Punjab-Haryana High Court
Om Parkash And Others vs State Of Haryana And Another on 18 July, 2013
Bench: Surya Kant, Surinder Gupta
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.15868 of 2005
Date of Decision : July 18, 2013
Om Parkash and others .....Petitioners
versus
State of Haryana and another .....Respondents
CORAM : HON'BLE MR.JUSTICE SURYA KANT.
HON'BLE MR.JUSTICE SURINDER GUPTA.
Present : Mr.Arun Jain, Senior Advocate with
Mr.Amit Jain, Advocate, for the petitioners.
Mr.S.S.Patter, Sr. DAG, Haryana, for the respondents.
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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?
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Surya Kant, J. (Oral)
The petitioners assail the notifications dated 27.11.2003 (Annexure P-1) and 24.11.2004 (Annexure P-2) issued under Sections 4 & 6 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'), respectively, for acquisition of their land measuring 13 marlas situated within the revenue estate of village Fazilpur Jharsa, Tehsil and District Gurgaon.
2] The undisputed facts are that 490.20 acres of land including the petitioners' land measuring 29 marlas was proposed to be acquired by State of Haryana vide notification dated 27.11.2003 for the "development and utilization of land for residential, commercial and institutional Sector-48 at Gurgaon". Before issuance of notification under Section-6 of the Act on 24.11.2004, the land measuring 355.60 acres was Kumar Mohinder 2013.08.08 12:55 I attest to the accuracy of this order Chandigarh CWP No.15868 of 2005 [2] released in favour of private developers-cum-colonizers whereas land measuring 63.50 acres was released in favour of different private persons. The petitioners' land measuring 16 marlas was also released. In this manner, the land of petitioners measuring 13 marlas only was included in the notification under Section 6 of the Act. 3] The aggrieved petitioners approached this Court but their writ petition was, in a way, dismissed after observing that the objections under Section 5-A of the Act were duly considered as per the law and there was no illegality in the acquisition proceedings. On Appeal by the petitioners, the Hon'ble Supreme Court vide order dated 7.2.2011 passed in Civil Appeal No.1452 of 2011 set-aside the order of this Court and has remitted the matter for de-novo consideration of all the issues raised in the writ petition. The parties were also permitted to file their additional affidavits/pleadings before this Court.
4] We have heard learned counsel for the parties at some length and gone through the record. 5] Learned senior counsel for the petitioners contended that (i) the impugned acquisition is a glaring example of colourable exercise of power by the State; (ii) there is indiscriminate acquisition as approximately 419 out of 490 acres of land proposed to be acquired has been released mostly in favour of private builders-cum-developers; (iii) the 'public purpose' mentioned in the acquisition notifications thus stands defeated, for hardly any land is now left with the State for development of residential, commercial or institutional sector; (iv) the petitioners' land is a small strip abutting one of the fully developed road, hence no public Kumar Mohinder 2013.08.08 12:55 I attest to the accuracy of this order Chandigarh CWP No.15868 of 2005 [3] purpose can be achieved by retaining that piece of land; (v) the petitioners have been subjected to hostile discrimination;
(vi) the acquisition was made way back in the year 2003-2004 and even after lapse of almost ten years no development plan has been finalized till date, and (vii) no definite 'public purpose' was ever set-up from the very inception of acquisition process.
6] Mr.S.S.Patter, learned Senior Deputy Advocate General, Haryana, on the other hand, maintains that the 'public purpose' of acquisition has been successfully achieved through the public-private participation as per the State policy envisaged under the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter referred to as '1975 Act') whereunder private colonizers are permitted to carry out regulated development in accordance with the approved plans. He submits that the petitioners' acquired land abuts the land owned by HUDA which is earmarked as a 'commercial site' and as per the approved plan, drawings coupled with the affidavit on record, the petitioners' land has been acquired to provide free and wide access to the proposed commercial area to be developed by HUDA. As regard to the allegation of releasing the land of private builders, he submits that it was so done in accordance with the Government policy formulated under the 1975 Act whereunder, the land of private individuals including that of the petitioners was also released subject to the condition that it did not affect the master/lay out plan of the area.
