Punjab-Haryana High Court
Amandeep Kaur vs State Of Punjab And Another on 4 October, 2013
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal, Jaspal Singh
CWP No. 21219 of 2012 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No. 21219 of 2012
Date of Decision: 4.10.2013
Amandeep Kaur
....Petitioner.
Versus
State of Punjab and another
...Respondents.
CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.
HON'BLE MR. JUSTICE JASPAL SINGH.
ARGUED BY:Mr. G.S. Punia, Advocate for the petitioner.
Mr. Hari Pal Verma, Additional Advocate General, Punjab.
Mr. Rupinder S. Khosla, Advocate with
Mr. Aman Sharma and Mr. B.S. Mangat, Advocates,
for respondent No.2.
AJAY KUMAR MITTAL, J.
1. By way of instant civil writ petition filed under Articles 226/227 of the Constitution of India, the petitioner has prayed for issuance of a writ in the nature of certiorari for quashing the order dated 1.6.2012 (Annexure P-1) passed by respondent No.2 cancelling the allotment of plot allotted to her as an oustee. Further, a direction has been sought to be issued to the respondents to allot the plot to the petitioner as an oustee as her land had been acquired and she is eligible for allotment of the plot.
2. The facts necessary for disposal of the present writ petition Singh Gurbachan 2013.12.21 11:39 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 21219 of 2012 -2- as narrated therein are that the land of the petitioner comprised in khewat/khatauni No. 203/212 Rectangle No. 29, Killa Nos. 9(7-3), 12(4-
8), 13/1 (1-16) total measuring 13K-7M to the extent of 8/27th share which comes to 79.11 marlas and land comprised in khewat/khatauni No. 162/171 killa Nos. 10(3-4) and 1(7-1) to the extent of 1/4th share of 5/18 share which comes to 18.98 marlas situated in village Hoshiarpur, Hadbast No.159, Tehsil and District SAS Nagar, the total of which comes to 98.10 marlas, i.e. 4K-9M and portion of further land comprised in Rectangle No.29, Khasra No. 2/2(1-15), 2/3 (0-2) and 13/2(4-14) having 1/3rd share in one half share was acquired vide notification dated 20.2.2009 (Annexure P-4) issued under Section 4 of the Land Acquisition Act, 1894 (in short "the Act") for construction/ up-gradation of the road from Punjab/UT Border (near Mullanpur) to Siswan T-Junction in Local Planning Area, Mullanpur, as per duly notified master plan of Mullanpur issued vide drawing dated 18.11.2008. As per the award of the Land Acquisition Tribunal, the compensation awarded was ` 1,22,72,727/- per acre including the amount of solatium at the rate of 30% and petitioner had been paid an amount of ` 99,09,024/- as compensation vide cheque dated 23.7.2010. Calculating the land acquired on the basis of compensation paid the total land acquired of the share of the petitioner comes to 6.46 kanals. Small portion of 2 bighas 13 biswas of land of the petitioner was acquired out of the land comprised in khasra Nos. 2239/2 and 2240 situated in village Mullanpur having 1/8 share of the petitioner which comes to about more than 6 biswas. Thus, the total land acquired of the petitioner comes to more than half acre. The Government of Punjab had also acquired land vide notification dated 10.11.2009 (Annexure P-5) for setting up a residential Singh Gurbachan 2013.12.21 11:39 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 21219 of 2012 -3- urban estate at Mullanpur and the land of the petitioner was acquired for the purpose of facilitating the development of setting up of urban estate at Mullanpur and various other developments in Mullanpur and adjacent area. As the petitioner was eligible for the allotment of plot as an oustee as per the policy of the Government, she applied for allotment of a plot in Urban Estate Mullanpur under the oustee quota on 21.10.2011 after completing all the formalities. In pursuance thereto, the petitioner was allotted plot No.8 measuring 100 square yards in Block No.1, Street S- 21, Ecocity and she was informed accordingly vide letter dated 2.12.2011 (Annexure P-9). Thereafter, the petitioner sent oustee certificate and photocopy of the passport as required by the authorities vide application dated 7.12.2011 (Annexure P-10). As the petitioner did not receive the allotment letter, she sent a letter dated 15.2.2012 requesting for issuance of allotment letter. Another letter dated 10.3.2012 (Annexure P-13) was also sent by the petitioner for consideration of her case. Thereafter, she was asked to appear before the Chief Administrator, GMADA, SAS Nagar on 30.3.2012 vide letter dated 26.3.2012 (Annexure P-14) along with all documents. The petitioner addressed letter dated 30.4.2012 (Annexure P-15) followed by another communicated dated 2.5.2012 (Annexure P-16). Thereafter, the petitioner received an order dated 1.6.2012 (Annexure P-1) passed by respondent No.1 informing her that the allotment of plot allotted to the petitioner has been cancelled on the ground that her land had been acquired for widening of the road ignoring the fact that the road was sought to be widened for the purpose of development and establishment of Urban Estate in the area. The petitioner made a representation dated 6.8.2012 (Annexure P-17) to respondent No.2 but no action has been Singh Gurbachan 2013.12.21 11:39 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 21219 of 2012 -4- taken thereon. Hence, the present writ petition.
