[CASE NUMBER] 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH [CASE NUMBER] Date of decision:24.01.2013 [ENTITY] & others Petitioners Versus The [ENTITY] etc. Respondents CORAM : HON'BLE MR.JUSTICE AJAY KUMAR MITTAL HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Mr.[ENTITY], Advocate, for the petitioners.
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. Whether to be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in the Digest? Yes [ENTITY] J.
1. The present writ petition, filed under [SECTION] of the [ACT], prays for writ in the nature of mandamus directing respondents No.1 & 2 to denotify the land of the petitioners situated in the revenue estate of villages Sardargarh and Khadauli, Tehsil Rajpura, District Patiala which were notified for acquisition on 05.04.1994 (Annexure P-3) under [SECTION] of the [ACT] as amended (hereinafter to be referred to as the 'Act') and 15.0[SECTION].1994 (Annexure P-5) under [SECTION] of the Act. The relief claimed is on the strength of the notifications dated 19.09.1997 (Annexure P-7), 11.02.1999 (Annexure P-8) and 1[SECTION].08.2011 (Annexure P-9) whereby the land of the co-villagers were denotified by the State Government and on account of the alleged admission of respondent No.3 vide letter dated 1[SECTION].05.2011 (Annexure P-12) for whom the land was sought to be acquired.
2. A perusal of the writ petition goes on to show that in order to set up industrial estate in the revenue district of Patiala, a memorandum of understanding was entered into between the Government of Punjab in the Industries Department and M/s Shriram Industrial Enterprises Limited (for brevity, the '[ENTITY]'), respondent No.3-company incorporated under the Companies Act, 195[SECTION]. Respondent No.3 was to set up captive thermal power plant and to put up its own chemical manufacturing facility. The State Government was to acquire the land for setting up the industrial estate of respondent No.3-company and the enhanced compensation was to be borne by the [ENTITY], who was also to offer employment to one able bodied person of each such family whose dwelling unit was to be shifted. In pursuance of the said MOU, the notification dated 05.04.1994, proposing to acquire 1119.[SECTION]1 acres, situated in the revenue estate including villages Sardargarh and Khadauli, was issued for setting up the industrial estate at public expense for the public purpose. The notification was objected to by some co-villagers under [SECTION] of the the Act on 02.05.1994. Thereafter, the notification dated 15.0[SECTION].1994 under [SECTION] of the Act was issued acquiring 1110.78 acres of land. Some of the co-villagers, vide CWP No.1[SECTION]72 of 1994 titled Ram Sarup & others Vs. [ENTITY] & others and [CASE NUMBER] titled [ENTITY] & others Vs. [ENTITY] & others challenged the notifications issued under [SECTION] & [SECTION] of the Act. The award was passed on 03.04.1995 and compensation was granted @ `1,45,000/- per acre in case of the petitioners who received the amount of compensation. Thereafter, the [ENTITY] issued two notifications dated 19.09.1997 and 11.02.1999, denotifying some of the land of the co-villagers who had approached this Court by way of the above-mentioned two writ petitions. Another notification dated 1[SECTION].08.2011 was also published whereby land measuring 58.4 acres pertaining to village Sardargarh was denotified on 1[SECTION].08.2011. Reference was also made to application dated 15.01.2007 filed in CWP No.1[SECTION]72 of 1994 by respondent No.3-[ENTITY] that since the land stood denotified, the petitioners' right to contest the acquisition proceedings did not survive. Reference is also made to order dated 05.10.2011, thereafter, passed on the said application wherein the writ petition was disposed of in view of the said fact that the land stood denotified vide notification dated 1[SECTION].08.2011. Copy of the letter dated 1[SECTION].05.2011 of respondent No.3-[ENTITY] wherein it had written to the Collector, Land Acquisition, requesting the State Government to denotify the land in [CASE NUMBER], filed by [ENTITY], bearing 58.4 acres of land was also placed on record. Accordingly, plea was taken that the State Government was acting in a discriminatory manner in denotifying the land and a major chunk of land under acquisition had been divided into small segments where the development of the project was impracticable and various land owner had refunded the amount of compensation. The petitioners' representation dated 10.09.2011 and 21.12.2012 had not been redressed. It was, thus, submitted that the land of the petitioners had been acquired but not developed and the terms of the MOU had not been adhered to and the petitioners were poor villagers who had suffered. On the above-said premises, the writ petition was filed that the petitioners had been denied their legitimate right.
