IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.15150 of 2010 Date of decision: 05.05.2011 Smt.Neelima Batra and others …..Petitioners versus The State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Rakesh Kumar Garg Present: Mr.Raghvinder Singh, Advocate for Mr.R.D.Gupta, Advocate for the petitioners Mr.J.S.Toor, Addl.A.G. Haryana Mr.Gitish Bhardwaj, Advocate for HUDA Jasbir Singh, J. (Oral) This writ petition has been filed by a widow and her minor children. It is case of the petitioners that their predecessor in interest Sunil Batra purchased ten biswa of land vide sale deed No.2320 dated 18.12.1989 and thereafter with the hard earned money, he had constructed a house over that plot. Sunil Batra died on 1.6.2005 in a road accident, leaving behind the petitioners as his legal heirs. It is their further case that the plot owned by the petitioners is situated in a planned developed colony and many others had also constructed houses much before the time when process to acquire that land was initiated. In this writ petition, it is prayer of the petitioners that a notification dated 26.9.2007 (P7), issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act), proposing to acquire 106.64 acres CWP No.15150 of 2010 of land in village Nangal Sodia along with huge chunk of land for a public purpose, namely, ‘for the development and utilization of land for residential area for Sector 2, Part 3, 4 & 5 Pinjore’ be quashed. Further prayer is to quash a declaration, issued on 25.9.2008 under Section 6 of the Act (P11), finally deciding to acquire the land in question, including land of the petitioners. It is not in dispute that as per stipulation made in the notification issued under Section 4 of the Act, the petitioners filed objections under Section 5-A of the Act. Paragraph Nos.2 to 7 of the objections read thus:- “2. That the objectors are owners and in possession of the house constructed over the land measuring 10 biswas comprised in khewat / khatauni No.11/12, Khasra No.126/66(12-7) to the extent of 10/247 the share = 10 biswas, situated at village Naggal Sodhian, tehsil Kalka, district Panchkula. 3. That Shri Sunil Kumar Batra son of Shri Harbhagwan Batra purchased the land measuring 10 biswas from his hard earned money from its previous owner vide sale deed No.63 dated 18.12.1989 for a valuable sale considerations. Shri Sunil Kumar Batra constructed the house over the said plot by spending huge amount over it. 4. That Shri Sunil Kumar expired on 1.6.2005 in a road accident and after his death, the objectors inherited the house in question as his natural heirs. 2 CWP No.15150 of 2010 5. That upon the land in question the objectors has constructed his residential house and whole of the holdings of the objectors are being used as residential house, therefore, the very nature of the land becomes as constructed house and, therefore, could not be acquired as such. 6. That the family of the objectors is residing in the house in question and the very acquisition of this land would result into the wanderless the whole of the family. 7. That the house of the objectors is situated in the land in dispute. Ration Card has also been issued to the objectors by the authority concerned on this address.” The petitioners have specifically stated that 10 biswa of land was purchased on 18.12.1989. A copy of the sale deed has also been put on record as Annexure P1. (In the written statement, sale deed has not been disputed). In the objections, it is further stated that the petitioners have constructed their house in the land in dispute and are residing therein. Despite those objections, land of the petitioners was ordered to be acquired, whereas relief was given to many other land owners, by releasing their land with construction. Under the circumstances, the petitioners came to this Court by filing this writ petition. Upon notice, reply has been filed. Paragraph No.3 (preliminary objections) of the reply, filed at the instance of respondent Nos.1 and 2, reads thus:- “3. That the petitioners filed objection u/s 5A of the Land Acquisition Act within prescribed period of limitation, same were duly heard on 27.5.2008 to 29.5.2008. After providing proper opportunity of hearing the Land Acquisition Collector 3 CWP No.15150 of 2010 made a report on individual objections and sent to Govt. for final decision. After receiving the report from the Govt. the declaration u/s 6 was issued. In view of releasing point the land/ construction which could be adjusted in the plan has been left out from the acquisition after considering the objections u/s 5A of the Land Acquisition Act, the land/ construction which could not be adjusted in the plan has been acquired. The land/ construction measuring 31.65 acres of land was released after considering the objections u/s 5A of the Land Acquisition Act and the land measuring 