CWP Nos. 9892 of 2009 (O&M) and other connected cases 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 18.11.2010 CWP No. 9892 of 2009 (O&M) M/s Akashdeep Housing Development Finance (Pvt.) Limited ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CWP No. 11678 of 2009 Surat Singh and others ….. PETITIONERS VERSUS State of Haryana and others ….. RESPONDENTS CWP No. 11681 of 2009 Zile Singh and another ….. PETITIONERS VERSUS State of Haryana and others ….. RESPONDENTS CWP No. 11763 of 2009 M/s Sindhu Farm Pvt. Limited ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CWP No. 10398 of 2009 M/s Akashdeep Housing Development Finance (Pvt.) Limited ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CWP Nos. 9892 of 2009 (O&M) and other connected cases 2 CWP No. 11297 of 2009 Balbir Singh and others ….. PETITIONERS VERSUS State of Haryana and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. M.L.Sharma, Advocate, for the petitioner (s). Mr. S.K.Hooda, Addl. A.G. Haryana, for respondents No. 1 to 3, 6 and 8 to 10. Mr. Amit Sharma, Advocate, for Mr. Arun Walia, Advocate, for HUDA. Mr. Kamal Sehgal, Advocate, for HSIIDC-respondent No. 4. Mr. Raghujeet Singh Madan, Advocate, for respondents No. 5 and 7 (in CWP Nos. 10398 and 9892 of 2009). Mr. Raghuvinder Singh, Advocate, for Mr. Puneet Bali, Advocate, for respondent No. 13. *** Jasbir Singh, J. (Oral) C.M. Nos. 16405-06 of 2010 in CWP No. 9892 of 2009 Applications are allowed. Documents are taken on record. CWP No. 9892 of 2009 and other connected cases This order will be dispose of six writ petitions bearing CWP No. 9892 of 2009 titled as M/s Akashdeep Housing Development Finance (Pvt.) Limited vs. State of Haryana and others, CWP No. 11678 of 2009 titled as Surat Singh and others vs. State of Haryana and others, CWP No. 11681 of 2009 titled as Zile Singh and another vs. State of Haryana CWP Nos. 9892 of 2009 (O&M) and other connected cases 3 and others, CWP No. 11763 of 2009 titled as M/s Sindhu Farm Pvt. Limited vs. State of Haryana and others, CWP No. 10398 of 2009 titled as M/s Akashdeep Housing Development Finance (Pvt.) Limited vs. State of Haryana and others and CWP No. 11297 of 2009 titled as Balbir Singh and others vs. State of Haryana and others involving similar questions of law and facts. The facts are being taken from CWP No. 9892 of 2009. This writ petition has been filed with a prayer to quash a notification dated 13.02.2008 issued under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') proposing to acquire land measuring 1951 Acres 7 Kanal 7 Marlas for a public purpose,namely, to be planned and developed as an integrated complex for industrial, transport and other public utilities etc. in village Bohar. Further challenge has been made to a declaration issued under Section 6 of the Act to acquire an area measuring 1926 Acres 6 Kanal 0 Marlas. In this writ petition, it is contention of the petitioner that in its land, a hotel/marriage palace and other commercial activities are going on. It is stated that constructed buildings of others were left out of acquisition and by not granting the same relief to the petitioner, discrimination has been done to it. To show that land of many other land owners was released from acquisition, reference was made to the release of land in the favour of MR D.A.V. Education Trust, M/s Micron Precision Screws Ltd. and D.A.V. Sanctuary Public School. Upon notice, reply has been filed, wherein it has been stated that land of the petitioner falls in the 150 meters wide statutory green belt to be left on both sides of the G.T. road. leading to Delhi from Rohtak. It is further stated that land of the petitioner falls in an area reserved for industrial zone and as such, running of commercial activity cannot be CWP Nos. 9892 of 2009 (O&M) and other connected cases 4 allowed to continue in the said area. It was further stated that the petitioner has raised construction of a hotel etc. without getting any Change of Land Use Certificate, as such, the land cannot be released. On 05.08.2010, after hearing counsel for the parties, we passed the following order:- “During the arguments, we notice that the petitioner's claim for release of land was rejected on the following grounds:- “(i) The petitioner had not obtained the CLU permission from the competent authority for the construction of the banquet hall and as such it was unauthorized; (ii) The land of the petitioner also fell within the 150 meters wide statutory green belt.” At the time of arguments, by making reference