CIVIL WRIT PETITION NO. 19927 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.19927 of 2009 DATE OF DECISION: MAY 16, 2011 Sandeep .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Puneet Bali, Advocate with Mr. Rose Gupta, Advocate. Mr. ID Singla, Advocate. Mr. Sanjiv Bansal, Advocate. Mr. Sudhir Mittal, Advocate. Mr. Sanjay Jain, Advocate. for the petitioner(s). Ms. Shruti Jain, AAG, Haryana for the State. CIVIL WRIT PETITION NO. 19927 of 2009 -2- Mr. Arun Walia, Advocate. Mr. Sidharth Batra, Advocate. Mr. Ajay Nara, Advocate. Mr. Dinesh Nagar, Advocate. Mr. Gaurav Mohunta, Advocate. **** RANJIT SINGH, J. This order will dispose of writ petition Nos.19927, 19965 and 20127 of 2009, 1605, 1637, 1646, 1647, 1648, 1649, 1650, 1651, 1652, 2272, 2837, 2838, 2839, 3742, 6940, 7980, 8594, 16675 and 16703 of 2010. Haryana Urban Development Authority (hereinafter called HUDA) Act enacted in the year 1977 with the purpose of constituting a statutory authority in place of Department of Urban Estate with aim to ensure speedy and economic development of urban areas in the state of Haryana. One of the reasons for enacting this Act, as can be seen from the statement of Objects and Reasons, is that the Urban Estate Department being a Government Department was unable to raise resources from various lending institutions though there were such institutions in the country willing to finance urban land development. The aim was to make the development of urban areas to be self financing. Ever since that day, CIVIL WRIT PETITION NO. 19927 of 2009 -3- HUDA has undertaken the development of various urban areas with reasonable success. This has given rise to numerous other incidental problems. The urban areas development has primarily happened due to acquisition of agricultural land available in and around urban areas of the State. Majority of the acquisition of land is from farming community and agriculturist. They, accordingly, stood deprived of their valuable property though on a compensation which was never in tune with the value of land the farmers lost. All such persons faced numerous problems on account of acquisition. It may not be very appropriate to list all these problems here, but it is generally understood and appreciated that in majority of the acquisition, almost without exception, the grievances were made by the farmers for the amount of compensation awarded to them. Invariably this lead to enhancement of compensation but by the time enhanced compensation reached the farmers it become inadequate. The inflation has always over shot resources with land losers making the land losers almost unable to re-adjust themselves somewhere else. The problem that arose on account of compulsory acquisition of land, which has lead to enrichment of the State author- ity like HUDA, was also subject matter of consideration by the Hon'ble Supreme Court in the case of State of U.P. Versus Pista Devi, AIR 1986 SC 2025. Due to far reaching observations made by the Hon'ble Supreme Court in this case, which have been referred to and relied upon by the counsel for the petitioner, various States for- mulated different policies to cater for the interest of those farmers, CIVIL WRIT PETITION NO. 19927 of 2009 -4- whose land was acquired and they became oustees from their own land. These are the policies, which are now under consideration in the bunch of these writ petitions. Almost every day this Court or perhaps various other courts, are flooded with the claims of persons termed as oustees seeking either allotment of plots or challenging the orders/action of the respondent-HUDA in not considering their claim in terms of these policies, which HUDA itself has formulated. Seeing this tendency in large number of cases and the nature of defences that are normally projected by HUDA, it is thought appropriate to connect all these petitions together for hearing to pass a comprehensive order taking note of all the policies instructions so as to settle the issue with some reasonable certainty. I am conscious of the position that the attitude of HUDA, which it is or has been, will not result in settling the issue but still the exercise may be worth an effort. It would also be a source of some solace to those farmers, who are struggling to get some plot on the same very land, which they have lost for carving out a polished richy-rich Urban areas. The resistance on the part of the HUDA is understandable. It is a profit making business and HUDA obviously does not want to lessen its profits or to share part of it with those who are source of this enrichment. HUDA obviously would be keen to make rules to protect its interest vis-à-vis the land losers but still will make them to take recourse to legal remedy in large number of cases by not following those polices formulated by it to suit its own interest. CIVIL WRIT PETITION NO. 19927 of 2009 -5- It is noticed that the Government lately itself has re- alised the enormity of this problem. The Land Acquisition Act legis- lated in 1894 may have been an effective instrument for acquisition of land for public purpose, yet these provisions are found to be not only inadequate but archaic as well. The Government appears to have now realised the after effect of compulsory acquisition, which leads to displacement of people depriving them of their livelihood and shelter. This also leads to uprooting them from their socio-cultural en- vironment. All such people ousted due to compulsory acquisition un- dergo traumatic, psychological and socio-cultural consequences. Their re-settlement and rehabilitation has now been given a para- mount importance. This has been so noticed in the statement of ob- ject and reasons of the Land Acquisition Amendment Bill, 