CIVIL WRIT PETITION NO. 13700 OF 2004(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: May 16 , 2011. Parties Name Balbir Singh ...PETITIONER VERSUS State of Haryana and another ...RESPONDENTS CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice Rakesh Kumar Garg PRESENT: Mr. Sanjay Vij, Advocate, for the petitioner Mr. Kamal Sehgal, Addl. A.G.,Haryana; Mr. Ajay Nara, Advocate, for HUDA Jasbir Singh, J. (oral) JUDGMENT This writ petition has been filed to lay challenge to a notification issued under Section 4 of the Land Acquisition Act, 1894 (in short the Act) on June 9, 2003, proposing to acquire a vast track of land including land of the petitioner measuring 1 Bigha and 10 Biswas falling in Khasra No. 1310, situated in village Wazirabad. Further challenge is laid to CIVIL WRIT PETITION NO. 13700 OF 2004(O&M) -2- a notification issued under Section 6 of the Act on June 2, 2004, finally ordering acquisition of the land in dispute. The land was acquired for a public purpose, namely, for the development and utilisation of land for residential, commercial and Institutional area Sector 57 at Gurgaon. It is stated by counsel for the petitioner that in the land in dispute, the petitioner had constructed his residential house and further that the residential houses, owned by many other land owners, were kept out of acquisition, whereas, in a very discriminatory manner, the said relief was not granted to the petitioner. Upon notice, an affidavit has been filed. In para No. 6 of an affidavit, filed by the Land Acquisition Collector ( respondent No. 2), it has been stated as under: “That Khasra No. 1320min, 1321min, 1322min, 1123min, 1124, 1125min situated in the revenue estate of village Wazirabad, Tehsil and Distt. Gurgaon were notified u/s 4 dated 5-5-97 for sector 52, Gurgaon. The above said khasra Nos. were released u./s 5A as there was construction over the said land. Khasra No. 1128, 1129, 1141, 1142, 1143, 1144, 1146, 1309 , 1311, situated in the revenue estate of village Wazirabad Tehsil and Distt. Gurgaon were notified u/S 4 dated 24-8-2000 for sector 57, Gurgaon. Khasra No. 1311 was released u/s 5A as there was construction over the said land. Rest of the above cited khasra Nos. have already been acquired vide award No. 9 dated 21-7-03 for sector 57, Gurgaon.” CIVIL WRIT PETITION NO. 13700 OF 2004(O&M) -3- To deny relief to the petitioner, it was stated that though recommended by the Land Acquisition Collector for release, on report made by a Joint Inspection Committee, his land was ordered to be acquired. This case has a chequered history. At an earlier point of time, this writ petition was disposed of by passing an order on October 11, 2007. In appeal before the Hon'ble Supreme Court, the order passed by this Court was set aside and the matter was remitted for fresh consideration. On December 15, 2010, following order was passed by this Court: “ It is apparent from the records that in the written statement and also the affidavit filed by the Land Acquisition Collector on 19.9.2007, it is specifically stated that land of the petitioner with construction thereon is needed for road alignment. It is also not disputed before us that land of many other land owners with construction was released from acquisition. Mr. Nara is directed to get instructions as to whether after getting area for road alignment from the land of the petitioner any constructed portion of the petitioner can be saved or not. On request adjourned to 21.12.2010.” By taking note of the site plan annexed with the affidavit, filed by the Land Acquisition Collector, this Court was satisfied that only a part of the land in Khasra No. 1310 falls in the road alignment and rest of the land is not needed for the said public purpose. In response to our order, mentioned above, an affidavit of Shri Nitin Kumar Yadav, Administrator, CIVIL WRIT PETITION NO. 13700 OF 2004(O&M) -4- HUDA, Gurgaon, was filed in Court, wherein it is stated as under: “1. That it is submitted that the land of the petitioner measuring 3977.17 Sq. Mtr. was in Khasra No. 1310 which was acquired. Out of the above said land, land measuring 2379.880 Sq. Mtr. fell in road alignment. The remaining land measuring 1597 .29 Sq. Mtr. came under the land already earmarked for Group Housing Society No. 30, Sector 52, Gurgaon, as per part Layout-cum- Demarcation plan bearing drawing No. DTP (G) 1527/06 dated 04.12.2006 . Copy of the map reflecting the acquired land of the petitioner, land adjacent to the land of the petitioner which was released while considering objections under Section 5-A is annexed herewith as annexure A/1. It is