Punjab-Haryana High Court
Birwati Chaudhary & Others vs State Of Haryana & Others on 9 September, 2013
Bench: Surya Kant, Surinder Gupta
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
CWP No. 9243 of 2012 (O&M)
Date of Decision : 09.09.2013
Birwati Chaudhary & others
.......... Petitioners
Versus
State of Haryana & others
...... Respondents
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CORAM : HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE SURINDER GUPTA
Present : Mr. Chetan Mittal, Sr. Advocate with
Mr. Mohinder Singh Nain, Advocate
for the petitioners.
Ms. Palika Monga, DAG, Haryana.
Mr. Arun Jain, Sr. Advocate with
Mr. Arnav Sood, Advocate
for respondent No.6.
Mr. Rahul Garg, Advocate for
Mr. Siddarth Batra, Advocate
for respondents No. 4 & 5.
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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?
SURYA KANT, J. (Oral)
This writ petition is a second attempt by the petitioners to seek quashing of notifications dated 17.12.1981 and 04.02.1983 issued under Sections 4 & 6 of the Land Acquisition Act, 1894 ( for short 'the Act') as also the award dated 28.4.1987. They also seek quashing of the order dated 4.8.2011 whereby the benefit of decision taken on 11.9.2007 to release the acquired land after passing of the award, is said to have been denied to them.
Satyawan 2013.10.09 13:53 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 9243 of 2012 2
2. The land of the petitioners measuring 13 Kanal-2Marlas situated within the revenue estate of village Jharsaintly, Tehsil Ballabhgarh, District Faridabad and apparently divided into three different pockets was also acquired for the public purpose, namely, for the development and utilization of land as Industrial Area in Sector 25 Part-I, Faridabad vide the impugned acquisition.
3. The short question that arises for consideration is whether the petitioners are entitled to the release of their entire acquired land or that the decision taken by the respondents to release two out of three pockets of the land of the petitioners where some construction was raised and acquiring the third pocket deserve to be upheld ?
4. It may be mentioned at the outset that earlier the subject acquisition was challenged by the predecessors-in-interest of the petitioners in various courts i.e. Gobind Singh (deceased) through legal representatives & others vs. State of Haryana (CWP No. 960 of 1990). The said writ petition was dismissed by a Division Bench of this Court vide detailed decision dated 3.8.2010 (Annexure P-10). The petitioners went in Special Leave to Appeal (Civil) before the Hon'ble Supreme Court but the same was also dismissed on 15.4.2011 (Annexure P-11) with the following observations :-
"This petition is directed against the order passed by the Division Bench of the Punjab and Haryana High Court whereby the writ petition filed by the petitioners was dismissed.
We have heard learned Senior Counsel appearing for the petitioners and carefully perused the record. In our view the impugned order does not suffer from any legal infirmity warranting interference under Article 136 of the Constitution. Satyawan 2013.10.09 13:53 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 9243 of 2012 3 The special leave petition is accordingly dismissed."
5. The petitioners claim that while the acquisition was still under challenge before this Court, the State Government took a policy decision dated 11.9.2007 (superseded by letter dated 26.10.2007), which was lateron modified on 24.1.2011 whereunder it was decided to release the buildings/structures which were found in existence at the time of issue of Section 4 notification of the Act.
6. The other plea taken by the petitioners is that the Chief Minister, Haryana also made an 'oral announcement' for the release of constructed houses of village Jharsaintly, Sector 58 Faridabad and based upon that announcement the Land Acquisition Officer, Department of Urban Estate, Faridabad vide memo dated 25.3.2013 (Annexure P-28) sent the details of the properties which were decided to be released from acquisition. The said proposal pertaing to Sector 58, Block-C included all the three plots of petitioners. However,the petitioners were allegedly subjected to discrimination as the authorities decided to release only two plots instead of all the three plots.
