Punjab-Haryana High Court
Ram Kanwar And Another vs State Of Haryana And Others on 7 May, 2014
Author: Amol Rattan Singh
Bench: Surya Kant, Amol Rattan Singh
CWP No.4134 of 2013 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANAAT CHANDIGARH
CWP No.4134 of 2013
Date of decision: May 07, 2014
Ram Kanwar and another
...Petitioners
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present:- Mr. Anil Kshetarpal, Advocate with
Mr. Aditya Kochar Advocate
for the petitioner.
Ms. Palika Monga, DAG, Haryana
Mr. Kamal Sehgal, Advocate
for respondent No.2.
***
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
***
Amol Rattan Singh, J.
In this petition, the petitioners, of whom petitioner No.2 is an Educational Society registered under the Societies Registration Act, 1860, seek quashing of the acquisition of the land owned by petitioner No.1 and leased out to petitioner No.2, upon which they are stated to be running a school now up to the 10th Class, in Village Gharauli Khurd, Tehsil and District Gurgaon.
The facts as taken from the petition, are detailed herein after. Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -2-
2. The first petitioner, Ram Kanwar, and his brother, Raj Singh, are stated to be owners of land measuring about 21 kanals in the aforesaid village, on which they initially set up a school by the name of K.S. Modern School, for primary classes, which was given recognition by the District Primary Education Officer, Gurgaon on 21.12.2001.
3. Thereafter, the first petitioner and his brother got registered the educational society which is petitioner No.2, on 13.05.2005.
Upon such registration, the land was leased out by the first petitioner and his brother to the society and thereafter, as per the petition, upon obtaining permission from the competent authority, i.e. the Commissioner-cum-Director General Education (Schools), Haryana on 27.09.2005, established a high school by the name of M.D.S. Public High School which is also stated to have been granted provisional affiliation by the Haryana School Education Board, from session to session, from 2007 till the academic year ending in 2013.
4. On 29.01.2003, the Government of Haryana in the Department of Industries, issued a notification under Section 4 of the Land Acquisition Act, 1894 (in short "the Act"), proposing to acquire large tracts of land in villages Khandsa, Narsinghpur, Mahammedpur Jharsa, Gharauli Khurd and Hasaru, all in Tehsil and District Gurgaon, for the purpose of establishing the first phase of a Special Economic Zone. The said notification is stated to have included the entire land of the petitioners, to which two sets of objections were filed under Section 5A of the Act, one each by petitioner No.1, i.e. Ram Kanwar and his brother Raj Singh. However, despite the above said objections, the respondents issued the declaration under Section Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -3- 6 of the Act, vide notification dated 28.01.2004.
5. Challenging the same, a number of writ petitions are stated to have been filed in this Court. In one of these, i.e. CWP No.3892 of 2004, Green Land High School, Khandsa Vs. State of Haryana and others, general directions were issued by this Court, to the respondents, to afford an opportunity of hearing to the affected parties and to decide the matter afresh.
6. In pursuance thereof, petitioner No.1 and his brother again filed objections which were heard, along with others, by a committee constituted pursuant to the directions given by this Court. The said committee is stated to have recommended the release of the petitioners' land upon which construction existed, alongwith land proportionate to the constructed area. However, the respondent-State is stated to have released only 3 kanals and 12 marlas, upon which the building of the school was actually standing, leading to petitioner No.1 and his brother filing CWP No.7257 of 2006, praying for release of the entire land, taking a plea therein that the minimum requirement of land for a high school in a village is 2½ acres, as per the Haryana School Education Rules, 2003 (in short the "2003 Rules"). It is also stated to have been pleaded that as per the tentative development plan of Gurgaon-Manesar Urban Complex, the land in dispute is part of Sector 37-S, which is a residential sector and as such is outside the Special Economic Zone.
7. One Reliance Haryana SEZ is also stated to have filed an application for being impleaded as a party in CWP No.7257 of 2006. The writ petition was disposed of on 01.11.2007 by a Division Bench, by observing that to run a school, apart from a building and proportionate Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -4- vacant land, it would need to have land for a play ground and extra curricular activities and that the "Land Acquisition Collector/Authority"
made a mistake in passing a limited release order, in view of the fact that the minimum requirement of land for a high school, as per the aforesaid 2003 Rules, is 2 ½ acres, which was not taken into consideration while ordering the release of only the constructed portion.