2007 (for short, “2007 Bill”). Attempt now is being made to define the expres- sion `public purpose' so as to restrict the scope of land acquisition for strategic purposes vital to the State and for infrastructure projects, where the benefits accrue to general public. Even the scope and am- bit of expression `person interested' is proposed to be expanded to include within its purview the tribal and other traditional forest dwell- ers. The Act also aims to attend a frequently raised question mark on the desirability of State intervention, when land can very well be ar- ranged by the Company through private negotiation on a `willing seller-willing buyer' basis. The desirability to omit provision for acqui- sition of land for Companies under the Act has accordingly been felt. A provision to acquire some land through statutory mechanism in re- gard to limited portion of the total area of the land required, when it CIVIL WRIT PETITION NO. 19927 of 2009 -6- has already been purchased on the basis of `willing seller-willing buyer' is being proposed. Sometime ago, this Court had made some observa- tions in this regard while deciding Civil Revision No.1087 of 2006, ti- tled as “The Improvement Trust of Khanna, District Ludhiana Versus Jagjit Singh and others”, decided on 15.5.2008. The Court had observed as under:- “The present revision petition shall reflect a usual story of the plight of a poor farmer who loses his land due to ac- quisition by the organization like Improvement Trust and then is made to fight in the Courts for getting the ade- quate or the proper compensation for such land. Agreed that the provisions of Land Acquisition Act may have justi- fication keeping in mind the welfare activities of the State and it being in the good of public at large but some thought is required to be spared for a farmer who is made to part with his land, compulsorily, which is `Mother Land' for him. One may even question as to why there should be compulsion in acquiring somebody's property. There may be a justification for the action of the State or the Trust in ac- quiring property for planned, development on no profit no loss basis but the provisions entitling the State to acquire farmers' land for setting up industries would really not be comprehensible. If any industrialist wants to set up an in- dustry and is interested in a particular land, this must be by CIVIL WRIT PETITION NO. 19927 of 2009 -7- negotiations with the farmers and on his agreeing to sell rather than by a compulsory acquisition. Not only the land is acquired but farmer is then left high and dry to make rounds in the Court starting from the Acquisition Collector. He is made to repeat his rounds even after settlement of the rates about compensation while seeking to realise the same. By the time, he gets the amount, value of the money is negligi- ble. He, thus, loses land and is unable to get anything. He is ruined literally.” Even there is re-thinking on this Bill. May be, it is because of the recent upheaval of the farmers, objecting to such compulsory acquisition for private builders. Earlier, the land was acquired even for a purpose to set up Golf Course and commercial complexes which was termed as a `public purpose'. The Govern- ment policy of forcible acquiring private property for public purpose is certainly different from market purchase of land. The amendment introduced in 2007 Bill was primarily meant to address aspect of compensation and resettlement of displaced persons. The project useful to the general public where 70% of the land has already been purchased from willing sellers through free market only could lead to compulsory acquisition of the remaining pockets. Even this of 70:30 formula, is not found acceptable to those opposing the compulsory acquisition for such purposes and it is being suggested that only 10% to 15% of the land required, should be put to com- CIVIL WRIT PETITION NO. 19927 of 2009 -8- pulsory acquisition if the private person is able to purchase 90% of the remaining land. The resettlement and rehabilitation of such oustees has found a primary concern of the Government and one of the process of re-settlement is the allotment of a plot either com- mercial or residential to the land losers, which has accordingly been formulated by various States on the basis of law laid down by Hon'ble Supreme Court. Note: “Before this judgment could be issued, it is reported in Times Property of Times of India, dated 11.6.2011 that State of Uttar Pradesh has now banned all forcible acquisition and has allowed developers to buy land from farmers directly.” The objection to compulsory acquisition is well re- flected in the happenings in Orissa. It has been widely reported that the State Government has haulted land acquisition for five days, when young kids have joined Anti-Posco Stir, where they continues to have 24x7 vigil to protect their land. Young children aged between 8 to 10 years have been lying on the land instead of going to school. They are backed by their parents and the stir has forced the State to back-track 20 platoons of police force to move out. The right of the State for compulsory acquisition as such, is now a matter of serious concern and the public has come out open to lodge strong protest and are in fighting mode, forcing the Government to amend law. The issue in the present writ petition would need to be examined in this background. On the asking of this Court, all these policies instructions have been placed on record and are being taken into consideration to decide the various limbs of issues that would arise in CIVIL WRIT PETITION NO. 19927 of 2009 -9- the defences that are generally projected. In order to appreciate the controversy in the above noted