7. Since the petitioners heavily relied upon the letter dated 25.3.2013 (Annexure P-28) of the Land Acquisition Officer in support of their claim that their entire acquired property (all the three plots) deserve to be released from acquisition, the following order was passed on 2.7.2013:-
"With reference to vide order dated 24.05.2013, the State counsel has handed over a communication dated 20.06.2013. We have gone through its contents along with that of letter dated 25.03.2013 referred to in the communication dated 20.06.2013, a copy whereof is said to have been placed Satyawan on record also. It does appear that on the basis of some oral 2013.10.09 13:53 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 9243 of 2012 4 announcement, a proposal to release some of the constructed houses in village Jharsatly, is under consideration, for which a status report has been forwarded by the Land Acquisition Officer, Faridabad on 25.03.2013. The respondents are, therefore, directed to apprise us whether any decision to release those constructed houses has been taken or not.
List again on 09.07.2013.
Let status quo be maintained till the next date of hearing."
8. Thereafter, the following order was passed on July 19, 2013:-
"The petitioners have in the process of hearing relied upon a communication dated 25.3.2013 purportedly sent by the Land Acquisition Officer, Faridabad, recommending release of certain structures on the basis of public announcement allegedly made by the Chief Minister, Haryana. The Director General, Urban Estates Department, Haryana, who is present in Court also, refers to his letters to the Advocate General, Haryana, informing that the letter dated 25.3.2013 of the Land Acquisition Officer, Faridabad is based upon some telephonic message, whereas no such instructions were issued. He stated that the Department has decided not to consider the afore- stated report of the Land Acquisition Officer, Faridabad dated 25.3.2013. He further explains that on the basis of decision taken by the State Government in the year 2005, a survey report was obtained somewhere in the year 2006-2007 and as per the said report, 62 structures were recommended for release which included a house of the petitioners' predecessor- Satyawan 2013.10.09 13:53 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 9243 of 2012 5 in-interest-Gobind. On the basis of this report, it is stated that the remaining portion, now sought to be released by the petitioners, has been apparently constructed thereafter.
Learned counsel for the petitioners, on the other hand, vehemently denies the assertions and refers to some other communications on record to suggest that principally it was decided to release two of their properties whereas there is a dispute with regard to the third one. Since seriously disputed questions are being raised before us, we direct the Director General, Urban Estates Department, Haryana, to personally visit the area and form an opinion whether it is feasible to release the other structures without affecting the public purpose for which the acquisition was carried out. Such a report be produced in Court on the next date of hearing."
9. In deference thereto the Director General, Urban Estates Department, Haryana has filed his affidavit dated 2.9.2013 along with the site inspection report (Annexure R-1) and the site plan (Annexure R-2). It is stated in the Inspection Report that :-
"in compliance of the orders of Hon'ble High Court, the undersigned visited the spot on 08.08.2013 alongwith Administrator, HUDA, LAO Faridabad, STP and DTP Faridabad with prior intimation to the villagers. A large number of villagers gathered in the community centre and submitted that the area of construction is so thickly built up that releasing constructed area alongwith proportionate vacant area would not serve any purpose. The small little pockets left in between would not be utilizable by HUDA. The Satyawan site was inspected alongwith the officers and the villagers. It 2013.10.09 13:53 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 9243 of 2012 6 was noticed that the constructed houses are in the form of five clusters. These have been shown on the survey cum shajra plan dt. 23.04.2006 in block A, B, C, D & E (enclosed as annexure/R-2). After visiting the spot my recommendation are as under :-"
10. The Director General, Urban Estate in his above stated report has further maintained thus :
"In the meantime the Govt. has notified its Rehabilitation and resettlement Policy, dated 09.11.2010. Though the present case does not get covered under the policy as the policy is being implemented from 07.09.2010. But if one goes through the principles laid down by the policy, one finds that Clause 5(i) of the R&R Policy provides to leave out the residential structures existing in the form of clusters from acquisition. All the five clusters are thickly built up having streets for access to houses. The intervening small open spaces, even if acquired cannot be planned and developed by HUDA. For example, if someone has a plot of 500 sq. yds. and has made construction on 100 sq yards, as per the decision taken by the Government to release constructed area alongwith proportionate vacant area, he would be entitled for release of 200 sq. yds. land only. Remaining 300 sq.yds. of land would therefore fall in the category of land which cannot be released but would be of no use for HUDA. Therefore, I have recommended for release of all the five clusters comprising of Block A, B, C, D & E as shown bounded in red colour on the enclosed survey cum shajra plan. This proposal has been approved by the Government."