3. Counsel for the petitioners relied upon the judgment of the Hon'ble Apex Court in the case of [PRECEDENT] & another Vs. The State of Haryana & others 2010 (3) SCC [SECTION]21 and submitted that the petitioners were also entitled for release of their acquired land under [SECTION] of the Act as similarly situated persons had been given the benefit.
4. After hearing counsel for the petitioners, in our opinion, the writ petition is liable to be dismissed. Firstly, on the ground of delay and laches and even on merits as the petitioners have no legal and vested right. The facts shows that the notifications under [SECTION] of the Act was issued on 02.05.1994 and under [SECTION] of the Act was issued on 15.0[SECTION].1994. Almost a period of 19 years has expired since the said notifications were issued. The award was passed on 03.04.1995 and the petitioners received compensation also and they never protested against the said acquisition. Thus, they are estopped, now, from raising a challenge to the acquisition proceedings in which the land has already vested with the respondent-State after acquisition. The Hon'ble Apex Court, recently, in [PRECEDENT] & others Vs. State of Haryana & others (2012) 1 SCC [SECTION][SECTION], in similar situation wherein also, land acquired in 197[SECTION] was sought to be returned by sending a legal notice in the year 1999, repelled the argument of the petitioners in view of the principles of delay and laches while upholding the judgment dated 21.01.2008, passed by a Division Bench of this Court in [CASE NUMBER] titled [PRECEDENT]. The relevant observations on the issue of delay and laches are as under:
"13. We have considered the respective submissions and examined the records. In our view, the High Court did not commit any error by not entertaining the appellants' challenge to the acquisition of land because they did not offer any explanation for the long time gap of more than three decades between the issue of notifications under [SECTION] and [SECTION] i.e. 197[SECTION] and filing of the writ petition i.e. 2007."
5. The fact that the release orders had been issued in the cases of other land owners during the pendency of the writ petitions in this Court would not give the petitioners a fresh cause of action once they had accepted the compensation and also filed regular first appeals and sought enhancement from this Court which fact has been conceded by the counsel for the petitioners. Once the petitioners had themselves raised no dispute regarding the acquisition of 1994, they cannot, now, agitate against the said acquisition on the ground that certain benefits have been given to persons who are fighting for their rights. In such circumstances, reference to the judgment in [PRECEDENT]'s case (supra) would not apply since in the said case, the issue of taking possession by the State Government did not arise since the land-owners preferred writ petitions challenging the acquisition. Therefore, there would be no violation of [SECTION] of the [ACT]. A perusal of letter dated 1[SECTION].05.2011 goes on to show that respondent No.3-[ENTITY] faced difficulty to develop the land because of the litigation pertaining to 58.4 acres.
[SECTION]. On the merits of the case also, petitioners have no legal or vested right. It is an admitted fact that the possession of the land was taken after passing of the award. As it is the case of the petitioners themselves that most of the acquired land is lying vacant and that eucalyptus trees are standing on the land as per the photographs attached with the writ petition. Under the provisions of [SECTION] & [SECTION] of the Act, once the award is passed and possession is taken, the land deems to vest in the Government and it cannot be released. The law on the said issue also stands settled by this Court as well as by the Hon'ble Apex Court. Reference can be made to a Division Bench judgment of this Court; in [PRECEDENT] wherein similar issue arose. In the said case, the challenge was to the denotification on account of the land-owners seeking execution of the compensation amount. The Division Bench held that once the land had vested in the Government and the proprietary rights had been transferred to the State, the State could not denotify the acquisition on the ground that the land was not suitable for the purpose for which it was acquired. Accordingly, the notification, denotifying the land was set aside and the petitioners were held entitled to make recovery of the amount of compensation. Relevant observations read as under:
"(13) We are further of the view that the policy of law as reflected in [SECTION] of the Act cannot be deviated because if the State Government is permitted to de-notify the land after it has vested in the State free from all encumbrances and after taking of its possession then any person whose land has been acquired would be permitted to move the Court for release of his land. It would be negation of the proprietary rights because [SECTION] and [SECTION] of the Act contemplates that the land is to vest in the Government free from all encumbrances. It is thereafter that the expatriate person would not remain the owner and the proprietary rights are transferred to the State. Such an argument was raised before Hon'ble the Supreme Court in the case of [PRECEDENT]. In para 1[SECTION] of the judgment, the argument has been rejected by observing as under:-
"1[SECTION]. Even otherwise, we have seen the scheme sought to be relied upon. We find from the scheme that it only applies in respect of persons/agencies who own and possess the land. In this case possession of the land had already been taken. The scheme also categorically states that the scheme would not take away the rights of the Delhi Development Authority to acquire for development of Delhi. Thus the scheme was not applicable to lands of the Appellants. Even under [SECTION] of the [ACT] once possession is taken the Government cannot withdraw from the acquisition. We thus see no substance in this contention also."