105.81 acres was not included in the notification u/s 6 which has already been acquired for Kaushalya Dam. The petitioners filed objections u/s 5A of the Land Acquisition, but the said house of the petitioners was under construction at the time of issuance of notification u/s 4 the neither the petitioners nor the predecessors of the petitioners were owner as per revenue record maintained by this office, even though the Land Acquisition Collector recommended to release being developed as housing society, but the recommendation of the Land Acquisition Collector is not binding upon the Govt.” In this paragraph, it is stated that the petitioners’ house was under construction, whereas in reply on merits, in paragraph Nos.3, 8 and 10, it was virtually admitted that house was in existence at the time when notification under Section 4 of the Act was issued and the Land Acquisition Collector had recommended its release. Contents of paragraph Nos.3, 8 and 10, read thus:- 4 CWP No.15150 of 2010 “3. That in reply to para no.3 of writ petition it is submitted that as per revenue record maintained by this office neither the petitioners nor the predecessor of the petitioners were owner at the time of issuance of notification u/s 4 dated 26.9.2007. Hence, they are not entitled to challenge the acquisition proceedings. Rest of the contents of this para are denied for want of knowledge. 8. That the contents of para no.8 of writ petition are admitted to the extent that the petitioners filed their objections u/s 5A of the Land Acquisition Act and the Land Acquisition Collector recommended to release being developed as housing society, but the recommendation of the Land Acquisition Collector is not binding upon the Govt. Rest of the contents of this para are matter of record. 10. That in reply to para no.10 of writ petition it is submitted that the construction which was existing at the time of issuance of notification u/s 4 has been recommended to release from the acquisition. Rest of the contents of this para are denied for want of knowledge.” At the time of arguments, the State counsel, by making reference to the contents of paragraph No.3 on merits, tried to raise an objection that as the petitioners were not shown owners in the revenue record at the time when a notification under Section 4 of the Act was issued, as such, writ petition filed by them is not maintainable. We feel that the argument raised is frivolous and is liable to be rejected. In their objections filed under Section 5-A of the Act, the petitioners have clearly stated that Sunil Batra had purchased the land vide 5 CWP No.15150 of 2010 sale deed dated 18.12.1989 and then had constructed a house thereon, in which, they are residing. Copy of the sale deed was also produced before the Land Acquisition Collector. It is also on record that the Land Acquisition Collector recommended release of their house. Counsel for the petitioners has vehemently contended that by not releasing their property, a discrimination has been done with the petitioners because relief was granted, by releasing land, to many other land owners of the adjoining area. To press his claim, reliance has been placed on ratio of judgment of the Hon’ble Supreme Court in Hari Ram and another v. The State of Haryana and others, JT 2010 (2) SC 235. We feel that the argument raised is perfectly justified. The petitioners are the owners of a very small piece of land, which, their predecessor in interest had purchased in a planned colony. After looking into the contents of the reply filed, objections under Section 5-A, raised by the petitioners and also photographs put on record, we are satisfied that the house was in existence when notification under Section 4 of the Act was issued. In the reply filed, the respondents have clearly admitted that in this village 31.65 acres of land with construction was released from acquisition by taking note of objections filed by the land owners under Section 5-A of the Act. We are surprised as to why that very relief was not granted to the petitioners. It appears that they were denied their due only on account of a fact that their names were not mentioned in the revenue record. We feel that it was not a valid ground to decline relief to them. Such like hostile ground to discriminate amongst the land owners has adversely been commented upon by the Hon’ble Supreme Court in Hari Ram’s case (supra). Case of the petitioners is squarely covered by the ratio of the judgment in that case. 6 CWP No.15150 of 2010 In view of facts mentioned above, we allow this writ petition, quash notification dated 26.9.2007 (P7), issued under Section 4 of the Act, declaration issued under Section 6 of the Act on 25.9.2008 (P11) and an award passed on 24.9.2010, qua the land of the petitioners in this writ petition. (Jasbir Singh) Judge 05.05.2011 (Rakesh Kumar Garg) gk Judge 7