Civil Writ Petition No. 12815 of 2010 & Civil Writ Petition No. 23150 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 12815 of 2010 Date of decision:20th May, 2011 Rani .......Petitioner Versus State of Haryana and others ........Respondents Civil Writ Petition No. 23150 of 2010 Mohan Lal .......Petitioner Versus State of Haryana and others ........Respondents CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. S.K.Monga, Advocate for the petitioner in CWP NO. 12815 of 2010. Mr. S.P.Chahar, Advocate for the petitioner in CWP No. 23150 of 2010. Mr. S.S.Patter, DAG Haryana, for the respondent-State. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No Jasbir Singh, J.(Oral) Civil Writ Petition No. 12815 of 2010 & Civil Writ Petition No. 23150 of 2010 -2- This order will dispose of two writ petitions, i.e., CWP Nos. 12815 and 23150 of 2010. To dictate the order, facts are being taken from CWP No. 12815 of 2010. The petitioner is a small land owner and owns a small constructed house measuring 219 square yards. She has challenged a notification issued under Section 4 of the Land Acquisition Act, 1894 (in short “the Act”) on 24.12.2007 (P-1) proposing to acquire 138.25 acres of land for the public purpose to set up residential and transport, communication zone in Sector 18 Rohtak. Further challenge has been made to a notification issued under Section 6 of the Act on 23.12.2008, finally ordering acquisition only of 97.25 acres of land. It is contention of the learned counsel for the petitioner that contrary to the State Governments policy dated 26.10.2007, the only residential/constructed house of the petitioner has been put under acquisition, whereas relief was granted to many land owners by releasing their houses/vacant land. In that regard, the learned counsel made a reference to the site plan, placed on record, to indicate that two houses next to her house were exempted from acquisition when a notification under Section 6 of the Act was issued. When notice of motion was issued, the following order was passed by this Court on 23.07.2010:- “By making reference to site plan(annexure P-5), counsel for the petitioner contends that her house abuts the metalled road. Two adjoining houses have been left Civil Writ Petition No. 12815 of 2010 & Civil Writ Petition No. 23150 of 2010 -3- out of acquisition. Counsel further submits that construction was raised before issuance of notification dated 24.12.2007 under section 4 of the Land Acquisition Act, 1894 (in short, the Act). Notice of motion for 10.8.2010. On our asking Ms. Palika Monga, DAG Haryana accepts notice on behalf of respondent Nos. 1, 2 and 4. Counsel for the petitioner is directed to supply her four copies of the writ petition during course of the day. Notice to respondent No. 3 dasti. Dispossession of the petitioner from the house in dispute shall remain stayed till further orders. Counsel for the respondents will get instructions from the authorities as to why it is not possible to left house of the petitioner out of acquisition in view of the situation depicted in the site plan Annexure P-5.” In compliance of an order dated 23.07.2010, an affidavit dated 27.09.2010 has been filed in Court, wherein it is stated that the land owned by the petitioner is needed for a public purpose to develop the area, which reads thus:- “1. That on the last date of hearing i.e. 13.09.2010, the Hon'ble Court has directed to file an affidavit with regard to petitioner's land before the next date of hearing i.e. 28.09.2010. 2. That the petitioner has constructed only two tin Civil Writ Petition No. 12815 of 2010 & Civil Writ Petition No. 23150 of 2010 -4- shed (rooms of 18' x 12' with tin roof) on the land involved in the titled writ petition. 3. That there is no electricity connection and these rooms are uninhabited and are being used as store only. 4. That the structure of the petitioner is not a part of thickly constructed area in adjoining Khasra no. 2013-2016 which has been exempted from acquisition as a compact block. 5. That in view of the position explained in Para no. 2, 3 & 4 above, the Chief Administrator, HUDA recommended that land of petitioner in Khasra No. 2012, situated in the Revenue Estate of Village Rohtak, may not be released as it will hamper proper planning of the remaining land being acquired in the said khasra No. Therefore, land of the petitioner cannot be released.” In response thereto, the petitioner had filed a counter affidavit and replication to the written statement. After taking note of the averments on 16.02.2011 the following order was passed:- “In the site plan(Annexure P-5), it is clearly mentioned that vacant pieces of land were released which are shown with dark brown colour. Specific reference in that regard has been made to khasra No. 2013, 2014, 1971, 1972, 1973 etc. Civil Writ Petition No. 12815 of 2010 & Civil Writ Petition No. 23150 of 2010 -5- State counsel is directed to file an affidavit of the Director, Urban Estates, Haryana stating as to whether any vacant portion of land as mentioned