Punjab-Haryana High Court
M/S Kaushik Surgical Industries vs State Of Haryana & Ors on 10 January, 2014
Bench: Surya Kant, Surinder Gupta
HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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CWP No.5778 of 1999 (O&M) Date of Decision: 10.01.2014 **** M/s Kaushik Surgical Industries . . . Petitioner vs. State of Haryana & Ors. .... Respondents **** CORAM : HON'BLE MR.JUSTICE SURYA SURYA KANT HON'BLE MR. JUSTICE SURINDER GUPTA ****
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
**** Present: Mr. Girish Agnihotri, Senior Advocate with Mr. Naveen S. Bhardwaj, Advocate for the petitioner Mr. Kamal Sehgal, Addl. AG Haryana Mr. JP Bhatt, Advocate for HUDA **** SURYA KANT J.
(1) The petitioner, as a sole proprietorship concern, purchased 1/6th share of the land measuring 1 bigha - 5 biswa in Khewat No.240 Khata No.413 Khasra No.495 in village Khandsa, District Gurgaon vide registered sale deed dated 23rd August, 1982. The aforesaid land was situated within an 'industrial area' where the petitioner also set up a small scale industrial unit for manufacturing the surgical equipments like cotton, bandages and other allied products. The industry was set up under the 'Rural Industry Scheme' floated by the Haryana Government. It was duly registered as a small scale industry vide registration No.05/02/25755/RIS/PMT dated 25.11.1984.
The petitioner also obtained drug licence dated 16.03.1985 from the Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 -2- State Drug Controller. Other requisite permissions were also granted to it.
(2) The State of Haryana vide a notification issued in November, 1993 under Section 4 of the Land Acquisition Act, 1894 (in short, 'the Act') proposed to include the petitioner's land for acquisition. The petitioner filed objections under Section 5A of the Act, followed by a representation and on consideration thereof, the Director, Town and Country Planning vide order dated 09.04.1986 (Annexure P1) released the petitioner's land from acquisition. (3) The petitioner thereafter is said to have expanded its business and started manufacturing rubber components for auto control cables and supplied it to different auto industries. (4) The State of Haryana, however, issued another notification dated 22nd July, 1996 (Annexure P6) under Section 4 of the Act proposing to acquire land of villages Khandsa and Khadipur to utilize it "for commercial/Local Shopping Centre, Sector 10A, Gurgaon". The proposed acquisition included the petitioner's land and factory as well. The petitioner contacted the office of Administrator, Urban Estate, Gurgaon who informed him that the petitioner's land though was exempted from acquisition earlier in lieu of which the petitioner was required to execute an agreement for payment of development charges for road parking etc., which were not deposited by it, hence the land was again proposed to be acquired. The petitioner immediately represented to the authorities that it had executed the agreement and Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 -3- submitted the same to the office of Director, Urban Estates. The petitioner's proprietor, however, executed another agreement with respect to the exemption and re-submitted the same in the office of the Administrator, Urban Estate, Gurgaon on 05.03.1997 (Annexure P7). He thereafter represented to the Land Acquisition Collector on 30th April, 1997 but was statedly informed by the authorities that with the expansion of residential zone of Gurgaon, he would not be allowed to run the factory nor his entire land would be exempted save the two Shop-cum-Offices sites, to be carved out at the site of his factory which would be allotted to him and in lieu thereof, a small part of its land would be needed to straighten the other plot(s). For this purpose, a site plan was prepared showing the area under existing structure, proposed area of the Shop-cum-Offices and the area proposed to be taken from the petitioner or to be given to HUDA for straight alignment of the Shop-cum-Offices sites. (5) The petitioner was asked to give his consent which he gave in writing on 20.10.1998 (Annexure P10). Meanwhile, Section 6 notification had also been issued on 08.05.1997. Since the respondent-authorities did not withdraw the aforesaid notifications nor formalized and finalized the commitment/settlement arrived at between them and the petitioner compelling the latter to approach this Court.
