CIVIL WRIT PETITION NO. 6616 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: April 21st , 2011. Parties Name Maharana Pratap Charitable Trust (Regd.) ...PETITIONER VERSUS State of Haryana and another ...RESPONDENTS CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice Augustine George Masih PRESENT: Mr. M.L.Sareen, Senior Advocate, with Mr. Hemant Sareen, Advocate, for the petitioner Ms. Palika Monga, DAG, Haryana; Mr. Amit Sharma, Advocate, for Mr. Arun Walia, Advocate, for HUDA Mr. Rajesh Sheoran, Advocate, for Gram Panchayat, Palwas. Jasbir Singh, J. Judgment. This judgment will dispose of seventeen writ petitions, i.e., Civil Writ Petitions No. 5101, 6616, 6809, 6810, 6811, 6812, 6813, 7085, 7182, 7180, 6839, 7191, 7217, 7265, 7356, 7734 and 16558 all of the year 2010, as common questions of law and facts are involved in all these cases. Vide order dated September 15, 2010, it was decided to treat CIVIL WRIT PETITION NO. 6616 OF 2010 -2- Civil Writ Petition No. 6616 of 2010 as the lead case. In view of above, to dictate judgment facts are being mentioned from that writ petition. Petitioner alleges that it is a charitable Trust constituted vide registered trust deed on July 13, 2000. Its main objects are to establish and run educational institutions, to undertake social service and projects of public welfare. Detail of the educational institutions run by the petitioner at Bhiwani is given in this writ petition. It is case of the petitioner that the Gram Panchayat of village Palwas had gifted 237 Kanals 2 Marlas of land to it, to set up an educational institution. Out of that land, 169 Kanals 13 Marlas of land falls within the municipal limits, a part of that land was made subject matter of acquisition by issuing the notifications under Sections 4 and 6 of the Land Acquisition Act on March 21, 2006 and March 20, 2007, respectively. Qua that portion of land, petitioner came to this Court by filing CWP No. 6860 of 2007, which is pending admitted. 67 Kanals and 9 Marlas of land which falls outside the Municipal limits of Bhiwani is in dispute in this writ petition. As per facts submitted by the petitioner, the main educational campus of the petitioner is situated in 169 Kanals and 13 Marlas of land falling within Municipal limits. Petitioner states that building to run a Polytechnic Institute and Women College was constructed in that land after getting building plan sanctioned from the Municipal Committee. Further detail has been given regarding starting a B.Ed. College, its recognition by the competent authorities and also sanction given to the other courses being run by the petitioner. It is stated that in land measuring 67 Kanals 9 Marlas, situated outside the Municipal limits, the petitioner has set up a play ground CIVIL WRIT PETITION NO. 6616 OF 2010 -3- and other sports activities for its students. It is an admitted fact that above said land is lying vacant and is situated at a distance of more than 3 Kms away from the main campus. Vide notification dated April 26, 2007 (P-5), issued under Section 4 of the Land Acquisition Act, 1894 (in short the Act), the respondents proposed to acquire 370 Acres of land (including 67 Kanals and 9 Marlas of land) falling in village Palwas, Bhiwani Lohar and Ninan for a public purpose, namely, for transport and communication in Sector 31, Bhiwani. The petitioner filed objections under Section 5-A of the Act on May 23, 2007, opposing the above said acquisition of its land. In the meantime, on May 24, 2007, the State Government issued a show cause notice to the petitioner asking it as to why an approval given to the gift of land measuring 237 Kanals and 2 Marlas in its favour, be not cancelled. With regard to that dispute, the petitioner filed a civil suit, which is pending. It is not necessary to refer to any further detail in that regard because in this case, the Court is not going to give any finding regarding ownership of the land in dispute or/ and regarding validity of gift of land made by the Gram Panchayat in favour of the petitioner. Final declaration under Section 6 of the Act was issued on April 25, 2008. It is case of the petitioner that when notification under Section 6 of the Act was issued, a vast track of land, out of the land originally proposed for acquisition, was left out of acquisition. By stating that adjoining vacant land owned by D.A.V. Centenary Public School, Bhiwani (2.145 Acres) was left out of acquisition, whereas in a very arbitrative manner, the land owned by the petitioner was ordered to be acquired, the petitioner came to this Court to lay challenge to the above said acquisition CIVIL WRIT PETITION NO. 6616 OF 2010 -4- by filing Civil Writ Petition No. 5896 of 2010, which was dismissed as withdrawn with liberty to file a fresh one. Hence this writ petition. Respondents have filed their replies controverting the allegations levelled by the petitioner. In reply, filed by respondent No. 3, it is stated that as per final development plan - 2025 AD, for Bhiwani city, Sector 31 is a transport and communication centre. The land has been acquired to use it for that sector