C.W.P. No. 2098 of 2009 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 2098 of 2009 (O&M) Date of decision: October 28 ,2010 Court on its own motion .. Petitioner v. R. N. Prashar and others .. Respondents CORAM: HON'BLE MR. JUSTICE M. M. KUMAR HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Arun Nehra, Advocate as Amicus Curiae. Mr. Sarjit Singh, Senior Advocate with Mr. Jagdev Singh, Advocate for Mr. R. N. Prashar. Mr. Kamal Sehgal, Additional Advocate General, Haryana. Mr. Arun Walia, Senior Standing Counsel for HUDA. Rajesh Bindal J. The duty of a Judge has been well-defined in Smriti Chandrika in the following terms: As an experienced surgeon extracts a dart from the body of a person by means of surgical instruments, even so the Chief Justice must extract the dart of inequity from a law suit.” (Narada vide Smriti Chandrika P. 30). Asahaya explains this provision thus: “As a skilful surgeon, conversant with the art of extracting a dart, takes it out by the application of surgical instruments and other manifold artful practices, even though it may be difficult to get at, it being invisible, even so a judge shall extract the dart of inequity C.W.P. No. 2098 of 2009 [ 2] which has entered a law suit, by employing the artful expedients of judicial investigation. [Narada Smriti SBE Series P. 39 footnote]. (Source: A compilation by Justice Dr. M. Rama Jois published by Department of Post Graduate Studies and Research in Law, Gulbarga University at the time of introduction of new LLM Course in Bharateeya Nyaya Darshan and Raja Dharma). 2. It is while performing the aforesaid duty that it came to the notice of one of us (Rajesh Bindal, J.) in collateral proceedings as to how the persons at the helm of affairs could mis-use their power, which otherwise would have remained hidden in the file. It is a case where a senior functionary of the State had been able to get his 846 square meters of land released by giving a complete go-by to the provisions of the Land Acquisition Act, 1894 (for short, `the Act'). 3. Before the respective contentions of the parties are dealt with in detail, it would be appropriate to notice the facts of the case, which resulted in treating the arbitrary action of the State as well as HUDA in the present case as a public interest petition. The issue came to the notice of this court while dealing with appeals filed by the land owners seeking enhancement of compensation. As some of the land owners had started withdrawing their appeals, this court being suspicious of the reasons behind that asked learned counsel for the State to find out the reasons therefor. From the material placed on record, it transpired that in the case of respondent- R. N. Prashar, though the land owned by him stood acquired vide notification dated 11.9.1997. The award was announced by the Collector on 5.9.2000 and the possession thereof was also taken. The amount awarded by the Land Acquisition Collector (for short, `the Collector') was upheld by the Reference Court, against which R.F.A. No. 818 of 2003 was filed in this court. However, during the pendency thereof, in 2006 the land owned by him was directed to be released by the State Government and in lieu thereof, a plot measuring 846 square meters in Sector 4, Mansa Devi Complex, Panchkula was C.W.P. No. 2098 of 2009 [ 3] allotted merely on the condition that he will return the amount of compensation received by him along with interest and pay a small amount as development charges. It also came on record that the land owned by respondent- R. N. Prashar was in a triangular shape measuring 2883 square meters, out of which 535 square meters of land was released till the announcement of the award and the balance was released six years after the award. The land released was also not the same, which was owned by respondent- R. N. Prashar, but was in the form of a regular plots carved out in the already developed sector in the area. 4. Considering the aforesaid action of the government to be prima facie not permissible in view of Section 48 of the Act and various judgments of Hon'ble the Supreme Court and this court, this court directed for treating the matter regarding release of land as a public interest petition while issuing notices to the State of Haryana, HUDA and respondent- R. N. Prashar. It is how the matter was listed finally before this Bench. 5. After the notices were issued to the affected parties including R. N. Prashar, the beneficiary of undue favour, they have filed their responses and also addressed oral arguments in support of their respective claims. 6. Mr. Arun Nehra, Advocate, appearing as Amicus Curiae, submitted that the case in hand is a glaring example of mis-use of power by the State and its functionaries. He further highlighted as to how senior functionaries of the State can get things manipulated in their favour. In the present case, R. N. Prashar, a senior bureaucrat, who had initially been able to save his land from acquisition, though notified twice earlier, however, when ultimately a small portion was acquired, the same was also got released by him after more than 6 years of the passing of the award by the Collector and taking over of possession of the land by the State. There is no power vested with the State to release any land from acquisition after the possession thereof had been taken. In fact, under the garb of release of land, R. N. Prashar had been allotted a two-kanal plot in developed C.W.P. No. 2098 of 2009 [ 4] Sector 4, Mansa Devi Complex, Panchkula valuing crores of rupees on a heavenly condition that he will return the amount of compensation received by him pertaining to his acquired land along with interest and a small amount as development charges. 