context, the facts in CWP No.19927 of 2009 may need a notice in brief. The petitioner in CWP No.19927 of 2009 was a co-owner and co-sharer of land measuring 25 kanlas and 3 marlas falling in various Khewats, Khatonis and Rectangles in the revenue estate of Village Jharsa, Tehsil and District Gurgaon. He has approached this Court by making reference of a policy instruction issued on 10.9.1987 making a provision that oustees whose 75% land is acquired are required to be offered plots in lieu of their land so acquired on the rates prescribed for the General category. In this context, it is averred that the land to develop Sectors 44 to 46, Gurgaon, was acquired by the State Government on 20.4.1990 and in this regard, notification under Section 4 of the Land Acquisition Act (for short 'the Act') was published. This was followed by another notification under Section 6 of the Act. This evidence is to show that the above referred land in which the petitioner was co-sharer indeed was acquired in the year 1990. It is also disclosed that the policy instructions issued on 10.9.1987, known as Oustees Policy, was modified by issuing another comprehensive policy on 18.3.1992. This policy statedly was further revised on 12.3.1993. There would be a need to refer these policies as the Land Acquisition Collector had given his award in regard to this acquisition on 23.3.1993. It is claimed that the entire land belonging to the petitioner with his co- sharers, was acquired. Another clarification statedly was issued in regard to the policy on 28.8.1998. On this basis, it is urged that the CIVIL WRIT PETITION NO. 19927 of 2009 -10- oustees, whose land was acquired by the respondents, were required to be offered plot as per the provisions made in the policies. These policies as noticed above, were formulated pursuant to the observations made by the Apex Court in Pista Devi's case (supra) . Reference would need to be made to various judgments passed by the Court from time to time, where different types of claim of the oustees were considered and various orders passed either allowing or disallowing the claims so as to understand the legal position. Based on the precedent as well as on the policy, the petitioner approached this Court through CWP No.7252 of 2009, which was disposed of on 14.5.2009 with direction to the respondents to consider the claim of the petitioner for allotment of a plot under Oustees Policy. The HUDA, however, rejected the representation of the petitioner on 2.9.2009 and accordingly, the petitioner has filed this writ petition. The respondent-HUDA has tried to justify its action in the reply filed in response to the notice. HUDA has not denied that the land owned by the petitioner was acquired for carving out Sectors 44 to 46. It is stated that booking for Sector 45 commenced on 20.5.1997 and booking for residential plot and oustees plot in Sector 46, Gurgaon, had commenced on 11.9.1995. It is conceded that the petitioner was eligible as per the policy dated 9.5.1990 to apply for plot in the same sector in which his land was acquired. Copy of policy dated 9.5.1990 is annexed with the reply. It is stated that there were five co-shares including the petitioner whose land was so acquired, but none of them had applied for plot. On this basis, it is CIVIL WRIT PETITION NO. 19927 of 2009 -11- submitted that the writ petition is liable to be dismissed on the short ground that the petitioner has approached this Court by concealing material facts and has also not disclosed his share in the total land, which was acquired for development of Sectors 44 to 46. Mention is also made that a Committee was constituted to consider the claim of the petitioner for allotment of the plot as per the oustees policy of HUDA. The copy of minutes of this meeting along with the list of oustees applications for allotment of plots in Sectors 49-50, Gurgaon, is also attached with the reply as Annexure R-2/3, where the name of the petitioner figured at Sr. No.6. It is observed that the petitioner is not entitled for the allotment of plot in Sector 49-50, Gurgaon. In the light of facts as aforementioned, the petitioner has claimed for allotment of plot as an oustee. It is pleaded that in the policy instructions issued from time to time, it has been provided that land owners are entitled for allotment of plot as oustees. Counsel for the petitioner, accordingly, pleads that action of the respondents in rejecting the claim of the petitioner is not justified. As may be noticed, the claim of the petitioner is declined primarily on the ground that HUDA had commenced the booking for plots in Sector 45 on 20.5.1997 and in Sector 46 on 11.9.1995. The petitioner though a co-sharer, but none of the co- sharer had applied for allotment of plot. It is, thus, stated that writ petition be dismissed on the ground of concealment of material facts. The stand taken in the reply is contrary to the contents of the rejection order (Annexure P-7). The reasons disclosed for rejecting the claim of the petitioner in Annexure P-7 is CIVIL WRIT PETITION NO. 19927 of 2009 -12- that he did not apply for allotment of a plot at the time of floating of Sectors 44 to 46 with 10% earnest money in terms of conditions of the advertisement. It is mentioned in the impugned order that the petitioner waited far too long in making his claim and in support reliance is placed on an order passed in CWP Nos.103 of 2001 and 5706 of 2005, where some observations are made to the effect that the authorities are not expected to wait for more than 4 years and the person cannot apply at his convenience and seek allotment of plots as oustees. The reasons advanced to decline the claim of the petitioner has made it necessarily to consider