8. Consequently, while disposing of the petition, directions were issued that upon the petitioners making a representation to the Secretary, Industries, Haryana, the same would be decided on merits, in the light of the 2003 Rules and the observations of the Court.
9. Upon such representation having been made and comments of the District Revenue Officer-cum-Land Acquisition Collector, Gurgaon, having been sought by the concerned authority, a recommendation was made to the effect that 20 kanals and 19 marlas, i.e. about 1 kanal more than 2 ½ acres of land, be released. In fact, this was the entire land of the petitioners which was sought to be acquired. However, the Commissioner and Secretary to Government of Haryana, Department of Industries and Commerce, vide his decision dated 13.10.2008, ordered the release of a total of 1 acre of land, i.e. 4 kanals and 8 marlas more than the 3 kanals and 12 marlas of land earlier released.
In the said order, the contention of the petitioners that the land falls within the residential zone and not the SEZ, was found to be correct; however, it was also stated therein that since, of the 1300 acres of land acquired for the establishment of the SEZ, only 1086 acres of litigation free contiguous land could be transferred to the Special Purpose Vehicle Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -5- established for the development of the SEZ, therefore, the notified development plan could always be amended once the litigation for the remaining acreage of land was settled and the petitioners land being contiguous to the SEZ boundary, the contention of the petitioners was not valid (even though the land otherwise falls in the residential zone).
10. Challenging the said order, the petitioners then filed CWP No.19203 of 2008, which was dismissed as withdrawn after some arguments were addressed, as recorded in the order of the Court, dated 17.11.2008.
11. Subsequently, Reliance Haryana SEZ, to whom the Haryana State Industrial and Infrastructure Development Corporation Limited (in short the "HSIIDC"-respondent No.2) had transferred 1383.68 acres of land for development of the proposed SEZ, surrendered the land to respondent No.2, on the ground that the construction and development of the SEZ had become unviable. Consequently, as per the petitioners, the land was ordered to be "defrozen"vide letter dated 25.04.2012 (Annexure P-19) and the Industries Department/HSIIDC were left free to replan and develop it as per the alternative norms.
12. Consequently, the petitioners submitted a representation dated 12.07.2012 for release of the remaining land, as about 700 students were stated to be studying in the school by then. In the meanwhile, it seems that the Haryana Government had issued a notification dated 21.02.2009 declaring that the minimum required land for running a high school would be 2 acres, as is pointed out by the petitioners from the letter dated 05.09.2011 (Annexure P-21) addressed by the Senior Town Planner, HSIIDC, Gurgaon to the Chief Town Planner, HSIIDC, Panchkula. The Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -6- Senior Town Planner thus made a recommendation for release of the petitioners' land.
13. As per the petition, the final development plan for the area was notified, which included therein the area in which the petitioners' land falls. It has been pointed out that as per the said development plan, the proposed Sector-37D, where the land in question is situated, has been reserved for residential group housing/plotting and as such it would be within the scheme of things, for a school to exist in such an area. It has been stressed upon that the existing school has 16 class rooms in addition to computer labs, science labs, toilets, office etc. Photographs of the school building, offices and computer labs, library etc. have been annexed with the petition. 13A. The matter is stated to be resting at a stage where the acquired land is stated to be vacant and un-utilized, without any roads and infrastructure facilities like sewage lines etc., having been laid.
14. The petitioners have further contended that the respondents have been releasing/re-allotting parts of the acquired land to various companies/firms/institutions/individuals, the names of 13 of whom/which are given in para 22 of the petition. The cases of M/s N.M. Acqua and G.D. Goyanka and Advanced Meltech have been specifically highlighted by the petitioners.
As such, it has been prayed that the land comprising in Khasra Nos.17/1/1, 27/2 and 17/1/2, which is stated to be falling in between the land left for the school and the road, be released, being sandwiched between the road and the school. It has been admitted that the brother of petitioner No.1, i.e. Raj Singh, who was earlier a co-petitioner in previous litigation, Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -7- has since withdrawn the compensation falling to his share, which the petitioners are willing to deposit along with interest accruing thereupon.