in the site plan was got released from acquisition, if yes, what were the reasons? Adjourned to 28.2.2011. Copy of this order be supplied to Ms. Palika Monga, DAG, Haryana.” In compliance to an order dated 16.02.2011, an Affidavit of Shri T.C.Gupta, Director General, Urban Estates Department, Haryana, Chandigarh, dated 8.04.2011 is placed on record. In that affidavit it is stated that a vast track of land measuring about 40.37 acres was kept out of acquisition. It is further stated that out of the said land 18.66 acres of land is in the ownership of Market Committee, 05.94 acres of land is in the ownership of Public Health Department, 4.62 acres of land is in the ownership of Sugar Mill(old Railway Track) and 11.15 acres of land is owned by the private individuals. A site plan showing the released land was also put on record which shows that the constructed houses/plots situated next to the land of the petitioner are also kept out of the acquisition. Para no. 7 of the affidavit reads thus:- “That as per report of Land Acquisition Collector, Rohtak in case of the 11.15 acres land/structures exempted from acquisition, objections under section 5-A were filed by the 86 land owners Civil Writ Petition No. 12815 of 2010 & Civil Writ Petition No. 23150 of 2010 -6- which formed part of the thickly populated area. Therefore, Govt. decided to release their land/structures as recommended by Joint Inspection Committee. Some of the plots falling in Khasra No. 2023, 2024 were also released as these were part of thickly populated colony. As per report of Land Acquisition Collector, Rohtak, 4.41 acres vacant land was also exempted for the reason that the vacant land pockets were situated within the thickly built blocks and sandwiched between the structures. Details of this 11.15 acres land are given in Annexure A-4.” It is an admitted fact that some plots falling in khasra Nos. 2023-2024 were kept out of acquisition. As per record, the land of the petitioner is a part of khasra no. 2012, out of this khasra number 12 biswas of land/construction was kept out of acquisition and the adjoining khasra nos. 2012 to 2017 were not acquired/released. If that is so, we feel that discriminatory treatment cannot be given to the petitioners. So far as she is concerned her land has been acquired simply because her construction was of C-class nature. Such a discrimination has been negated by the Hon'ble Supreme Court in case of Hari Ram & Another v. The State of Haryana and others JT 2010 (2) SC 235, wherein it was observed as under:- “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 Civil Writ Petition No. 12815 of 2010 & Civil Writ Petition No. 23150 of 2010 -7- 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 releaqse of his/her land from acquisition but where the State Government exercises its power under Section 48 of the Act for withdrawal from acquistiion 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 48 of the Act in respect of persons similarly situated relating to same acquisition proceedings and for same Civil Writ Petition No. 12815 of 2010 & Civil Writ Petition No. 23150 of 2010 -8- public purpose is definitely violative of Article 14 of the Constitution and must be held to be discriminatory.” Perusal of the site plan, indicates that the land owned by the petitioner falls in Khasra No. 2012 and the plots/constructed houses in the adjoining khasra nos., next to her house, were kept out of acquisition. Petitioner's construction is of such nature that it will not hamper the development scheme of the respondents. Accordingly, we allow the CWP No. 12815 of 2010. So far as the petitioner in CWP No. 23150 of 2010 is concerned, he is owner of three plots (256 sq. yard x 2 + 128 sq. yard x 1). There is nothing on record to show that in any case, where a land owner owned more than one vacant plot, the same were kept out of acquisition. If that is so, the petitioner cannot claim that his three vacant plots be kept out of acquisition. Learned counsel for the petitioner on getting instructions from his client states that the petitioner-Mohal Lal restricts his claim only with regard to one plot measuring 256 sq. yards, bearing No. 58 situated in khasra no. 2012. As per the reasoning given in the earlier part of this judgment, the petitioner in CWP NO. 23150 of 2010 is also held entitled to the release of one plot as referred to above. It is made clear that if the plot bearing no. 58 situated in khasra no. 2012 hampers the overall development of rest of the land that in khasra no., the authorities may give a vacant piece of land, measuring 256 sq. Civil Writ Petition No. 12815 of 2010 & Civil Writ Petition No. 23150 of 2010 -9- yards to the petitioner in khasra no. 2012, at any other convenient place having access to it. In view of the facts mentioned above, both the writ petitions are allowed to the extent as stated in the earlier part of this order. Acquisition qua the petitioner stands quashed to that extent. [JASBIR SINGH] JUDGE [RAKESH KUMAR GARG] JUDGE 20th May, 2011 Shivani Kaushik