CWP No. 2575 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDI- GARH Date of Decision: October 1, 2010 (1) CWP No. 2575 of 2009 Jarnail Singh and others ….Petitioners Versus State of Punjab and others ….Respondents Present: Shri Arun Palli, Senior Advocate, with Shri Tushar Sharma, Advocate, for the petitioners. Shri Rupinder Khosla, Addl. AG, Punjab, for respondent No.1. Shri D.V. Sharma, Senior Advocate, with Ms. Shivani Sharma, Advocate, for respondent Nos. 2 and 3. (2) CWP No. 2458 of 2009 Paramjit Singh and others ….Petitioners Versus State of Punjab and others ….Respondents (3) CWP No. 2563 of 2009 Mehma Singh and others ….Petitioners Versus State of Punjab and others ….Respondents (4) CWP No. 3830 of 2009 Ravinder Singh and others ….Petitioners Versus State of Punjab and others ….Respondents (5) CWP No. 4090 of 2009 Prem Singh and others ….Petitioners Versus State of Punjab and others ….Respondents (6) CWP No. 16831 of 2009 Ran Singh and another ….Petitioners CWP No. 2575 of 2009 [2] Versus State of Punjab and others ….Respondents Present: Shri S.S. Rathore, Advocate, for the petitioners. Shri Rupinder Khosla, Addl. AG, Punjab, for respondent No.1. Shri D.V. Sharma, Senior Advocate, with Ms. Shivani Sharma, Advocate, for respondent Nos. 2 and 3. (7) CWP No. 18522 of 2009 Hardeep Singh and others ….Petitioners Versus State of Punjab and others ….Respondents Present: Shri Harish Goyal, Advocate, for the petitioners. Shri Rupinder Khosla, Addl. AG, Punjab, for respondent No.1. Shri D.V. Sharma, Senior Advocate, with Ms. Shivani Sharma, Advocate, for respondent Nos. 2 and 3. (8) CWP No. 3181 of 2009 Karnail Singh and others ….Petitioners Versus State of Punjab and others ….Respondents (9) CWP No. 18569 of 2009 Lt. Col. Balbir Singh and others ….Petitioners Versus State of Punjab and others ….Respondents Present: Shri Deepak Sharma, Advocate, for the petitioners. Shri Rupinder Khosla, Addl. AG, Punjab, for respondent No.1. Shri D.V. Sharma, Senior Advocate, with Ms. Shivani Sharma, Advocate, for respondent Nos. 2 and 3. CWP No. 2575 of 2009 [3] CORAM: Hon’ble the Chief Justice Hon’ble Mr. Jusice Jasbir Singh Hon’ble Mr. Justice Hemant Gupta 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Hemant Gupta, J. The present writ petitions have been placed before this Bench on a reference made by the learned Single Judge of this Court wherein challenge has been made to Clause 6(V) of the policy dated 26.09.1994 restricting the allotment of one plot to the oustees who have a joint holding. As the learned Single Judge found that judgment of the Division Bench in Smt. Ramo Bai and others vs. State of Haryana and others, 2007 (4) PLR 295 acknowledged some apparent distinction between the policies as applicable in the States of Punjab and Haryana. Since the issue is legal, factual matrix in respect of land holding of each writ petitioner and consequent eligibility for allotment of a plot as an oustee need not be mentioned in detail. Suffice it to state that the writ petitioners are reflected as co-owners in a joint Khata in the revenue record whereas in terms of the policy dated 26.09.1994, all such joint owners are entitled to a plot of land not exceeding 500 sq. yards as a rehabilitation measure. The grievance of the petitioner is that all the co-owners have an independent right to own and possess the land falling to the share of each of them, therefore, in terms of the policy dated 26.09.1994, each of the co-owner is entitled to allotment of plot of requisite size. The restriction of allotment of one plot to the co-owners is CWP No. 2575 of 2009 [4] without any reasonable classification and objective to be achieved and thus, have sought quashing of Clause 6(V) of the Scheme. At this stage, the details of the policy framed by the State Government from time to time providing allotment of a plot to a landowner whose land has been acquired under the Land Acquisition Act, 1894 need to be stated. The first policy conferring right of allotment of a plot to a person whose land has been acquired was formulated by the State Government and circulated on 17.4.1974, Annexure P5/A. The said policy also contemplated creation of plots of different sizes in each of urban estates, eligibility for allotment of such plots and reservation policy for allotment of plots to the Oustees, Defence Personnel, Punjab Government employees, Scheduled Castes and Backward Classes etc. The relevant policy in respect of oustees reads as under: - “ Reservation Policy 8. It has been decided to revise the existing policy