15. A policy decision dated 22.10.2008 taken by the Board of Directors of respondent No.2, has also been relied upon by the petitioners. The decision sets out guidelines for out of Court settlements in respect of industries where the land has been acquired by the HSIIDC and such industrial units are in operation.
16. In connection with this policy, the petitioners have also referred to the case of one Vikas Gupta, who had initially sought release of his land unsuccessfully by way of filing a writ petition before this Court. Upon liberty being granted in SLP by the Apex Court to approach this Court afresh, and the subsequent writ petition having been disposed of with a direction that the application moved by Vikas Gupta be decided by the competent authority, his land was eventually released by an order passed by respondent No.1, subject to various conditions contained in the said order dated 06.07.2011 (Annexure P-27 with the petition).
17. In the separate replies filed by the Special Secretary to Government of Haryana-cum-Director, Industries and Commerce and on behalf of the second respondent, i.e. HSIIDC, the factual position as given by the petitioners has been by and large admitted, except in respect of one important factor, which is the recognition and affiliation granted to the school by the Department of Education, Government of Haryana.
18. As already noticed herein above, the specific contention of the petitioners is that after the grant of recognition as a primary school, permission was granted by the Director, School Education Haryana, for Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -8- establishment of a high school from Class 1 to Class 10, on 27.09.2005, after which these classes are running in the school. It is also the specific stand of the petitioners that provisional affiliation from the academic year 2007-08 up till academic year 2012-13, i.e. till the filing of the writ petition, has been granted from year to year, vide letters annexed as Annexures P-5 to P-8 with the petition. These letters are dated 03.10.2007, 31.12.2009, 12.10.2011 and 27.01.2013 respectively and have been addressed by the Secretary, Haryana School Education Board, Bhiwani, to the Head Master of MDS Public High School, Gharoli Khurd, Gurgaon. The last of these letters, which is ad-verbatim or at least very substantially, the same as the other letters, is reproduced hereunder:
"From The Secretary, Haryana School Education Board, Bhiwani To The Head Master, MDS Public High School, Gharoli Khurd, Gurgaon No.5037/GU/Affiliation dated 27.01.2013. Sir, On the basis of the provisional approval given by the Education Department to your institution up to 10th Class, the provisional affiliation for the Sessions 2012-13 is hereby granted by this Board, on the following terms and conditions:-
1. You will have to apply for affiliation on the basis of the temporary approval granted by the Education Department in future along with the affiliation fee of Rs.2,000/- on the prescribed proforma up to the due date.
A copy of the approval shall also be annexed. In case of delay, the said application shall be entertained on payment of Rs.5,000/- with permission of the President of the Board in special circumstances.
2. Only the books approved by the Haryana School Education Board/Education Department shall be taught in the school. Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -9-
3. The institute provide the services of the staff/building/furniture for holding of the examinations by the Board and no rent for the said building/furniture shall be paid by the Board.
4. The institute will render all possible help to the Board for successful carrying out of the examination process and the copying, impersonation and other irregularities shall be completely controlled.
5. The institution shall obey the syllabus and other directions issued by the Board from time to time in relation to the examiantions.
6. The institute shall render all possible help to the Board in the running of Free School Examinations.
7. The institute shall maintain all the records in terms of Rule 28 (No.1 to 21) of the Education Code of Haryana.
8. The appointment of the staff shall be made by the institute as per the instructions issued by the Haryana Government.
9. Proper arrangements shall be made for sitting of the students in the school.
10. For the purposes of the subjects of Science to be taught in the institute, there should be a fully equipped laboratory and only those books of Science which have been approved by the Board shall be taught.
11. An inspection can be carried out by the Board at any time before or after the grant of affiliation.
Apart from this, all the decisions that may be taken by the Education Department of Haryana/the Haryana School Education Board shall also be applicable to your institute which shall have to be followed strictly.
If at any time, it is found that the Management of the institute is violating any of the aforesaid conditions, the affiliation shall be withdrawn.
Sd/-
Superintendent (Affiliation) for Secretary."
19. On the other hand, in the reply filed by way of an affidavit (though not by way of parawise written statement in reply to the contentions of the petition), it has first been stated in para 9.9 thereof that while considering the petitioners' case in his order dated 10.10.2008, the Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -10- Secretary, Industries had specifically stated that there is hardly any case made out for grant of further relief to the petitioners except by way of some indulgence that could be exercised in allowing the petitioners to retain as much land as is necessary for the school to be upgraded from a Primary School to a Middle Standard School.
