IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 11945 of 2008
DATE OF DECISION: December 10, 2008
Smt. Mirdula Joshi
...Petitioner
Versus
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. Babbar Bhan, Advocate,
for the petitioner.
Ms. Palika Monga, AAG, Haryana,
for respondents No. 1 and 2.
Mr. Arun Walia, Advocate,
for respondent Nos. 3 and 4.
Mr. B.R. Gupta, Advocate,
for respondent No. 5.
1. Whether Reporters of local papers may be Yes
allowed to see the judgment?
2. To be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in Yes
the Digest?
M.M. KUMAR, J.
1. The instant petition is directed against the notification
bearing No. LAC(P)-NTLA-99/1181, dated 16.3.1999, issued under
Section 4 and declaration bearing No. LAC(P)-NTLA-2000/1593,
C.W.P. No. 11945 of 2008 2
dated 15.3.2000 made under Section 6 (Annexures P-3 & P-5) of the
Land Acquisition Act, 1894 (for brevity, ‘the Act’). The public
purpose of acquisition is the development and utilisation of land for
residential, commercial, institutional and recreational purposes in
Sector 1, 2, 3, 5B, 5C and 6, Panchkula Extension (Mansa Devi
Complex) under the Haryana Urban Development Authority Act,
1977 by the Haryana Urban Development Authority, in the area
falling in the revenue estates of village Saketri (Hadbast No. 376) and
Bhainsa Tibba (Hadbast No. 377), Tehsil and District Panchkula.
2. Brief facts of the case are that the petitioner was owner
of land measuring 3 Kanals 0 Marlas, situated in Khewat/Khatoni No.
244/370, Khasra No. 69//32/3, as per jamabandi for the year 1985-86
and mutation bearing No. 1381 was entered in her favour. The land
continued to be in her name in the revenue record as is evident from
jamabandi for the year 2000-2001 (P-1). There was a garden on the
land in question and it has been recorded as ‘bagh barani’ in the
revenue record (P-2).
3. On 16.3.1999, a notification under Section 4 of the Act
was issued, which included the land of the petitioner (P-3). It is
claimed that objections under Section 5-A of the Act were filed and
request was made for release of the land on the ground that there was
a garden and some construction was also raised before Section 4
notification (P-4). However, on 15.3.2000, declaration under Section
6 of the Act was issued acquiring the land belonging to the petitioner
and other land owners (P-5). However, the petitioner continued
making representations for release of the land [P-6 (Colly)]. On
1.7.2003, a notice was issued to the petitioner by the Land
C.W.P. No. 11945 of 2008 3
Acquisition Collector calling her to appear on 14.7.2003 (P-7). The
award was announced on 9.10.2003. In para 8 of the petition she has
averred that land belonging to the influential persons has been
released even after announcement of award dated 9.10.2003. In this
regard it has been alleged that the land of one Maharaja, who was
having one garden as well as the land falling under Khasra No.
59//5/2 Min, 6 Min, 15/1/1 Min, 60//1 Min, 10/2 Min, total measuring
9 Kanals 10 Marlas, belonging to one Shri R.S. Malik, has been
released vide Memo. No. S-2-08/2382, dated 3.3.2008 (P-8).
4. On 15.7.2008, when the matter came up for
consideration, learned counsel for the petitioner raised the issue of
discrimination by release of land of Shri R.S. Malik vide order dated
3.3.2008 (P-8) after announcement of award. On his oral request, the
Division Bench permitted impleadment of Shri R.S. Malik as
respondent No. 5, who has since been served and represented by
counsel. Notice was also issued to the respondent State to show
cause as to why order dated 3.3.2008 be not set aside.