(6) The Land Acquisition Collector, Urban Estates, Gurgaon has filed the written statement on behalf of respondents 1 to 3 taking Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 -4- a preliminary objection that a small pocket of land measuring 0.13 acres has been re-acquired for integrated planning of the 'commercial belt' of Sector 10A. Para 3 of the reply on merits of the written statement reads as follows:-
"That in reply to para No.3 of the writ petition, it is submitted that the notification u/s-4 of the L.A. Act was issued on 22.7.96. The petitioner did file any objection u/s-5-A within limitation of the L.A. Act. Consequently, the joint site inspection committee jointly visited the site and it was found that the building structures which was lying abandoned at the time of section-4 has now been occupied by adding some rooms. Front portion is being used as a residence and the rear portion has been sublet where a factory with some light machinery is functioning. Rest of the contents of this para are denied for want of knowledge."
(7) In para 4 of the written statement, it is admitted that the land of the petitioner was earlier released vide order dated 09.04.1986 (Annexure P1) with a further acknowledgement in para 6 that the land has been re-acquired as per revised lay out plan as it was "adversely affecting the planning of commercial pocket...". (8) The petitioner has filed replication to controvert the respondent's stand that the factory was not in a running condition. The assessment orders passed by the Excise and Taxation Department, acknowledgement receipts of the Sales Tax deposits and Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 -5- the returns filed by the petitioner on year-to-year basis have been placed on record collectively as Annexure P13. (9) This Court vide order dated 30.04.1999 stayed the petitioner's dispossession and made the said interim order absolute on 12.01.2001. The interim stay is operative till date. (10) It appears that this case was listed before the Permanent Lok Adalat of this Court on 09.05.2005 when the petitioner relied upon the order dated 21.08.2003 whereby its adjoining land which was measured at least 4 times more than that of the petitioner had been ordered to be released from acquisition. The Permanent Lok Adalat thus asked the State counsel to have instructions if a similar relief can be granted to the petitioner as well. As the authorities expressed their inability to release the petitioner's land, the Permanent Lok Adalat returned the case for its decision on merits. (11) Before dwelling upon the merits of the case, it may be noticed that the petitioner's averment to the effect that the authorities agreed to his representation of utilizing a part of its land for development of the commercial site along with the parking area and in lieu thereof further agreed to release two Shop-cum-Office sites in petitioner's favour which were of course to be carved out of his acquired land, is not a mere bald statement and stands substantiated from the copy of memo dated TP-98/18310 dated 03.11.1998 (Annexure A1) sent by the Administrator, HUDA, Gurgaon to the Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 -6- Chief Administrator, HUDA, the relevant part whereof, reads as follows:-
"My predecessor along with Senior Town Planner, Gurgaon & District Town Planner (HUDA) had visited the site and also tried to persuade the owner for compromise with HUDA so that planning may not disturb, but since at that time he did not agree for the same, Joint Site Inspection Committee sent its report vide this office memo No.TP-98/5738 dt. 6.4.98 and recommended acquisition of the land. Now, since I have personally talked to the applicant and he is ready to leave the land acquired for parking/pavement etc. (his consent letter enclosed). In view of the injustice being done to the applicant by firstly releasing his land and later re-acquiring it, it is recommended that the land shown in colour 'Blue' as given at Annexure A may be acquired and the land shown in colour 'Green' may be released from acquisition. Besides this, it is also recommended that the land of the applicant shown in colour 'blue' may be exchanged with that of HUDA land shown in colour 'black' as at Annexure B, so that the applicant will have land of only two shop-cum-office sites and accordingly he will be restricted to do his building activity within these two shop-cum-office sites i.e. No.14B & 14C. The external controls applicable in the area shall also be applicable on the applicant's land and accordingly, he shall maintain the prescribed size of veranda on both the sides i.e. on front and rear. In the give and take proposal, since the land of the applicant Vishal V require is more that the HUDA land proposed to be 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 -7- given to the applicant. The land cost of the excess land shall also be paid to the applicant as per the Collector's rate."
(Emphasis by us) (12) The aforesaid proposal was acceptable to the petitioner but the authorities at the highest level rejected these recommendations. (13) The plea taken by the Land Acquisition Collector in para 3 of the written statement that the building structure was found lying abandoned when it was inspected by the Joint Spot Inspection Committee or that a small level factory was functioning on the rear side stands belied by the Assessment Orders passed under the Haryana General Sales Tax Act, 1973 for the assessment years 1997- 98 and Form ST-9 regarding filing of returns of Sales Tax payable for different quarters during the year 1998-99. Form ST9 reveals that the gross turn-over in every quarter was above Rs.3 lacs for which the petitioner-firm was duly assessed and the tax deposited. The photographs of the machinery installed by the petitioner appended with the writ petition as well as those subsequently placed on record (Annexure A2) have also gone uncontroverted and it can be safely inferred therefrom that the petitioner-firm is running a functional industrial unit though it has a residential unit also on the part of its land.