of reservation as follows: - (i) Before any plots are allotted, all oustees whose land has been acquired for the setting up of an Estate shall be accommodated within the frame work of the income criteria (prescribed) mentioned above. Further, all war widows will also be accommodated on cent-percent basis and plots allotted to them as per their requirements and social needs (ii) Defence Personal xxx xxx (iii) Punjab Government Employees xxx xxx”. On 29.09.1981, vide Annexure P5/B, another circular was issued whereby the Government decided to allot a plot to an oustee but by restricting right of allotment of plot to such an oustee or his family which means wife and minor children and who does not own another plot or house within an urban area. It further contemplates that no CWP No. 2575 of 2009 [5] application from oustee shall be received after a period of three years from the date of acquisition of land. It further provided as under:- “(i) The plot shall be allotted to an oustee in the Urban Estate for his bona fide residence. This will be subject to the condition that the oustee or his family which means wife and minor children, do not own another plot or house within an urban area. (ii) No application from the oustees shall be received after a period of three years from the date of acquisition of land. The oustees shall be allotted plots on first come first served basis. (iii) Individual oustees shall not be allotted plots measuring more than 200 sq. yards. The criteria for the allotment of plots upto 200 sq. yards shall be as under: - Land acquired Size of plot Gross Annual income (a) ½ acre to 3 acres 100 sq. yds. Upto Rs.8000/- (b) Above 3 acres upto 5 acres 150 sq. yds. Above Rs.8000/- upto Rs. 12000/- (c) Above 5 acres 200 sq. yds. Above Rs.12000/- upto Rs. 20,000/- Explanation A: However, if on the land acquired there were built up properties. 100 sq. yds., plots may be allotted although the area acquired may be less than acre, this will be subject to the Gross annual Explanation B: It is specifically stated here that both the requirements, i.e., regarding land acquired as also the income shall have to be met before any person becomes eligible. (iv) 10% each of the plots measuring 200 sq. yds., shall be reserved for allotment to the oustees. If the number of applications of the oustees is less, the remaining plots reserved for oustees shall be allotted as per policy. (v) Where the land acquired was owned jointly all the oustees would be entitled jointly for one plot only”. On 26.05.1983, another policy, Annexure P-5C, was issued CWP No. 2575 of 2009 [6] wherein percentage of size of plot to be allotted in each urban estate and Reservations of plot to certain categories were redefined so as to include Members of Parliament, Members of Punjab Legislative Assembly, Defence Personal, SC/BC, Non Resident Indians and the discretionary quota. In respect of allotment of plot to an oustee, it was decided that plot should be allotted to an oustee in the Urban Estate for his bona fide residence and the oustee will be entitled to allotment of a plot in the following manner :- “ACCOMODATION OF OUSTEES: The Policy regarding the allotment of plots to oustees will be as under:- (i) The plot should be allotted to an oustee in the Urban Estate for his bona fide residence; (ii) No application from the oustee should be entertained after a period of three years from the date of taking possession of his acquired land. This would, however, apply to the future oustees. The present oustees would be given one year's time to apply for the allotment of plots:- (iii) An oustee would only be allotted plot on the following basis :- Land Acquired Size of plot (a) ½ acre to 3 acres 100 sq. yds. (b) between three to five 200 sq.yds. (c ) Above five acres 500 sq. yds. (unless he asks for a small plot ) EXPLANATIONS: However, if on the land acquired there was a dwelling unit, 100 sq. yds., plot may be allotted even though the acquired may be less than ½ shares: (iv) The price chargeable for allotment of plots to the oustees would be same as for general CWP No. 2575 of 2009 [7] category: (v) All oustees of any joint Khata would be entitled to one plot only”. On 26.06.1994, the policy, Annexure PD, in respect of allotment of plots to the oustees was circulated. It is the said policy which is now under consideration. It contemplates reservation of plot to different categories such as Members of Parliament, Members of Legislative Assembly elected from Punjab, Freedom Fighters of Punjab State, Defence Personnel, Punjab