IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP.No. 1266 of 2002. Judgment reserved on 13.9.2011. Date of Decision: September 29,2011. _______________________________________________ H.P. University. ….Petitioner. Versus. State of H.P. and others. ….Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?.yes. For the petitioner. :Mr.B.C.Negi, Advocate. For Respondents 1&3. :Ms.Shubh Mahajan, Deputy Advocate General. For respondent No.2. Mr.K.D.Sood, Advocate. Dev Darshan Sud, J. The petitioner University has challenged the order Annexure:P-1 passed by the Commissioner-cum-Secretary (Education) to the Govt. of Himachal Pradesh directing that taking a “lenient/sympathetic view”, the petitioner herein should treat the respondent-Harbans Singh as a regular tenant of the building subject matter of acquisition under the Land Acquisition Act, 1894 (hereinafter Whether reporters of the Local papers are allowed to see the judgment.yes. 2 referred to as the ‘Act’) and the shop in question be kept out of acquisition proceedings under the Act. 2. This litigation has followed a tortuous course. By an order dated 15th July, 1996, in CWP No. 202 of 1996 titled Harbans Singh Vs. State of H.P. and others (in which the petitioner was also one of the parties), a direction was issued by a Division bench of this Court in the following terms: “………….We have heard learned counsel for the parties and gone through the record. In the facts and circumstances on record, no order is required to be passed in this writ petition, save and except that the petitioner may make representation within a period of three weeks, which will be decided by the competent authority of the H.P. University within a period of four weeks thereafter by a reasoned order. It is further directed that the respondent-University will not dispossess the petitioner, except in accordance with law. The writ petition is disposed of…….” 3. Thereafter, the respondent herein again preferred another writ petition being CWP No 564 of 1999 which was disposed of on 17th December, 1999. In that writ petition, the prayer of the petitioner was considered and disposed of by a Division Bench of this Court holding: “………The above writ petition has been filed seeking for the following reliefs.: i) To direct the respondents not to dis-possess the petitioner from the Hotel/Dhaba comprised in Khasra No.64, measuring 3.00 Biswas, situated in village Chewag, Teh. and Distt. Shimla in pursuance to notice dated 14.12.99 Annexure:P-7, and further the representation dated 25.7.1996 filed by petitioner with the respondents may kindly be ordered to be decided in pursuance to the orders dated 15.7.96 passed in CWP 220/96 by this Hon’ble Court. 3 ii) That in the alternative, the respondents may kindly be directed not to dispossess the petitioner from the premises in dispute till some alternative accommodation is provided to the petitioner by the respondents for running the Dhaba/Hotel.” Heard Mr.R.K.Bawa, learned counsel for the petitioner. Learned counsel made persuasive as also persistent submissions while projecting the grievance of the petitioner contending that only the land of a few excluded in the order of the Government dated 17.9.1996 and though the petitioner also has made representation through a counsel on 25.7.1996 itself his representation does not appear to have been considered and relief granted. It is pointed out that the move made by some including the petitioner as claimed now was in the teeth of the order of this Court dated 15.7.1996 in CWP.No. 202/96 wherein it has been stated that no order is required to be passed in the writ petition except that the petitioner may make representation within a period of three weeks and the competent authority of the H.;P. University within four weeks thereafter shall decide the matter on the representation. From the facts now placed before us, the Government itself has decided the issue in respect of a portion of the land acquired comprised in Khasra Nos. 65,66,83 and 84. The occasion for the petitioner to approach this Court at this stage is notice dated 14.12.1999 issued by the Girdawer Kanungo, Tehsil Shimla (Urban) to the petitioner calling upon the petitioner to vacate the land before 18.12.1999 on a threat of coercive action to dispossess the petitioner from the afternoon of 18.12.1999. It is seen from the said notice that the land comprised in Khasra No.64 (old) and khasra Nos. 147 to 153 (new), Kitas 7, measuring 104-43 Sq.meters, situated in Chak Chawag has been acquired by the H.P. University in case No.7/1975and that the amount of compensation has also been paid and the Tehsildar (Urban) has passed the order dated 2.12.1999 for handing over the possession of the aforesaid land to the University, which necessitated the issue of notice dated 14.12.99. 