7] It is well settled that where the power of eminent domain under the Land Acquisition Act, 1894 has been mis- used by the State or its authorities with an intent to benefit Kumar Mohinder 2013.08.08 12:55 I attest to the accuracy of this order Chandigarh CWP No.15868 of 2005 [4] the private individuals, the acquisition of properties of aggrieved land-owners can be struck down notwithstanding meticulous compliance of the procedure contemplated under the Act. The Hon'ble Supreme Court in Greater Noida Industrial Development Authority versus Devendra Kumar and others, (2011) 12 SCC 375 has held as follows:-
"The whole exercise of the acquisition was designed to serve the interest of builders and the veil of 'public purpose' was used to mislead people into believing that land was being acquired for a public purpose. Even before issue of notification under Section 6 (1), process for change of land use had been initiated and completed with unusual haste.
Without waiting for the Government's approval to modification of the Development Plan, the Authority had offered and allotted the acquired land to builders for construction of multi-storeyed complexes. All this was nothing but a colourable exercise of power by the State Government under the 1894 Act....."
8] In Patasi Devi versus State of Haryana and others, (2012) 9 SCC 503, Hon'ble Supreme Court reiterated that where the provisions of Land Acquisition Act, 1894 were purportedly invoked for a public purpose but real object for acquisition was to benefit the private colonizers, the acquisition of an individual's property was vitiated due to colourable exercise of power. It was also ruled that once the State Government has framed a policy clearly stipulating Kumar Mohinder 2013.08.08 12:55 I attest to the accuracy of this order Chandigarh CWP No.15868 of 2005 [5] release of land on which construction was raised before the issuance of Section 4 notification, it was imperative upon it to adhere to that policy.
9] Adverting to the petitioners' first contention alleging discrimination on the ground that the land of private builder-cum-colonizers has been released over-looking their identical claim, we do not find any substance in the same. We say so for the reasons that, firstly none of the private builder- cum-developer is party-respondent nor the release orders are under challenge in these proceedings; secondly, the petitioners themselves are beneficiaries of the alleged arbitrary release orders as their land measuring 16 marlas out of total 29 marlas has also been released under the same orders and thirdly the principles laid down by the Hon'ble Supreme Court, cited above, cannot apply mutatis-mutandis to the facts of the instant case where no part of acquired land has been allotted to a private builder-cum-developer.
10] The real issue that arises for consideration is whether the respondents can utilize the left out acquired land of the petitioners for a public purpose? The respondents have filed two affidavits alongwith the lay out plan of the area. In the affidavit dated 27.9.2012, the Land Acquisition Collector, Urban Estate, Gurgaon has stated as follows:-
"......4. That the contents of para No.4 of the additional affidavit are matter of record. It is submitted that the land measuring (0-16) in killa No.19//9/1 min and (7-12) in killa No. 14//7 has been released by the government vide letter No.709 dated 24.1.2006 in shape of constructed portion of the petitioners. The Kumar Mohinder 2013.08.08 12:55 I attest to the accuracy of this order Chandigarh CWP No.15868 of 2005 [6] land measuring (0-4) marla in killa No.19//9/1/2 alongwith killa No.19//9/1/1/2 (0-
5) and 9/1/1/1 (0-4) have been acquired as per the demarcation plan supplied by the District Town Planner Gurgaon as per the provision of the Act......"
xx xx xx xx "....6. That the contents of para No.6 of the additional affidavit are wrong and denied. It is specifically denied that there was no planning and requirement to acquire the area in question. It is submitted that the land in question has been acquired as per the affidavit filed by Sh.T.C.Gupta in the Hon'ble Supreme Court of India. True translated copy of the affidavit/order is annexed herewith as annexure R-1 for kind perusal of this Hon'ble Court....."
11] The affidavit/order dated 14.9.2010 (Annexure R1), referred to in para No.6 of the affidavit reproduced above, says that:-
"....In order to judge the genuineness of the request, I visited the site on 09.09.2010 and also took photographs of the construction raised. The lay out plan of Sector-48 was also studied. The perusal of the same revealed that the land of the petitioners is in between 18 meters wide internal road and the designated commercial area to be developed by HUDA. Two Samadhis were found in the released land and a small Kumar Mohinder 2013.08.08 12:55 I attest to the accuracy of this order Chandigarh CWP No.15868 of 2005 [7] Hanuman Mandir, office of property dealer and another Samadhi was noticed on the awarded land. It was surprising to note that even though vacant space is available in between two Samadhis in the released land measuring 16 marlas, a Samadhi has been constructed in the awarded land. Moreover, O/o Property Dealer, namely, Mahindra Associate was found functioning in the released land which is located between the Samadhi and the Hanuman Mandir. It seems that the Samadhis and Hanuman Mandir have been constructed only for the purpose of getting the remaining land released. This Samadhi and Hanuman Mandir could have been constructed in the released land. This Hanuman Mandir is small in size which can easily be shifted to the vacant released land without damaging the structure. As far as use of awarded land is concerned, it will give proper access from the main road to designated commercial area to be developed by HUDA. Therefore, it is beneficial for HUDA which is a Public Sector Organization......"