(14) Learned counsel for the parties were heard at some length on 11.09.2013 when we went through the lay-out plan of the commercial belt of Sector 10A as well as the exact location of the Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 -8- petitioner's land. It was also pointed out that the adjoining land of one Amrit Lal s/o Jagan Nath which was much bigger in size than that of the petitioner had since been released in his favour through his GPA. The demarcation plan produced by the respondents also revealed that while a part of the petitioner's land is needed for the open parking in front of the Shop-cum-Offices sites, more than half of its land is required for development of at least three Shop-cum-Office sites (fully or in part), besides a service-road in front of those sites. As against it, the land of Amrit Lal was required, more than three times that of the petitioner's land, for the purpose of parking for six Shop- cum-Offices sites (fully or in part), another parking area on the rear side of the SCOs and for a minimum of 5 residential plots measuring 10 marla each.
(15) It was in this factual backdrop that the following order was passed on 11.09.2013:-
The petitioner's land was initially released from acquisition in the year 1986 but again was acquired in the year 1996 for the purpose of providing parking and open space in the commercial area of Sector-10A, Gurgaon.
We have perused the site plan produced by the respondents.
In our considered view, a portion of the petitioner's land is undoubtedly required for the parking area and the same can not be released. However, more than half of his land falls within the area earmarked for shop-cum-offices and is Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 -9- equivalent to Site Nos.13 & 14 of shop-cum-offices. The land of the petitioner, thus, to the extent of those two sites can be released while the remaining can be utilized for the notified 'public purpose'. Learned counsel for the petitioner has also produced a photocopy of the letter dated 21.08.2003 to show that in identical circumstances and in the same area, the land of Amrit Lal son of Sh.Jagan Nath was released by allotting him show-room site Nos.9 &10 besides two residential plots.
Learned State counsel shall have instructions in this regard."
(16) Learned State counsel on the basis of written instructions received from the Directorate of Urban Estates, Haryana vide memo dated 21.09.2013, however, expressed inability to agree to the proposal mentioned in the order dated 11.09.2013 pointing out that though the land of Amrit Lal s/o Jagan Nath was initially released vide memo dated 21.08.2003 but the matter was re-considered and the release order was subsequently withdrawn. The respondents have assigned yet another reason in the instruction dated 21.09.2013 for not releasing the petitioner's land in part saying that -
"Regarding the release of land of the petitioner, comments from HUDA have been taken. It has been reported that the petitioner is having a factory on his land which is located in the commercial belt of the layout plan of sector 10-A Gurgaon, which is a non- conforming use in the commercial area. It is affecting Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 - 10 - the commercial sites of HUDA and the parking area and hence, it cannot be considered for release."
(17) Since the respondents came up with a new plea that the petitioner's land was located in the commercial area and it was being used for "non conforming use", the Director General, Urban Estate was directed to file an affidavit giving details of all the non-residential structures/properties which they had released in Sectors 10, 10A, 37, 37A and 37C at Gurgaon. The aforesaid information was sought as the petitioner's land was also acquired for development of commercial part in Sector 10A while the other sectors are the adjoining sectors. (18) Thereafter, learned State counsel stated on 06.12.2013 that the matter regarding the allotment of one SCO site to the petitioner was still under consideration. It was, therefore, directed that an appropriate decision may be taken. He, however, later on expressed his inability in allotting even one site to the petitioner. Meanwhile, the Director General, Urban Estate, Haryana in compliance to our order dated 23.09.2013 filed an affidavit dated 08.10.2013 mentioning the release of following non-residential properties located in the residential/industrial sectors:-
"That in compliance of above direction, following is submitted please:-
(i) In the published final development plan of Gurgaon-Manesar Urban Complex 2031 AD, Sector-10 is earmarked for residential use and part of its is earmarked for commercial use. As per official record, Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 - 11 - in this sector the Government has not released any non- residential structure/properties.
