However, on 29th January, 1990, a fresh Notification under Section 4 of the Act was issued to acquire 134.39 acres of land of village Kundi, which earlier formed part of the Notifications (Annexures P-1 to P-3). In this Notification, only one No.9//22/1 (3 Kanal 18 Marlas) was notified belonging to the land of petitioner No.6 Jagvinder Singh. Further on 25th January, 1991, Notification under Section 6 was issued for 132.38 acres of land and only the same No.9//22/1 was notified in this Notification from the land of petitioner No.6 Jagvinder Singh. In pursuance of Notification dated 29th January, 1990 issued under Section 4 of the Act and Notification dated 25th January, 1991 issued under Section 6 of the Act, the final award was announced on 21st January, 1993 for 132.10 acres of land and in this award, No.9//22/1 belonging to land of petitioner No.6 was not included.
(ii) On 26th April, 1995, another fresh Notification under Section 4 of the Act was issued in respect of 119.36 acres of land of village Kundi. This land was included in earlier Notifications (Annexures P-1 to P-3). In this Notification, a total area of 38.20 acres of land of all the petitioners to CWP No.3855 of 1982 was included. To be precise, the Notification issued on 26th April, 1995 included 15.29 acres of land of petitioners Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 11 No.4 and 5 and 22.73 acres of land of petitioners No.8 to 10 to CWP No.3855 of 1982.
(iii) Another writ petition, viz. CWP No. 3477 of 1983 was preferred by Ishwar Chand Aggarwal and others assailing the Notifications of acquisition issued under Sections 4 and 6 of the Act, which have been impugned in present CWP No.3855 of 1982. Thus, out of the total area of 335.69 acres, sought to be acquired by way of Notification under Section 4 of the Act, 124.16 acre land was subject matter of three writ petitions, viz. CWP No.3855 of 1982 (81.62 acres), CWP No.3673 of 1983 (105 kanal 15 marlas) and CWP No.3477 of 1982 (21.75 acres). CWP 3477 of 1982 was rendered infructuous on 19th April, 2006, as the Director, Town and Country Planning Haryana, Panchkula, vide his letter dated 24th November, 2005 addressed to the Administrator, HUDA, Panchkula, stated that the Government had agreed to release the land of the petitioners to Civil Writ Petition No.3477 of 1983, Ishwar Chand Aggarwal and others v. State of Haryana.
(iv) Jagvinder Singh petitioner No.6, who owned 3.93 acres of land, during the pendency of the writ petition, sold the same to Sham Sunder Sardana. Sham Sunder Sardana filed Civil Misc. application No.15832 of 1998 in this Court for being impleaded as petitioner. The application was allowed and he was impleaded as petitioner No.11 vide order dated 24th August, 1998 passed in CM application No.15832 of 1998.
(v) Petitioner No.7 Smt. Mohinder Jaspal Singh, who owned 5.81 acres of land, sold the same during the pendency of the writ petition to Mrs. Santosh Kaur, Paramveer Singh, Harmeet Singh, Ms. Harbinder Kaur and Mrs.Rita. They filed Civil Misc. Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 12 application No. 29183 of 2001 to be impleaded as petitioners, as successors in interest to Smt. Mohinder Jaspal Singh.
(vi) During the pendency of writ petition, petitioner No.1 Dr. Jagdish Singh Sarkaria expired and his legal representatives were brought on record.
(vii) Petitioner No.2, Smt. Bhupinder Kaur also died and her legal representatives were also brought on record, however, Government of Haryana decided to release 27.337 acres of land owned by petitioner No.1, 2 and 3. The writ petition qua petitioners No.1 and 2 was ordered to be dismissed as withdrawn on 31st July, 2006. Since land of petitioner No.3 has also been released, according to the State Counsel, the present writ petition qua him has been rendered infructuous.
(viii) Petitioner No.8, 9 and 10, who owned 27.22 acres of land, entered into collaboration agreement with M/s Amar Nath Aggarwal Investments Pvt. Ltd. and Civil Misc. application No.2199 of 2006 was filed with a prayer that Kulbhushan Goyal, Managing Director of M/s Amar Nath Aggarwal Investments Pvt. Ltd. be also impleaded as petitioner. Collaboration agreement between the parties has not been placed on record.
(ix) Civil Misc. No.10913 and 10914 of 2006 were filed in CWP No.3855 of 1982 with a prayer that since the Government had decided to release the land belonging to petitioners No.1, 2 and 3, directions be given to the Government to release the land vested in other owners, as the action of the respondent State Government is discriminatory, and they cannot adopt pick and chose policy in releasing the land, sought to be acquired under the impugned Notification qua some land Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 13 owners. Instance of releasing land to Ishwar Chand Aggarwal and others, petitioners to CWP No.3477 of 1983 (which was dismissed as infructuous) was also cited.
(x) Civil Misc. No.15193 of 2006 was also filed on behalf of petitioner No.8 to 10, wherein it was urged that they have entered into an agreement of collaboration with M/s Amar Nath Aggarwal Investments Pvt. Ltd. and that the land belonging to them be also released, as it has been done in the case of petitioner No.1, 2 and 3 to the present writ petition and in case of Ishwar Chand Aggarwal and others, petitioners to CWP No.3477 of 1983.
(xi) Civil Misc. No.11795 of 2009 was filed by M/s Samar Estates Pvt. Ltd. through its Managing Director to be impleaded as petitioner to the writ petition, on the ground that they had entered into an agreement of collaboration during the pendency of the writ petition with Petitioners No.4 and 5 to CWP No. 3855 of 1982. Petitioners No.4 and 5 owned 6.92 acres of land out of the land sought to be acquired. The agreement of collaboration has been attached with Civil Misc. No.11796 of 2009. One of the conditions of the collaboration agreement reads as under:
"5. That the said Developers have paid to the said Owners, a sum of Rs.65,00,000/- (Rs.Sixty five lacs only) vide cheque No.061082 dated 05.12.08 in favour of Sh. Sarabjit Singh and Rs.65,00,000/- (Rs.Sixty five lacs only) vide cheque No.061083 dated 05.12.08 in favour of Smt. Swarajit Kaur, drawn on Allahabad Bank, Sector-11, Panchkula, in addition to Rs.70,00,000/- (Rs. Seventy lacs only) already received at the time of signing of agreement on dated 07.09.2004, thus totaling Rs.2,00,00,000/- Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 14 (Rs. Two crores only), as part advance payment for due performance of the obligations undertaken under this Collaboration Agreement, for which amount, the said Owner hereby acknowledge the receipt in the presence of the marginal witnesses. Above said advance payment is against the Owners share as mentioned in clause 3(a) of this Collaboration Agreement & shall be adjusted proportionately at the time of depositing the amount in Owner's designated bank account. It is also agreed between the parties hereto that the Developers shall pay a sum of Rs.3,00,00,000/- (Rs. Three crores only) to the Owners within seven days from the date of grant of license, thus totaling R.5,00,00,000/- (Rs. Five crores only) as advance payment. Further, it is agreed between the parties hereto that the Developers shall transfer a minimum of Rs.7,00,00,000/- (Rs. Seven crores only) to the Onwer's designated bank account within three months from the date of grant of license from competent authorities. It is also clarified that if the amount transferred to the Owner's designated bank account falls short of Rs.7,00,00,000/- (Rs. Seven crores only) within the above specified time, the balance amount shall be paid by the Developers from its own resources, which will be adjusted in future while transferring the amount to the Owner's designated bank account."
Condition No.8 of the collaboration agreement vests right in the Developer to demolish all structures, kacha or pakka, existing on the said land. The owners, petitioners No.4 and 5 had also executed a General Power of Attorney in favour of the Developer to transfer/sell the portion of land and the General Power of Attorney has been executed for a consideration and in pursuance of the agreement, and is Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 15 irrevocable. It was also agreed between petitioners No.4 and 5, and the Developer that the possession of the said land once delivered/handed over shall not be disturbed and the owners will cause no interference. On further payment of Rs.3.00 crores, the possession was to be delivered to the Developer.
(xii) In Civil Misc. No.11796 of 2009, a prayer has been made that HUDA be directed to release the land as it has been done in the case of petitioners No.1 to 3 to CWP No. 3855 of 1982 and Ishwar Chand Aggarwal and others, petitioners to CWP 3477 of 1983.
