Punjab-Haryana High Court
Smt. Suman Aneja vs State Of Haryana And Others on 11 August, 1993
Equivalent citations: AIR1994P&H56, AIR 1994 PUNJAB AND HARYANA 56, 1993 PUNJ LJ 623, 1994 HRR 150, (1994) 1 RRR 381
Author: H.S. Bedi
Bench: H.S. Bedi
ORDER H.S. Bedi, J.
1. The claim of the petitioner in this and the connected writ petitions is that as they had been ousted on the acquisition of their lands by the respondents for the planned development of various Urban Estates, they being oustees were entitled to the allotment of plots on a preferential basis.
2. The facts, in so fp.r as they are relevant for the disposal of this writ petition, are given hereunder :--
The petitioner was owner in possession of land measuring 3 kanals 3 Marias which forms a small part of land measuring 505 kanals 1 Maria in village Patti Mehar that was sought to be acquired by the respondents along with some area of other villages for setting up of an Urban Estate at Panchkula consisting of residential and commercial areas and idnetified as Sector-9. The notifications under Ss. 4 and 6 of the Land Acquisition Act, were issued on May 26, 1981 and January 10, 1983, respectively while the award consequent thereto was rendered in 1984-85. The petitioner moved an application before the respondents on May 14, 1989, Annexure-P2 followed by a reminder dated September 27, 1990, Annexure-P3, praying that as her land had been acquired, she be given a residential plot on a reserved price, as per thepolicy dated 10-9-1987 framed by respondent No. 2 for rehabilitation of those perosns who had been ousted thereby. The grievance of the petitioner is that despite the application aforesaid, and the policy framed pursuant to the observations of the Supreme Court in State of U. P. v. Smt. Pista Devi, AIR 1986 SC 2025, the respondents did not care to allot a plot to her. The case further is that even before the policy was framed, there had been a policy in existence whereby oustees of various urban estates in Karnal, Kurushetra, Ambala, Panchkula etc. had been given plots in lieu of the acquisition of their holdings. In this connection it has been highlighted that even as far back as in the year 1972-73, the respondents had allotted plots to a number of named individuals in the Urban Estates of Panchkula and Jagadhri. The argument is that the petitioner had, therefore, been discriminated against vis-a-vis other oustees who had been adjusted as a measure of rehabilitation.
3. Respondents Nos. 2 and 4 have filed their reply in response to the writ petition and the primary stand taken is that the policy Annexure-P4 could not be retrospectively applied to the case of the petitioner as her land stood acquired prior to that date. It has been denied that there was a policy with regard to re-habilitation of the oustees prior to the policy Annexure-P4, and by way of explanation, it has been stated that in the year 1972-73, there were no takers for plots in the newly developed areas, the inference sought to be drawn being that those who came forward to claim plots whether oustees or otherwise, were perhaps adjusted. It has further been stated that subsequently when there was a virtual craze for plost, the policy Annexure-P4 was duly framed.
4. Before embarking on the various arguments raised by the counsel it deserves to be highlighted that the policy Annexure-P4 that has bene put on record, is slightly at variance with the actual policy that was issued on that date. The learned counsel for the respondents have given photo copies of that policy and other subsequent developments therein and all these documents have been put on the record of this case. Hence forward any reference to these policies will be made from these copies.
5. Mr. Mohan Jain, learned counsel for the petitioner has reiterated the two points that have been raised in the writ petition and have been referred to above. Further elaborating his first argument that is with regard to the retrospective operation of the policy, he has urged that it did not, in terms lay down that it was to apply only prospectively and being in the nature of a Social Welfare measure and taking care of a desperate human problem, it must be assumed that it could be made applicable in the case of all oustees irrespective of the date that their lands stood acquired. In support of this assertion, he has relied upon the observations made in Smt. Pista Devi's case to the effect that it would be desirable if provision was made to provide alternative house or shop sites to those perosns who had been uprooted on acquisition df their land. Reliance has also been placed on S. B. Kishore v. Union of India, AIR 1991 SC 90.
6. Mr. Sibal, learned counsel for the respondents has, however, controverted the stand of the petitioner by urging that an executive order such as the one issued on September 10, 1987, could be made applicable only prospectively and for this purpose, has relied upon Hukam Chand etc. v. Union of India, AIR 1972 SC 2427 and the Income Tax Officer, Alleppey v. I. M. C. Ponnoose, AIR 1970 SC 385. On facts, he has stated that vide communication No. A-11-P-76-78/ 17778 dated May 17, 1988, it had been clarified by the respondents themselves that the policy dated September 10, 1987, was to be made applicable "only in future sectors" and old applications were not to be considered. Mr. Sibal, has urged relying on Indian Railway Service of Mechanical Engineers Association v. Indian Railway Traffic Service Association, 1993 (3) JT (SC) 474, that it was not for this Court to lay down a policy as that was a matter entirely within the purview of the Executive Authority and if this Court found that a policy was not fair it could not substitute a policy of its own instead.