5. In the written statement filed on behalf of respondent
Nos. 1 and 2 the stand taken is that there is no legal infirmity in
issuing notification under Section 4 and declaration under Section 6
of the Act and acquisition procedure has been religiously followed. It
has been asserted that the instant petition deserves to be dismissed on
the ground that the same has been filed after announcement of award
dated 9.10.2003. The award in respect of super structures etc. was
also announced on 14.7.2008. The possession of the land was taken
and handed over to the HUDA on the day of award under Section 16
of the Act except the land for which orders of stay, status quo and
C.W.P. No. 11945 of 2008 4
stay dispossession have been passed by any court. The objections
under Section 5-A of the Act filed by the land owners were heard on
1.2.2000 and 28.2.2000 and proper opportunity of hearing was
afforded. Therefore, report by the Land Acquisition Collector with
recommendation was sent to the Government for final decision. The
land which could be adjusted in the plan was left out from acquisition
after considering the objections. It has been disputed that the
petitioner has filed objections under Section 5-A of the Act within the
prescribed period of limitation. It has further been pointed out that
the objections (P-4) which has been placed on record by the petitioner
were filed by the legal heirs of one Rehamdeen son of Rulia in
respect of Khasra No. 107//2/2 and the petitioner has claimed
ownership of Khasra No. 69//32/3, therefore, the aforementioned
objections have no relevancy with the present case. Regarding
release of land out of acquisition it has been submitted that the
Government is competent to release the land. In that regard, reliance
has been placed on the judgment of Hon’ble the Supreme Court in the
case of M/s Anand Buttons v. State of Haryana, AIR 2005 SC 565.
With regard to release of land belonging to Shri R.S. Malik-
respondent No. 5 and the Maharaja, it has been stated that the same
was released at the Government level. However, fresh notifications
under Sections 4 and 6, dated 16.5.2007 and 27.3.2008 respectively,
have been issued to acquire the same.
6. In the written statement filed on behalf of Shri R.S.
Malik-respondent No. 5 it has been claimed that on the land in
question school and residential buildings were constructed in the year
1979 and 1990 after sanctioning of the building plans by the
C.W.P. No. 11945 of 2008 5
concerned authorities of the respondent State. It has been further
submitted that his land was sought to be acquired due to his personal
grievances with former Chief Minister, Haryana Late Shri Bansi Lal.
In that regard, respondent No. 5 has placed on record certain news
items as Annexures R-5/1 to R-5/5. Respondent No. 5 also pointed
out that in the year 1981 also his land was sought to be acquired by
the respondent State but ultimately the same was released in the year
1984 on account of the fact that a farmhouse was constructed on the
land since the year 1979 by his father, namely, Late Shri Des Raj,
with prior approval of the State Government.
7. In sub-para (iii) of para 3 of the written statement
respondent No. 5 has stated that in CWP No. 12218 of 2003 the
respondents have defended the acquisition of the school land and
building on a false ground that the land fall within 100 metre wide
non-buildable zone along the railway line and the land was required
for expansion of railway track and also by the Mansa Devi Shrine
Board for mela parking during Navratras days. However, when
information was sought by him, the Railways and Shrine Board have
denied that the land was required by them.
8. Respondent No. 5 has also claimed that the Land
Acquisition Collector has rejected the recommendation and report of
the District Town Planner, dated 22.9.2003, which was to the effect
that the buildings were constructed by the family members of
respondent No. 5 with prior approval of the State Government and the
vacant land is fully covered by the green trees and site is not suitable
for mela parking or any other public purpose. In 2000, affiliation was
also granted by the CBSE to the school and Haryana Government has
C.W.P. No. 11945 of 2008 6
also given recognition to the School as Senior Secondary School
w.e.f. 1.1.2005. At present about 950 boys and girls are studying in
the school. There is no other English medium school in the near
vicinity of village Bhainsa Tibba, village Sketri or in the Mansa Devi
Complex to meet the educational requirement of about 20,000
residents.
9. While admitting abuse of statutory powers by the
officials of the State Government in acquiring and releasing lands and
buildings, it has also been pointed out that the respondent State has
left out about 20 acres of land of Shri Shyam Sunder, Liquor
Contractor and Coloniser adjacent to the Valey Public School in
Village Bhainsa Tibba, whereon several showrooms and residential
houses were constructed in 1986-90 without any approval of the
competent authority.
10. Regarding release of about 5 acres of land falling under
buildings and school after announcement of award, respondent No. 5
has stated that on his representations, the Chief Secretary, Haryana,
after detailed discussions with the concerned authorities made a
recommendation on 13.4.2007 regarding release of land (R-5/13).
Later on even the State Government framed a policy dated
26.10.2007 for release of notified lands (R-5/14). On 29.12.2007,
respondent No. 5 submitted another representation to the
Commissioner, Urban Estates and the Chief Minister for passing final
order on the report of the Chief Secretary, dated 13.4.2007 (R-5/16).