(ii) In the published final development plan of Gurgaon-Manesar Urban Complex 2031 AD, Sector 10-
A is earmarked for residential use. In this sector, the Government had released the following non-residential structures/properties:-
Sr. Released in Released Sector Purpose
No. the favour of order/area Nos.
1. Dalip Singh Memo No.3655 10-A Non
dated 09.12.1985 residential
(1K-18M) (Factory)
(iii) In the published final development plan of Gurgaon-Manesar Urban Complex 2031 AD, Sector 37 is earmarked for industrial use. In this sector the Government had released following non residential structures/properties:-
Sr. Released in Released Sector Purpose
No. the favour of order/area Nos.
1. Amar Singh Memo No.18896 37 Industrial
Bhatti dated 04.05.1982
2. Lt.Gen. ML Memo No.1387 37 Poultry
Thapan dated 02.11.1983 farming
(48K-18M)
3. Gunwati Devi, Memo No.512 dated 37 Industrial
Arti Singh 10.03.1986 (2
Bigha 10 Bishwa)
4. M/s Rajindra Memo No.4054 37 Industrial
Steels & dated 18.12.1990
Rolling Mills (48K-18M)
5. Hema Memo No.3210 37 Industrial
Engineering dated 24.10.1991
(5 bigha 5 biswa)
6. Govardan Memo No.5 dated 37 Industrial
Dass 01.01.2003
(2.6 acres)
7. Shiv Kumar Memo No.3034 37 Industrial
Malani dated 07.04.2004
(2200 sq.yds)
In respect of cases mentioned from sr.No.1 to 3, although declaration of under Section 6 of the Act was Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 - 12 - issued but since the released order was issued, hence no award was announced."
(19) Consequently, learned counsel for the parties were heard on merits.
(20) It emerges out from the facts noticed above that the petitioner-firm purchased the land and set up a small scale rural industry in the year 1984 in an industrial belt of the rural area of village Khandsa. It was neither a 'residential zone' nor 'commercial' and the small scale industrial unit was set up in a lawful manner after obtaining the requisite permission and licence etc. (21) The residential Sector 10A itself was conceptualized subsequently for which Section 6 notification was issued somewhere in the year 1985-86 and the petitioner's land was consciously exempted from such acquisition vide memo dated 09.04.1986. (22) To say it differently, it is not a case where the petitioner installed a small scale, non-polluting, industrial unit in a residential area. Rather it were the respondents who had expanded the residential zone of Gurgaon that included the petitioner's land in village Khandsa where finally the residential Sector 10A was developed.
(23) It is also an admitted fact that the petitioner's released land did not obstruct the conceptualization or development of the residential Sector 10A. It was after a gap of 10 years that the respondent-authorities decided to capitalize the unacquired parcels of Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 - 13 - land falling in Sector 10A purely on profit consideration by developing it as a commercial belt. Consequently, the petitioner's as well as the land of other similarly placed persons like Amrit Lal s/o Jagan Nath was acquired. The respondents' own case is that at the time of re- acquiring, the petitioner was found having a residential unit and a small scale functional industry on the rear side of the plot. (24) It is also undeniable that during the pendency of this writ petition, the State of Haryana formulated a policy dated 26.10.2007. Clause-3 deals with the release of house/building or other structures which are found in existence at the time of issuance of Section 4 notification. The relevant part of the policy reads as follows:-
"1) No request will be considered after one year of award. Only those requests will be considered by the Government where objections under Section 5-A were filed.
2) Any request or application where structures have been constructed will only be considered for the release under Section 48 (1) provided the structure exists prior to section 4 and is inhabited.
3) Any factory or commercial establishment which existed prior to Section 4 will be considered for release.
4) Any religious institution or any building owned by community will also be considered for release.
5) xxx xxx xxx
6) xxx xxx xxx
Provided that xxx xxx xxx
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(25) The above reproduced part of the policy has been held to be
enforceable by the Supreme Court in Patasi Devi versus State of Haryana and others, (2012) 9 SCC 503.
(26) We, however, neither wish to comment nor this order shall be construed as an approval of Clause 5 & 6 of the above-stated policy and the said issue is kept open, to be dealt with in an appropriate case.