7. He submitted that if there is such a policy of the government, the same should have been made known to the public as the persons, whose land is acquired, would certainly love to take plots in the developed sectors equivalent to their acquired land by merely returning the compensation received by them along with interest and development charges. It is per chance that this illegality came to the notice of this court, otherwise this would have remained buried in the official files only. Referring to a Division Bench judgment of this Court in Smt. Mirdula Joshi v. State of Haryana and others, 2009(1) RCR (Civil) 536 and Mysore Urban Development Authority by its Commissioner v. Veer Kumar Jain and others, 2010 (2) RCR (Civil) 851, the submission was that release of land in favour of R. N. Prashar deserves to be set aside. 8. Learned counsel for the State fairly submitted that in terms of the provisions of Section 48 of the Act, as has been interpreted by Hon'ble the Supreme Court and this Court in numerous judgments, once possession of the land had been taken by the State, the same could not be released from acquisition. It could be utilised for any purpose even if the purpose for which the same was acquired was no more existing. Referring to the judgment of this Court in Smt. Mridula Joshi's case (supra), it was submitted that in the aforesaid case, release of land in favour of some of the land owners was quashed by this court under similar circumstances. Though the matter is pending before Hon'ble the Supreme Court, however, there is an interim stay only with regard to directions contained in paragraph 22(d) of the judgment, which provided for issuance of comprehensive instructions on certain matters pertaining to the acquisition of land. He was fair enough to submit that as is noticed in the note of Director, Urban Estates dated C.W.P. No. 2098 of 2009 [ 5] 13.5.2006, the possession of the land had in fact been taken by the State. 9. Even though the authority, under whose orders the land was directed to be released much after the possession thereof had been taken in acquisition proceedings, was not able to defend the order of release considering the settled position of law, but still learned counsel appearing for HUDA sought to justify the action of the HUDA in allotting plot No. 190 Sector 4, MDC, Panchkula to respondent- R. N. Prashar by claiming that it was merely exchange of land by the HUDA, which is permissible in terms of Section 15 of the Haryana Urban Development Authority Act, 1977 (for short, `the HUDA Act'). He did not dispute the fact that shape of the land owned by respondent- R. N. Prashar initially was triangular. Even earlier when the part of land was left out of acquisition, the same was made part of the development scheme and proper shaped plot was given to him by HUDA, instead of the land initially owned by him. He was not aware of the fact as to whether any exchange deed was signed with him or not at the relevant time. 10. Learned counsel appearing for respondent-R. N. Prashar in his attempt to save his client in the illegality committed by him or got committed from some other authority submitted that there is no public interest as such involved in the present petition, for which this court has taken judicial notice. It is merely land pertaining to one person, which has been released by the State from acquisition finding his claim to be reasonable and bonafide. No third party is effected as such and this court should not interfere in the action of the government. This was not the kind of a case in which this court should have taken suo -motu notice. He further submitted that the land was released in favour of respondent- R. N. Prashar way back in the year 2006. Now it is too late to test the validity of that action, as much water has flown under the bridge of river Ganges and the parties have changed their position. He further submitted that there is no prohibition under the HUDA Act for release of land. On the asking of the court, learned counsel was C.W.P. No. 2098 of 2009 [ 6] candid in saying that there is no enabling provision either under the Act or the HUDA Act. He could not dispute the fact that the land was acquired by the State and HUDA was merely the beneficiary thereof, hence, there was no question of release of land by HUDA. He also endorsed the argument raised by learned counsel for HUDA claiming that it was exchange of land by HUDA for the land, which was released from acquisition and there was nothing illegal about it. Finally, it was submitted that since the judgment of this court in Smt. Mirdula Joshi's case (supra) is already pending consideration before Hon'ble the Supreme Court, this court can very well wait for the result thereof. 11. Heard learned counsel for the parties and perused the paper book. 12. Before the respective contentions of the parties are considered, it would be appropriate to notice the facts of the case in brief. 