11. As regards the petitioners claim for the release of all the three plots, the report of the Director General says as follows :-
"Second location falls partly in Block C and partly west Satyawan of Block-C in Khasra no. 70//3/2, 4/1(total 3-18). Block-C has 2013.10.09 13:53 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 9243 of 2012 7 also been approved for release by the Government. As regards this pocket of land, the petitioners were apparently using this land as cattle shed and storage of cattle feed at the time of C.M. Announcement. However lateron they have constructed factories on the same. Keeping in view the fact that the land has been acquired by HUDA to develop an industrial sector and the petitioners are presently having their factories on this land, no great purpose will be served by not allowing release of this land in which scenario the factories would be required to be demolished. Accordingly I had proposed to the Government to release this additional pocket (shown as LMNO on the plan) which the Government has approved and hence the entire land of the petitioners in the second pocket would also get released.
The third location which the petitioners are claiming for release falls in Khasra no.58//23/2(total 6-19). The spot inspection clearly shows that the entire acquired land located north west to pocket LMNO is lying vacant. The claim of the petitioners with respect to this location is totally unjustified as the land is lying vacant. Accordingly, the request of the petitioners with regard to the release the third location is not recommended by me. The Government has accepted the recommendation for not releasing this pocket. This land can be gainfully utilized for the industrial purpose for which it has been acquired. The vacant land belonging to every other land owners stands acquired by the Government and the petitioner does not deserve any special dispensation."
12. A counter affidavit has been filed on behalf of the petitioners along with photographs and the site plan.
13. We find from the site plans relied upon by both the parties that three plots/pockets of land are not contiguous and are located separately. Out of these three plots, plot 'B' and 'C' abutting the other released Satyawan 2013.10.09 13:53 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 9243 of 2012 8 properties have since been released. Plot 'A', which is lying vacant even as per the photographs placed on record by the petitioners, has not been released as a part of it already stands included in the industrial plots and allotted to different industries including respondent No.6.
14. The short question, thus, remains to be decided is whether the third plot of the petitioners, which is apparently lying vacant also deserves to be released through the command of Court order? If the petitioners' claim for the release of the vacant plot is to be considered in the light of the Government policy dated 11.9.1997 (superseded by letter dated 26.10.2007) it is inarguable that a vacant piece of land cannot be released under these policy decisions. Very object of the policy is to release the existing residential houses/other structures and not the temporary sheds like the one once installed by the petitioners. The benefit of the aforestated policy is thus inadmissible to the petitioners.
15. Their claim regarding release on the premise of an oral announcement made by the Chief Minister, Haryana, suffice it would to deserve that the respondents have disputed the claim as projected by the petitioners. There is neither a decision on record, nor the respondents have admitted that all the acquired properties have been decided to be released. The letter dated 25.01.2013 relied upon by the petitioners, even if assumed to be based upon some announcement, cannot advance the claim of the petitioners unless translated into a fresh policy decision.
16. The land was acquired more than 25 years back for the purpose of industrialization and its substantial part has been actually utilized for that purpose by allotments of industrial posts. The petitioners' challenge to the Satyawan 2013.10.09 13:53 "I attested to the accuracy and integrity of this document"
High Court Chandigarh CWP No. 9243 of 2012 9 acquisition on various grounds has already been grounded upto the Hon'ble Supreme Court. Major portion of their acquired property has already been released also. Their unsatisfied claim is not supported either by law or equity. No ground to interfere with the decision taken by the respondents is, thus, made out.
Dismissed. deference (SURYA KANT) JUDGE (SURINDER GUPTA) JUDGE 09.09.2013 'Satyawan' Satyawan 2013.10.09 13:53 "I attested to the accuracy and integrity of this document"
High Court Chandigarh