(27) On a literal interpretation and effect of the above-stated policy, it is inarguable that the petitioner would be entitled to the release of the entire constructed portion which necessarily includes the factory building as well as the residential unit, admittedly found in existence at the time of issuance of Section 4 notification. However, having been apprised of the fact that the site of the petitioner's land is proposed to be developed as a commercial belt and the adjoining area has already been converted into a commercial market, we are of the considered view that instead of giving effect to the above-stated policy decision, it was deemed expedient to direct the respondents to consider the desirability of releasing the petitioner's land to the extent of SCO sites No.13 & 14 and acquire the remaining land to be utilized for the notified public purpose. The respondents, however, did not agree even to the release or allotment of one SCO to the petitioner in lieu of the acquired land.
(28) In our considered view, the action of the respondents in not releasing even a part of the petitioner's land is patently Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 - 15 - discriminatory, a colourable exercise of power and abuse of the doctrine of eminent domain, for the unjust enrichment of HUDA. (29) We say so firstly for the reason that the land of Amrit Lal s/o Jagan Nath which was more than 5 times bigger than that of the petitioner was ordered to be released but having realized that it would advance the petitioner's cause to conclusively establish it a case of hostile discrimination, the release order was withdrawn. Secondly, the affidavit filed by the Director General, Urban Estate unfolds that non-residential properties in the residential Sector 10A have also been released in the past. Thirdly, neither the Lok Adalat nor this Court ever intended to release the petitioner's land or to allow him to run the industry. The suggestions and directions were issued with the avowed object that since the petitioner was being deprived of its only source of livelihood and that too for the purpose of commercial exploitation of its land, that the respondents must provide some alternative source of livelihood to the petitioner which could have been conveniently done by allotting the shop-cum-office, proposed to be carved out on half of the petitioner's land. In this manner, the remaining land of the petitioner could still be utilized for the notified or allied public purposes. The respondents, however, appear to have been swayed by the fact that the commercial sites would fetch them a huge premium as against not even the peanuts paid to the affected land owners.
Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 - 16 - (30) The acquisition for commercial venture cannot be taken on the same pedestal as the acquisition for public utilities in larger public interest. That apart, the respondents, having taken a policy decision, are obligated to implement the same in its true letter and spirit. It was with a view to strike a balance between the claim of both the parties that only a part of the petitioner's land to be utilized only for commercial purposes, namely, conforming to the commercial zone of the belt, that the matter was directed to be re-considered. The respondents, however, for the reasons best known to them have rejected the petitioner's claim on pick and choose basis, without assigning any special reason as to why other non-residential properties had been released in the past.
(31) The mere payment of compensation is not the only effective solace to a person who is being deprived of his source of livelihood as well as the social security of a residential house. The petitioner may not be able to buy even a single room accommodation on payment of the so-called compensation amount to be offered by the respondents. It was after realizing this extreme hardship that the policy decision was taken which the respondents are reluctant to implement perceiving that the petitioner would be unduly enriched if the commercial sites were allotted to its proprietor. The same reason, however, the respondents have failed to apply to themselves. The action of the respondents thus is totally unfair, unjust and per se arbitrary.
Vishal V 2014.03.06 15:48 I attest to the accuracy and integrity of this document CWP No.5778 of 1999 - 17 - (32) For the reasons afore-stated, we allow this writ petition in part and taking into consideration the totality of the circumstances and the fact that one site would be reasonable enough to earn livelihood, we direct the respondents to release the petitioner's acquired land equivalent in dimensions to the shop-cum-office site in Sector 10A i.e. SCO No.13 or 14 subject to, however, the condition that the petitioner shall utilize the said site conforming to the notified zone and shall not run any industrial unit nor shall use the same for residential purpose. The petitioner shall also be liable to pay development charges for the released site of one of the SCO but nothing more than that. The acquisition qua the petitioner's remaining land is upheld. It is, however, directed that the petitioner shall not be dispossessed of the acquired land till the release order as directed above is passed.
(33) If the above-stated land is released, in that event the petitioner shall not be entitled to any additional benefit as an 'oustee' except compensation for the acquired land.
(34) Ordered accordingly. Dasti.
(Surya Kant)
Judge
(Surinder Gupta )
10.01.2014
vishal shonkar
Judge
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