Further referring to the order dated 10.10.2008, the reply states that the contention raised by the petitioners earlier before this Court (in CWP No.7257 of 2006) could not be controverted because no site visit had been undertaken at that time and, as a matter of fact, there was only a primary school running at the site with a building constructed over an area of one kanal and that the Education Department had recognized the school only up to the primary level and not even up to the middle standard level, though permission had been granted to establish a high school vide the letter dated 27.09.2005, which did not amount to recognition as a high school.
20. The order dated 10.10.2008 further states that the entrance to the school is through an 11 ft. wide private passage left out by the colony; that the school building was not an RCC (Reinforced Cement and Concrete) building; that it falls within the Urbanization Limits of the Controlled Area and the requirement of land for a primary school is only ½ an acre and for a middle standard school, it is 1 acre, as per the relevant rules of the Education Department.
21. The above position was sought to be substantiated in the order, in view of the fact that 16 photographs are stated to have been taken on 01.10.2008 (though stated to be part of the order dated 10.10.2008, Annexure P-18, however, are not presently on record). Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -11-
22. In this regard, the reply of the HSIIDC also states that the letter dated 27.09.2005 granting permission to run a high school, does not amount to recognition as such and in fact any admission of students beyond Class V is a violation of the Rules and Regulations of the Education Department.
23. Strangely, neither of the replies specifically controverts the letters granting provisional affiliation to the school from year to year, up till at least 2013, even though the replies are dated 05.09.2013 and 09.09.2013 respectively.
24. In arguments, Mr. Anil Kshetarpal, learned counsel appearing for the petitioners has reiterated what has been stated in extenso in the petition, laying stress on the facts that the respondents have been releasing land, either under the shelter of the policy dated 22.10.2008 or otherwise, but have been in hostile discrimination to the petitioners.
25. Further, he submitted that since the land in question and in fact the area in question, is now no longer a Special Economic Zone and is to be developed as a residential sector, the existence of a school to facilitate the residents of the area would be in harmony with planned development.
26. On the other hand, on the issue of alleged discrimination, Ms. Palika Monga, learned DAG, Haryana and Mr. Kamal Sehgal, learned counsel appearing for respondent No.2 (HSIIDC), have both extensively relied upon the stand taken in their respective replies, in which the alleged discrimination is justified on a case to case basis.
27. A perusal of the same reveals that in every case referred to by the petitioners, the land was released either on the recommendation of the Committee formed upon directions of this Court, or upon an out-of-court Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -12- settlement reached between the land owners and the State Govt./HSIIDC, wherein, in some cases the land owners had given up their claims to some chunks of land, as in the case of M/s Gagandeep Services Limited, which agreed to surrender 4.53 acres of their land free of cost. In the case of other out of Court settlements, stay orders had been operative in favour of the land owners for long periods of time, with non-possession of the land with the respondents, leading to hampering and delay in development projects. As such, in most other cases, which were also out of Court settlements, it is seen that the land was released subject to the land owners leaving out enough land as was necessary for construction of roads and, as is discernible, all such release was in favour of industries/establishments. In some cases, this Court had ordered such release, again subject to the land owners giving up as much land as was required for development of roads and green belts or public utility services and subject to their obtaining permission for change of land use and payment of applicable external and internal development charges etc.
28. After hearing learned counsel for both sides, we find that the stand of the respondents is based on a factual fallacy.
On the contention that the school is actually not being run as a high school and is only being run as a primary school, we are unable to accept the averments in the reply of the respondents in the face of, firstly, the specific provisional affiliation granted by the Department of Education vide the letters referred to herein afore (Annexures P-5 to P-8) and, secondly, upon a perusal of the photographs annexed with the petition which do at least prima facie seem to disclose that the school consisting of about Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -13- 700 students (as is averred and which is not specifically denied), definitely does seem to be one with a proper building, office and other basic infrastructure facilities, such as a small library and computer lab etc.