(emphasis applied) 12] The Land Acquisition Collector has thereafter filed another affidavit on 11.5.2013, stating as follows:-
"...2. That the land measuring (0-16) in killa No.19//9/1 min and (7-12) in killa No.14/7 Kumar Mohinder 2013.08.08 12:55 I attest to the accuracy of this order Chandigarh CWP No.15868 of 2005 [8] has been released by the government vide letter No.493 dated 16.1.2008 in shape of constructed portion of the petitioners. The land measuring (0-4) marla in killa No.19//9/1/2 alongwith killa No.19//9/1/1/2 (0-5) and 9/1/1/1 (0-4) have been acquired vide award No.21 dated 22.11.2006 and the possession of the land has been handed over to the representative of HUDA as per the demarcation plan supplied to the representative of HUDA as per the demarcation plan supplied by the District Town Planner, Gurgaon, as per the provision of the Act.
3. That as per the development plan the acquired land (khasra No.71) has been proposed as commercial as this land will provide access to the approved commercial site with the existing 18 meter wide road. The proposed side has been shown in the red colour on the part of the lay out plan of Sector 48 Gurgaon. The development plan of the land in dispute supplied by the District Town Planner, Gurgaon is annexed as annexures R-1 and R-2 and the copy of the letter No.1859 dated 5.4.2013 and 2296/s-48 dated 8.5.2013 is annexure R-3 & R-4 are annexed for kind perusal of this Hon'ble Court....."
(emphasis applied) Kumar Mohinder 2013.08.08 12:55 I attest to the accuracy of this order Chandigarh CWP No.15868 of 2005 [9] 13] It may, thus, be seen that the respondents have categorically argued that the constructed portion of petitioners' property has since been released and their land under acquisition is proposed to be utilized to provide free access to the commercial area to be developed by HUDA. We have also seen the site plan (Annexure R-1) and find that the strip of land of the petitioners (released as well as acquired) adjoins one of the internal road. The commercial belt to be developed by HUDA is immediately behind the petitioners' land. If the petitioners' remaining land is also ordered to be released, the HUDA's commercial area will have no free access except one road of 18 meters wide on one side. 14] The respondents' plea that such like commercial area needs free access from more than one sides, especially when it can be connected on two sides with main roads, makes sense and appears to be bonafide.
15] It may be true that no development plan has been formulated by respondents till date. This, however, does not mean that the respondents would never utilize the acquired land for the specified public purpose. One of the cause of delay in finalization of development/utilization plan can be the element of uncertainty caused due to pending litigations also. 16] We are, however, of the view that inordinate delay in finalization of the Development or Lay-out Plans is also a potential cause of avoidable litigation as the land-owners genuinely feel that their land was acquired without any 'public purpose'. The appropriate recourse should be to prepare and publish the development plan so that the aggrieved land owners are made aware of the steps taken towards achieving the public purpose behind the acquisition. It is only when the Kumar Mohinder 2013.08.08 12:55 I attest to the accuracy of this order Chandigarh CWP No.15868 of 2005 [10] authorities fail to utilize the acquired land for a public purpose despite finalization of the development plans that an aggrieved owner can be heard to say that acquisition process was merely a cloak or it never intended to achieve any public purpose. No such inference can be drawn in the instant case at this stage.
17] For the reasons afore-stated while finding no merit in the challenge to the acquisition, we dismiss the writ petition, however, with a direction to the State of Haryana and HUDA to finalize the development plan at the earliest but not later than 31.3.2014 and then take necessary steps for utilization of the acquired land for the 'public purpose' mentioned in the acquisition notifications. We further direct that henceforth the respondents shall not release any portion of the acquired land in question in favour of any private builder-developers.
18] No other point has been urged on behalf of the petitioners.
19] Disposed of accordingly.
(SURYA KANT)
JUDGE
July 18, 2013 (SURINDER GUPTA)
Mohinder JUDGE
Kumar Mohinder
2013.08.08 12:55
I attest to the accuracy of this
order
Chandigarh