The respondent State finally approve the recommendations of the
Chief Secretary vide order dated 5.1.2008, subject to the condition
that he would withdraw all cases/representations pending before
C.W.P. No. 11945 of 2008 7
various Courts/Government and surrender his claim to the other land
except the part of the land being released. Ultimately, land measuring
9 Kanals 10 marls was released vide order dated 3.3.2008 on which
school and two farmhouse buildings have been constructed since
1979 and 1990.
11. After hearing learned counsel for the parties at a
considerable length and perusing the paper book with their able
assistance, we are of the considered view that there is no merit in the
instant petition and the same is liable to be dismissed. The principal
question which arises for determination is whether there is any scope
for issuing direction to the respondents to de-notify the land from
acquisition after the award has been announced and possession has
been taken. The aforementioned question is not res integra. Hon’ble
the Supreme Court has considered the aforementioned question in the
case of Rajasthan Housing Board v. Shri Kishan, (1993) 2 SCC
84. Apart from answering various other questions in connected
matter decided, the question in issue raised before us was answered in
Writ Petition (C) No. 290 of 1989. After noticing the correspondence
between the Urban Development and Housing Department of
Rajasthan Government and Rajasthan Housing Board, their
Lordships’ proceeded to answer the question in para 26 of the
judgment, which reads thus:-
“26. We are of the further opinion that in any event the
Government could not have withdrawn from the
acquisition under Section 48 of the Act inasmuch as the
Government had taken possession of the land. Once the
possession of the land is taken it is not open to the
C.W.P. No. 11945 of 2008 8Government to withdraw from the acquisition. The very
letter dated February 24, 1990 relied upon by the counsel
for the petitioner recites that “before restoring the
possession to the society the amount of development
charges will have to be returned back …”. This shows
clearly that possession was taken over by the Housing
Board. Indeed the very tenor of the letter is, asking the
Housing Board as to what development work they had
carried out on the land and how much expenditure they
had incurred thereon, which could not have been done
unless the Board was in possession of the land. The
Housing Board was asked to send the full particulars of
the expenditure and not to carry on any further
development works on that land. Reading the letter as a
whole, it cannot but be said that the possession of the
land was taken by the Government and was also
delivered to the Housing Board. Since the possession of
the land was taken, there could be no question of
withdrawing from the acquisition under Section 48 of the
Land Acquisition Act, 1894.” (emphasis added)
12. Again in the case of Mandir Shree Sita Ramji v. Land
Acquisition Collector, (2005) 6 SCC 745, the provisions of Section
48 of the Act fell for consideration of Hon’ble the Supreme Court and
in passing remark, it was observed that once possession is taken the
Government cannot withdraw from acquisition under Section 48 and
the contrary contention raised in that regard was rejected.
C.W.P. No. 11945 of 2008 9
13. Another opportunity to consider the same very question
arose before Hon’ble the Supreme Court in the case of P.K. Kalburqi
v. State of Karnataka, (2005) 12 SCC 489. The specific question
raised was whether the Government was justified in releasing a
portion of land from acquisition. A cognate question was also
decided, namely, what is the meaning of taking possession. In other
words, whether it is actual or symbolic possession. Answering the
first question, it was held that once the possession is taken then there
is no room for the Government to release the land from acquisition by
de-notifying the same. In respect of the second question, it was
observed that if the land is plain then symbolic possession itself
would be sufficient by making entry in the revenue record.
14. Moreover, in the case of Gurkirpal Singh v. Financial
Commissioner (Revenue) and Secretary, Government of Punjab,
Department of Revenue and others (C.W.P. No. 10511 of 2007,
decided on 9.5.2008) the question as to whether the acquired land
could be de-notified after the award and proceed after taking of`
possession under Section 16 of the Act, also came up for
consideration before a Division Bench of this Court of which one of
use (M.M. Kumar, J.) was a member. The challenge in the said
petition was to a notification dated 23.2.2007 whereby the earlier
notifications issued under Section 4 and 6 of the Act were de-notified
by the State Government. The Division Bench after referring to the
provisions of Section 48 of the Act discussed a catena of judgments
in detail and came to the conclusion that once the possession has been
taken there is no possibility of the respondent State to de-notify the
acquisition. After placing reliance on the judgments of Hon’ble the
C.W.P. No. 11945 of 2008 10
Supreme Court in the case of Balmokand Khatri Educational and
Industrial Trust, Amritsar v. State of Punjab, (1996) 4 SCC 212
and Balwant Narayan Bhagde v. M.D. Bhagwat, AIR 1975 SC
1767, the Division Bench also rejected the argument that physical
possession of the land remained with the petitioner and it has been
held that usual mode of taking possession by the Government is by
making entry in the Rapat Roznamcha immediately after
announcement of award. In somewhat similar circumstances, we
have also dismissed C.W.P. No. 687 of 2008 (Smt. Asha Malik and
another v. State of Haryana and others) vide order dated
2.12.2008.