13. Respondent-R. N. Prashar purchased land measuring 7 kanals and 5 marlas in village Bhainsa Tibba near Mansa Devi Temple in the year 1980. It is claimed by him that the aforesaid land was purchased after raising loan from the State. For the first time, the aforesaid land was proposed to be acquired vide notification dated 27.8.1981 issued under Section 4 of the Act. After considering the objections raised by respondent-R. N. Prashar, the land was left out of acquisition while issuing notification under Section 6 of the Act. The land was again proposed to be acquired vide notification dated 23.4.1985. Respondent- R. N. Prashar again raised objections to the acquisition. Accepting the objections filed by him, the same was not notified under Section 6 of the At. It is admitted by respondent- R. N. Prashar that at the relevant time, he was posted as Chief Administrator, Haryana Urban Development Authority and Director, Town and Country Planning, Haryana. However, he claimed that file relating to this case was not dealt with by him and the decision not to acquire the land was taken by the Secretary of the Department with the consent of the then Hon'ble Chief Minister. 14. Another notification was issued on 5.5.1987 proposing to acquire C.W.P. No. 2098 of 2009 [ 7] part of the land for the purpose of construction of a road. In the process, one kanal and 11 marlas of land was acquired leaving a balance of 5 kanals and 14 marlas of land with respondent- R. N. Prashar. 15. Vide subsequent notification issued on 11.9.1997, remaining 5 kanals and 14 marlas of land (2883 square meters) was proposed to be acquired. Respondent- R. N. Prashar filed objections under Section 5-A of the Act. After affording opportunity of hearing to respondent- R. N. Prashar and inspecting the site, the Land Acquisition Collector (for short, `the Collector') reported that at the spot, there was one room of `A' class construction measuring 25x14 feet and on 280 square yards, there was lantern on pillar. He recommended for release of 330 square yards of land. While issuing notification under Section 6 of the Act, 0.13 acres (535 square meters) of land, on which construction was existing, was left out, whereas 0.58 acres (2348 square meters) of land was notified for acquisition. However, still respondent- R. N. Prashar was not satisfied and being in dominating position had been able to delay announcement of the award to its last and during the interregnum used his good offices to get another 0.37 acres (1500 square meters) of land released from a Minister's Committee and finally it was only 0.21 acres (848 square meters) of land, for which the award was announced by the Collector on 5.9.2000. 16. As has been noticed in agenda item No. A-98th (1)-Suppl. of HUDA, the shape of plot originally owned by respondent- R. N. Prashar was triangular. The portion of land measuring 2,035 square meters, which was released till the stage of announcement of award by the Collector was also given to him in regular shaped plots merely on deposit of ` 5,85,870/- as development charges. 17. After the announcement of award, possession of the land was taken by the government. Respondent- R. N. Prashar, being dis-satisfied, filed objections before the Collector, which were referred to learned District Judge, Panchkula, who vide his judgment dated 21.10.2002 dismissed the same finding the award of C.W.P. No. 2098 of 2009 [ 8] the Collector to be reasonable. 18. Respondent- R. N. Prashar, being aggrieved against the award of the learned court below, filed R.F.A. No. 818 of 2003 before this court, which was admitted. More than 8 years after announcement of the award and taking over possession of the land by the Collector and 5 years after the filing of appeal before this court seeking enhancement of compensation, application was filed by respondent- R. N. Prashar before this court bearing C. M. No. 8834-CI of 2008 seeking permission to withdraw the appeal. Considering the prayer of respondent- R. N. Prashar to be bonafide, the appeal was permitted to be dismissed as withdrawn on 11.9.2008. 19. The bad luck for respondent- R. N. Prashar was that some other land owners subsequently filed applications seeking permission to withdraw the appeals filed by them, wherein also the prayer was for enhancement of compensation. The prayer made by the land owners for withdrawal of the appeals filed by them seeking enhancement of compensation was quite unprecedented as at the most finally their appeals could be dismissed. Even against that dismissal order, they had their further remedies. In these circumstances, this court asked the State counsel to clarify the position as to why the appeals filed by the land owners were being withdrawn. He was also asked to explain as to under what circumstances, respondent- R. N. Prashar had withdrawn his appeal earlier. 20. In response thereto, affidavit of Land Acquisition Collector, Faridabad was filed explaining therein the situation with regard to withdrawal of appeals by the land owners in R.F.A. Nos. 2540 to 2543 of 1999. To put the record straight regarding the circumstances under which the land owners in the aforesaid appeals withdrew their appeals, briefly it is mentioned that amount of compensation as awarded by the Reference Court in those cases had been reduced by this court. Finding that the State was not in appeal in the cases of those land owners seeking reduction of compensation, even though appeals were filed in all C.W.P. No. 2098 of 2009 [ 9] other cases, the land owners sought permission to withdraw those appeals so that the award of the learned court below awarding compensation at a higher rate than what was ultimately determined by this court in their cases is not set aside. However, later on, the appeals filed by the State in the aforesaid cases along with application seeking condonation of delay of 8 years and 251 days in re-filing thereof also came up for hearing before this Court. Finding the reasons for seeking condonation of delay in re-filing to be not sufficient, those applications as well as the appeals were dismissed by this court vide order dated 7.9.2010. 