IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 18271 of 2008 DATE OF DECISION : 23.12.2009 Attar Singh and another .... PETITIONERS Versus State of Haryana and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr. S.S. Dinarpur, Advocate, for the petitioners. Mr. R.S. Kundu, Addl. A.G., Haryana, for respondents No.1 and 2. Mr. S.P. Jain, Senior Advocate, with Mr. Dheeraj Jain, Advocate, for respondents No.3 and 4. * * * SATISH KUMAR MITTAL , J. The petitioners have challenged the action of the respondents for acquiring 70 square yards of their land for a public purpose, namely for carving out a rasta to be used by the residents of village Nurpur Bhora, Tehsil Farukhnagar, District Gurgaon, vide notifications dated 17.9.2008 (Annexure P-6 and P-7), by invoking the urgency provisions under Section 17 (2) (c) read with Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as `the Act') and dispensing with the requirement of CWP No. 18271 of 2008 -2- filing objections under Section 5-A of the Act, while invoking the provision of Section 17 (4) of the Act. It is the case of the petitioners that they and their family members are co-sharers in the land measuring 4 Kanals 16 Marlas, comprising in Khasra No. 47//14, situated within the revenue estate of village Nurpur, Tehsil Farukhnagar, District Gurgaon. Out of the said land, the petitioners along with other co-sharers had sold the most of the land to various persons vide different sale deeds and thereafter, the petitioners are stated to have been left with only 360 square yards of land. It is the case of the petitioners that they have kept 360 square yards of land to construct their residential house. Their further case is that vide the impugned notifications, the State Government has proposed to acquire 70 square yards of land by invoking the urgency provisions of the Act, in order to connect the path already existing to approach the cremation ground from the abadi of the village. It is the case of the petitioners that the aforesaid acquisition is malafide and unreasonable, because the cremation ground of the village is already having many easily accessible passages from the abadi. According to the petitioners, the acquisition of 70 square yards of their land will bifurcate their 360 square yards of land and the remaining land will thus render useless. It is the further case of the petitioners that by invoking the provision of Section 17 (4) of the Act, they have been illegally deprived of their legal right to file objections under Section 5-A of the Act, particularly when there was no urgency in the matter and the petitioners could have been CWP No. 18271 of 2008 -3- provided an opportunity to file objections to the aforesaid acquisition of their 70 square yards of land. It is alleged that the impugned acquisition suffers from malafide and is totally illegal, arbitrary and liable to be quashed. In the written statements, filed on behalf of the respondents, it has been stated that land of the petitioners falls in between the rasta leading to the village abadi from phirni and the passage leading to village cremation ground. Between these two passages, 70 square yards land of the petitioners is falling, which disconnects the aforesaid two passages. In view of the said necessity and requirement, the Gram Panchayat of village Nurpur, passed a resolution for acquiring 70 square yards land of the petitioners out of the land bearing khasra No. 47//14 (4-16) for the purpose of opening rasta leading to village abadi from phirni to cremation ground. The Deputy Commissioner, Gurgaon, recommended for acquisition of the said land. Thereafter, the matter was considered at the level of the Government and vide the impugned notifications, by invoking the urgency provisions, the Government acquired 70 square yards land out of the aforesaid khasra number. The site plan has also been annexed with the written statement as Annexure R-2 depicting the land under acquisition, the rasta which already existed and the position of the land as well as houses existing at the spot. While referring to the site plan, it has been stated that there was no other alternative passage to connect both the passages, in order to provide a CWP No. 18271 of 2008 -4- clear access to the cremation ground by the villagers, therefore, keeping in view the said necessity and urgency, the impugned acquisition was made by invoking the urgency provisions. During the course of hearings, on 18.8.2009, a Local Commissioner was appointed to visit the spot to determine, whether or not, the “Open Land Gosha Jim” is surrounded by the houses of the villagers. The necessity to appoint the Local Commissioner was felt, when during the course of hearings, attention of the Court was invited to site plan Annexure R-2, depicting that the notification for acquiring the land under reference was to link two existing rastas depicted in green colour in the site plan. The aforesaid rastas were sought to be linked through acquisition of land described in the site plan as “Open Land Gosha Jim”. Learned counsel for the petitioners vehemently contended at that time that the real position at the spot is not so, therefore, in order to determine whether or not the “Open Land Gosha Jim” is surrounded by houses of certain villagers and in that situation, the claim of the petitioners that the adjoining land is vacant, which they want to utilise for construction of their houses, appears to be false, the Local Commissioner was appointed. In pursuance of the said interim order, the Local Commissioner has submitted his report, which is available on the record of the case. It clearly depicts that the “Open Land Gosha Jim” shown in Annexure R-2 is a vacant land and the same is surrounded by the houses of the villagers, as depicted in the map, and all those houses are pucca houses. CWP No. 18271 of 2008 -5- After hearing the learned counsel for the parties and going through the contents of the petition, written statements as well as the report of the Local Commissioner, we are not inclined to accept the prayer of the petitioners to quash the aforesaid acquisition. As per the Jamabandi, the petitioners have 1/3rd share of 29/192 share in Khasra No. 47//14. It is pertinent to mention here that except the petitioners, no other co-sharer has come forward to challenge the impugned acquisition. From the site plan Annexure R-2 and other material, it is not clear whether the petitioners are in possession of 360 square yards of land, as claimed by them, and whether to that extent, their share remains in the said khasra number. In the petition, the petitioners themselves have averred that they along with other co- sharers have sold most part of the land, falling to their share, to various persons vide different sale deeds and now they are left with only 360 square yards of land. Neither those sale deeds have been annexed nor it has been stated that vide those sale deeds, how much area has been sold by them. They might have sold more than their share in this khasra number. However, one fact is clear that on the spot, the land shown in red colour in the site plan, which has been described as “Open Land Gosha Jim”, is lying vacant and out of the said land, the respondents have acquired only 70 square yards of land vide the impugned notifications, by invoking the urgency provisions, to connect the path already existing to approach the cremation ground from the abadi of the village. It cannot be disputed that the purpose, for which the land has been acquired i.e. for carving out a rasta to be used CWP No. 18271 of 2008 -6- by the residents of village Nurpur Bhora, is genuine one and the same is required urgently for the benefit of the residents of the village. We do not find any malafide or arbitrariness in the acquisition of the aforesaid land. From the site plan as well as the report of the Local Commissioner, it is clear that the aforesaid two existing passages can only be connected/linked by the acquired land. There is no alternative land, through which the aforesaid two passages can be connected, or any alternative passage can be provided to the residents of the village for approach to the cremation ground. If the petitioners are in possession of 360 square yards of land, they can raise construction of their houses on the remaining land. Their plea that their vacant land has been bifurcated by the proposed acquisition has been belied by the report of the Local Commissioner, according to which the adjoining the acquired land, houses of other residents are existing, to whom the petitioners have sold their share in the land. In view of these facts, we do not find any ground to quash the impugned acquisition proceedings, initiated by the respondent State for acquiring only 70 square yards of open land for the aforesaid public purpose. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE December 23, 2009 ( MEHINDER SINGH SULLAR ) ndj JUDGE