(14) Therefore, consistent with the public policy and the policy of law as implicit in [SECTION], [SECTION] and [SECTION] of the Act, once the possession has been taken there is no possibility of the respondent State to de-notify the acquisition.
xxxx xxxx xxxx (18) We are further of the view that the respondent State is not barred from utilizing the land for any other purpose than the one for which the land was required. It is well settled principle laid down in a catena of judgments. In the case of Union of India v. Jaswant Rai Kochhar, (199[SECTION]) 3 SCC 491, it has been held that land acquired for public purpose may be used for another purpose. Therefore, when notification had mentioned that land was sought to be acquired for housing scheme but it is sought to be used for District Centre then the public purpose does not cease and notification on that ground could not be quashed. Similar view has been taken in the cases of [PRECEDENT]; [PRECEDENT]; and [PRECEDENT]. Therefore, the respondent State cannot put forward the excuse that since the site of the acquired and was not suitable for construction of a Judicial Court Complex it cannot be used for another purpose.
(19) In view of the above, the instant petition succeeds. The impugned notification dated 23.2.2007 (P-1) is hereby set aside. The petitioner shall be entitled to make recovery of the amount of compensation from the respondents in accordance with law."
7. The Hon'ble Apex Court in [PRECEDENT], while allowing the appeal in a case where the Division Bench of t he Andhra Pradesh High Court had upheld the order of the Learned Single Judge, directing the authorities to hand-over the un-used portion of the land to the petitioners by collecting the amount of compensation already paid with interest @ 12% and after noticing the standing orders, held as under:
"10. It is neither debated nor disputed as regards the valid acquisition of the land in question under the provisions of the [ACT] and the possession of the land had been taken. By virtue of [SECTION] of the [ACT], the acquired land has vested absolutely in the Government free from all encumbrances. Under [SECTION] of the [ACT], Government could withdraw from the acquisition of any land of which possession has not been taken. In the instant case, even under [SECTION], the Government could not withdraw from acquisition or to re- convey the said land to the respondent as the possession of the land had already been taken. The position of law is well settled.
14. From the position of law made clear in the aforementioned decisions, it follows that (1) under [SECTION] of the [ACT], the land acquired vests in the Government absolutely free from all encumbrances; (2) the land acquired for a public purpose could be utilized for any other public purpose; and (3) the acquired land which is vested in the Government free from all encumbrances cannot be re-assigned or re-conveyed to the original owner merely on the basis of an executive order."
8. In [PRECEDENT], it was held as under:
"1[SECTION]. It is a well settled proposition of law that in the event possession of the land, in respect whereof a Notification had been issued, had been taken over, the State would be denuded of its power to withdraw from the acquisition in terms of [SECTION] of the Act. Whether actual or symbolic possession had been taken over from the land owners is essentially a question of fact. Taking over of possession in terms of the provisions of the Act would, however, mean actual possession and not symbolic possession. The question, however, is as to whether the finding of fact arrived at by the High Court that physical possession, indeed, had been taken over by the Collector is correct or not.
17. We have noticed hereinbefore the background facts. The emergency provisions were resorted to. Even 80% of the compensation had been paid way back in 1984. Had possession of the vacant land been not taken, the question of payment of 80 % of compensation would not have arisen. All other legal requirements to invoke the said provision have been complied with."
9. Following the above-said view in the case of [PRECEDENT] (supra), the Hon'ble Apex Court came to the conclusion that the standing orders of the Land Administrative Manual no-where suggested that the State Government was duty bound to return the acquired land to the owners after the purpose of acquisition was accomplished and dismissed the appeal filed by the land-owners by holding that it would be contrary to the language of [SECTION] of the Act.