21. However, as far as the appeal pertaining to respondent- R. N. Prashar is concerned, Land Acquisition Officer, Panchkula filed affidavit dated 27.11. 2008 explaining that his land had been released from acquisition. 22. It is at this stage that arbitrary action of the State came to light, whereby the land of respondent- R. N. Prashar, for which the award was announced on 5.9.2000 and the possession was taken by the State, was released from acquisition on 24.7.2006 under the orders of Hon'ble the Chief Minister and as a consequence thereof, instead of handing over possession of released land, plot No. 190, Sector 4, Mansa Devi Complex, Panchkula measuring 846 square meters was allotted to respondent- R. N. Prashar allegedly in exchange of the released land by HUDA. Finding the aforesaid action to be apparently a piece of blatant mis-use of power, this court considered it appropriate to treat the issue as a public interest petition. 23. From the sequence of facts, as narrated above, in brief, what has emerged is that it is a case where a senior functionary of the government had been able to give a complete go-by to the provisions of the Act by successfully saving the land owned by him from acquisition ever since 1981. The provisions of the Act were swept under the carpet to satisfy his luxurious needs who was not satisfied with 0.5 acres (2,035 square meters) for construction of his palatial house. He was sought to be gifted a plot of 846 square meters at a prime location by HUDA C.W.P. No. 2098 of 2009 [ 10] merely on the condition that he will refund the amount of compensation received by him along with interest and some petty development charges. The market value of the plot at the relevant time, was running into crores of rupees. It has also not been pointed out either by learned counsel for the State or HUDA that the case of respondent-R. N. Prashar for release of land was considered under any policy of the State, which was made known to the public at large or it was merely a favour shown to an individual. If any policy is framed, the public at large is entitled to take benefit thereunder. Action should not be taken to benefit a particular individual only who had access in the corridors of power. 24. Before we proceed to consider the respective contentions of learned counsel for the parties, it would be appropriate to extract the provisions of Sections 16 and 48 of the Act and Section 15 of the HUDA Act, which read as under: Sections 16 and 48 of the Land Acquisition Act, 1894 “16. Power to take possession.- When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances. 48. Completion of acquisition not compulsory, but compensation to be awarded when not completed.-(1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings, thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said C.W.P. No. 2098 of 2009 [ 11] land. (3) The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this Section”. Section 15 of the Haryana Urban Development Authority, Act, 1977 15. Disposal of land.- (1) Subject to any directions given by the State Government under this Act and the provisions of sub-section (5), the Authority may dispose of -- (a) any land acquired by it or transferred to it by the State Government without undertaking or carrying out any development thereon; or (b) any such land after undertaking or carrying out such development as it thinks fit, to such persons, in such manner and subject to such terms and conditions, as it considers expedient for securing development. (2) Nothing in this Act shall be construed as enabling the authority to dispose of land by way of gift, but subject to this condition, reference in this Act to the disposal of land shall be construed as reference to the disposal thereof in any manner, whether by way of sale, exchange or lease or by the creation of any easement right or privilege or otherwise. (3) Subject to the provisions hereinbefore contained, the Authority may sell, lease, or otherwise transfer whether by auction, allotment or otherwise, any land or building belonging to it on such terms and conditions as it may, by regulations, provide. (4) The consideration money for any transfer under sub-section (1) C.W.P. No. 2098 of 2009 [ 12] shall be paid to the Authority in such manner as may be provided by regulations. (5) Notwithstanding anything contained in any other law, for the time being in force, any land or building or both, as the case may be, shall continue to belong to the authority until the entire consideration money together with interest and other amount, if any, due to the Authority, on account of the sale of such land or building or both is paid. (6) Until the conditions provided in the regulations are fulfilled, the transferee shall not transfer his rights in the land or building except with the previous permission of the Authority, which may be granted on such terms and conditions, as the authority may deem fit.” 25. A perusal of Section 16 of the Act shows that after the announcement of award under Section 11 of the Act, the Collector is at liberty to take possession of the land which shall thereupon vests absolutely in the State free from all encumbrances. In the present case, it is the admitted position on record as is evident from the note of Director, Urban Estates dated 13.5.2006 that possession of the land had initially been taken. Along therewith if the provisions of Section 48 of the Act are considered, it clearly provide that the State has been given liberty to withdraw from acquisition only the land, the possession of which has not been taken. The provisions of Section 48 of the Act, with reference to release of land