4 We have carefully considered the submissions of the learned counsel for the petitioner. The grievance though are many, in our view, cannot be countenanced in this proceedings, at this stage. The fact remains that the acquisition proceedings so far as the land of the petitioner is concerned has become final. The compensation amount has also been paid. If that be the position, it is beyond comprehension and it is also equally not permissible for this Court to collaterally allow the challenge to be made to the acquisition at this state or to stall the taking over of the possession of the property from the petitioner. On this simple ground, we are unable to intervene at the instance of the petitioner to grant him any relief and the writ petition, therefore, shall stand rejected. The dismissal of the writ petition shall not stand in the way of the petitioner approaching any of the authorities concerned for the reliefs as he may deem fit. As a matter of great indulgence, we feel that to enable the petitioner to approach the authorities, if he so desires, the threatened dispossession will be kept in abeyance for two weeks…….” 4. I have reproduced this order in some detail as this forms the core of the defence put forth by the respondents herein who have pleaded in detail as to how the University has treated different persons similarly situated whose land was acquired by way of notification issued under Section 4 way back in 1996 and the respondent subjected to hostile discrimination. . It has been pleaded by the respondent-Harbans Singh herein that all other people have been left out of the acquisition proceedings and it is the respondent-Harbans Singh who has been asked to surrender the possession of the land though the area under his possession is negligible. He complains of discriminatory treatment. The University raises the issue of public interest as the land is required for building teaching/administrative blocks. 5 5. It is undisputed before me that the possession of the land has not been taken over by the respondent State or the University. It is also undisputed that the respondent-Harbans Singh was a tenant under the Municipal Corporation, Shimla, prior to the acquisition as the shop belonged to it. The order Annexure:P-1 notes that acquisition proceedings for a portion of the land was initiated in the year 1981. Even while passing the award, the acquired area measuring 1.6 bighas belonging to one Smt. Kamla Thushu was excluded from the award by the Collector on “sympathetic grounds”. The ground urged was that it was a residential house. CWP No. 194 of 1996 was filed in the High Court and the parties in that writ petition were directed to approach the State by submitting an appropriate representation. The order Annexure:P1 passed by Commissioner-cum- Secretary(Education) to the Government of Himachal Pradesh notes and succinctly that consequent to the representations of Chaman Lal Chandan, Yash Pal Sood, Om Perakash Chandan , Smt. Parvati Devi, Jogeshwari Devi Sood and Swaran Sood etc. were decided by the Commissioner-cum-Secretary (Education) on 17.9.1996 leaving the land out of acquisition proceedings despite the pronouncement of the award. What had weighed with the authorities at that time was that if action had been taken to exclude the land of Smt. Kamla Thushu on the ground that it was a residential house, these persons are also similarly situated and therefore deserve the same treatment. The petitioner-University though at that time had opposed the representations, but such opposition was rejected by the State and the land of the persons named hereinabove was allowed. The operative portion of the order (Annexure:P1) reads: 6 “ ……………….After having through all the records of the acquisition, order dated 17.9.1996 passed by this Department, the relevant records leading to the passing of said order, the representations and the comments of the H.P. University on the representation and all other connected records, undisputed facts mentioned hereinafter emerge. That Sh. Harbans Singh came in possession of the aforesaid land as a tenant under the Municipal Corporation Shimla 1981 the acquisition proceedings of this portion of the land with Sh. Harbans Singh and other persons were initiated for the benefit of the H.P. University. Award(s) were passed by the concerned Land Acquisition Collector concerned. Even while passing the award despite the acquisition having been made, portion of the area of 1.6 bighas belonging to one Smt.Kamla Thushu was omitted from being made subject matter of the ward and on her representation such area was omitted from being taken over on sympathetic grounds mainly for the reason that it comprised of her residential house. Other persons affected by this acquisition also moved the Hon’ble High Court of H.P. by way of writ petition No. 194/96 against the said acquisition. The Hon’ble High Court of H.P. on 15.7.1996 ordered the affected parties in the said writ petition for making representations