further submitted that only 369.371 Sq. Mtr. area in the land of the petitioner was under construction and under the remaining area, there were temporary huts/ sheds.” In the affidavit, it is further admitted that land owned by many other land owners was kept out of acquisition after hearing the objections filed under Section 5-A of the Act. After looking at the contents of the affidavit, referred to above, following order was passed by this Court on February 22, 2011: “ In response to order dated 15.12.2010, one affidavit, executed by Mr.Vipan Kumar Yadav, Administrator, HUDA was shown to us. A cursory perusal whereof indicates many discrepancies in the said affidavit. Furthermore, no clear answer has been CIVIL WRIT PETITION NO. 13700 OF 2004(O&M) -5- given to a query raised by this Court on 15.12.2010. The affidavit is returned to Mr.Nara, who is directed to file a specific affidavit supported by measurements at the spot and photographs and also stating as to whether any other residential building was adjusted within the land under acquisition in this case or not. The State counsel is also directed to get instructions. Adjourned to 4.3.2011. Copy of the order be supplied to the State counsel and also Mr.Nara under signature of the Court Secretary.” Thereafter on April 25, 2011, following order was passed by this Court: “In the affidavit filed and the communication put on record by Shri Patter, there is a discrepancy so far as total area under acquisition and the area needed for construction of the road is concerned. Furthermore, after looking at the site plan, annexed with the affidavit of Shri Nitin Kumar Yadav, we feel that constructed house of the petitioner falls on one side and even after utilisation of portion of his land for construction of road, the same can still be saved. Entire land next to the house of the petitioner has been kept out of acquisition because of construction thereon. Shri Sehgal is directed to get instructions as to why it is not possible to release land owned by the petitioner. Affidavit be filed in that regard. Adjourned to May 6, 2011.” CIVIL WRIT PETITION NO. 13700 OF 2004(O&M) -6- In response to the above order, an affidavit of Shri Vivek Atray, Additional Director -cum- Deputy Secretary, Urban Estate Department, has been put on record, contents of which read thus: “1. That the total area of the petitioner falling in khasra No. 1310 of revenue estate Wazirabad, Gurgaon is 4537.50 Sq. yds. Out of this possession of 3176.25 Sq ys comes under sector dividing road is with HUDA and road has been constructed at site. The balance area outside the alignment is 1361 .25 sq yds. Out of this 1361.25 Sq. yds land, 369.371 sq. yds area was under construction and on the remaining, there were temporary huts/sheds. II That therefore, the land of the petitioner's falling outside of an alignment of the road is also required by HUDA and cannot be considered for released.” In the affidavit, it is clearly stated that total land of the petitioner under acquisition is 4537.50 Sq. Yds. , out of which possession of land measuring 3176.25 Sq. Yds. was taken and a road was constructed thereon. In rest of the land measuring 1361.25 Sq. yds. , construction is in existence in 369.371 sq. yds. However, this area cannot be left out of acquisition because it is needed for further planning. There is nothing on record to show as to for which purpose this area will be utilised. It is also not in dispute that the Land Acquisition Collector, taking note of the existence of the construction, has recommended release of the land owned CIVIL WRIT PETITION NO. 13700 OF 2004(O&M) -7- by the petitioner. It is also an admitted fact that land owned by many others, with construction, was kept out of acquisition. If that is the case, there is nothing on record to show that under what circumstances the said relief cannot be granted to the petitioner. It is a case of discrimination. As per admitted facts on record, construction of house of the petitioner exists at the spot in area measuring 369.371 Sq. Yds. . In view of above, as per policy of the State Government, area under construction with proportionate vacant area is supposed to be kept out of acquisition. Under the circumstances, we partly allow this writ petition and direct the authorities concerned to release 369.371 Sq. Yards constructed area, owned by the petitioner, with proportionate vacant area. To that extent, notification qua the petitioner stands quashed. Needful shall be done within three months from the date of receipt of certified copy of this order. ( Jasbir Singh ) Judge (Rakesh Kumar Garg) Judge May 16, 2011. DKC