10. The judgment relied upon by the counsel for the petitioners in [PRECEDENT] (supra) relates to where there was large scale release and the Hon'ble Apex Court came to the conclusion that very small land-owners, who were similarly situated and had been granted the benefit of release which entitled the petitioners for the similar relief. This would be clear from paragraph 24 of the said judgment which reads as under:
"24. As a matter of fact, lands of more than 40 landowners out of the same acquisition proceedings have been released by the State Government under [SECTION] of the Act. Some of the release orders have been passed in respect of landowners who had not challenged the acquisition proceedings and some of them had challenged the acquisition proceedings before the High Court and whose cases were not recommended by Joint Inspection Committee for withdrawal from acquisition and whose writ petitions were dismissed. Some of these landowners had only vacant plots of land and there was no construction at all. In most of these cases, the award has been passed and, thereafter, the State Government has withdrawn from acquisition. It is not the case of the respondents that withdrawal from acquisition in favour of such landowners has been in violation of any statutory provision or contrary to law. It is also not their case that the release of land from acquisition in favour of such landowners was wrong action on their part or it was done due to some mistake or a result of fraud or corrupt motive. There is nothing to even remotely suggest that the persons whose lands have been released have derived the benefit illegally. As noticed above, prior to October 2[SECTION], 2007, the State Government did not have uniform policy concerning withdrawal from acquisition. As regards the guidelines provided in the letter dated June 2[SECTION], 1991, this Court has already held that classification on the basis of nature of construction cannot be validly made and such policy is not based on intelligible differentia and a rational basis. What appears from the available material is that for release of the lands under the subject acquisition, no policy has been adhered to. This leads to an irresistible conclusion that no firm policy with regard to release of land from acquisition existed. It is true that any action or order contrary to law does not confer any right upon any person for similar treatment. It is equally true that a landowner whose land has been acquired for public purpose by following the prescribed procedure cannot claim as a matter of right for release of his/her land from acquisition but where the State Government exercises its power under [SECTION] of the Act for withdrawal from acquisition in respect of a particular land, the landowners who are similarly situated have right of similar treatment by the State Government. Equality of citizens' rights is one of the fundamental pillars on which edifice of rule of law rests. All actions of the State have to be fair and for legitimate reasons. The Government has obligation of acting with substantial fairness and consistency in considering the representations of the landowners for withdrawal from acquisition whose lands have been acquired under the same acquisition proceedings. The State Government cannot pick and choose some landowners and release their land from acquisition and deny the same benefit to other landowners by creating artificial distinction. Passing different orders in exercise of its power under [SECTION] of the Act in respect of persons similarly situated relating to same acquisition proceedings and for same public purpose is definitely violative of [SECTION] of the [ACT] and must be held to be discriminatory. More so, it is not even the case of the respondents that release of land from acquisition in favour of various landowners, as noticed above, was in violation of any statutory provision or actuated with ulterior motive or done due to some mistake or contrary to any public interest. As a matter of fact, vide order dated August 19, 2008, this Court gave an opportunity to the State Government to consider the representations of the appellants for release of their land and pass appropriate order but the State Government considered their representations in light of the policy dated October 2[SECTION], 2007 ignoring and overlooking the fact that for none of the landowners whose lands have been released from acquisition, the policy dated October 2[SECTION], 2007 was applied. The State Government has sought to set up make believe grounds to justify its action that development planning has been kept into consideration and that the appellants have been offered developed plots of double the area of construction while the fact of the matter is that in some cases where the plots were vacant and had no construction, the entire plot has been released from acquisition and also the cases where one room or two rooms construction was existing, the whole of plot has been released. While releasing land of more than 40 landowners having plots of size from 150 sq. yards to 1500 sq. yards, if development plan did not get materially disturbed in the opinion of the State Government, the same opinion must hold good for the appellants' lands as well. It is unfair on the part of the State Government in not considering representations of the appellants by applying the same standards which were applied to other landowners while withdrawing from acquisition of their land under the same acquisition proceedings. If this Court does not correct the wrong action of the State Government, it may leave citizens with the belief that what counts for the citizens is right contacts with right persons in the State Government and that judicial proceedings are not efficacious. The action of State Government in treating the present appellants differently although they are situated similar to the landowners whose lands have been released can not be countenanced and has to be declared bad in law."
11. In view of the above, we do not find any merit in the contentions of learned counsel for the petitioners. Accordingly, the writ petition, being devoid of merit, is dismissed in limine.
([ENTITY]) JUDGE 24.01.2013 ([ENTITY]) [ENTITY] JUDGE