Punjab-Haryana High Court
Smt. Kusum Prabha vs State Of Haryana And Others on 17 December, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
C.W.P. No.17853 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
C.W.P. No.17853 of 2007
Date of Decision: 17.12.2013
Smt. Kusum Prabha ....Petitioner
Versus
State of Haryana and others ....Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present: Mr. Ajay Jain, Advocate,
for the petitioner.
Mr. Indresh Goel, Additional Advocate General, Haryana,
for respondent No.1.
Mr. Ajay Nara, Advocate,
for respondent Nos.2 to 4.
MAHAVIR S. CHAUHAN, J.
Article 21 of the Constitution of India guarantees to the citizens of India that "No person shall be deprived of his life or personal liberty except according to procedure established by law". This Article, though couched in negative language, but has attained innumerable positive attributes with the development of law by various authoritative pronouncements of various High Courts and the Hon'ble Supreme Court of India. Right to life enshrined in Article 21 has been held to mean something more than survival or animal existence (State of Maharashtra Versus Chanderbhan, AIR 1983 SC 803), to include all those aspects of life which go to make a man's life meaningful, complete and worth living (Maneka Gandhi Versus Union of India, AIR 1978 SC 597, Board of Trustees of the Port of Bombay Versus Nadkarni Dilip Virender Singh Adhikari 2014.01.14 18:56 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.17853 of 2007 -2- Kumar Raghvendra, AIR 1983 SC 1097) and right to live with human dignity (Francis Coralie Mullin Versus Union Territory Delhi, Administrator, AIR 1981 SC 746). Right to development has also been declared as a component of right to life and liberty within the meaning of Article 21. Right to development cannot be treated as a mere right to economic betterment or cannot be limited to a misnomer to simple construction activities. It rather, includes the whole spectrum of civil, cultural, political and social process for the improvement of people's well being and realization of their full potential and construction of dams and other mega projects could very well be treated as integral component for development (N.D.Jayal Versus Union of India, (2004) 9 SCC 362). However, construction of such projects has its ill effects in the form of displacement of residents, disruption of means of livelihood, deprivation of homes, lands and places of business and the ilk. Therefore, it has been held by the Hon'ble Supreme Court of India in N.D.Jayal's case (supra) that rehabilitation of the oustees is a logical corollary of Article 21 of the Constitution of India. While legislation like Land Acquisition Act, 1894 (for short, 'the 1894 Act') empower the State to acquire land of a citizen for development purposes, Article 21 of the Constitution of India enjoins upon it a corresponding duty to take steps for the rehabilitation of oustees of land acquisition schemes.
Smt. Gian Devi, predecessor-in-interest of the petitioner, was owner of the land measuring 56 Kanals 01 Marla being half share of land measuring 112 Kanals 2 Marlas comprised in Khewat No.1394/1730 and 1393/1729 bearing Khasra No.4682 (8-16), 4683 (32-18), 4686 (13-12), 4686 Virender Singh Adhikari 2014.01.14 18:56 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.17853 of 2007 -3- (7-1), 4687 (17-19), 4688 (24-2), 4689 (7-9) and 4661/1(0-5) situated at Hisar. Haryana Urban Development Authority (for short, the 'HUDA'), through Land Acquisition Collector (Urban Estate), had acquired the said land, i.e., 56 Kanals 01 Marla, vide Award No.11 dated 17.03.1986, for the development of Sector 13 (Part), Hisar. Smt. Gian Devi, predecessor-in-interest of the petitioner, died on 03.04.1995. Smt. Kusum Prabha, being one of the legal heirs of the deceased Smt. Gian Devi, submitted an application dated 24.07.2000 (Annexure P-1) to respondent No.3 for allotment of residential plot/shop under the Oustee Quota Policy in view of the notification issued by the Government of Haryana with regard to allotment of residential/commercial plots under the Oustee Quota Scheme, whose land had been acquired by the HUDA for the development of residential sectors etc. In response to the said application dated 24.07.2000 (Annexure P-1), respondent No.3, vide memorandum dated 