From the pleadings made in the writ petition, the following two questions have arisen for our consideration:
1. Whether the preliminary Notification under Section 4 of the Land Acquisition Act was published in the official gazette on 24th June, 1980, the date on which it actually purports to have been published ?
2. Whether the Notification in question was published in the locality as required under Section 4 of the Land Acquisition Act ?
During the pendency of the writ petition, due to subsequent developments and events, another three following questions have emerged for our consideration. Since the issues which have arisen from the pleadings, have been given Sr. No.1 and 2, therefore, these questions are given Sr. No.3, 4 and 5.
3. Whether by the issuance of subsequent Notification under Section 4 of the Act on 29th January, 1990 followed by Notification under Section 6 of the Act issued on 25th January, Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 16 1991 and another Notification issued under Section 4 of the Act on 26th April, 1995, earlier Notifications issued, which have been impugned as Annexure P-1, 2 and 3 shall stand superseded ?
4. Whether after issuance of Notification under Section 4 of the Act, sale of land by petitioners No.6 and 7 and separate agreements of collaboration executed by petitioners No. 4 and 5, and petitioners No. 8 to 10, disentitle subsequent purchasers and signatories to collaboration agreements to assail the impugned Notifications ?
5. Whether release of land by State of Haryana in favour of petitioners No.1, 2 and 3 to this writ petition and in favour of petitioners to CWP No.3477 of 1983 entitles petitioners No. 3 to 10 to CWP No.3855 of 1982 to urge that their land should also be released by the State on the ground that the State cannot adopt the policy of pick and chose, and discriminate between the land owners, whose land was sought to be acquired ?
We shall deal with the questions ad seriatim:
Question No.1 Mr. M.L. Sarin and Mr. Rajiv Atma Ram, appearing for the petitioners, have forcibly canvassed before us that the Notification (Annexure P-1) issued under Section 4 of the Act, though bears a date when it was printed and published in the Haryana Government Gazette (Extraordinary) as 24th June, 1980, but in fact it reached the Printing Press not before 21st July, 1980. Therefore, mere printing, which shows that the gazette Notification was purportedly published on 24th June, 1980, cannot be construed as the date of publication of the Notification till it is widely Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 17 circulated. Mr. Rajiv Atma Ram has relied upon the affidavit of Col. Sarabjit Singh Sandhu sworn on 20th May, 2003 to say that the Notification (Annexure P-1) dated 24th June, 1980 was sent by the Government of Haryana on 11th July, 1980 to the Government Printing Press, U.T. Chandigarh, which at that time was handling the official publication on behalf of both the states of Punjab and Haryana, as well as the U.T. Chandigarh. The U.T. Printing Press assigned Job No.42105 to this publication and had completed the job work on 4th September, 1980. The Notification was thereafter published in the Haryana Government Gazette (Extraordinary) and was ante-dated as 24th June, 1980.
Mr. Hawa Singh Hooda, Advocate General Haryana, appearing for the State has submitted that the entry that Job No.42105 was completed on 4th September, 1980 does not reflect publication of the Notification but as per the procedure of Printing Press, is the date when after the calculations, bills are raised and sent to the concerned department. The Controller of Printing and Stationery, U.T. Chandigarh has also communicated that the entire record pertaining to gazette Notification impugned has been weeded out. On the observation made by the Court that Section 81 of the Indian Evidence Act raise presumption regarding the genuineness and date of publication of the Notification in the official gazette, Mr.M.L.Sarin has relied upon 'Trimbak Shivrudra v. The State' AIR (37) 1950 Nagpur 203 to say that the presumption is rebuttable.
It will be apposite here to reproduce following extract of the judgment:
"8. Section 81, Evidence Act provides that Courts shall presume the genuineness of every document referred to therein. Official Gazettes are amongst the documents included in that Section. It is therefore clear that we must raise an initial presumption that C.O.S. which is published in the Gazette of India dated 26th January, 1950 is a genuine document. The presumption enacted by S. 81 is, however, a rebuttable one. That is clear from the definition of the words Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 18 "shall presume" which is given in S. 4, Evidence Act. According to that section:
'Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved'."
A perusal of the judgment rendered in Trimbak Shivrudra's case (supra) reveals that due to mistake, gazette Notification was published on the name of Governor General on 26th January, 1950, whereas on that day, President of India had assumed charge. To rectify this mistake and inaccuracy in the order published in Gazette of India, an "errata slip" was issued. An argument was raised that subsequent correction cannot be taken into consideration and Section 81 of the Indian Evidence Act was pressed into service. The Court held, presumption being rebuttable, it has been rightly explained as to how the inaccuracy had crept-in. To advance this argument further, Mr.Sarin has urged that mere printing of the gazette Notification cannot be said to be publication of the Notification in the gazette. Reliance has been placed upon 'State of Madhya Pradesh and another v. Shri Ram Ragubir Prasad Aggarwal and others' 1979 (4) SCC 686, where various connotations of word 'publish' have been dealt with. It will be apposite here to cull out the relevant extract of the judgment:
"21. Now we move on to Section 3 to verify what flaws vitiate the laying down of syllabi. In this case if we predicate the existence of syllabus the next ingredient is its publication "in such a manner as may be prescribed". Publication of the syllabus is thus essential under Section 3 and when confronted by this requirement, Shri A.K. Sen, counsel for the State, sought to construe that expression to mean communication by the Board to the government or other concerned authorities. To publish, according to him, is to make known to those concerned. On the contrary, Shri Upadhyaya, Counsel for the respondent, argued that "to Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 19 publish" was more than' to communicate to the government departments and really meant making known to the community or the concerned section of the community. Contextually speaking, we are satisfied that "publication"
means more than mere communication to concerned officials or departments. To publish a news item is to make it known to people in general; "an advising of the public or making known of something to the public for a purpose" (Black's Legal Dictionary, page 1386). In our view, the purpose of Section 3 animates the meaning of the expression "publish".
"Publication" is "the act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny. . . . an advising of the public; a making known of something to them for a purpose". Logomachic exercises need not detain us because the obvious legislative object is to ensure that when the Board lays down the "syllabi" it must publish "the same" so that when the stage of prescribing textbooks according to such syllabi arrives, both the publishers and the State Government and even the educationists among the public may have some precise conception about the relevant syllabi to enable government to decide upon suitable textbooks from the private market or compiled under Section 5 by the State Government itself. In our view, therefore, "publication" to the educational world is the connotation of the expression. Even the student and the teaching community may have to know what the relevant syllabus for a subject is, which means wider publicity than minimal communication to the departmental officialdom."
To illustrate, Mr.Sarin has relied upon case of 'Asia Tobacco Company Ltd. v. Union of India and others' 1984 (18) ELT 152 (Mad) and its various phases of litigation, and has referred to judgments of writ Court, writ appeal Court and lastly of the final pronouncement in appeal by Hon'ble Apex Court, on the same issue, between the same parties. To elucidate and amplify the proposition of law that mere printing of Notification is not enough, after printing, it must be published and made Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 20 known to the public, the judgments pronounced at various stages of Asia Tobacco Company Ltd's case have been extensively read. It will be necessary to take note of these stages by referring to the facts of Asia Tobacco Company's case (supra). A Notification was issued in 1979 granting exemption to a class of cigarettes. The exemption was rescinded by issuing another Notification on 30th November, 1982. The Controller of Publications, Department of Publications, Government of India on enquiry informed to the Company that the Notification in fact was printed, published and made available for sale to the public on 8th December, 1982. Asia Tobacco Co. Ltd. raised a plea that they only came to know regarding the Notification no 8th December, 1982, therefore, from 30th November, 1982 to 7th December, 1982, no tax liability can be fastened upon them, as the Notification of rescinding exemption came to be known to public at large on 8th December, 1982. A Single Bench of Madras High Court, deciding the writ petition titled as 'Asia Tobacco Company Ltd. v. Union of India and others' 1984 (18) ELT 152 (Mad), held as under:
"14. The mere printing of the Official Gazette containing the relevant notification and without making the same available for circulation and putting it on sale to the public will not amount to "notification" within the meaning of rule 8(1) of the Rules. The intendment of the notification in the Official Gazette is that in the case of either grant of withdrawal of exemption, the public must come to know of the same. "Notify" even according to the ordinary dictionary meaning would be "to take note of, observe; to make known, publish, proclaim; to announce; to give notice to; to inform". It would be a mockery of the rule to state that it would suffice the purpose of the notification if the notification is merely printed in the Official Gazette, without making the same available for circulation to the public or putting it on sale to the public. The communication from the Department of Publication, Government of India, dated April 23, 1983 as per the extract made above, leaves no room for doubt that the Official Gazette containing the withdrawal notification was placed on Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 21 sale for the public only on December 8, 1982. Without a proper notification in the sense, without putting the public on notice of the same, it is not possible to enforce the withdrawal of the exemption, earlier accorded. It is not a case of printing, (may be anterior to the publishing) and releasing to the public, the notification, on the same date which the Official Gazette bears. Neither the date of the notification nor the date of printing, nor the date of the Gazette counts for "notification"
within the meaning of the rule, but only the date when the public gets notified, in the sense the concerned Gazette is made available to the public. The date of release of the publication is the decisive date to make the notification effective. Printing the Official Gazette and stacking them without releasing to the public would not amount to notification at all. But, so far as the petitioner is concerned, we find that by the communication from the third respondent dated December 6, 1982, which obviously was received by the petitioner on December 7, 1982, the petitioner was put on notice of the withdrawal notification. Hence, the Withdrawal Notification must be held to be effective so far as the petitioner is concerned only from December 7, 1982."