to the concerned authorities. Consequently representations of the other land owners, namely Chaman Lal-Chandan, Aash Pal Sood, Om Parkash Chandan, Smt. Parwati Devi, Yogeshwari Devi Sood, Swaran Sood etc. were considered and decided vide order dated 17.9.1996 No.PS-Commissioner-cum-Secy. Edu-1/96 of this Deptt. Taking into consideration such representations all such persons were allowed to retain their respective properties despite the acquisition and pronouncement of the awards. It heavily weighed with the competent authorities at that time also when order dated 17.9.96 was passed that the reason forward by the petitioners at that time merited sympathetic consideration. It was also found that going by the parameters used to measure the gravity of compassion in favour of Smt.Kamla Thushu there were far greater reasons and justifications not acquire the properties of the petitioners. 7 Over ruling the view point of the University authorities put forth at that time for the proper accommodation of its employees it was decided that it was hot fair to throw out permanent residents with no other house and running small business from the same place from their houses, thus, all the representations were accepted which resulted into the order dated 17.9.1996. The land belonged to Municipal Corporation Shimla while Sh.Harbans Singh was tenant of it. It had been developed by him after having made huge investments. The land of other persons despite having been acquired, awards passed was lateron left out to be retained by them mainly on sympathetic grounds. Though in the present case, according to the University authorities, they have no knowledge whether or not Sh. Harbans Singh was the tenant under the Municipal Corporation, Shimla. They have pleaded ignorance about his status. However, from the rent receipts submitted and other record it emerges indisputably that the status of Sh.Harbans Singh was that of a tenant on the said land and structures and the rent also stood paid up to 1980-81 till the time the acquisition proceedings were started. The University authorities are further of the view that University requires the land keeping in view the future plan and growth of the University. These objections of the University do not merit any favourable consideration simply for the reasons that this requirement of future plan and growth of the University was also threat the time when other persons as detailed were allowed to retain their properties which were ordered to be notified despite acquisition on sympathetic grounds. Sh. Harbans Singh is also placed in more graver hardships and required more sympathetic consideration than others solely for the reason that he is an old man and in the event of his being thrown out from the business-cum- residential premises of two shops have already been taken possession of as a result of the acquisition and now is left with only the present promises. Dispossessing him will causes great trouble and hardship to him and there is no reason as to why 8 he should treated differently from the persons covered under the earlier decision dated 17.9.1996 supra more particularly when he is in possession of a very small chunk of land measuring only 3 biswas whereas land running into bighas of other persons was left out of the impact of acquisition. In case the status and possession of the petitioner in respect of the other property is not protected and he is thrown out of the same he will have to start his life from a scratch without any help. In view of above and also taking a sympathetic view the Himachal Pradesh University is hereby directed to treat the petitioner as tenant of the University. Further the H.P. University is directed to take regular rent of the building in question as possessed by the petitioner and the petitioner is also directed to make regular payment of the rent to the H.P. University authorities. Failing which necessary action under the law will be initiated against him. Since this order has been passed taking into account the peculiar facts and circumstances of this case as such it may not be treated as a precedent for future with respect to other cases, if any. Sd/- (S. ,Roy) Commissioner-cum-Secretary(Edu.) to the Government of Himachal Pradesh. 6. This order has been reproduced in detail and it would show that the recipients of the benefit of de-acquisition are similarly situated with the respondent herein which would also be manifest from the order or Annexure:P3 considered hereinafter. It would be clear and evident from reading of this order that Smt. Kamla Thushu and others have been granted the benefit of exclusion of their holdings from acquisition by exercise discretion in their favour and respondent Harbans Singh was left out. 9 7. The case pleaded by the respondent-Harbans Singh is that he is running a small business in a shop over this land and would be deprived of his sole source of life and livelihood. It was in these circumstances that the Commissioner proceeded to pass the order directing that he be treated as a tenant of the University. 