Punjab-Haryana High Court
Sanjeev Kumar vs State Of Haryana & Ors on 19 December, 2008
Author: Surya Kant
Bench: Surya Kant
C.W.P. No. 8329 of 1990. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH.
C.W.P. No. 8329 of 1990.
Date of Decision: 19th December, 2008.
Sanjeev Kumar Petitioner through
Mr. C.B.Goel, Advocate
Versus
State of Haryana & Ors. Respondents through
Mr. R.D.Sharma, Sr. DAG, Haryana
Mr. Sandeep Kotla, Advocate with
Mr. T.C.Gupta, CA, HUDA, Haryana.
CORAM:
HON'BLE MR. JUSTICE SURYA KANT.
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?
SURYA KANT, J.
This order shall dispose of CWP Nos. 8329, 8330 of 1990, 3783 of 1992 and 18502 of 2002 as common questions of law and facts are involved in these cases. The petitioners in these cases seek quashing of notifications dated 23rd February, 1989 [Annexure P-2 and dated 22nd February, 1990 [Annexure P-5] issued under Sections 4 and 6 of the Land Acquisition Act, 1894 [for short 'the Act'] respectively whereby their lands situated within the revenue estate of Turf Insar, and Patti Maqdum Jadgan, falling within the municipal limits of Panipat, have been acquired for the "public purpose" of "development and utilization" as 'residential and commercial area for Sector 17 at Panipat' under the Haryana Urban Development Authority Act, 1977.
A brief reference to the facts pleaded by each of the petitioners may be made. In CWP No. 8329 of 1990, the petitioner's land measuring 2195 square yards is under acquisition. The C.W.P. No. 8329 of 1990. ::-2-::
petitioners' case is that land measuring 3529 square yards [including the acquired land] and building constructed there upon was purchased by him vide sale deed dated 31.8.1970 and he is running a small scale industrial unit known as M/s Ispat Udyog which is duly registered with the Industries Department, Haryana since the year 1970. His grievance is that the impugned acquisition would cause closure of the petitioner's source of livelihood.
In CWP No. 8330 of 1990, the petitioner purchased land measuring 1252 square yard in a public auction and has set up a functional Industrial unit, known as M/s Nirman Bharat Engineering Works. The petitioner's grievance is that the acquisition would necessarily mean closure of the said Industrial Unit and consequential deprivation of his source of livelihood.
In CWP No. 3783 of 1992, the petitioners own land measuring 5540 square yards and according to them, a boundary wall upto 8 feet high above the plinth level along with a room and tubewell had been constructed. The petitioners, who are residents of Ludhiana [Punjab ] are stated to have purchased the afore-stated land to establish an industrial unit.
In CWP No. 18502 of 2002, the total land under acquisition is 4 Bighas 11 Biswas where the Industrial Units, Vijay Chemicals Works and Aggarwal Chemicals, Panipat, have been set up for manufacturing C-1 Casting.
It is indeed not in dispute and appears to have been correctly depicted by the HUDA authorities in the Development Plan of Sector 17, Part-III, Panipat that the lands involved in CWP Nos. C.W.P. No. 8329 of 1990. ::-3-::
8329, 8330 of 1990 and 18502 of 2002 are abutting either the National Highway - G.T.Road or are located near thereto, while the land in CWP No. 3783 of 1992 is also closely located and is abutting another main road of the City. According to the stand taken by the respondent - HUDA, the petitioners' lands are required to be utilized for a specific public purpose of providing 'green belt' on the G.T.Road/main City road.
When these writ petitions were taken up for final disposal after a long period of time, there was a serious discord between the parties regarding the present status of the lands, or the scope of their utility for the alleged public purpose. Consequently, the parties were permitted to file fresh additional affidavits and/or documents so that the subsequent events, if any, could be taken into consideration while deciding these cases.
The HUDA authorities, have also been impleaded as party-respondents and have filed their reply - affidavits. In addition, a copy of the proceedings of the Committee constituted by the Chief Administrator, HUDA, Panchkula [Annexure R-1] has also been placed on record, reflecting the present status of the petitioners' land as under:-
[I] "CWP No. 8329 of 1990 [Sanjeev Kumar v State of Haryana:-
[a] Area:-[i] Total Area:- The total area of the site in Khasra Nos.759/3, 760/1 is 2B-2B-11B, i.e., 2195 sq. yards.
[ii] Released Area:- Nil [iii] Area acquired:- Notification u/s 4 dated 23.02.1989 and notification u/s 6 dated 22.2.1990 and the award is C.W.P. No. 8329 of 1990. ::-4-::
pending due to stay.
[b] Year of construction:- 1970 and ST Nos. issued in the year 1971.
[c] Previous Status of unit:- The unit namely Ispat Udyog was running upto 2003.