Union of India filed an appeal. The writ appeal Court in 'Union of India v. Asia Tobacco Co. Ltd.' 1990 (50) ELT 29 (Mad), not only approved the judgment of Single Bench, but further held as under:
"11. ... ... ... ... Mere printing is not enough. After printing it must be published and "publish" means that it should be made known to the public. The normal method by which the public are made known is by making the copy of the Gazette, in which the Notification is printed, available for sale to the public. In the instant case, there is indisputable proof to show that the withdrawal Notification was made available for sale to the public only on 8.12.1982. The result is that the withdrawal Notification became effective only from that date viz., 8.12.1982."
Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 22 These decisions were made subject matter of appeal to the Hon'ble Apex Court. Their Lordships of Hon'ble Supreme Court, in 'Collector of Central Excise v. New Tobacco Co. and others' 1998 (8) SCC 250, not only approved the ratio of law, but elaborated the argument by observing as under:
"12. We hold that a Central Excise notification can be said to have been published, except when it is provided otherwise, when it is so issued as to make it known to the public. It would be a proper publication if it is published in such a manner that persons can, if they are so interested, acquaint themselves with its contents. If publication is through a Gazette then mere printing of it in the Gazette would not be enough. Unless the Gazette containing the notification is made available to the public, the notification cannot be said to have been duly published."
A similar argument was also raised before a Division Bench of Delhi High Court in 'Universal Cans and Containers Ltd v. Union of India' 1993 (64) ELT (Delhi). Their Lordships of Delhi High Court, not only traced the history, authority and the purpose of gazette Notifications, but also, made following observations, which lend force to the argument raised by Mr.Sarin:
"8. ... ... ... ... The word "notification" in the ordinary practice means the act of notifying or giving notice; notice given in words, or anything which communicates information. Here the notification has to be in writing and has to be published in the Official Gazette. The word "publish", according to the New Webster's Dictionary of English Language, means "to cause to be printed and offer for sale to the public, as a newspaper, book, magazine, or the like; to make public; to make known to public in general; to promulgate." According to the Concise Oxford Dictionary, the word "publish" means "make generally known; announce formally; promulgate; issue copies of (book, engraving, etc.) for sale to the public; and the word "notification" is the act of Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 23 notifying which means "make known, announce, reiterate, inform, give notice to."
9. Under Section 3(39) of the General Clauses Act, 1897, "Official Gazette" of "Gazette" shall mean the Gazette of India or the Official Gazette of a State. What is Official Gazette and under what authority it is published ? is yet another question. A Gazette is generally understood as an Official Government Journal containing public notices and other prescribed matters. Legal Glossary (1983 Edition) issued by the Legislative Department of the Ministry of Law, Justice and Company Affair, Government of India, defines Gazette as "an official newspaper containing lists of Government appointments, legal notices, dispatches, etc."
... ... ... ... ... ... ...
... ... ... ... ... ... ...
18. Para 3 of the Office memorandum prescribes the time schedule for publication of the Weekly and Extraordinary Gazettes. An Extraordinary Gazette which is to be printed in bulk requires 24 hours for publication from the time of the receipt in the press if it is up to two pages of typewritten matter. All these instructions go to show that it is not the date which is printed on the Official Gazette which is relevant, but the date on which the Gazette is made available to the public is that relevant.
19. What is the use of the Official Gazette which is lying in the printing press of the Government of India or any Government Department and is not made known to the public who are to be affected by such a Gazette. We have seen what is meant by the words "notification" and "publication". Principle "ignorance of law is no excuse" cannot be invoked unless that law is made public. It is, therefore, the date on which the Official Gazette is made available to the public that matters, and not the date on which it is shown to have been printed."
... ... ... ... ... ... ...
... ... ... ... ... ... ...
21. Under Section 81 of the Indian Evidence Act,
1872, the Court shall presume the genuineness of every document purporting to be in Official Gazette, and read with Section 114 of the said Act and Illustration (e) thereto, the Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 24 Court can presume that the Official Gazette was notified on the date as appearing in the Official Gazette. However, this is only a rebuttable presumption. It can be rebutted by the evidence to the contrary. AS noted above, in the present case it has been shown that the Official Gazette was notified on a date after the date appearing on the Gazette."
However, the above said judgments, cited by learned counsel for the petitioners, no longer hold the field, as the issue raised in the present petition is no longer res-integra. This question was referred to a Larger Bench of Hon'ble Supreme Court in view of the conflicting judgments on this point. Their Lordships, in 'Union of India v. M/s Ganesh Das Bhojraj' 2000 (9) SCC 461, observed as under:
"Two Judges Bench of this Court by order dated 15th October, 1999 has referred this matter to a larger Bench by observing thus:-
"It appears that there is a conflict in the ratio of the decisions of this Court in M/s Pankaj Jain Agencies v. Union of India (1994) 5 SCC 198, Collector of Central Excise v. New Tobacco Co. (1998) 8 SCC 250 and I.T.C. Ltd. v. Collector of Central Excise Bombay, (1996) 5 SCC 538 is also relevant. In our view it is appropriate that this appeal is to be heard by a larger Bench."
After considering the divergent views propounded in various judgments, the Hon'ble Supreme Court held that:
"11. ... ... ... ... ... The method and mode provided for grant of exemption or withdrawal of exemption is issuance of notification in the Official Gazette. For bringing the notification into operation, the only requirement of the section is its publication in the Official Gazette and no further publication is contemplated. Additional requirement is that under Section 159 such notification is required to be laid before each House of Parliament for a period of thirty days as prescribed therein. Hence, in our view Mayer Hans George (supra) which is Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 25 followed in Pankaj Jain Agencies case represents the correct exposition of law and the notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Gazette of India i.e. the date of publication of the Gazette. Apart from the prescribed requirement under Section 25, the usual mode of bringing into operation such notification followed since years in this country is its publication in the Official Gazette and there is no reason to depart from the same by laying down additional requirement.
... ... ... ... ... ... ...
... ... ... ... ... ... ...
18. ... ... ... The Gazette is admissible being the official record evidencing public affairs and the Court is required to presume its contents as genuine under Sections 35 and 38 read with Section 81 of the Evidence Act, unless the contrary is proved. Hence, there is no substance in the contention that notification dated 4-2-1987 was not published in the Gazette on the same day. In our view, the said notification came into force on the same date."
The judgment cited and relied by Mr. M.L. Sarin has been specifically overruled, as it was held in M/s Ganesh Das Bhojraj's case (supra) that the decision rendered in New Tobacco Co.'s case followed in Garware Nylons Ltd.'s case (supra) does not lay correct law.