15. We repeatedly asked Mr. Babbar Bhan, learned counsel
for the petitioner as to how a direction for release of land acquired in
1999-2000 could be issued after the award has been announced and
possession of the land is taken, he has not been able to cite any
contrary law or give answer to our query.
16. Even otherwise it is well settled that no writ petition
would be competent after passing of award because possession of
land was taken and it is deemed to be vested in the State Government.
In that regard reliance has rightly been placed by respondent Nos. 1
and 2 on the judgments of Hon’ble the Supreme Court rendered in the
cases of Star Wire (India) Ltd. v. State of Haryana, (1996) 11 SCC
698; Municipal Council Ahmednagar v. Shah Hyder Beig, (2000)
2 SCC 48; C. Padma v. Dy. Secretary to the Government of Tamil
Nadu, (1997) 2 SCC 627; and M/s Swaika Properties Pvt. Ltd. v.
State of Rajasthan, JT 2008 (2) SC 280. In the instant case it is
conceded position that award was announced on 9.10.2003 and the
C.W.P. No. 11945 of 2008 11
writ petition has been filed on 14.7.2008 i.e. after more than 4½
years.
17. A close scrutiny of various orders passed by this Court
shows that respondent no. 5 was put on notice in respect of order
dated 3.3.2008 releasing his land after award and possession. In that
regard reference may be made to the interlocutory order dated
15.7.2008. It was thereafter that respondent No. 5 has filed a separate
detailed written statement to defend order dated 3.3.2008.
18. During the course of hearing we repeatedly posed a
question to Mr. B.R. Gupta, learned counsel for respondent No. 5 that
once the award has been announced and possession of the land has
been taken then how can the power under Section 48 of the Act could
be exercised. Mr. Gupta has not been able to answer the
aforementioned query except stating that the State Government has
exercised its discretion and even policy has been framed on
26.10.2007 (R-5/14). The petitioner has not been able to substantiate
the allegation concerning release of land of ‘Maharaja’ after award.
There is nothing on record to that effect.
19. At this stage it would be apposite to take notice of clause
1 and 2 of the policy dated 26.10.2007 (R-5/14), which reads thus:-
“1) No request will be considered after one year of
award. Only those requests will be considered by
the Government where objections under section 5-
A were filed.
2) Any request for application where structures have
been constructed will only be considered for the
C.W.P. No. 11945 of 2008 12release under section 48(1) provided the structure
exists prior to section 4 and is inhabited.
3) to 6) xxx xxx xxx xxx
Provided that the Government may release any
land on the grounds other than stated above under
section 48(1) of the Act under exceptionally justifiable
circumstances for reasons to be recorded in writing.”
20. A perusal of the aforementioned clauses of the policy
would show that it is impregnated with the illegality, inasmuch as, it
arms the Government with the power to release land from acquisition
within one year after the award. In other words, the award could be
passed without taking possession of the land for one year. This is
factually against the ground realities because on the day of
announcement of award possession of the land is ordinarily taken. In
the present case also it remains undisputed that the award was
announced on 9.10.2003 and the possession of the acquired land was
handed over to HUDA-respondent Nos. 3 and 4 on 9.10.2003 itself.
The factual position is evident from para 1 of the preliminary
objections of the written statement filed by HUDA-respondent Nos. 3
and 4. Therefore, there would be rare possibility of announcing an
award without taking possession. It could only be where court has
passed interim order which is not the position in this case. Therefore,
we have not been able to persuade ourselves to approve clause 1 of
the policy, which provide for entertaining of an application within
one year after announcement of award. The power is also being
misused by releasing that land in respect of which award has been
C.W.P. No. 11945 of 2008 13
announced and possession has been taken as is evident in the present
case.