29. The replies of the respondents are primarily based upon the order dated 10.10.2008, which in turn was based upon a site visit dated 01.10.2008. Those dates would obviously fall within the time span of the academic year 2008-09, which naturally would not take into account the subsequent academic years from 2010 to 2013, for which also provisional affiliation has been granted to the school by the Haryana School Education Board, for running it as a high school on a year to year basis. In fact, it is strange that the order dated 10.10.2008 does not refer to the letter dated 03.10.2007 vide which provisional affiliation was granted for the year 2007- 08, up to the matriculation level, i.e. Class 10. Hence, it is not understood as to how the said order referred to the school only as one recognized up to the Class V, i.e. the primary level.
It is necessary to state here that the respondents have nowhere contended that the Annexures P-5 to P-8, by which provisional affiliation was granted, are ingenuine letters.
Thus, as said earlier, there is no factual basis for the respondents to say that the school, not having been recognized as a High School, needs only one acre of land, to enable it to upgrade to a Middle School.
It is also the admitted position that after CWP No.19203 of 2008, which challenged the order dated 10.10.2008, was withdrawn by the petitioners, the purpose of the acquisition for a Special Economic Zone Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -14- stood abandoned. The petitioners, therefore made a representation to the respondents on 12.07.2012 for release of their remaining land, in view of the fact that the school was stated to be progressing with approximately 700 students studying in it.
30. Therefore, in our opinion, the respondents failed to see the actual position before even now, before opposing the claim of the petitioners.
No doubt, the Govt. once having acquired the land, is very much within its right to change the utility thereof, from the purpose for which it was originally acquired, to any other purpose in public interest; however, it cannot be denied that the land of the petitioners is falling in a zone which even respondent No.2 states in its reply, is to be developed now as a Global City. As such, obviously, a school running with 700 students in it should be accommodated in the development plan, being part of such a 'Global City' and being either a part of, or contiguous to, a residential area.
31. Therefore, we are of the opinion that subject to the conditions hereinafter stipulated being fulfilled, which would need to be strictly adhered to by the petitioners and enforced by the respondents, the petition deserves to be allowed and the land of the petitioners released to them as has been done in the case of various other land owners/ companies/ firms/ institutions/ individuals etc., as admitted in the reply.
32. Consequently, the release would be subject to the following:
i) that the land required by the respondents for the purpose of roads and green belts immediately contiguous to the school, in conformity with the existing development plan, shall not be released to the Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -15- petitioners;
ii) that if the remaining land is sufficient as per the statutory norms laid down for the running of a high school, then only such remaining land be released to the petitioners;
iii) the petitioners shall have to prove before respondent No.1 that they have indeed been granted affiliation by the Haryana School Education Board or any other Board duly recognized by the Government of Haryana, for running a school up till at least Class 10;
iv) that the land so released shall not be utilized for any other purpose whatsoever, other than running of a high school/secondary school;
v) that all the norms as are required to be followed with regard to building plans, set backs, open areas, play fields etc. for schools/secondary schools running in residential areas are followed in complete exactitude and detail, by the petitioners as also by the school authorities, for all times in future.
This would include that in case any existing structure have to be demolished/rebuilt to ensure adherence to set back etc. the same shall be done by the petitioners within a period of one year of release of the land to them and a compliance affidavit shall be filed;
vi) that adequate parking space shall be provided within the compound of the school for parking of vehicles of staff and students, ensuring also that there is adequate facility for drop off and pick up of students within the school premises, without vehicles spilling over onto the roads outside the school during peak hours of school opening and closing; Chander Vikas 2014.05.12 15:22 I attest to the accuracy and integrity of this document Chandigarh CWP No.4134 of 2013 -16-
vii) that noise levels as are required to be maintained as per norms in residential areas, are duly maintained in the school premises at all times;
viii) that petitioner No.1 shall, at the time of showing proof of affiliation of the school with the Board, deposit the compensation collected by his brother, i.e. Raj Singh, in respect of the acquired land, along with interest as accrues upon compensation awarded to a land owner on acquisition of his land, as per the 1894 Act.
ix) The external developmental charges and other statutory charges shall also have to be paid.
Subject to the above terms & conditions being fulfilled, the petition is allowed with no order as to costs.
(AMOL RATTAN SINGH)
JUDGE
May 07, 2014 (SURYA KANT)
vcgarg JUDGE
Chander Vikas
2014.05.12 15:22
I attest to the accuracy and
integrity of this document
Chandigarh