Similarly, in the case of 'Mohan Singh v International Airport Authority of India' 1997 (9) SCC 132, following observations were made by Hon'ble the Supreme Court:
"Herein, we dispose of the controversy and agree with Shri Shanti Bhushan that the date of the notification and declaration published as mentioned in the Gazette is conclusive but not the actual date of printing in the Gazette."
Therefore, settled proposition of the law is that the date of publication of the Notification, as it appears on the Notification, is the date, Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 26 on which the gazette Notification is published and therefore, no other date can be assigned to it and it will be irrelevant to hold an inquiry, when it was made available for circulation to the public at large.
On facts of this case also, we are convinced that the Notification was published on 24th June, 1980.
A copy of the Notification produced by Mr.Hawa Singh Hooda, the learned Advocate General, Haryana, clearly demonstrates that the same was published on 24th June, 1980. There is nothing on record much less any cogent material to support the assertion of the petitioners that the said Notification had not been published till a month and half after 24th June, 1980 and that the Notification was actually ante dated. Mr.Hooda has in support of his submission that Notification was in fact published on 24th June, 1980, produced before us a compilation of all the Notifications published in the Government gazette printed by Government Press at Chandigarh. It was pointed out by him that the number allotted to the Notifications published between May to July, 1980 were in running serial order, which completely belied the petitioners' version that the preliminary Notification impugned in these writ petitions was actually published one and half month after 24th June, 1980. We find considerable merit in the submission of Mr.Hooda. In the absence of any reliable evidence to the contrary, we have no real basis for disbelieving the version given by the respondents on oath that the Notification had in fact been published on 24th June, 1980. A presumption attached to the regularity of official functions in the publication of the Notification on the date on which it purports to be published, therefore, remained unrebutted leaving no option but to reject the contention of the petitioners that the Notification was published after 24th June, 1980 but ante dated as if by way of fraud on the provisions of the Act under which the same was issued. Our answer to question No.1 is, in the light of the above, in the affirmative. Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 27 Question No.2 On behalf of the petitioners, it was argued by Mr.M.L.Sarin and Mr.Rajiv Atma Ram, Senior Advocates that there was no publication of the preliminary notification in the locality, in which the land was situated. In support of that submission, they placed reliance on the affidavits filed by sixteen persons, who claimed to be residents of village Kundi, according to whom, the Notification in question was never published and there was no Munadi (beat of drum) in the locality as required under Section 4 of the Act. They also relied heavily on the statement of Shri Kanhaiya Lal, Patwari of the area, recorded by this Court, in support of their submission that the Notification had not been got published by him in the locality as was alleged by the respondents. They urged that the said statement totally belied the version of the Government that the Notification was in fact published in the locality. Statement of Shri Kanhaiya Lal, Patwari, recorded by this Court, has been reproduced earlier. Reliance was placed by learned counsel on the decisions rendered in 'Khub Chand v. State of Rajasthan' AIR 1967 SC 1074; 'State of Haryana and another v. Raghubir Dayal' 1995 (1) SCC 133; 'Narinderjit Singh and another v. The State of U.P.' AIR 1973 SC 552; 'Collector (District Magistrate) Allahabad and another v. Raja Ram Jaiswal' 1985 (3) SCC 1 and 'State of Punjab and another v. Des Raj Mehta and others' 1991 (1) PLR 139 in support of the submission that publication of the Notification in the locality was mandatory requirement, failure thereof would vitiate the acquisition proceedings.
On behalf of the respondents, it was argued by Mr.Hooda that the assertions made by the petitioners regarding the alleged non- publication of the Notification were factually incorrect and belied by the relevant and contemporaneous official record. It was contended by Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 28 Mr.Hooda that the assertion was sought to be supported by filing of affidavits by some persons, who claimed to be the residents of the village but who had provided no evidence or material to establish that they really belonged to the village or had any specific reason to give a credible statement on the issue regarding publication or otherwise of the preliminary Notification. The version and the affidavit, according to Mr.Hooda was stereo-type and did not inspire confidence. It was further argued by Mr.Hooda that the ground on which the petitioners had made challenge to the Notification raises serious disputed questions of fact which cannot satisfactorily be determined in the present proceedings. The Court could, therefore, decline to entertain the said challenge and refuse to exercise its extraordinary writ jurisdiction, especially when the petitioners had not come to the Court with clean hands and were attempting to gather the evidence by winning over the officials of the Department also. It was lastly argued by Mr.Hooda that the affidavits of the villagers including the Choukidar regarding actual publication of the Notification in the locality pales into insignificance keeping in view the official record maintained by the Patwari, in which making of Munadi (Publication of Notification by beat of drum/tin) was clearly recorded. Daily diary report (Roznamcha) maintained by the Patwari of the village contained specific entry to the effect that the Notification in question published on 24th June, 1980 in the official gazette had been duly published by beat of drum/tin in the locality. Relying upon the decision of a Division Bench of this Court in 'Sudharsh Chander and others v. Gurbux Singh and others' 1980 (II) All India Land Laws Reporter 446, Mr.Hooda argued that the Roznamcha was evidence in itself.
The translation of Roznamcha Wakiati, bearing entry No.349, has been annexed with the petition as Annexure P-20/A. A perusal of the entry reveals that on 25th June, 1980, substance of the Notification was Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 29 published (announced) in the village by beat of drum/ tin. Mr.Hawa Singh Hooda, Advocate General Haryana has further submitted that in response to the publication (announcement) made in the locality, 29 land owners had filed their objections. The attested photocopies of objection applications were annexed with the additional affidavit of Mr.Dinesh S. Yadav, HCS, Land Acquisition Collector, Urban Estate Haryana, Panchkula, filed on 14th July, 2009. Mr.Hooda has particularly referred to application submitted by one Som Nath, land owner, who had filed his objections. The application, whereby objections were made, is dated 4th July, 1990. It was received in the office of Land Acquisition Collector, Urban Development Authority, Panchkula (Haryana) on 7th July, 1990. The relevant portion of the application reads as under:
"We the residents of Village Kundi respectfully submit our objections regarding the acquisition of Land of our Village in Kundi for the purpose of development of Urban Estate of Panchkula as under:
That we have learnt from the Village that Mushti Munadi regarding the acquisition of land of our village has been made about 3-4 days ago and the Government of Haryana has issued notification U/s 4 of the Land Acquisition Act."
It has been contended by Mr. Hooda that the judgments relied by Mr.M.L. Sarin were considered by a Division Bench of this Court in 'Gagandeep Kang and others v. The Union Territory and another' 2003 (3) RCR (Civil) 105. The Court formulated a view that in case objections could be filed by other land owners, then there is no reason to accept the argument that no publication was made in the locality. Mr.Hooda has referred to the following portion of the judgment rendered in Gagandeep Kang's case (supra):
"12. Shri M.L. Sarin contended that the publication of the substance of the notification is mandatory as it serves dual Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 30 purpose. One, the State or its agencies get a right to entry in the land and the other to enable the land- owners to file objections, objecting to the acquisition of the land, as non- publication of the notification will deprive them of the right of representation provided under Section 5-A of 1894 Act which is a valuable right. Reliance was placed upon the judgments of the Supreme Court in Khub Chand and others v. State of Rajasthan and others, AIR 1967 SC 1074, Narinderjit Singh and others v. The State of U.P. and others, AIR 1973 SC 552; State of Mysore v. Abdul Razak Sahib, AIR 1973 SC 2361. He has also placed reliance on Collector (District Magistrate) Allahabad and another v. Raja Ram Jaiswal, (1985) 3 SCC 1 to contend that even if objections have been filed after publication of the notification under Section 4 of 1984 Act but still the publication of the notification under Section 4 of 1894 Act is required to be mandatorily carried out by the State. The land-owner need not show any prejudice on account of non- publication of any notification. Learned counsel for the petitioners also placed reliance on the judgments of the Supreme Court in The Madhya Pradesh Housing Board v. Mohd. Shafi and others, 1992(1) RRR 583 (SC) : 1992(2) Revenue Law Reporter 1 to contend that the public notice is required to be published by the Collector. Reliance was also placed upon the judgment in State of Haryana and another v. Raghubir Dayal, (1995) 1 Supreme Court Cases 133 to contend that the provisions of Section 4 of the Act are mandatory although the provisions of Section 6 of 1894 Act are directory. Learned counsel for the petitioners also relied upon Ghanshyam Dass Goyal and others v. The State of Haryana and others, 1982 Revenue Law Reporter 267 to contend that the notification was required to be published in the vicinity of the land acquired whereas no such publication in the vicinity of the land acquired can be said to have been carried out on the basis of noting sheet.