3. Respondent No.1 filed counter affidavit in the shape of reply whereas respondent No.2 filed affidavit to resist the claim of the petitioner. Besides controverting the averments made in the petition, it was pleaded that the allotment of a plot in oustee quote as per policy can be allotted only qua the land acquired for setting up of any residential, institutional, industrial or integrated mixed land use by any Development Authority constituted under the Punjab Regional and Town Planning and Development Act, 1995 (in short, "the 1995 Act"). Further, it was pleaded that the petitioner was not eligible to be considered for the allotment of plot. According to the respondents, the road in question was neither in the Master Plan of Mohali nor it formed part of any urban estate developed by GMADA.
4. We have heard learned counsel for the parties and perused the record.
5. Learned counsel for the petitioner submitted that the notification (Annexure P-4) under Section 4 of the Act was issued on 20.2.2009 whereby the land of the petitioner was also acquired for construction/up-gradation of road from Punjab/UT Border (near Mullanpur) to Siswan T-Junction in Local Planning Area, Mullanpur as per the duly notified master plan of Mullanpur. Another notification (Annexure P-5) under Section 4 of the Act was issued on 10.11.2009 for setting up of Residential Urban Estate, Mullanpur in the area of Tehsil Kharar, District Mohali. The notification (Annexure P-4) whereby the land of the petitioner was acquired was to supplement the purpose of residential development of Mullanpur area and, therefore, the purpose for acquisition would be termed as residential, commercial or industrial. Singh Gurbachan 2013.12.21 11:39 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 21219 of 2012 -5- Relying upon the policy dated 25.5.2011 (Annexure P-18), it was submitted that in view thereof, the petitioner was entitled to a plot under oustee quota which was allotted but the cancellation made by respondent No.2 was illegal. Reliance was placed upon the judgments of this Court in CWP No. 1714 of 2012 (Harmail Singh and others v. State of Punjab and others) decided on 28.1.2013, LPA No. 2096 of 2011 (Haryana Urban Development Authority and others v. Sandeep and others) decided on 25.4.2012 and CWP No. 4952 of 2007 (Abhey Ram Dahiya v. State of Haryana and others) decided on 9.12.2008 in support of the contentions.
6. Opposing the prayer made by the learned counsel for the petitioner, learned counsel for the respondents submitted that as per policy, Annexure P-18, where the land was acquired for development of residential, commercial or industrial purpose, the oustee was entitled to the plot under the said quota. It was urged that in the present case the land having been acquired for construction of road, the same do not fall within the oustee quota and, therefore, the cancellation made by the authorities was justified.