as per the Master plan. It is further stated that before issuance of notification under Section 4 of the Act, to acquire the land a survey was conducted and any construction existing at the spot was shown in the survey plan. Copy of the survey plan has been put on record as Annexure R-2. It is further stated that land owned by the petitioner is lying vacant. Some part of it falls in the green belt. If released, it would affect the overall lay out planning for Sector 31. It is also stated that another piece of land measuring 169 Kanals 13 Marlas does not fall within Municipal limits, rather it falls within the extended limits of Bhiwani city. As per law, in the extended Municipal limits, if any construction is to be raised, one has to get a change of land use certificate, which was never applied by the petitioner. It was stated that the construction raised by the petitioner, where its main educational institution is situated is unauthorised and notice to demolish the same has been issued to the petitioner as per provisions of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963. In the amended written-statement, filed on behalf of respondents No. 1 and 2, it is stated that those land owners, who had filed objections under Section 5-A of the Act, within the prescribed period, were CIVIL WRIT PETITION NO. 6616 OF 2010 -5- properly heard. As per recommendation made by the Land Acquisition Collector, the Government decided to release land measuring 45.70 Acres of village Palwas, land falling in villages Bhiwani Lohar and Ninan was released from acquisition because it was inadvertently notified for acquisition of land to develop Sector 31 whereas that land had already been proposed for acquisition for development of Industrial Sector 30 at Bhiwani. Heard counsel for the parties. At the time of arguments, counsel for the petitioner has assailed acquisition of its land primarily on the ground of discrimination meted out to the petitioner. By making reference to the averments made in paragraphs 21, 22 and 24 (iii), counsel for the petitioner contended that after issuance of Section 4 notification, a vast track of land was released from acquisition. Against proposal to acquire 374.54 Acres of land, declaration was issued only with regard to 302.55 Acres of land, situated in village Palwas. Land situated in villages Bhiwani Lohar and Ninan was not made subject matter of the above said declaration. By making reference to the site plan on record, it was vehemently contended that the land owned by DAV Centenary Public School, Bhiwani, has not been acquired along with three/ four more pieces of land, situated near to the land owned by the petitioner. Counsel for the petitioner specifically stated that land measuring 2.55 Acres was released after issuance of notification under Section 6 of the Act. To press claim for release of land on the ground of discrimination, reliance was placed upon judgment of the Hon'ble Supreme Court in Hari Ram and another v. The State of Haryana and Others, JT 2010 (2) SC 235. In reply, State counsel has vehemently contended that before CIVIL WRIT PETITION NO. 6616 OF 2010 -6- issuance of notification under Section 4 of the Act, a survey plan was prepared showing existence of the construction, if any. After hearing objections filed by the land owners under Section 5-A of the Act, as per policy of the State Government, Land Acquisition Collector made recommendation to release land with construction, which was in existence before issuance of notification under Section 4 of the Act. It is further averred that the matter was then referred to a Zonal level Site Inspection Committee, which in its meeting dated October 3, 2007, recommended that the land measuring approximately 28 Acres, which had already been notified to develop Sector 30(Industrial) be excluded from this acquisition. It was further recommended that residential buildings raised before issuance of a notification under Section 4 of the Act except the construction falling in Sector roads and green belt should not be included in Section 6 notification. It was vehemently argued by the State counsel that the land owned by the petitioner is lying vacant and is situated away from the main education campus run by the petitioner. It is stated that only the land which is thickly populated has been kept out of acquisition. The vacant land owned by the petitioner has rightly been ordered for acquisition. It is further stated that qua the vacant land, which falls in the green belt and is situated next to the petitioner's land, the Government is proposing its acquisition. When arguments were concluded, we permitted the State counsel to show as to under what circumstances 2.55 Acres of land was released at the time of pronouncement of an Award. After hearing counsel for the parties, we feel that challenge of the petitioner to the acquisition of its land is not justified. The land is lying CIVIL WRIT PETITION NO. 6616 OF 2010 -7- vacant away from the main educational campus run by the petitioner (more than 3 Kms). There is nothing on record to show that any play ground and other sports