... ... ... ... ... ... ...
... ... ... ... ... ... ...
20. A perusal of the report dated 22.8.1989,
Annexure I to the affidavit dated 22.3.2003 shows that 18 set Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 31 of objections were considered by the Land Acquisition Officer after granting personal hearing on 10.8.1989. Thus, if 18 sets of objections could be filed and considered by the Land Acquisition Officer, there is no reason to accept the argument of the counsel for the petitioners that the publication was not made in the locality."
Therefore, it has been canvassed by Mr. Hooda that in the present case, 29 land owners had submitted their objections to the Land Acquisition Collector and the very submission of objections by these land owners is a conclusive proof of the fact that substance of Notification was published (announced) in the locality by beat of drum/ tin. Mr. Hooda has submitted that if 29 land owners could file objections in pursuance of the munadi carried, there was no reason that the petitioners could not file their objections. According to the counsel, facts themselves speak volume and prove that mandatory compliance of section 4 of the Act was made.
We have already held that the Notification under Section 4(1) of the Act was published in the gazette, therefore, the first limb of statutory requirement was satisfied. Regarding the dispute as regards publication of the substance of Notification in the locality, counsel for the petitioners have heavily relied upon the statement of Kanhaiya Lal recorded by this Court on 30th November, 1982. The statement has already been reproduced in the preceding part of the judgment. Two discrepancies have been pointed out by Mr.M.L. Sarin and Mr.Rajiv Atma Ram, learned Senior Counsel representing the petitioners. First, that in the affidavit, it was stated by Kanhaiya Lal Patwari that he himself has recorded the original report entered in the Roznamcha Wakiati, whereas in the Court, he has stated that the entire entry has been made by Om Raj, Patwari, Land Acquisition. Secondly, reference was made to the concluding portion of the statement, which reads as under:
Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 32 "I did not get the substance of notification under Section 4 published in the concerned locality through Rabi Chaukidar.
I have wrongly stated in para 2 of my affidavit, Annexure R-2, that I got the substance of notification published through Rabi Chaukidar. Again said, that the publication was made by Rabi Chaukidar. It is correct that whatever is stated in my affidavit, Annexure R-2, is incorrect. But I do not know English."
In the present case, no opportunity was granted to the State to cross-examine the witness, to seek explanation regarding the discrepancies. Therefore, a statement, which has been recorded without affording any opportunity to cross-examine the party, against whom the statement can be used, offends principles of natural justice. Otherwise also, such a statement will not be a complete statement and cannot be construed as an evidence.
Taking into consideration totality of circumstances that entry in the Roznamcha Wakiati was made on 25th June, 1980 and it contains the number of gazette Notification and in pursuance thereof, 29 land owners had filed their objections, we are of the view that while exercising our jurisdiction in a writ Court, we cannot do hairsplitting of the statement made by Kanhaiya Lal Patwari and tread on the path of appreciation of evidence, especially when the statement, in itself, is incomplete.
In the present case, no malafide has been leveled against the Government officials. In 'Ajay Krishan Singhal, etc. v. Union of India and others' 1996 (10) SCC 721, the Hon'ble Apex Court observed as under:
"10. ... ... ... ... In this behalf, the High Court also had dealt with in extenso and it has concluded in paragraph 62 thus:
'So there is no reason to suspect any mala fides in this interpolation which adds nothing to the entry in the context of the statutory requirements. The second entry Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 33 similarly records the Lumbardar undertaking to proclaim by beat of drum.' ... ... ... ... ... ...
... ... ... ... ... ...
12. After perusing the record and satisfying ourselves and also considering various cogent and weighty reasons given by the learned Judges, we are of the opinion that the substance of the notification under Section 4(1) was duly published in the locality. It is not the law and could not and would not be the law that publication of the substance of Section 4(1) notification in the locality should be established beyond shadow of doubt and benefit should be extended to the owner or interested person of the land.
Obvious thereto, presumption under Section 114(e) of the Evidence Act has been raised that official acts have been properly done unless proved otherwise. We are satisfied that it was properly done. It is futile to reiterate the settled legal position that the publication of the notification under Section 4(1) in the Gazette and substance thereof in the locality are mandatory requirements and the omission thereof renders the notification void. In Khub Chand case this Court had held the same view. But as recorded earlier, since substance of the notification was published in the locality, the second limb of the requirement also stands complied with. Considered from this perspective, we are of the considered view that the High Court has not committed any error of law."
In the circumstances, we have no hesitation in answering question No.2 also in affirmative and hold that the mandatory compliance of section 4(1) of the Act was adhered to and the substance of Notification was published/ announced in the locality.
Question No.3 It is admitted fact that the impugned Notification under Section 4(1) of the Act was issued on 24th June, 1980 followed by two Notifications Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 34 under Section 6 of the Act qua 100.31 acre parcel of land and 230.30 acres of land on 17th October, 1980 and 13th July, 1982 respectively. Thereafter, another Notification under Section 4 of the Act was issued on 29th January, 1990 to acquire 134.39 acres of land, which already formed part of the impugned Notification (Annexure P-1) dated 24th June, 1980. To give effect to the Notification dated 29th January, 1990, a Notification under Section 6 of the Act was issued on 25th January, 1991 for 132.88 acres of land. Thereafter, another Notification under Section 4 of the Act was issued on 26th April, 1995, and, land measuring 119.36 acres was notified. The land notified was also included in the earlier Notification (Annexure P-
1) dated 24th June, 1980. In view of these facts, Mr.Sarin has contended that subsequent Notifications issued under Section 4 on 29th January, 1990 and 26th April, 1995 have superseded the impugned Notification (Annexure P-1) and therefore, Notifications (Annexures P-2 and P-3) issued under Section 6 of the Act have lost their validity and no legal sanctity can be attached to them. To fortify this submission, reliance has been placed upon 'Raghunath v. State of Maharashtra' 1988 (3) SCC
294. Mr.Sarin has laid much emphasis on the following observations of the Hon'ble Apex Court:
"9. ... ... ... ... This contention is clearly well founded. We would, therefore, like to make it clear that in respect of the lands covered by the first notification under S. 4 which are also covered by or comprised in, the second notification under S. 4, further proceedings regarding acquisition should be taken, in accordance with law, only in pursuance of the latter notification and the proceedings initiated in respect of such lands by the first notification dated 22-8-1982 should be deemed to have been superseded."
The above said observations cannot be read in isolation and it will be necessary to take notice of the facts of Raghunath's case (supra). In that case, the Notification was challenged on the ground of malafide and Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 35 the declaration under Section 6 of the Act on the short ground that the objections raised under Section 5A of the Act, by the petitioner to that writ petition, had not been heard before making of the declaration. When that writ petition came up for hearing, a statement was made by the Government that the impugned Notifications will be withdrawn to afford opportunity to the petitioners to raise objections under Section 5A of the Act. Accordingly, a fresh Notification was issued. It is in this context that Their Lordships observed that earlier Notification issued under Section 4 of the Act stood superseded by issuance of subsequent Notification. The observations of Hon'ble Apex Court in Raghunath's case (supra) relied by Mr.Sarin, thus, do not pronounce any authoritative proposition of law. It is evident from the following observations made by Hon'ble Apex Court in 'U.P. State Industrial Development Corporation v. Rishabh Ispat Ltd. and others' 2007 (2) SCC 248:
"17. We have carefully considered these two decisions cited at the bar and on a careful consideration of the principles laid down therein, it must be held that the claimants are not right in their contention. The submissions urged on their behalf proceed on the assumption that the Notification issued under Section 4 of the Act got exhausted after a Notification under Section 6 of the Act was issued, which was later struck down by the High Court as invalid. Reliance placed on the decision in Raghunath and others v. State of Maharashtra and others (supra) is misplaced. In that case a similar submission was advanced on the basis of the decision of this Court in (1966) 3 SCR 437 : Girdharilal Amratlal v. State of Gujarat wherein the question for consideration of the Court was whether there could be successive declarations in respect of various parcels of land covered by a Notification under Section 4(1) of the Act and whether once a declaration under Section 6 particularising the area in the locality specified in the Notification under Section 4 (1) was issued, the remaining non-particularised area stood automatically released. It was in that context that it Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 36 was observed that once a valid declaration under Section 6 is made, the scope of the Notification under Section 4 will get exhausted. This Court in Raghunath, therefore, held that the aforesaid principles did not apply to a case where the declaration under Section 6 of the Act was proved to be invalid, ineffective or infructuous for some reason."