7. We have considered the arguments of the learned counsel for the parties and find that the extreme stand taken by the contesting parties is not warranted by the documents placed on record. Under the policy dated September 10, 1987, it has been provided that those persons whose lands had been acquired, were entitled to be treated as oustees so that they could be accommodated by giving them plots on reserved price. In this policy, it was stated that Hon'ble Supreme Court had decided that the land should be allotted for a house or shop to those persons whose lands had been acquired and it was the legal obligation of the respondents to take steps in that direction. While referring to commercial sites/buildings, it was clarified that the cases of the oustees could be considered for allotment on reserved price as and when the auction for the same was held and it was further stipulated that when these sites/ buildings are put to auction, oustees who wished to purchase them, could respresent before-hand for allotment so that the requisite number could be reserved for them. Vide memo No.A-11-P-90-9721, dated May 9, 1990, certain clarifications were made in the policy dated September 10, 1987 and it was provided that "the claims of the oustees shall be invited before the sector is floated for sale." This matter was reiterated vide communication No.A-11-P-91/5678, dated March 18, 1991 in which it was once again reiterated that "the claim of the oustees shall be invited before the sector is floated for sale." From a reading of the aforesaid instructions, particularly the portions quoted above, it is apparent that the date fixed by the respondents themselves in determining the eligibility of the oustees was the date on which the sectors were floated for sale, as it would, indeed, be cruel to a person whose land had been acquried prior to September 10, 1987 but not utilized or disposed of after due development prior to that date to be told that he was not eligible for allotment as an oustee although the land was still available. 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 hapless individual whose land has been acquired. It would be anamolous to hold that while acquiring the land for the purpose of land development to provide houses and other facilities to one section of the populace, those persons whose land had been acquired, should be adversely treated or left homeless and without shelter. We are not unmindful fo the fact that to consider the policy dated 10-9-1987 as being retrospective would be to stultify and frustrate land development for years to come as in such a situation, a very large number of persons would now come forward claiming a right to the allotment of plot as oustees but we are of the view that if in pursuance of a development scheme, some land has been acquired but not yet utilised, the oustees from that land should have a prior right to be rehabilitated and that the date fixed for the purpose is the date on which the sector is floated for sale. In other words, if the sector is floated for sale prior to 10-9-1987 and the plots etc., have not been disposed off, the oustees from this land would come within the provision of the scheme. Reliance of the petitioner's counsel on S. B. Kishore's case (supra) is however misplaced. In that case, there was a policy for rehabilitation of oustees but the litigant oustee did not make any application within the time fixed for allotment of plots. The Supreme Court in the facts and circumstances of that case and while observing that the case was not to be cited as a precedent, allowed the claim of the individual after condoning the delay in the making of the application. In view of what has been held above the judgments cited by Mr. Sibbal need not be dealt with.
8. The second argument of Mr. Mohan Jain, learned counsel for the petitioner that even prior to September 10, 1987, there was a policy in existence, which entitled oustees to claim a plot from the respondents. He has further urged that from the various averments made in the writ petition, it was clear that the respondents were following a policy of 'pick and choose' in granting alternative plots to some oustees while declining one to the petitioner. His argument is that he has been discriminated and in support of this case, relies on Smt. Nirmala Ashri v. State of Haryana, 1992 (12) Punjab Legal Reports and Statutes, 588. Mr. Sibbal, learned counsel appearing for the respondents has, however, urged on the basis of the written statement that prior to September 10, 1987, there was no policy for the rehabilitation of the oustees and if some persons had got an alternative plot / site, it was not because of any policy but merely because the plots were available and some allotments could be made.
9. We have heard the learned counsel for the parties on this aspect of the matter as well and find that the petition cannot succeed. Despite prodding, Mr. Jain, learned counsel for the petitioner expressed his inability to produce the policy that is said to have been in existence prior to September 10, 1987. In the absence of any such policy before us, particularly as its existence had been denied by the respondents, no elaborate discussion is required. Moreover, even assuming that some plots were allotted to the oustees in the year 1972-73, as alleged in the writ petition, it cannot be inferred that they were allotted plots exclusively as oustees and it is possible that they had been accommodated as any citizen, (whether an oustee or not) as initially the plots were going abegging in the absence of any demand for them.
10. Mr. P. K. Mutneja, learned counsel for the writ-petitioner in C.W.P. No. 18598 of 1991 argued that his client was an illiterate lady whose land, easiromg 300 square yard was acquired way back in the year 1971 and she continued to languish in the shape of a homeless wanderer and this Court should take into account her circumstances and direct the respondents to allot her a plot on compassionate grounds. We find no merit in this argument as well. In the absence of any legal right, a show of compassion would be wholly misplaced.
11. The writ petitions are disposed off with the observations made above with no order as to costs. The respondents will examine the case of the petitioner in the light of this judgment.
12. Order accordingly.