21. We are further of the view that power to release land
from acquisition before the stage of issuing declaration under Section
6 of the Act should not be the rule but only an exception and power
under Section 48(1) should be used sparingly. By doing so law and
life would be on talking terms otherwise they would be distant
neighbours. But it all depends on the machinery of the State which
must be geared to achieve maximum welfare of its citizens. In a large
number of cases which have come up for hearing before us, no survey
is carried out before issuing notification under Section 4 of the Act,
which result into extreme harassment to the general public who have
constructed their houses, factories or other buildings before issuance
of notification under Section 4 of the Act. The respondent State of
Haryana is pursuing the policy of excluding the constructed area built
before issuance of notification under Section 4 as is evident from
clause 2 of the policy dated 26.10.1997 (R-5/14), which has been
extracted in para 19. To achieve that object the Land Acquisition
Collector or any other officers of the Town and Country Planning
Department etc. should be under an obligation to first undertake a
detailed survey of the site for which notification under Section 4 is
proposed to be issued. A notification under Section 4 of the Act
should be issued by excluding the constructed area as per the policy,
which would avoid unnecessary harassment to the general public. A
notification under Section 4 is required to be prepared by including
only that area, building or construction which are absolutely
necessary for executing the public purpose. It has been seen in a
C.W.P. No. 11945 of 2008 14
large number of cases that notification under Section 4 of the Act is
issued for acquisition of say 500 acres of land and by the time
declaration under Section 6 of the Act is published, only 100 acres of
land is intended to be acquired. It shows wanton disregard of clause
2 of the policy of the Government, dated 26.10.2007 (R-5/14). It
appears that without any regard to the policy of the Government,
notifications under Section 4 of the Act at ease are being issued by
including large area with construction and then such areas are
excluded from acquisition by not including the same in the
declaration issued under Section 6 of the Act. This leads to
flourishing of Babudom, illegal activities and exploitation of the
general public because their houses/hutments come under the threat
of being acquired after issuance of notification under Section 4 of the
Act. Therefore, necessary directions in that regard are required to be
issued.
22. As a sequel to the above discussion, we pass the
following directions:
a) The writ petition filed by the petitioner is hereby
dismissed;
b) Order dated 3.3.2008 (P-8) releasing the land belonging
to respondent No. 5, measuring 9 Kanals 10 marlas,
comprised in Khasra No. 59//5/2 Min, 6 Min, 15/1/1
Min, 60//1 Min, 10/1 Min, is also hereby quashed;
c) Clause 1 of the policy instructions dated 26.10.2007
(R-5/14) is declared illegal; and
d) The respondent State of Haryana is directed to issue
comprehensive instructions to all the Land Acquisition
C.W.P. No. 11945 of 2008 15Collectors of the State, Officers of the Town and
Country Planning Department, various agencies like
HUDA, HSIIDC or others to undertake a comprehensive
survey before sending the proposal to the Government
for issuance of notifications under Section 4 of the Act.
The concerned officers are to ensure that clause 2 of the
policy of the State, dated 26.10.2007 for releasing the
structures, which have been built up prior to issuance of
notification under Section 4 of the Act are not included
in the proposal for acquisition. Such instructions would
bring proximity between law, life and justice which look
to be distant neighbours in the present scenario. It would
avoid unnecessary harassment to the general public who
might have constructed small houses on the land
proposed to be acquired. It would also discourage the
construction activity after issuance of notification under
Section 4 of the Act or the tendency of some
unscrupulous element to claim that the building was
constructed prior to issuance of notification under
Section 4 of the Act. These steps in turn would reduce
the disputes between the general public and the State
paving the way for developing peaceful society and
avoiding litigation.
23. The needful shall be done within a period of two months
and a compliance report in that regard be placed on record on or
before 2.3.2009.
C.W.P. No. 11945 of 2008 16
24. A copy of this order be given to Ms. Palika Monga,
Assistant Advocate General, Haryana for onward transmission to the
Chief Secretary, Haryana.
(M.M. KUMAR)
JUDGE
(JORA SINGH)
December 10, 2008 JUDGE
Pkapoor