Mr. Hawa Singh Hooda, Advocate General Haryana, appearing for the State, has urged that since the dispossession of the land owners in the present writ petition and the connected writ petitions, was stayed, therefore, there was legal necessity to issue another Notification under Section 4 of the Act, so that the land of other land owners, who had not approached this Court, could be acquired. Therefore, it was submitted by Mr. Hooda that issuance of subsequent Notifications was not to rescind, annul or amend the earlier Notifications, which were legal and valid in the eyes of law. The subsequent Notifications were issued only to accelerate acquisition of land, so that the development of Sector 20, Panchkula is not thwarted.
Raghunath's case (supra) was a case on its own facts that was also later pronounced by their Lordships of Hon'ble Apex Court in 'Hindustan Oil Mills Ltd. v. Special Deputy Collector, Land Acquisition' 1990 (1) SCC 59, when they said as under:
"9. ... ... ... ... We do not wish to go to the length of suggesting, as Shri Sachar did, that, wherever there are notifications by way of amendments, it is only the last of them that can be taken as the effective notification under S. 4. Shri Sachhar in this context. referred to a decision of this Court in Raghunath v. State of Maharashtra, 1988(1) RRR 425 (SC) : AIR 1988 SC 1615 to support his contention that where a subsequent notification is issued it should be deemed to have superseded the earlier one. In that case a notification under S. 4 had been issued in respect of certain lands and this was followed by another notification under S. 4 in respect of certain lands, some of which had been included in the Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 37 earlier notification as well. A bench of this Court, of which one of us was a member, held that latter notification must be considered to have superseded the earlier one. That decision rested on its facts and cannot be treated as an authority for the general proposition that, even in cases like the present one, where subsequent notifications are in the nature of amendments to the earlier one, the subsequent amendment should be treated as the only effective one. In our opinion where there is a notification, which purports to be by way of an amendment, the question whether it is really one rectifying certain errors in the earlier one or whether its nature is such as to totally change the entire complexion of the matter would have to be considered on the terms of the relevant notifications ... ... ... ..."
Therefore, it can be safely inferred that Raghunath's case (supra) does not lay absolute proposition of law. The scope and ambit of Raghunath's case (supra) has been subsequently considered by the Hon'ble Apex Court in Rishabh Ispat Ltd.'s case and Hindustan Oil Mills Ltd.'s case (supra) and it was held that Raghunath's case (supra) was decided on is own facts and does not pronounce any general maxim of law.
In the present case, acquisition of the entire chunk of land measuring 335.69 acres, notified under Section 4(1) of the Act on 24th June, 1980, was assailed. Therefore, in view of the interim order, the Government officials, in their own wisdom, proceeded to acquire the land of other land owners by issuing fresh Notifications under Section 4(1) of the Act. The action of the respondents in issuing subsequent Notifications does not lead to the inference that they had decided to leave the land of the petitioners to the present writ petition. Thus, our answer to this question is that subsequent issuance of Notifications, on the facts of the case, will not supersede the Notifications issued earlier. Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 38 Question No.4 Mr. Hawa Singh Hooda, Advocate General Haryana, appearing for the State, has submitted that petitioner No.6 Jagvinder Singh to CWP No.3855 of 1982 has sold his land to Sham Sunder Sardana, who had been later impleaded as petitioner No.11. Similarly, petitioner No.7 Smt. Mohinder Jaspal Singh sold her land to Mrs.Santosh Kaur, Paramveer Singh, Harmeet Singh, Ms. Harbinder Kaur and Mrs.Rita. They filed Civil Misc. application No. 29183 of 2001 to be impleaded as petitioners. Petitioner No.8 and 9, and the legal representatives of petitioner No.10 have entered into collaboration agreement with M/s Amar Nath Aggarwal Investments Pvt. Ltd., who had filed Civil Misc. application No.2199 of 2006 to implead Kulbhushan Goyal, Managing Director of M/s Amar Nath Aggarwal Investments Pvt. Ltd. as petitioner. Petitioners No.4 and 5 have also entered into collaboration agreement with M/s Samar Estates Pvt. Ltd. and Civil Misc. No.11795 of 2009 was filed to implead M/s Samar Estates Pvt. Ltd. as petitioner through its Managing Director. Mr.Hooda has urged that petitioner No.1 and 2 have withdrawn their writ petition. The land of petitioner No.3 has been released, therefore, the writ petition qua petitioner No.3 has been rendered infructuous. Rest of the petitioners have sold their land or entered into collaboration agreement and therefore, have lost their interest in the land. The present writ petition is being pursued by the subsequent purchasers. It has been submitted that Panchkula being a satellite town of Chandigarh, which is Capital of Punjab and Haryana, there is a tremendous increase in the value of the land, as demand for land from various quarters has increased manifold. Mr. Hooda stated that during the pendency of these writ petitions, some of the real estate developers, in order to take advantage of the situation, have resorted to various unscrupulous means. This, according to Mr.Hooda, is evident from the collaboration agreement executed between petitioners Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 39 No.4 and 5 with M/s Samar Estates Pvt. Ltd. Mr.Hooda, reading Clause No.5 of the collaboration agreement, stated that Rs.2.00 crores have already been received by petitioner No.4 and petitioner No.5, whereas later Rs.3.00 crores and Rs.7.00 crores respectively are to be paid to petitioner No.4 and 5. In the circumstances, it was canvassed that collaboration agreement is an agreement to sell the entire holding and the purchasers were also aware of issuance of Notifications under Section 4(1) and Section 6 of the Act and pendency of the writ petitions. It is submitted that if collaboration agreement is read in minute details and veil is lifted, it only tantamounts to outright sale. Mr.Hooda has submitted that since the original land owners have lost their interest and the subsequent purchasers are pursuing the litigation on their behalf, they are disentitled to question the validity of the Notifications (Annexures P-1, P-2 and P-3). Mr.Hooda has placed reliance upon a Single Bench Judgment of this Court rendered in 'Shrimati Usha Adlakha v. The State of Haryana and others' 1996 LACC 196, wherein it was stated as under:
"21. Before concluding, I deem it proper to refer to one more aspect of the matter, namely, that a person, who purchases the property after issue of notification under Section 4 of the 1894 Act, is not entitled to question the legality of the acquisition proceedings.
22. In State of Maharashtra and another v.
Umashankar Rajabhau, JT 1995 (8) SC 508, it has been held that the person purchasing the property after the making of award is not entitled to challenge the legality of the acquisition proceedings on the ground of lack of publication of the notifications. The apex Court reversed the judgment of the Bombay High Court quashing the proceedings of acquisition at the instance of purchaser."
To fortify this submission, Mr.Hooda has brought to our notice the ratio of law propounded by a Full Bench of Karnataka High Court in 'Poornaprajna House Building Co-operative Society v. Bailamma @ Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 40 Dodda Bailamma' 1998 (3) RCR (Civil) 359, in which it has been held as under:
"28. Writ appeals 2090-94/93 arising out of writ petition Nos. 480 to 484/93 have been filed by the purchasers of the lands after the issuance of notification under Section 4(1) of the Act. Now it is a well settled proposition of law that a person who purchases the land subsequent to the issuance of the notification under Section 4(1) of the Act, cannot be said to be the owner. Such a purchaser has no right to challenge the acquisition itself, although he is entitled to claim compensation by virtue of sale made in his favour i.e., of right, title and interest of his predecessor. Reference may be made to the judgment of the Supreme Court in Union of India v. Sri Shivkumar Bhargava and others, JT 1995(6) SC 274 : 1995 (2) RRR 308 (SC). It was held that:
"The policy of the Government indicates that the person whose land was acquired means the owner as on the date notification was notified for acquisition, and he alone will be entitled to allotment of alternative site. A person who purchases land subsequent to the Notification may be entitled to claim compensation by virtue of sale made in his favour, namely, the right, title and interest the predecessor had but, he cannot be said to be the owner for allotment since the right of ownership would be determined with reference to the date on which Notification under Section 4(1) was published. This was the view of this Court in another case while considering the Full Bench Judgment of the Delhi High Court. Under these circumstance, the appeal is allowed. The respondent cannot be considered to be the owner as on the date of Notification under Section 4 (1) published in the Gazette. The direction given by the learned Single Judge is accordingly quashed. The Writ Petition stands dismissed. No costs."