facilities were being maintained on the land in dispute. As per site plan, substantial portion of the land, owned by the petitioner, falls in 45 Mtrs. mandatory green belt. So far as discrimination done to the petitioner is concerned, in affidavit filed by Shri Vikas Yadav, Deputy Secretary, Government of Haryana and Additional Director, Urban Estate, Haryana, dated November 25, 2010, it is stated as under: “3. That inter alia one of the contention of the petitioners in these petitions is that their land is being acquired and has not been released in spite of the fact that they have raised construction on the land in dispute whereas land of other persons existing at sites have been released and thus the Authorities have made discrimination against them by not releasing their land. However, this contention is wrong and baseless. All the thickly constructed area which was falling outside the proposed 45m wide green belt has not been acquired. It is pertinent to mention here that the constructions of the land owners except the constructions raised within the proposed 45m wide green belt has also been released by the State Government, after hearing the objections filed by the land owners under Section 5A of the Land Acquisition Act 1894. Whereas as per the Sajra plan attached herewith as Annexure R1, the site of the petitioners as shown in Purple colour of CIVIL WRIT PETITION NO. 6616 OF 2010 -8- CWP No. 6616, 6839, 5101, 6812, 6811, 6810, 6809, 7356, 6813, 7217, 7265 of 2010 falls within the 45m proposed green belt along the existing Bhiwani Rohtak Scheduled Road. 4. That it is the contention of the petitioners that land relating to some of the owners falling within this proposed 45 m wide green belt has been left from acquisition proceedings whereas their land has not been considered for release. In this contention, it is stated that as per information now obtained from the Town & Country Planning Department, there are four cases where the land shown in blue colour in Sajra Plan (Annexure R1) has been left inadvertently from acquisition proceedings in view of the misconception of the fact that the change of land use has been granted for the said area. The position regarding status of acquisition in each case is as under:- a. Shri Krishan Kumar Mohta (shown as A in Blue colour in the sajra plan) Kila No. 189//7min, 8/1min, 13/2min, 14min. (0.259Acre) In this case, the Department of Town & Country Planning has compounded about 324 sq ft area of unauthorized construction falling in the revenue estate of Palwas for the purpose for orchard use only and no construction was permitted in the 30m restricted belt. The said owner has raised some unauthorized construction falling within the area of proposed green belt at his own. This area was left out of acquisition inadvertently at CIVIL WRIT PETITION NO. 6616 OF 2010 -9- the time of award with a presumption that the party has obtained permission from the Department, whereas no change of land use was granted for the area falling within 30 m restricted green belt. As per provisions of Development Plan Bhiwani, the width of green belt has been increased from 30 m to 45 m. Thus the area falling within the proposed 45 m wide green belt which has been released is proposed to be acquired by the State Government by separate notification. b. MKN International Pvt. Ltd. (Shown as B in blue colour in the sajra plan ) Kila No. 190//9min, 10min, 12min (0.531 Acre) The land belonging to above said company was earlier notified for acquisition under Section 4 & 6 of the Land Acquisition Act, 1894, but the same was left from acquisition at the time of announcement of award under a misconception that permission for change of land use for setting up a petrol pump has been granted by the Department of Town & Country Planning which is a permissible use in the green belt. But now as per information obtained from the said Department, permission for change of land use for setting up a petrol pump on the land in question was refused vide letter No. 12480 dated 28.4.2006. Though the said company has again applied for permission, but the same is not considered by the Town & Country Planning Department so far. The same is also proposed to be acquired by the State Government vide separate notification. CIVIL WRIT PETITION NO. 6616 OF 2010 -10- c. Dav Centenary Public School, Bhiwani (shown as C in Blue colour in the sajra plan) (2.145 Acres) Permission for change of land use for the establishment of a School on the land measuring 4680 sq. m (excluding the area of 4000 sq. m falling in 30 m restricted belt along the schedule road) was granted by the Director, Town & Country Planning Haryana vide letter No. 9350 dated 02.09.1994. The above mentioned land initially notified under Section 4 of the Land Acquisition Act, 1894, was left out from acquisition at the time of notification under Section 6 of the Land Acquisition Act, 1894 with misconception of the fact that the above said land falls within the area of Sector 30. The same is now proposed to be acquired by the State Government vide separate notification. d. M/s Sri Hari Charitable