8. On the merits of the case, the respondent has filed a number of documents in support of his claim. Order dated 17th September, 1996 Annexure:P3/Annexure:R2/1 passed by the Commissioner-cum-Secretary Education to the Government of Himachal Pradesh was passed for the benefit of a few persons. It reads: “Government of Himachal Pradesh Department of Education. No.PS-Commr.Secy. Edu-1/96 dated Shimla-2, the 17th Sept., 1996. ORDER This concerns acquisition of land comprised in khasra No.58,59,60,61,62,63,64,65,66,67 (115/67/1) 79,80,81,82,83,84 measuring 9.6 bighas in Village Chowag, Tehsil Shimla by the Department of Education for public purpose i.e. for the use of Himachal Pradesh University. Ten of the affected persons, whose land was being acquired in this case, filed CWP No.194/96 in the High Court of Himachal Pradesh. The High Court by order dated 15.7.96 directed that “In view of the facts and circumstances on record, more specifically reply of respondent No.3 to Para 11 of the writ petition, no order is required to be passed in this writ petition, save and except that the petitioners may make a representation within three weeks, which will be jointly decided by the Commissioner-cum-Secretary (Education) to the Government of Himachal Pradesh and the Registrar of the Himachal Pradesh University within a period of four weeks by a reasons order. While deciding the representation of the petitioners, the authorities will keep in view whether the H.P. University really 10 require the property of the petitioners or it can be de-acquired as it was done in the case of Smt. Kamla Thusu for Khasra Nos. 115/67/2,80 and 81. Till the decision of the representation, the petitioners will not be dispossessed. The writ petition is disposed off” Accordingly, the petitioners filed a written representation with the department in support of their claim. Chaman Lal Chandan, Yash Pal Sood and Om Parkash Chandan met me on that day and presented their case. Smt. Parvati Devi, Jogeshwari Devi Sood and Swarn Sood informed in writing that they were not in a position to present themselves in person due to reasons such as illness and old age. The Registrar, Himachal Pradesh University joined in the hearing but stated in writing that since the University was as interested party in the matter and he represented it, he was not in a position to give his decision on the claims of the petitioners. I have examined the record of the Department and also discussed the case in detail with the Land Acquisition Collector, Shimla and the Registrar of the Himachal Pradesh University., The Himachal Pradesh University was asked to clarify as to why and for what purpose the land of the petitioners was required. The facts of the case are that the Department of Education Govt. of H.P. issued a Notification under provision of Section 4 of Land Acquisition Act, 1894 on 28.6.1975 that land comprised in Khasra Nos. detailed above of village Chowag, Tehsil Shimla is required for the purpose of Himachal Pradesh University. Thereafter, as per process prescribed under the Act, action was taken to acquire this total land measuring 9 Bighas 6 biswas. The award was announced by the Land Acquisition Collector on 24.6.1981 for 8 bighas only (instead of 9.6 bighas notified to be acquired) and total compensation amounting to Rs.14,44,371.67 paise was determined. The Land Acquisition Collector left out the area measuring 1-6 bigha comprised in Khasra Nos.80 and 81 belonging to Smt. Kamla Thusu which has been explained by the Land Acquisition Collector in detail in the award. 11 At later stage the owner of khasra No.115/67, Smt. Kamla Thusu has prayed on compassionate grounds that her residential house standing on khasra No.115/67, 80&81 may not be acquired vide her application dated 26.8.80 addressed o the Chief Minister, Himachal Pradesh and copy endorsed to this office. After considering the case on merit, recommendation to the Secretary (University Education) to the Govt. of H.P. was made to the effect that Khasra No.67 may be corrected and the living house of Smt.Kamla Thusu standing on part of Khasra No.115/67, 80 & 81 de-notified. This recommendation was made vide this office letter No.9- SML(1)75)DRA-3774 dated 6.10.1980. Revised notification has not so far been issued by the Government. The owners have been pressing hard for early announcement of award. Accordingly the khasra No.80 &81 have been left out from acquisition and the land of khasra No.115/67 was again got measured and revised tatima was got prepared by the Patwari/Kanungo on the spot in the presence of Smt.Kamla Thusu. Keeping in view the genuine demands of Smt.Kamla Thusu the land comprised in khasra No.115/67/1, measuring 0- 7 bigha has been taken into