Reference can also be made to the subsequent Judgments of the Supreme Court in Smt. Sneh Prabha v. State of U.P. and another, AIR 1996 SC 540, U.P. Jal Nigam, Lucknow v. Kalra Properties (P) Ltd. Lucknow and Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 41 others, AIR 1996 SC 1170 and Ajay Krishan Shinghal v. Union of India and others, AIR 1996 SC 2677. In the aforesaid judgments as well, the Supreme Court has reiterated its view taken in Shivkumar Bhargava's case (supra) and has held that the purchaser subsequent to the issuance of the notifications under Sections 4 and 6 has no right to challenge the acquisition proceedings. W.A. Nos. 2079/93 and 2080- 81/93 are accepted on the additional ground and the Writ Petition filed by (now respondents) were not maintainable on their behalf challenging the acquisition proceedings although they would be entitled to claim compensation in place of the original owners."
The ratio of law enunciated by the Single Bench of this Court and Full Bench of Karnataka High Court has found favour with the Hon'ble Apex Court in 'Meera Sahni v. Lt. Governor of Delhi and others' 2008 (9) SCC 177, when Their Lordships said:
"12. When a piece of land is sought to be acquired, a notification under Section 4 of Land Acquisition Act is required to be issued by the State Government strictly in accordance with law. The said notification is also required to be followed by a declaration to be made under Section 6 of the Land Acquisition Act and with the issuance of such a notification any encumbrance created by the owner, or any transfer made after the issuance of such a notification would be deemed to be void and would not be binding on the government. A number of decisions of this Court have recognized the aforesaid proposition of law wherein it was held that subsequent purchaser cannot challenge acquisition proceedings and also the validity of the notification or the irregularity in taking possession of the land after the declaration under Section 6 of the Act. In U.P. Jal Nigam, Lucknow through its Chairman and another v. Kalra Properties (P) Ltd., Lucknow and others, reported in (1996)3 SCC 124 it was stated by this Court that :
'3. ............Having regard to the facts of this case, we were not inclined to further adjourn the case nor to Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 42 remit the case for fresh consideration by the High Court. It is well settled law that after the notification under Section 4(1) is published in the Gazette any encumbrance created by the owner does not bind the Government and the purchaser does not acquire any title to the property.....' In Sneh Prabha (Smt) and others v. State of U.P. and another, reported in (1996)7 SCC 426 at 430 it is stated as under :
'5. ......It is settled law that any person who purchases land after publication of the notification under Section 4(1), does so at his/her own peril. The object of publication of the notification under Section 4(1) is notice to everyone that the land is needed or is likely to be needed for public purpose and the acquisition proceedings point out and an implement to anyone to encumber the land acquired thereunder. It authorizes the designated officer to enter upon the land to do preliminaries etc. Therefore, any alienation of the land after the publication of the notification under Section 4 (1) does not bind the government or the beneficiary under the acquisition. On taking possession of the land, all rights, title and interests in land stand vested in the State, under Section 16 of the Act, free from all encumbrances and thereby absolute title in the land is acquired thereunder......' The said proposition of law was also reiterated in the cases of Ajay Kishan Shinghal & Ors. v. Union of India, reported in (1996)10 SCC 721 and Star Wire (India) Ltd. v.
State of Haryana and others, reported in (1996)11 SCC
698.
13. In view of the aforesaid decisions it is by now well settled law that under the Land Acquisition Act the subsequent purchaser cannot challenge the acquisition proceedings and that he would be only entitled to get the compensation." Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 43 In view of the authoritative pronouncement referred to above, we find merit in the submissions made by Mr.Hawa Singh Hooda, Advocate General Haryana and thus hold that subsequent purchasers are not entitled to question the validity of Notifications (Annexures P-1, P-2 and P-3).
Question No.5 Sham Sunder Sardana, petitioner No.11 filed Civil Misc. application No.10914 of 2006 seeking directions that land purchased by him be also released, as has been done in the case of co-petitioners. It was stated in the application that 21.75 acres of land belonging to Ishwar Chand Aggarwal and others, subject matter of CWP No.3477 of 1983 was released by the Government. Similarly, 27.33 acres of land belonging to petitioners No.1 to 3 was released by the Government. Therefore, it was submitted that the State Government cannot be permitted to act arbitrarily and discriminate between the land owners and the respondents cannot be permitted to apply pick and chose policy in releasing the land, sought to be acquired under Notifications (Annexures P- 1, P-2 and P-3). Reply to this application was filed by District Town Planner (Headquarter) from the office of Director, Town and Country Planning, Haryana. In the reply so filed, it was stated as under:
"2. ... ... ... ... ... ... It is also submitted that the CWP Nos. 3855 of 1982 and CWP No.3477 of 1983 of petitioners who have collaborated with M/s Samar Estate (P) Ltd have exchanged their land under reference with HUDA on an equal give & take basis. On the rationale that this exchange facilitating the development of a 25 mtr road, some marla plots, intra sector roads and open green spaces. The part Layout Plan of sector-20(1), Panchkula showing the land that was exchanged with HUDA is placed at Annexure R-1 and R-2 and details of land that was exchanged is placed at Annexure R-3 and R-4.
Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 44
3. That similarly, in CWP No. 3855 of 82 the petitioner No.1, 3, 5 who have collaborated with Santur Developers, the land is released with the condition to withdraw the CWP No. 3855 of 82. The layout-cum-demarcation plan of sector-20(1), Panchkula is placed at annexure R-5. By granting the licence under Act, 1975 after releasing the land, the 25 mtr road is free and commercial sites, group housing sites will also become free after mutual exchange of land. It is also submitted the applicants mentioned in the Civil Misc. Application No. 10913-14 of 2006 have not applied under the provisions of Act, 1975 for developing the residential colony."
It will be pertinent to mention here that petitioner No.10, father of petitioners No.8 and 9 had expired during the pendency of the writ petition and petitioners No. 8 and 9 are also his legal representatives. Civil Misc. No.15193 of 2006 was filed on behalf of petitioners No.8 and 9, who had entered into collaboration agreement with M/s Amar Nath Aggarwal Investments Pvt. Ltd. In para 14 of the application, it was averred as under:
"14. That the land owned by the applicants is similarly situated as the land owned by the legal representatives of petitioner Nos.1 and 2 and petitioner no.3 himself as well as that owned by Ishwar Chand, Keshav Chand, etc. While the land owned by the legal representatives of petitioner nos.1 and 2 and petitioner no.3 himself as well as that owned by Ishwar Chand, Keshav Chand, etc. has been released from acquisition and licences to develop group housing colonies thereon has also been granted, the respondents have treated the applicants with a different yardstick and have returned their application for grant of a licence."
To controvert these averments, District Town Planner had submitted as under:
"... ... ... ... It was reported by HUDA that the site of the applicant falls in Sector-20, Panchkula, which has been planned in two Phases i.e. Part-I and Part-II. In Part-I, group- housing sites have been carved out and in Part-II, 2040 plots Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 45 of EWS (Economically Weaker Section) category have been proposed to be carved out. It was also reported that the land of the applicants abuts the pocket of EWS plots of HUDA in Sector-20, Part-II. It may be further submitted that in a normal residential sector 35% of the total number of plots are of EWS category... ... ... ..."
... ... ... ... ... ... ...
... ... ... ... ... ... ...