all the policies formulated by HUDA from time to time to see if claim of the petitioner could be declined on the ground as urged either in the written statement or due to those reasons which are contained in the impugned order (Annexure P-7). Delay seems to be ground pressed for rejecting the claim of the petitioner. In the reply, somewhat different stand is taken to say that the petitioner had concealed the material facts and that he is only a co-sharer and other co-sharers had not approached for allotment of plot. These reasons are different than those contained in impugned order. Would these reasons be valid to reject the claim of petitioner-oustees? This will have to be examined in the light of policies, which have been formulated by HUDA from time to time. Since large number of writ petitions have been connected together for decision through this common judgment, the other reasons advanced to reject the claims of the oustees are also being CIVIL WRIT PETITION NO. 19927 of 2009 -13- considered in the light of various policies that are framed from time to time. The process of forming policy initially commenced with the advent of Pista Devi's case (supra). In this case, notification to acquire the land for city of Meerut was under challenge. The said notification was set aside on the ground that the emergency provision under Section 5-A of the Act was invoked but there was delay of one year between the publication of notification under Section 4 and the date of declaration made under Section 6 of the Act. That order was challenged by the State of UP before the Hon'ble Supreme Court. It was urged before the Supreme Court that many of the persons from whom the land was acquired were those, who were without houses or sites for shops and if they were to be thrown out of their land, they will be exposed to serious prejudice. It was, accordingly, urged that since the land was being acquired for providing residential accommodation to those, who were being expropriated on account of the acquisition proceedings would also be eligible for same relief at the hands of the Meerut Development Authority. The Supreme Court then made reference to the provisions contained in Section 21(2) of the Delhi Development Act, 1957 and observed as under:- “Although the said section is not in terms applicable to the present acquisition proceedings, we are of the view that the above provision in the Delhi Development Act contains a wholesome principle which should be followed by all Development Authorities throughout the country when they acquire large tracts of land for the CIVIL WRIT PETITION NO. 19927 of 2009 -14- purposes of land development in urban areas. We hope and trust that the Meerut Development Authority, for whose benefit the land in question has been acquired will as far as practicable provide a house site or shop site of reasonable size on reasonable terms to each of the expropriated persons who have no houses or shop buildings in the urban area in question”. The counsel for the petitioner submits that these observations formed the basis for various States to formulate policies for allotment of plots to those whose land was acquired. The State of Haryana apparently came out with policy of allotment of residential plots/commercial sites to the oustees in the various Urban Estates being set up by HUDA. The first policy seems to have been formulated on 10.9.1987. It was decided that the plots to the oustees be only offered if they were owner of the land proposed to be acquired for one year before the issue of notification under Section 4 of the Act and that the plots could be allotted only if 75% of the land owned by the landowners was acquired. In this regard, following provisions were made in the policy:- “(i) Among others, those who own lands upto 500 sq. yards should be offered a plot of 100 sq. yards, those who own land more than 500 sq. yards to one acre, should be offered plot of 250 sq. yards and owners of larger lands should be offered plots of 350 sq. yards. (ii) If there are a number of owners for particular land, effort should be made to accommodate them subject to the limit of one plot of 250 sq. yards for CIVIL WRIT PETITION NO. 19927 of 2009 -15- every acre of land acquired. Such plots should be offered to the person, whom he files an affidavit to the effect that he does not hold any house/shop or plot in that town. This condition will be in confor- mity with the decision of the Hon'ble Supreme Court in Pista Devi's case.” Thus, the person whose land upto 500 sq.yards was acquired was to be offered a plot of 100 sq. yards and whose land was more than 500 sq. yards to one acre, was to be offered a plot of 250 sq. yards. The owners of larger tracts of lands were to be offered plots of 350 sq. yards. It is clearly noticed that the policy was formulated due to observations made in Pista Devi’s case (supra) as is noted in the policy itself. These conditions were to be in conformity with the decision of the Hon'ble Supreme Court in Pista Devi's case (supra) , reference of which was made in the Policy itself. The landowners were also to be given compensation for their land, which was acquired and they were to pay for these plots at the normal allotment rate of HUDA. Those persons, who had houses in the area acquired and if these were released were to pay development cost for portion of their land so released. The persons whose part of land or some houses have been released from the acquisition and the remaining land was acquired were not to be considered in the category of oustees for allotment of plots. It would be significant to notice as to what obligation was put on the part of the HUDA in this regard as is mentioned in the policy. It is provided in