[d] Present status:- At present a Banquet Hall, namely, Apeksha Garden is running w.e.f. 2003 to till today after modification and reconstruction of previous structures. [e] Nature and class of construction:- B class construction with AC/GI sheet roofing. [f] Green belt along G.T.Road [NH-1] :- The green belt stand planned in the layout plan of the Sector and 650 sq. yard land falls in green belt.
[g] Municipal limits:- The land of the plaintiff falls in the extended municipal limits.
[h] Planning Status:- Green belt is planned along G.T.Road in the layout plan of the Sector.
[ii] CWP No. 8330 of 1990 [M/s Nirman Bharat Engineering Works v State of Haryana:- [a] Area:-[i] Total Area:- The total area of the site in Khasra No.3875 is 1B-5B, i.e., 1282 sq. yards. [ii] Released Area:- Nil [iii] Area acquired:- Notification u/s 4 dated 23.02.1989 and notification u/s 6 dated 22.2.1990 and the award is pending due to stay.
[b] Year of construction:- 1970.
[c] Previous Status of unit:- The unit namely M/s Nirman Bharat Engineering Works was running upto 2004.
[d] Present status:- At present Shri Radhey Polly Fab. is running w.e.f. 2004 which has been rented out by the owner vide rent deed dated 28.2.2004 to his son as told by the owner.
C.W.P. No. 8329 of 1990. ::-5-::
[e] Nature and class of construction:- B class construction with AC/GI sheet roofing. [f] Municipal limits:- The land of the plaintiff falls in the extended municipal limits.
[iii] CWP No. 18502 of 2002 [Puran Chand Aggarwal v State of Haryana:-
[a] Area:-[i] Total Area:- The total area of the site in Khasra Nos.759, 760 and 761min is 4B-11B. [ii] Released Area:- 3B-1B [iii] Area acquired:- 1B-10B, i.e., 100 feet x 135 feet = 1500 sq. yard which falls in green belt along G.T.Road [NH-1] vide Notification u/s 4 dated 23.02.1989 and notification u/s 6 dated 22.2.1990 and award No.12/13 dated 21.2.1992.
[b] Year of construction:- 1961 [c] Previous Status of unit:- The unit is running and manufacturing CI Casting.
[d] Nature and class of construction:- B class construction with AC/GI sheet roofing. [e] Green belt along G.T.Road [NH-1] :- The green belt stand planned in the layout plan of the Sector and 1500 sq. yard land falls in green belt.
[f] Municipal limits:- The land of the plaintiff falls in the extended municipal limits.
[h] Planning Status:- Green belt is planned along G.T.Road in the layout plan of the Sector. [iv] CWP No. 3783 of 1992 [M/s Charan Dass & Ors. v State of Haryana:-
[a] Area:-[i] Total Area:- The total area of the site in Khasra Nos. 5483/3858/2/1 is 5B-10B, i.e., 5546 sq. yards.
[ii] Released Area:- Nil [iii] Area acquired:- Vide Notification u/s 4 dated 23.02.1989 and notification u/s 6 dated 22.2.1990 and C.W.P. No. 8329 of 1990. ::-6-::
award No.12/13 dated 21.2.1992.
[b] Year of construction:- The total land is lying vacant. [c] Municipal limits:- The land of the plaintiff falls in the extended municipal limits.
[h] Planning Status:- Green belt is planned along G.T.Road in the layout plan of the Sector".
The petitioner in CWP No. 8329 of 1990 has also filed an additional affidavit dated 19.11.2008 and paras 3 and 4 thereof being relevant to the issue, are reproduced as under:-
"3. That at the time when the writ petition was filed the petitioner has raised construction of A Class where the petitioner has established a factory under the name and style of Ispat Udyog and the said factory continued running till 2001-02. The industry was registered as a Small Scale unit with the Industry Department, Haryana.
4. That on account of the circumstances of the family of the petitioner, the petitioner closed the industry and established a marriage palace and obtained the licence from the Municipal Council to run the marriage palace. The licence is granted on yearly basis. The first licence was issued for the period from 1.4.2003 to 31.3.2004 and subsequently, the petitioner had been obtaining the licence from the Municipal Council regularly and now the licence which is in force is for the period from 1.4.2008 to 31.3.2009. It will not be out of place to submit that initially the name of the garden was M/s Vaishalik Garden, however, the name of the Marriage Palace was later on changed to M/s Apeksha Garden, named after the daughters in the family of the petitioner".
The affidavit further explains that after the construction of Fly Over in Panipat, there is no necessity to develop a Green Belt and that the petitioners are being subjected to hostile discrimination C.W.P. No. 8329 of 1990. ::-7-::
as the lands of similarly situated persons including that of Dhara Singh and others, who challenged the acquisition in CWP No. 7069 of 2003 decided on 29.7.2005 [Annexure P-10], have been released by the respondents.