The contention of the applicants that their case is similar to the case of the other applicants i.e. Petitioners No.1, 2 (through LRs) and 3 and Ishwar Chand, Keshav Chand etc., who have been granted licence for setting up a group-housing colony in the same sector, though their land was under
acquisition proceeding is wrong and untenable. It is submitted that in their case, the site of the proposed group-housing colony fell within Part-I of Sector-20, Panchkula, which as already submitted is planned exclusively for group-housing sites, whereas, the site of the present applicants falls in Part-II of Sector-20, Panchkula, which has been exclusively planned for EWS category. Hence, the case of the applicants cannot be compared with the case of petitioner and with that of Ishwar Chand, Keshav Chand etc. The application is therefore, liable to be dismissed on this ground alone."
It is apparent from the perusal of above reply that due consideration was given to the request made by petitioners No.8 and 9 and their collaborator, for release of the land. It was brought into light that the land, which was released in favour of petitioners No.1 to 3 and Ishwar Chand Aggarwal and others, falls within Part 1 of Sector 20, Panchkula, whereas the land belonging to the applicants falls in Part 2 of Sector 20, Panchkula, which was exclusively planned for economically weaker section category.
A Division Bench of this Court in 'Ved Parkash v. State of Haryana' 2001 (3) RCR (Civil) 793, answered this question against the Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 46 petitioners. It will be apposite here to reproduce the observations made in Ved Parkash's case (supra):
"5. ... ... ... ... Still further, if on consideration of the relevant material the authority finds it possible to accommodate certain owners of land and excludes their land from acquisition, the petitioners cannot complain of discrimination merely because the authority has not been able to exclude their land from acquisition. Various factors like location, the nature of construction, the purpose which the unit is serving, the cost which the Government may have to incur in respect of demolishing the existing structure have to be taken into consideration by the competent authority while taking a view in the matter. Nothing has been pointed out by the counsel to show that the small quarters constructed by the petitioners are at par with the Surgical Unit or the Maruti Service Station which have been excluded from acquisition. The petitioners have not shown that they are identically placed with those whose land has been exempted. They cannot complain of discrimination."
Hon'ble Apex Court, in 'Yadu Nandan Garg v. State of Rajasthan and others' 1996 (1) SCC 334, held as under:
"5. It is true, for reasons best known to the authorities, that Anand Nursery had the benefit of the exemption. The wrong exemption under wrong action taken by the authorities will not clothe others to get the same benefit nor can Article 14 be pressed into service on the ground of invidious discrimination. ... ... ... ..."
From the perusal of reply filed by the respondents to the application filed by petitioners No.8, 9 and 11, we are of the view that no case of individuous discrimination, on the facts and circumstances of the present case, is made out.
Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 47 Conclusion On all the scores, our answers to the questions, formulated in the present writ petition, has gone against the petitioners. Thus, the present writ petition, along with Civil Misc. applications filed for impleadment of the subsequent purchasers and the collaborators, who had entered into agreement with the original petitioners, is dismissed. However, we propose no order as to the costs.
Civil Writ Petition No. 3673 of 1983 This writ petition was filed by Charan Singh and Nasib Singh, sons of Bhagwan Singh, their wives Mukhtiar Kaur and Chhoto, and Man Singh and Rustam Singh, sons of Nasib Singh. During the pendency of the present writ petition, Charan Singh had expired and his legal representatives were brought on record. In the present petition, petitioners had sought quashing of Notification (Annexure P-2) issued under Section 6 on 17th October, 1980 in pursuance of Notification issued under Section 4 (1) of the Act on 24th June, 1980.
The facts leading to the issuance of Notification have already been detailed and dealt by us in Civil Writ Petition No. 3855 of 1982. In that writ petition also, these Notifications have been annexed as Annexures P-1 and P-2. It is stated in this petition that petitioners are right- holders and own land to the extent of 105 kanal and 15 marlas, in village Kundi. It is averred in the petition that the respondents had issued a Notification under Section 4 of the Act on 24th June, 1980 to acquire land to the extent of 335.69 acres of land. Thereafter, they have issued Notification under Section 6 of the Act regarding 100.13 acres of land and the land of the petitioners form part of the Notification (Annexure P-2) issued under Section 6 of the Act on 17th October, 1980. It is further averred that notice under Section 9 of the Act was issued on 20th August, Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 48 1982 by the Collector requiring the concerned right-holders to file their claims. The grievance of the petitioners is that they had filed their claims, but neither any award has been issued under Section 11 of the Act, nor the claim of the petitioners has been determined by the authorities. This, according to the petitioners, is in violation of the departmental instructions and the standing order issued by the Financial Commissioner that acquisition proceedings are to be completed within six months of the issuance of Notification under Section 6 of the Act. A Division Bench of this Court, on 3rd August, 1983, noticed the contention of the counsel for the petitioners that Section 4 Notification was issued on 24th June, 1980 and subsequent Section 6 Notification was issued on 17th October, 1980 and thereafter, the proceedings for acquisition of land have not been finalized. Therefore, the petitioners to this writ petition had restricted their grievance to non-finalization of the proceedings arising out of claim filed by them under Section 9 of the Act. In the reply filed, it was submitted that the award will be announced shortly and the petitioners will be paid compensation at the prevailing market rate. In the present case, dispossession of the petitioners was stayed by this Court on August 3, 1983. Respondent State had filed Civil Misc. No. 1353 of 1993, praying for early hearing of the case on some actual date and in that application it was submitted that the development work of Sector 20, Panchkula is held-up due to the pendency of the writ petition. In that application, it was further averred as under:
"5. That the State of Haryana could not announce the award because no constructive planning of the area was possible as out of 330.68 acres, notified to be acquired 124.16 acres land was involved in the Civil Writ Petition 3673 of 1983, 3855 of 1982. The State of Haryana would have suffered huge financial loss, if it had announced the award as it was not in position to take the physical possession of the land involved in writ petition."
Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 49 Out of these three writ petitions, Civil Writ Petition No.3855 of 1982 has already been dismissed by us. We dismiss the present writ petition with observations that in case the award has not been made qua the petitioners, the same shall be announced expeditiously, preferably within three months after the receipt of copy of this order. Civil Writ Petition No. 3065 of 2008 Aarushi Coop. Group Housing Society and the Executive Apartments Coop. Group Housing Society have preferred the present writ petition. The brief facts have already been noticed by us in the introductory part of the judgment, where we had spelt out the need to decide CWP No.3855 of 1982 titled as 'Dr.Jagdish Singh Sarkaria and others v. State of Haryana and others' and CWP No. 3673 of 1983 titled as 'Charan Singh and others v. State of Haryana and others'. To recapitulate, these two Societies have made a grievance in the present writ petition that sewerage and storm water gather in front of these Housing Societies and emit foul smell and cause pollution. This, according to the petitioners, have made the life of residents of the houses built for Economically Weaker Section, miserable. HUDA, in response, had stated that sewerage line pertaining to this portion of Sector 20, Panchkula could not be connected with the main sewage treatment plant, as the petitioners to CWP No.3855 of 1982 and CWP No. 3673 of 1983 were having order of stay of dispossession in their favour.
We have already decided CWP No.3855 of 1982 titled as 'Dr.Jagdish Singh Sarkaria and others v. State of Haryana and others' and CWP No. 3673 of 1983 titled as 'Charan Singh and others v. State of Haryana and others'. Therefore, the order of stay of dispossession is no longer in subsistence. The authorities, who have to lay the pipe and connect the sewerage pipe of the area with the main sewage treatment Civil Writ Petitions No. 3855 of 1982, 3673 of 1983 & 3065 of 2008 50 plant, can immediately proceed ahead, as the hurdle perceived by them stands removed. We direct HUDA to take all effective adequate steps to redress the grievance of the petitioners. With these observations, present writ petition stands disposed of.
To conclude, CWP No.3855 of 1982 titled as 'Dr.Jagdish Singh Sarkaria and others v. State of Haryana and others' and CWP No. 3673 of 1983 titled as 'Charan Singh and others v. State of Haryana and others' are dismissed and CWP No.3065 of 2008 titled as 'Aarushi Coop. Group Housing Society and another v. Chief Administrator, HUDA and others' is disposed of in view of the observations made above.
[T. S. THAKUR] [KANWALJIT SINGH AHLUWALIA]
CHIEF JUSTICE JUDGE
November 12, 2009
rps