CWP No.184 of 1984 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
CWP No.184 of 1984 (O&M)
Date of decision: December 03, 2008.
Ch. Surat Singh & Ors.
...Petitioner(s)
v.
State of Haryana & Ors.
...Respondent(s)
CORAM:HON'BLE MR. JUSTICE SURYA KANT
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present: Shri Avnish Mittal, Advocate for the petitioners.
Shri R.D. Sharma, Deputy Advocate General, Haryana.
ORDER
Surya Kant, J. –
This writ petition seeks quashing of the notifications dated
10.1.1983 (Annexure P-1) and 7.12.1983 (Annexure P-4), issued under
Sections 4 & 6 of the Land Acquisition Act, 1894 (in short the Act)
respectively, whereby land measuring 242.73 acres of village Jharsa,
District Gurgaon, including that of the petitioners, has been acquired for the
development of institutional area in Sector 32, Gurgaon.
[2]. As per the petitioners’ case, they are the owners of land
measuring 123 kanal 4 marla situated within the revenue estate of village
CWP No.184 of 1984 -: 2 :-
Jharsa, Tehsil and District Gurgaon. They are stated to have constructed a
Mandir (temple), besides a Samadh of their ancestors, surrounded by a
garden having a Dharamshala and Piao (drinking water facility for the
general public and cattle). The petitioners have averred that they have also
constructed a residential house, farm-house and quarters for their servants
and sheds etc. over the above mentioned land.
[3]. The State of Haryana issued two notifications under section 4
of the Act on 10.1.1983 (Annexure P-1 & P-2) whereby it decided to
acquire land measuring 288.31 acres of village Jharsa for utilization by the
Haryana Urban Development Authority (HUDA) for development as
residential and commercial area in Sector 31 and 32-A of Gurgaon as well
as another chunk of land measuring 300.32 acres for development of
institutional areas in Sector 32-A Gurgaon by HUDA. The aforesaid
notifications included the land owned by the petitioners.
[4]. The petitioners submitted their objections under Section 5-A of
the Act, inter-alia, alleging that more than 4 acres of their land was being
utilized for religious purpose; there are fruit trees in another portion of the
land and another part thereof was being utilized for their residential
purposes or servant quarters. The State of Haryana, however, issued the
notifications dated 7.12.1983 (Annexures P-3 and P-4) whereby land
measuring 67.31 acres was acquired to develop residential and commercial
areas in Sector 32-A, Gurgaon and land measuring 242.73 acres was
acquired for development of institutional area in Sector 32 Gurgaon.
[5]. The acquisition for development of institutional area included
the petitioners’ land also. The petitioner were thereafter served with the
notices under section 9 of the Act prompting them to approach this Court.
CWP No.184 of 1984 -: 3 :-
[6]. Counter affidavit has been filed on behalf of the respondents.
In para 2 of the written statement, a categoric stand to the following effect
has been taken:-
“… There is no Mandir, Dharamshalla or Samadhi in the
land as mentioned by the petitioner. There is no kothi,
farm house or residential quarters etc. on the land. These
averments of the petitions in this para are wrong,
misconceived and hence denied.”
[7]. Similarly, in para 5 of the written statement, the respondents
have averred as follows:-
“That in reply to para 4 of the writ petition, it is submitted
that the position explained in para 2 of the written
statement is reiterated and the same may be read as part of
this para. The petitioners filed objection under Section 5-
A and the same were considered. The petitioners were
given full opportunity of being heard and they were heard
at length on 9.3.1983. In token of having been heard Shri
Surat Singh appended the signatures on his behalf and on
the behalf of the other objectors. Hence the averments of
the petitioners that they were given formal hearing is
wrong, misconceived and hence denied. It has already
been submitted in para 2 of the written statement that there
is no Mandir, Dharamshalla or Samadh on the land as per
revenue record. The petitioners have tried to mislead the
Hon’ble Court by giving the wrong statement of facts.”
(emphasis applied)
CWP No.184 of 1984 -: 4 :-
[8]. It may be mentioned at this stage that the petitioners have now
moved a Civil Miscellaneous application bearing No.2173 of 2008 seeking
amendment of the writ petition in order to bring on record the “subsequent
events”. In the application seeking amendment as well as in the proposed
amended writ petition appended thereto, the petitioners have taken the plea
that during the pendency of the writ petition:- (i) they have entered into a
‘collaboration agreement’ with M/s Premier Infra-Con Pvt. Ltd. On
12.2.2007 and in terms thereof they have executed a special power of
attorney/general power of attorney in favour of the developer; (ii) the said
developer, namely, M/s Premier Infra-Con Pvt. Ltd. has applied for the
grant of licence to set up a commercial complex and has paid sum of
Rs.10.53 crores by way of demand draft along with the application; (iii) the
aforesaid application is claimed to have been entertained by the Director,
Town & Country Planning, Haryana and some correspondence between the
builder/developer and the State Govt. is going on. It is, thus, averred that
the petitioners along with their collaborators are likely to get the change of
land use which would imply exemption of the petitioners’ land from
acquisition; and (iv) the photographs (Annexure P1-A) would indicate that
there is a temple and Samadh on the land and some construction is still
going on; (v) adjoining lands have already been exempted and/or developed
by the private developers, therefore, no public purpose shall be served by
the impugned acquisition; (vi) the Govt. itself has now framed a policy
dated 26.10.2007 regarding release of land from acquisition in terms
whereof the subject land can be released even if acquisition proceedings
have been finalized and they have sought release of their land under the said
policy.