Trust, Bhiwani (Shown as D in Blue Colour on the sajra plan) Kila No. 170//21min, 171//25/2min, 192//5/1/2, 5/2/2min, 193//1/1min, 1/2min. (1.769). In this case, permission for change of land use for construction of religious building over an area measuring 8562.11 Sq m (after excluding an area of 3320.82 sq yrds falling within 30m restricted belt along Bhiwani Rohtak schedule road) in the revenue estate of Palwas was granted by the Department of Town & Country Planning vide letter No. 2582 dated 10.02.2003. As per provision of Development Plan of Bhiwani the width of the green belt has been increased from 30m to 45 CIVIL WRIT PETITION NO. 6616 OF 2010 -11- m. The area measuring 1.764 acres was released at the time of award however some of the area was left out at the time of Section 4 of the Land Acquisition Act, 1894 inadvertently. The land falling within the restricted belt is still vacant till date. The land which falls in the proposed 45 m wide green belt left out of acquisition is now proposed to be acquired by the State Government vide separate notification. 5. That it is further stated that all the land falling within the proposed 45 m wide green belt alongwith Bhiwani Rohtak scheduled road which has been left inadvertently from acquisition proceedings due to one reason or the other is now being proposed to be acquired by the State Government for the purposes earmarked in the Development Plan Bhiwani.” So far as the other land, detail of which is not given in the affidavit, mentioned above, it has come on record that the area is thickly populated and is not part of the green belt/ road alignment. In the first instance, the Land Acquisition Collector and thereafter Joint Inspection Committee visited the site and recommended its release from acquisition as per policy of the State Government dated October 26, 2007 not to acquire constructed buildings except in cases where land falls in the mandatory green belt and the road alignment. No case of discrimination is made out. Reliance of the petitioner on the judgment of the Hon'ble Supreme in Hari Ram's case (supra) is not justified in view of the facts stated above. So far as CWP No. 6809 of 2010 is concerned, petitioners No. CIVIL WRIT PETITION NO. 6616 OF 2010 -12- 7,8,9 and 10 had no grievance because some part of their land was released when Award was passed. In CWP No. 7217 of 2010, it has come on record that constructed building of the petitioners therein, falls in the mandatory green belt and furthermore petitioners No. 9 to 13 had not filed any objection under Section 5-A of the Act. Land under acquisition in CWP No. 6839 of 2010 is lying vacant. It is meant for Gaushala and is being used to produce fodder for the animals and is situated at a distance of 5 Kms from the Gaushala. In CWP No. 7182 of 2010, only petitioners No. 1,5,6 and 7 filed objections under Section 5-A of the Act. Land is a farm house with fruit bearing trees. In CWP No. 5101 of 2010, land is lying vacant and falls in the mandatory green belt. It is not in dispute in this case that constructed building of the petitioner had already been kept out of acquisition. In CWP No. 6810 of 2010, most of the land is lying vacant. Furthermore, in that writ petition, only petitioners No. 1 to 3 filed objections under Section 5-A of the Act. It has also come on record that at the time when notification under Section 4 of the Act was issued, the land was lying vacant. In CWP No. 6811 of 2010, building raised by petitioners No. 2 and 3 is in existence. However, as per record in the survey plan, the land was shown as lying vacant. The petitioners did not file any objections under Section 5-A of the Act. Land subject matter of acquisition in CWP No. 6812 of 2010 is CIVIL WRIT PETITION NO. 6616 OF 2010 -13- lying vacant with a boundary wall around it. In reply, it is stated that release of this land will affect the overall planning. Furthermore, only petitioner No. 2 in this case filed objections under Section 5-A of the Act. In CWP No. 16558 of 2010, land under acquisition is vacant. As per reply, it is a part of 45 Mtr. Green belt. The writ petition has also been filed after passing of the Award. The constructed building of the petitioner in CWP No. 6813 of 2010 is a part of mandatory green belt. Furthermore, the petitioner had not filed any objection under Section 5-A of the Act. Objection was filed by his brother, who is not a petitioner in this case. In CWP No. 7265 of 2010, it is case of the petitioner that constructed building has wrongly been made subject matter of acquisition. In reply, it is stated that no objection was filed under Section 5-A of the Act and furthermore as per survey plan, no construction was in existence when notification under Section 4 of the Act was issued. The Court is of the opinion that no case is made out to interference in all these cases. So far as other writ petitions are concerned, no specific argument was raised. In view of facts mentioned above, no case is made out for interference. All these writ petitions are dismissed. ( Jasbir Singh ) Judge (Augustine George Masih) Judge April 21st , 2011. DKC