7. We find merit in the contention of learned counsel for the petitioner.
8. The State Government had formulated a policy dated 26.9.1994 (Annexure P-19) which was operative at the time when the land of the petitioner was acquired. However, a fresh oustee policy dated 25.5.2011 (Annexure P-18) was notified dealing exclusively with the rehabilitation of those land owners where lands had been acquired for various public purposes. As per this policy as circulated by the Government of Punjab the persons whose land has been acquired for Singh Gurbachan 2013.12.21 11:39 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 21219 of 2012 -6- setting up of any residential, institutional, industrial or integrated mix land use estate by any development authority constituted under the 1995 Act and also for filling up any critical gaps to facilitate the development of any residential, institutional, industrial or integrated mix land use estate by any person is entitled to allotment of plot of the size depending upon the land acquired. It is mentioned in the policy that only the person whose land measuring half an acre or more is acquired is entitled to allotment of a plot as an oustee. Even under the earlier policy existing before the issuance of policy dated 25.5.2011 there was nothing that person whose land had been acquired for the development of the overall area is not eligible for allotment of plot as an oustee. The main purpose of this oustee policy is only to compensate the land owners in one way or the other. In both the policies the purpose is to allot a plot to the oustee whose land has been acquired for one purpose or the other and to compensate him for the same.
9. Emphasizing the importance of formulating oustees policy to remove economic inequalities and to provide for resettlement and rehabilitation of the landowner whose land had been acquired by the State, this Court in Sandeep's case (supra) held as under:-
31. Thus, from the abovereferred judgments, it is evident that acquisition of land does not violate any constitutional/fundamental right of the displaced persons. However, they are entitled to resettlement and rehabilitation as per the policy framed for the oustees of the project concerned."
In the aforesaid judgment, under the head 'land for land', the Hon'ble Court observed that Constitution Singh Gurbachan 2013.12.21 11:39 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 21219 of 2012 -7- requires removal of economic inequalities and provides for provision of facilities and opportunities for a decent standard of living and protection of economic interests of the weaker segments of the society. Every human has a right to improve his standard of living. The Court concluded that allotment of land in lieu of land acquired in view of the Rehabilitation & Resettlement Policy (for short 'R&R Policy'), the State Authorities are under obligation to allot land to the allottees as far as possible."
10. Similar view was expressed in Abhey Ram Dahiya's case (supra) in the following terms:-
".....The net result is that these policy instructions has to be construed in accordance with the tenor of the judgment of Division Bench in Suman Aneja's case (Supra). It would be profitable to extract the rationale which permeated the Division Bench judgment and the same reads as under:-
"It is to be noted that the purpose underlying the Rehabilitation Scheme for oustees is basically one involving an obligation on the State to take care of a touching human problem and if it is at all possible to lean, we must lean on the side of the helpless individuals whose land has been acquired. It would be anomalous to hold that while acquiring the land for the purpose of land development to provide house and other Singh Gurbachan 2013.12.21 11:39 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 21219 of 2012 -8- facilities to one section of the populace, those person whose land had been acquired, should be adversely treated or left homeless and without shelter."
On the basis of the aforementioned guidelines afforded by the Division Bench, we are left with no doubt that the petitioner became eligible as oustee for the first time on 27.3.2000 because earlier he was not covered by any of the policies as his land was acquired in the year 1983. The policy dated 27.3.2000 (Annexure P-7) first time included the oustees of pre 10.9.1987 in the group of beneficiaries. Then the policy instructions dated 28.8.1998 (Annexure P-6) have also adopted a liberal approach by extending the benefit to the oustees without confining them to the allotment of plots only for the acquisition in which their area has been acquired. Any other interpretation would defeat the basic rationale of rehabilitation of such oustees because the oustees did not have any control over the plans of respondent-HUDA, who may decide to develop the industrial area on the acquired land of oustees. When the land belonging to the petitioner was acquired with the object of developing residential and commercial area then the public purpose was changed later on and it was developed as a commercial Sector."
11. This Court in Harmail Singh and others's case (supra), Singh Gurbachan 2013.12.21 11:39 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 21219 of 2012 -9- delving into issue whether a landowner whose land had been acquired and utilized for construction of road or other common utility services was entitled to allotment under oustees category or not, had recorded that there cannot be any discrimination and categorization of an oustee on the basis of utilization of their acquired land when land has been acquired for integrated urban development project. It was observed as under:-
"17. After giving thoughtful consideration to the rival pleas, it appears to us that the plea taken by the respondent-GMADA that the petitioners are not entitled to the benefit of the policy dated 26.9.1994 (Annexure P-3) as their acquired land has not been utilized for 'residential purpose' is patently arbitrary and discriminatory. We say so for the reason that the land of the petitioners was a part and parcel of the big chunk of contiguous land measuring about 417 acres comprising different revenue villages which was acquired by the State of Punjab through one and the same process. The acquired land has been utilized by GMADA for the public purpose of setting up of the Sector-81 of SAS Nagar, Mohali. It is not denied that in case the land of the petitioners was utilized for residential plots, they would have been entitled for allotment of plots under the Rehabilitation Policy dated 26.9.1994 (Annexure P-3).