Government employees and widows of State Government employees who dies in harness, Scheduled Caste / Backward Class, Riot victims of 1984, terrorist victims, Non-resident Indians etc. It also provided allotment of plot to the oustee. The relevant clause reads as under: - “6. Policy for Oustees Policy for allotment of plots to oustees would be as under: - (i) The plot would be allotted to an oustee in Urban Estate for his bona fide residence. (ii) The application from the oustee will be entertained after a period of one year from the date of taking possession of his acquired land. (iii) An oustee would only be allotted a plot on the following basis:- Land Acquired Size of Plot (a) ½ acre to 3 acre 100 sq. yds. (b) Between 3 to five acres 200 sq. yds. (c) Above 5 acres 500 sq. yds. However, if on the land there is a dwelling unit, 100 sq. yds. Plot may be allotted even though the area acquired may be less than ½ acres. (iv) The price chargeable for allotment of plots to the oustees would be same as for general category. CWP No. 2575 of 2009 [8] (v) All oustees of any joint Khata would be entitled to one plot only”. The petitioners have also made reference to the order passed by a Division Bench of this Court in CWP No. 4837 of 1981 titled Karam Singh and others vs. State of Punjab and others, decided on 4.5.1982. In the aforesaid case, the petitioners who were holding land jointly were found entitled to separate plots as each of the co-owner has been paid compensation separately. The petitioners, in the said case, were claiming allotment of plot under the first policy of the year 1974. A new policy was circulated on 29.09.1981 before the writ petition came up for decision. The Court found that even in terms of new policy, the petitioner who has been paid compensation separately as a distinct co- owner is entitled to allotment of a separate plot. The said order was affirmed by the Hon'ble Supreme Court in CA No.168 of 1983 titled State of Punjab and others vs. Karam Singh and others, decided on 11.09.1997. On the basis of the aforesaid judgment and the judgments dealing with the right of co-sharer i.e., Sant Ram Nagina Ram vs. Daya Ram Nagina Ram, AIR 1961 Punjab 528; Bhartu vs. Ram Sarup, 1981 PLJ 204 (Full Bench); Ram Chander vs. Bhim Singh and others, 2008 (3) RCR (Civil) 685 (Five Judges Bench); and Re: Special Courts Bill, 1979(2) SCR 476, Learned counsel for the petitioners has vehemently argued that a owner of specific share of land, even if he has joint holding with other co-owner is entitled to separate plot, of course of size as per his entitlement as per the scheme. It is argued that the mere fact that the land is reflected in the revenue record as joint, does not mean that the co-owner is not owner of a specific share in the property. It is contended that a co-owner has a specific share in the property and if such specific share satisfies the condition of eligibility for allotment of plot, then such co-owner is entitled to plot irrespective of the fact that CWP No. 2575 of 2009 [9] the Khata is joint. It is contended that joint Khata is for the convenience of the co-owner for the purpose of irrigation and for enjoyment of fruits of agricultural land but that does not affect the extent of ownership of each of the co-owner. It is contended that a co-sharer has the same rights as an individual owner. A co-sharer has an inherent right to sell his undivided share as well. Each of the co-sharers, has an independent right and title to enjoy possession. The said clause does not take into consideration rights of the petitioners as joint owners and violates the right of the petitioners as co-sharers. It is argued that for example if two co-owners own 11 acres of land, then in terms of the policy, both the co- owners would be entitled to one plot of 500 square yards, but if the eligibility of both co-owners is separately determined, then both would be individually entitled to plot of 500 square yards as each of the co-owners is owner of the land measuring more than 5 acres. It is, thus, contended that Clause 6(V) of the policy dated 16.9.1994 is illegal, arbitrary, discriminatory, irrational and has no nexus with the objective to be achieved i.e. resettlement of the land owners, who have been rendered landless on account of acquisition of their land. Learned counsel for the petitioners has referred to Re: Special Courts Bill’s (supra), delineating the propositions in formulation of the principles for application of Article 14 of the Constitution of India. Learned counsel for the petitioners, in particular, relied upon principles 6 and 7, which read as under:- “6. The law can make and set apart classes according to the needs and exigencies of the society and as suggested by experience. It can recognize even degree of evil, but the classification should never be arbitrary, artificial or evasive. 7. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or CWP No. 2575 of 2009 [10] characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that differentia must have a rational relation to the object sought to be achieved by the Act.” Learned counsel for the petitioners also relied upon Deepak Sibal v. Panjab University and another, AIR 1989 Supreme Court 903, to contend that in considering the reasonableness of the classification from the point of view of Article 14 of the Constitution, the Court has to consider the objective for such classification and that if the objective is found to be illogical, unfair and unjust, then necessarily the classification will have to be held as unreasonable. Relying upon State of Haryana v. Gurcharan Singh and others, (2004)12 Supreme Court Cases 540, it was contended that once the State Government has decided to allot plots to the land owners, whose lands have been acquired, such decision cannot be implemented in an unfair and unreasonable manner. On the other hand, learned counsel for the respondents has vehemently argued that the landowners have been paid compensation for the acquisition of land in accordance with the provisions of Land Acquisition Act, 1894. If the landowners are not satisfied with the compensation awarded by the Land Acquisition Collector under the Act, such landowners have a right to seek a remedy in a Reference and/ or in appeal against the award of the Reference Court. The compensation paid is the market value of the land acquired. The landowners are also paid compensation for statutory acquisition and interest for the delayed payment. Such provisions are adequate to determine the market value of the land acquired. Since the landowners have been paid market value of CWP No. 2575 of 2009 [11] the land acquired, the policy of allotment of a plot to such landowner is a concession. The concession can be availed only in the manner contemplated by the grantor. It is not open to the petitioner to dispute Clause 6(V) of the policy as terms of grant of concession cannot be permitted to be disputed. Learned counsel for the respondents further argued that if each of the landowners is considered eligible for allotment of a separate plot, if his landholding satisfies the eligibility condition for allotment of a plot of 200, 300 and 500 square yards, then large number of landowners would be eligible for allotment of plot. It is, thus, contended that majority of the plots for allotment for residential purposes may not be available for allotment to the general category candidates as the plots are reserved for allotment to different categories i.e., Members of Parliament, Members of Legislative Assembly elected from Punjab, Freedom Fighters of Punjab State, Defence Personnel, Punjab Government employees and widows of State Government employees who dies in harness, Scheduled Caste / Backward Class, Riot victims of 1984, terrorist victims, Non- resident Indians etc.. It is pointed out that as per the Policy, 46% of the plots are reserved in favour of various categories, but if every co-sharer is also given individual plot, then the reservation would exceed 50%. Since the availability of plots is limited, the Policy was designed so as to strike a balance between the rights of general public and also to provide an opportunity of rehabilitation to the oustees. Such Policy cannot be said to be arbitrary, discriminatory. Reference was made to State of Jharkhand and others v. Shiv Karampal Sahu, (2009) 11 Supreme Court Cases 453, wherein Para No. 10 from the judgment in Regional Director, ESI Corpn. V. Ramanuja Match Industries, (1985)1 SCC 218, was noticed, which reads as under:- “10. ……We do not doubt that beneficial legislations should have liberal construction with a CWP No. 2575 of 2009 [12] view to implementing the legislative intent but where such beneficial legislation has a scheme of its own there is no warrant for the Court to travel beyond the scheme and extend the scope of the statute on the pretext of extending the statutory benefit to those who are not covered by the scheme.” It is contended that the State Government or its agencies acquire land for development of residential, commercial area and for many other public