10.05.2001 (Annexure P-2) informed the petitioner that as per HUDA policy, her application for allotment of residential plot could not be considered at this stage because claim of those persons whose lands were acquired prior to 10.09.1987 could be considered only on availability of plots in that Sector and the petitioner was advised to apply for allotment of plot under the Oustee Policy as and when the plots in Sector 13 (Part), Hisar were floated for allotment. After waiting for four years, petitioner submitted another letter dated 27.05.2005 (Annexure P-5) to respondent No.3 requesting him to inform her about the availability of plots in Sector 13 (Part), Hisar or to allot her a plot in any other adjoining sector in Hisar under the Oustee Quota. When nothing was done in response thereto, petitioner submitted a reminder dated Virender Singh Adhikari 2014.01.14 18:56 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.17853 of 2007 -4- 19.06.2006 (Annexure P-6) requesting therein to allot her a residential/commercial plot under the Oustee Quota at the earliest and also apprised respondent No.3 that plots were available in Sector 13 (Part), Hisar and few persons who had applied later than the petitioner had already been allotted the plots. Thereafter, respondent No.3, vide letter dated 09.10.2006 (Annexure P-7), informed the petitioner that no plot in Sector 13 had been allotted under the Oustees Policy. Petitioner sought information under the Right to Information Act with regard to allotment of residential plot No.1609, Sector 13 (Part), Hisar and in reply thereto respondent No.3 informed the petitioner, vide letter dated 18.12.2006 (Annexure P-8), that Plot No.1609, Sector 13 (Part), Hisar, had been allotted under the Oustees Quota. Thereafter, petitioner again sought information, vide letter dated 18.01.2007 (Annexure P-
9) under the Right to Information Act with regard to allotment of total number of residential/commercial plots in Sector 13 (Part), Hisar, under the Oustees Quota. In response to the said letter dated 18.01.2007 (Annexure P-9), respondent No.3, vide letter dated 14.02.2007 (Annexure P-10), informed the petitioner about the category/size wise details of balance residential/commercial plots, which are to be allotted, auctioned and reserved for various categories.
When nothing was heard in the matter for sufficiently long, petitioner filed the instant Civil Writ Petition, under Articles 226/227 of the Constitution of India, for issuance of a writ of mandamus directing the respondents to allot a plot to her in view of the policies dated 18.03.1992 (Annexure P-3) and 12.03.1993 (Annexure P-4) and in view of the law laid Virender Singh Adhikari 2014.01.14 18:56 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.17853 of 2007 -5- down by the Hon'ble Supreme Court in the case of 'State of U.P. Versus Pista Devi and others', AIR 1986 SC, 2025.
In the counter filed by way of affidavit on behalf of the respondents it has been admitted that the land of the petitioner's predecessor-in- interest was acquired for development of residential and commercial sectors in Hisar, vide award No.11 dated 17.03.1986; the petitioner applied for allotment of a plot in Sector 13 (Part), Hisar; no vacant plot is available in Sector 13 (P), Hisar; and have prayed for dismissal of the instant writ petition on the ground that the same is barred by limitation.
We have heard learned counsel for the parties and have perused the record.
On behalf of the petitioner it is argued that number of plots are lying vacant and are available for allotment in Sector 13 (P), Hisar but claim of the petitioner is not being considered against those plots for no justifiable reason. According to the learned counsel, the stand taken by the respondents in the written statement to the effect that no plot is available in Sector 13 (P), Hisar, is false in view of the information received by the petitioner under the Right to Information Act, which reveals that a number of plots are available there.
On behalf of the respondents, stand taken in the written statement is reiterated and it is submitted that there being no plot available in Sector 13 (P), Hisar, for which land of the petitioner's predecessor-in-interest was acquired, claim of the petitioner could not be considered.
Nothing more has been urged on either side.