CWP No.184 of 1984 -: 5 :-
[9]. I have heard Learned Counsel for the parties at some length and
perused the record. In my considered view, there is no merit in this writ
petition. It needs to be mentioned here that I have heard Learned Counsel
for the Petitioners on the premise as if the amendment in the writ petition
has been allowed and the so-called ‘subsequent events’ have also been taken
into consideration.
[10]. The extra-ordinary writ jurisdiction under Article 226/227 of
the Constitution is of discretionary nature. Whosoever invokes this
jurisdiction must necessarily come to the Court within clean hands. In the
original writ petition filed in the year 1984, the petitioners knowingly took a
false plea that there existed a temple, Dharamshala, Samadh, kothi and
servant quarters etc. over their land. Their false plea prompted this Court to
grant interim injunction in their favour. The respondents, however, took a
categoric plea as early as in their counter affidavit dated 27.5.1984 that no
Mandir, Dharamshala or Samadh or Kothi or farm house etc. has been
constructed over the land. No rejoinder or additional affidavit to controvert
the said stand was placed on record nor any material like the photographs
were placed on record. The photographs now appended with the proposed
amended writ petition clearly indicate that the constructions depicted
therein (except one photograph) are not as old as could be in existence prior
to 1984. The construction appears to have been raised by the petitioners
taking undue advantage of the interim protection granted by this Court
against their dispossession. The photographs further reveal that at present
also, some construction activities are going on, may be at the instance of the
developer with whom the petitioners are stated to have collaborated. The
fact that the petitioners deliberately took a false plea and have thereafter
CWP No.184 of 1984 -: 6 :-
misused the interim relief granted by this Court, is suffice to dislodge their
claim.
[11]. Learned Counsel for the Petitioners contends that the
petitioners have been subjected to hostile discrimination, inasmuch, as the
lands of similarly situated persons have been released for no rhyme or
reason. He relied upon certain instances referred to in para 12 of the writ
petition. Learned State Counsel, on the other hand, pointed out the stand
taken in para 12 of the counter affidavit wherein the following plea has been
taken:-
“That the averments of the petitioner in this para are not
correct. The petitioners have not been discriminated with
the similarly situated persons. No similarly situated land of
any person has been left out from the acquisition. The
particularly of the land, belonging to other persons
mentioned in this para, have not been given by the
petitioners. However, some area belonging to these
persons have not been notified under Section 6 as the area
is situated near the abadhi of village Jharsa and is required
for the extension of abadhi and has been left out as a matter
of policy, i.e., for extension of abadhi. Thus, no
discrimination has been made with the petitioners.
So far as the land of Bar Malt Factory is concerned, the
land of this big factory has been left out with proportionate
area. The factory is very big one and the construction is
very high structure. Moreover, the factory was adjustable
in the plan development and the same has been adjusted
CWP No.184 of 1984 -: 7 :-accordingly. If this fact had been acquired the State
Excheque would have also been burdened with heavy
compensation.”
[12]. It would, thus, been seen that no pick and choose policy has
been adopted by the respondents while not including certain lands in the
notification under Section 6 of the Act. Similarly, the respondents have
given a plausible explanation for not acquiring the land of Bar Malt Factory.
Neither the land of the petitioners is situated near abadi-deh nor there
existed any running factory like Bar Malt Factory. The petitioners,
therefore, being not the similarly situated persons can have no grievance
against those whose lands have not been included in the notification under
Section 6 of the Act.
[13]. As regards the petitioners’ allegation that they have entered into
some agreement with a developer who in turn has deposited crores of rupees
with the State Govt. to obtain the change of land use, in my considered
view, the contention has no bearing on the validity of the notifications under
challenge. No agreement to sell entered during the period when the
petitioners did not possess a valid title qua the subject-land, can give rise to
any equity nor legitimize the release of the petitioners’ land. The developer
has entered into collaboration with open eyes, might be to take a calculated
risk. The correspondence, if any, between him and the governmental
authorities is wholly irrelevant for determining the legality of the
acquisition proceedings. Suffice it to say, if the State Govt. decides to
release a land which has been acquired for a ‘public purpose’, it would,
prima-facie, amount to colourable and mala fide exercise of power actuated
by extraneous considerations.
CWP No.184 of 1984 -: 8 :-
[14]. The petitioners do not dispute the categoric stand taken in the
counter affidavit that the objections under Section 5-A of the Act were duly
considered before issuance of the notifications under Section 6 of the Act.
The impugned acquisition, thus, suffers with no illegality, procedural or
otherwise, warranting interference by this Court.
[15]. For the reasons afore-stated, I do not find any merit in this writ
petition which is accordingly dismissed. No costs.
December 03, 2008. [ Surya Kant ] kadyan Judge