purposes. If the plots are to be allotted to the oustees, as sought by the petitioners, then the entire purpose of acquisition will be defeated as no plots would be available for general public, the public purpose for which alone, the acquisition of land is permissible. Therefore, such clause has been introduced to provide an opportunity of allotment of a plot to general category candidate. Such a clause is in existence for more than two decades, therefore, it cannot be said that such restriction on a right of a co-owner to seek allotment of plot has no reasonable nexus with the object to be achieved. It is further pointed out that if there are three joint owners and the land acquired is ½ acre, all the co-sharers will be entitled to one plot of 100 square yards, but if their holding is to be treated as separate, none of the co-sharers would be entitled to any plot. It is pointed out that the bounty of a residential plot is not to be showered upon the oustees. The cut off in respect of the entitlement has to be fixed and is reasonable. Reliance was placed upon Satluj Jal Vidyut Nigam Ltd and another vs. Dila Ram and others, (2005) 2 SCC 122, wherein the scheme formulated by a statutory corporation for resettlement and rehabilitation of the persons, whose land has been acquired, providing benefit to only one member of the family, was found to be justified. Reliance was placed upon the following observations of the Hon’ble Supreme Court in the said judgment:- “The test to be adopted under the Scheme was whether there was joint holding and relationship as a CWP No. 2575 of 2009 [13] family. The High Court seems to have understood that the Scheme was intended to give benefits to each member of the landless family. If this interpretation were to be accepted, then the Corporation would have to provide more land for distribution to each members of the landless family than, perhaps, even the total land acquired.” The arguments raised by the learned counsel for the parties give rise to the following questions:- 1. Whether the oustees form a class entitled to plot on account of acquisition of land for residential purposes by State Government and/or its instrumentalities? 2. Whether Clause 6(V) of the Policy dated 26.9.1994 restricting the right of co-owner to seek allotment of plot, is illegal, arbitrary and discriminatory as it has no nexus with the objective to be achieved? 3. Whether certain percentage of plots is required to be reserved for oustees or that the oustees are entitled to preferential allotment of plots first without allotting the same to the general public? Question No.1. The concept of Policy for allotment of plots to rehabilitate and resettle the persons, whose land has been acquired firstly came to be recognized by the Hon’ble Supreme Court in State of U.P. v. Smt. Pista Devi, AIR 1986 Supreme Court 2025, in respect of the land acquired by Meerut Development Authority. The Court directed that as far as practicable, provide a house site or shop site of reasonable size on reasonable terms to each of the expropriated persons who have no houses or shop buildings in the urban area in view of the wholesome principles laid down by the Delhi Development Act. CWP No. 2575 of 2009 [14] In N.D. Jayal and another v. Union of India and others, (2004)9 Supreme Court Cases 362, the Court was, inter-alia, considering the safety and environmental aspects of Tehri Dam. While considering the rehabilitation of the oustees on account of submerging of the Tehri Town and 22 villages, relying upon the judgment rendered in Narmada Bachao Andolan v. Union of India, (2000)10 SCC 664, it was held to the following effect:- “The last condition is rehabilitation which is not only about providing just food, clothes or shelter. It is also about extending support to rebuild livelihood by ensuring necessary amenities of life. Rehabilitation of the oustees is a logical corollary of Article 21. The oustees should be in a better position to lead a decent life and earn livelihood in the rehabilitated locations.” The rehabilitation and resettlement of landowners, where land has been acquired, has been held to be a facet of Article 21 of the Constitution. The Policy framed by the State Government for allotment of a plot on fulfillment of the eligibility conditions, in fact, is creating a class requiring preferential allotment. Thus, the oustees form a distinct class, a class whose land has been acquired. The Policy contemplating allotment of plots to the oustees creates a class of persons entitled to preferential