18. The question that arises for consideration is whether the petitioners be deprived of the benefit of Singh Gurbachan 2013.12.21 11:39 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 21219 of 2012 -10- Rehabilitation Policy only because the respondents have utilized their acquired land for a purpose which is incidental or ancillary to the development and setting up of a regulated urban area?
19. In our considered view, once the land is acquired for setting up the urban estate, all the expropriated owners are entitled to be treated alike and at par, irrespective of the subsequent utilization of the acquired land. Whenever a big chunk of agricultural land is acquired to develop an urban area, it is inherent in its conceptualization that the acquired land would be utilized for different but essential purposes like (i) parks, (ii) roads, (iii) sewerage or water supply, (iv) commercial area, (v) institution area,
(vi) open land for future development, (vii) green belt,
(viii) residential plots, (ix) multi-storeyed apartments and various other allied purposes.
20. It is not at all within the control of a land owner to insist that in the lay out plan or 'master plan' his land be earmarked for the residential plots only. The land owner is left with no concern whatsoever except to seek compensation for his acquired land. Suffice it to observe that it is for the State authorities to decide as to what would be the optimum use of the acquired land in whom the land stands vested, free from all incumbrances. It is for the Authorities to utilize the land for one or the other public purpose.Singh Gurbachan
2013.12.21 11:39 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 21219 of 2012 -11-
21. The owners, however, cannot be discriminated with and subjected to differential treatment on the basis of an incidental circumstance like utilization of their acquired land for varied purposes of an integrated urban development project. The classification sought to be brought in is neither based upon an intelligible criteria nor has any rationale with the object sought to be achieved through the Oustee Policy. The purpose of the Rehabilitation/Oustee Policy is to rehabilitate all the land owners whose lands have been acquired for the planned development and setting up of an urban estate. Once it is proved that the land of the petitioners was also acquired for that very purpose, the microscopic classification suggested by the respondents to deprive a group of land owners of the benefits of a welfare policy, cannot be accepted. Such an artificial grouping cannot stand the test of Article 14 of the Constitution."
12. It was not disputed that the total land of the petitioner measuring more than half acre approximately was acquired and that an allotment of plot No.8, measuring 100 square yards in Block No.1, Street No. S-21, Eco-City had also been made. Further, the land of the petitioner was acquired and utilized for widening of the road to facilitate the setting up of a residential Urban Estate at Mullanpur which was named as Eco-City. The widening of the road was for the development of the housing scheme known as Eco-City, Phase I at New Chandigarh at Mullanpur and other Infrastructure Project coming up in the area. Singh Gurbachan 2013.12.21 11:39 I attest to the accuracy and integrity of this document High Court Chandigarh CWP No. 21219 of 2012 -12- However, the same was sought to be cancelled on the ground that the area of the petitioner was utilized for construction of the road. Applying the ratio of the decision of the Division Bench in Harmail Singh's case (supra), the petitioner is entitled to allotment of a plot of 100 square yards and the action of the respondents cancelling the allotment of plot to the petitioner is wholly illegal and arbitrary.
13. Accordingly, the writ petition is allowed and the order dated 1.6.2012 (Annexure P-1) passed by respondent No.2 cancelling the allotment of plot as an oustee is set aside and the petitioner is held entitled to 100 square yards plot under oustee category.
(AJAY KUMAR MITTAL)
JUDGE
October 4, 2013 (JASPAL SINGH)
gbs JUDGE
Singh Gurbachan
2013.12.21 11:39
I attest to the accuracy and
integrity of this document
High Court Chandigarh