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