Virender Singh Adhikari 2014.01.14 18:56 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.17853 of 2007 -6- A perusal of the record reveals that on 30.10.2008 it was submitted on behalf of the petitioner that the stand of the respondents that no plot in Sector 13 (P), Hisar, is available, is wrong insofar as plot No.1609, Sector 13 (P), Hisar, was allotted to Virender Singh and Surinder Singh on 22.07.2005. In view of this assertion respondents were directed to produce the record concerning oustee quota plots as also the record showing availability of vacant plots. On the adjourned date, i.e., 03.11.2008, it was pointed out on behalf of the respondents that Plot No.1609, Sector 13(P), Hisar, was allotted to one Bimla Devi under decree of the civil court and that plot was sold by her to Virender Singh and Surinder Singh on 22.07.2005. However, learned counsel for the respondents could not controvert the information dated 14.02.2007 (Annexure P-10) showing that three different sizes residential plots, one measuring 50 Sq. Yards, second plot measuring 100 Sq. Yards and third measuring 207 Sq. Yards, resumed by the respondents, were available for allotment.
On the other hand, learned counsel for the petitioner stated that the petitioner was inclined to accept even said 207 Sq. Yards plot even though it was half of the size of the plot she is entitled to. The matter was, however, adjourned with a direction to counsel for respondent Nos.2 to 4 to file a specific affidavit disclosing number of plots lying vacant in Sector 13 (P), Hisar, in addition to what is stated in Annexure P-10. Respondent No.3 was also directed not to allot plot measuring 207 Sq. Yards referred to hereinbefore.
Pursuant to afore-stated direction affidavit of Pankaj Chaudhary (HCS) Estate Officer, HUDA, Hisar, was placed on record, according to which Virender Singh Adhikari 2014.01.14 18:56 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.17853 of 2007 -7- following plots were stated to be lying vacant and available for allotment in Sector 13 (P), Hisar:-
A. Plot No.586, Sector-13 (Part), Hisar measuring 50 Sq.
Yards.
B. Plot No.614, Sector-13 (Part), Hisar measuring 50 Sq.
Yards.
C. Plot No.646, Sector-13 (Part), Hisar measuring 50 Sq.
Yards.
D. Plot No.1178, Sector-13 (Part), Hisar measuring 100 Sq. Yards, but the payment of refund not made yet. E. Plot No.439(P), Sector-13 (Part), Hisar measuring 207 Sq. Yards as per allotment letter but plot is less than allotted area and un-shape in size i.e. 178.45 Sq. Yards. F. Plot No.651 to 656, Sector-13 (Part), Hisar, measuring 50 Sq. Yards vacant and marked in the ledger of Sector 13 (Part), Hisar, reserve in Economically Weaker Section.
Not only this, petitioner has placed on record memorandum dated 03.06.2010, according to which plot No.513, Sector 13(P), Hisar is lying vacant. During the course of hearing, it has been stated that area of this plot is approximately 350 Sq. Yards.
While it is not in dispute that the petitioner is entitled to a plot measuring 500 Sq. Yards or say one kanal plot, the stand taken by the respondents that no plot is available in Sector 13(P), Hisar, is found to be false. Virender Singh Adhikari 2014.01.14 18:56 I attest to the accuracy and integrity of this document High Court Chandigarh C.W.P. No.17853 of 2007 -8- Reasons for giving false information are not understandable. The only inference that can be drawn from the wrong averments made in the written statement by the respondents is that they want to forfeit the right of the petitioner to allotment of a plot and thereby to deny her the protection of Article 21 of the Constitution of India, which cannot be permitted.
Without commenting any further, we dispose of this writ petition with a direction to the Estate Officer, HUDA, Hisar, to consider the claim of the petitioner for allotment of a plot to her out of the available plots, including plot No.513, Sector 13 (P), Hisar, as per her entitlement. If a plot of her entitlement is not available in Sector 13(P), Hisar, claim of the petitioner shall be considered against the plots as per her entitlement available in a sector adjoining Sector 13 (P), Hisar or against a plot nearest to the measurement of plot of her entitlement in Sector 13(P), Hisar. The exercise shall be completed expeditiously but not later than three months from the date of receipt of a certified copy of this order.
No costs.
(SATISH KUMAR MITTAL) (MAHAVIR S. CHAUHAN)
JUDGE JUDGE
17.12.2013
adhikari
Virender Singh Adhikari
2014.01.14 18:56
I attest to the accuracy and
integrity of this document
High Court Chandigarh