In CWP No. 8330 of 1990 also, the petitioners have filed an additional affidavit dated 19.11.2008 and paras 3, 4 and 5 thereof read as under:-
"3. That at the time when the writ petition was filed, the petitioners had raised construction of A Class as detailed in para no. 2 and 3 of the writ petition, where the petitioners had established a factory under the name and style of M/s Nirmal Bharat Engineering Works, which was a partnership firm. The said Industry was registered with the Industries Department, Haryana as detailed in para no. 4 of the writ petition and the firm was also registered with the Haryana Sales Tax Department, as detailed in para no. 5 of the writ petition. The industry of the petitioners continued functioning till January, 2004. The petitioners' firm consisted of two partners, namely, Ved Parkash, the deponent and his mother Smt. Darshana Devi.
4. That as the children of the family had grown up and in order to settle them, a new firm under the name and style of M/s Shree Radhey Poly Fab was constituted with two partners, namely, Parmod Kumar Mittal son of Shri Khubi Ram Mittal and Aman Mittal son of Ved Parkash Mittal [the deponent]. Parmod Kumar Mittal is the real brother of the deponent. Accordingly, the factory premises were given on lease to the newly created partnership firm vide rent deed dated 18.2.2004. A copy of the partnership firm and photo copy of the rent deed are enclosed as Annexures P6 and P7 respectively.
5. That the firm referred to above is now running an C.W.P. No. 8329 of 1990. ::-8-::
industry for manufacturing of all kinds of LDPE/HDPE Black Sheets, Tarpaulins, Covers, Granuls, and lamination of all types of fabrics, craft paper etc. and the turn over the firm is about Rs.3 crores. The industry is registered with the Industries Department as a small scale unit and is also registered with the Sales Tax Department, Haryana".
The petitioners in CWP No. 18502 of 2002 have also placed on record a copy of the site plan [Annexure P-33] and photographs [Annexures P34 to P36].
I have heard learned counsel for the parties at some length and perused the records including the additional affidavits, refereed to above. In my considered view, the petitioners' contention that with the construction of the elevated Highway or Fly Over, the necessity of providing green belt abutting G.T.Road in Panipat has disappeared, carries no weight and merits rejection. The emission by the vehicular traffic coupled with its rapid growth as a hub of industries, Panipat requires urgent and effective measures before it is totally engulfed with dust and smoke. The Green Belts undoubtedly can serve as lungs and provide cushion to the needed steps.
Equally true is the fact that even according to the respondent authorities, the entire lands of the petitioners are not required for developing the green belt. In the absence of any other disclosed public purpose for which the acquired land may be utilized, it appears that while the petitioners' industrial units and/or the on- going business activities can be effectively saved without compromising with the cause of 'public purpose' which is of C.W.P. No. 8329 of 1990. ::-9-::
paramount public importance. What should be the length and width of a green belt or where and how the same is to be developed, is an experts' job. The court, for want of expertise and knowledge, ought to leave this task for the authorities who are obligated to take up such like welfare measures. However, there appears to be some weightage in the petitioners' claim based upon the order dated 29.7.2005 [Annexure P-10] whereby the land of a similarly situated person, namely, Dhara Singh has been released by the respondents.
If that land was also forming part of the 'green belt', it is not understandable as to how the green belt can be developed in pieces? All these questions are required to be gone into by the respondent-authorities in an objective and dispassionate manner. However, in order to obviate hardship to the parties and not to leave the things in uncertainty, it is directed that only that part of the petitioners' lands would be acquired or taken into possession which is required for the purpose of developing the green belt. Since the excess land is not proposed to be utilized for any other specified public purpose, no inconvenience would be caused to the respondents nor would the notified public purpose be frustrated if such excess land is released in favour of the petitioners on the same pattern as has been done in the case of Dhara Singh and others. Besides the Green Belt, the respondents will be well within their right to utilize a part of the acquired land of the petitioners where an Old Age Home has been desired to be established. It is made clear that the above-stated additional land shall be utilized for the purpose of construction of Old Age Home only and not for any commercial C.W.P. No. 8329 of 1990. ::-10-::
venture.
For the reasons aforementioned, these writ petitions are disposed of with a direction to the Chief Administrator, HUDA, Panchkula to constitute a Committee of senior officers to be headed by an officer not below the rank of Administrator, HUDA, who may visit the spot, hear the petitioners' grievance and thereafter re- determine as to how much land is required for the public purpose, i.e., Green Belt or establishment of an Old Age Home. The writ petitions qua the land which is required for the aforementioned purposes shall be taken to have been dismissed, whereas the left out land not required for the aforementioned public purpose shall stand released in favour of the petitioners.
Disposed of accordingly. No costs.
December 19, 2008. ( SURYA KANT ) dinesh JUDGE