consideration for acquisition purpose.” The total land of Kamla Thusu under acquisition proceedings was 1-13 biswas of this 1-6 was left out by Land Acquisition Collector at time of announcement of award on basis of her representation that it in a residential house. Thereafter, most of the interested persons, the H.P. University and also interestingly the Govt. of H.P. filed reference petitions under Section 18 of the Land Acquisition Act which was forwarded to the District Session Judge, Shimla and were all dismissed. After, exhausting this channel the interested persons filed CWP No.12 of 1985 in the High Court of Himachal Pradesh which was decided on 24.4.85 and was rejected. Thereafter, the party filed a SLP No.10463 of 1985 against the order of High Court of H.P. dated 24.4.85 before the Supreme Court of India. It was disposed off on 29.10.90 by granting an opportunity to the petitioners to file representation to the concerned authorities with regard to their grievances. 12 Now the interested persons have filed CWP No.194/96 in the Highs Court which has been directed to be treated as a representation by me. The position that emerges is that 9-6 bighas were notified to be acquired and the process under Act was followed in respect of this total area. The Land Acquisition Collector has announced the award in respect of 8 bighas only by excluding 1-6 bighas of land belonging to Smt.Kamla Thusu at his own level on compassionate grounds without the same being de-notified by the Govt. The amount of compensation was deposited by the H.P. University with the Land Acquisition Collector on 30.5.1984. A sum of Rs.5,62,741.02 paise (for 3 bighas 5 biswas) of the total amount of Rs. 14,44,371/- (for 8 bighas) has been paid as compensation as per details below: 1. Dr.Pushkar Nath through Kamla Thusu Rs.1,03,002.62. for Kh.No.115/67/1 area 0-7 biswa. 2.Smt.Mohinder Kaur Wd/o Major Naginder Rs. 8,222.50. Singh for kh.No.63, area 0-3 biswa. 3.Commissioner, M.C.Shimla Rs. 65,754.15 Kh.No.59,64,63 total area 8 biswa. 4.Dr.Balduri Kohli Rs.3,85,941.75. _______________ Total: Rs.5,62,741.02. _______________ The remaining amount of Rs.8,81,630.65 paise for 4 bighas 15 biswas is still lying with the Land Acquisition Collector and has been deposited in the Bank of this area of 4 bighas 15 biswas for which compensation is still to be paid is comprised in khasra No.65,66,82,83 & 84 measuring 18 biswas belongs to private persons and the petitioners. The remaining area belongs largely to North, West Indian Railway (i.e. 2 bighas and 3 biswas) and the rest to the Govt. of H.P. and the Govt. of India. The point is whether this 18 biswas of land comprised in khasra Nos. 65,66,82,83 and 84 is really required by the Himachal Pradesh University and whether there is a case to consider leaving out this area from being acquired in reference to Smt.Kamla Thusu’s case. These petitioners have given several reasons as to why this area should not be acquired:- 13 (i) 3 residential house exist on this piece of land. The area of these pieces varies from 2 biswas to 6 biswas. In some cases this is the only house owned by them. (ii) Mostly, these residential houses are being used for business purpose also. For example Matwal Chand Sood is running his business by a name of Natraj Caterers and Suresh Chander Sood is running his business by name of M/s Kashyap Coal Company from their residences. Similarly the dependants of O.P.Chandan are running small business from their residences. In case of Smt. Kamla Thusu the huge building and vast lands were being used for residential purpose only. By the yard stick applied in Kamla Thusu’s case the compassionate grounds in case of these petitioners are more forceful and convincing. (iii) The next relevant point is of the nature and character of persons residing in these houses. Jogeshwari Devi is 82 years old, C.L.Chanden is on the verge of retirement from Government service. O.P.Chanden is a retired Govt. servant. Further Jogeshwari Devi is a widow suffering from Syncopial attach since February,88 and cordial pace maker has been planted in September, 1988 at Chandigarh. Her problems are aggravated by loss of eye sight. Parwati Devi is 80 years old. (iv) The area under consideration is merely 18 biswas mostly occupying a width of 30 feet, adjoining a Municipal Road, Sufficient area is to be left on either side of the road for any construction to come up under Municipal Law and Rules Regulations of the Town & Country Planning Department. (v) In fact the award has been rendered a piecemeal one account of de-notification of 1 bigha 6 biswas of land belonging to Kamla Thusu which was adjacent and contiguous to these plots of land. (vi) The award was announced in 1981. The amount of compensation determined 16 years ago, has not yet been paid to the land owner/petitioners. Payment at that rate in 1996 would be grossly inadequate without