to the site plan (Annexure P-19), counsel for the petitioner states that the State authorities have constructed a bye-pass on the national highway No. 10 and the road, on which its property is situated, cannot be treated as a national highway. Counsel further states that there is no requirement to release 150 mtr. green belt next to the road. Counsel further states that Change of Land Use certificate was obtained by it for industrial purposes, however, the petitioner has converted it into a Marriage Palace/Resort. It is contention of the counsel for the petitioner that the above-said activity will also fall in the industrial activity. It is further stated at the time of arguments that the land of some of the right holders falling in the green belt was released after issuance of notification under Section 6 of the CWP Nos. 9892 of 2009 (O&M) and other connected cases 5 Land Acquisition Act. A specific reference has been made to the release order passed in favour of M.P.S. Factories and D.A.V. College of Management. State counsel is directed to file an affidavit (1) as to under what provisions of law, it is mandatory to release 150 meter green belt next to the road in the present situation? (2) Whether in view of the construction of bye-pass, the above- said requirement still remains there or not? (3) Information be also supplied as to whether anybody's land falling in the green belt was released after issuance of notice under Section 6 of the Land Acquisition Act? (4) Whether if the area of the petitioner is released, how it is going to hamper the overall development of the scheme? Adjourned to 31.08.2010. Affidavit be filed before the next date of hearing. Copy of this order be given dasti under the signatures of the Court Secretary of this Court.” In reply thereto, affidavit of Sh. T.L.Satyaprakash, Joint Secretary to Government Haryana, Department of Industries and Commerce, dated 20.09.2010 is placed on record. In response to the queries raised by this Court in its order mentioned above, it was stated as under:- “6. That the specific directions of the Hon'ble Court are replied as under:- 6.1 The 150 meter wide green belt next to the road in the present situation has mandatory backing as the same forms a part of the development plan notified under Act No.41 of 1963. It may be submitted that the Department of Town and CWP Nos. 9892 of 2009 (O&M) and other connected cases 6 Country Planning, Haryana prepares the development plans under the provisions of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (Act No.41 of 1963). The Department of Town and Country Planning, Haryana, has made provisions for right of way (ROW) from the roads and green belts in the development plan keeping in view the projections/development of the town till the year 2025 and as per the provisions of the Act No.41 of 1963. It is submitted that a consultative process is adopted in preparation of a development plan of a town and objections are invited from the general public before final publication of the plan. The revised Draft Development Plan of Rohtak town has been published in the official gazette by the State Govt. in the town & country planning department vide notification No.CCP (NCR)/RDDP(RTK)/2007/3296 dated 18.09.2007 after completing the procedure laid down under the Act No.41 of 1963. A provision of the said 150 meters wide statutory green belt has been made in the notified development plan. It is further submitted that it is mandatory for the Industries and Commerce Department to adhere to the provisions of the development plan while acquiring/planning the area. 6.2 The construction of a bye-pass notwithstanding, the road passing through the town continues to be notified as a National Highway No.10 and its status has not undergone a change so far. The justification for provision of 150-meter wide green belt has already been commented upon in submissions made above. Maintenance of the said green belt continues to be a requirement as per the development plan. CWP Nos. 9892 of 2009 (O&M) and other connected cases 7 6.3 That it is respectfully submitted that the State govt. has not released any land after considering the report on the objections under Section 5-A of the Act and finalization of Section 6 proposal. It came to the notice that there had been some discrepancies in Section 6 declaration dated 31.12.2008 as it was not in complete conformity of the orders of the State Government. It was observed that certain land parcels were to be excluded from the acquisition proceedings, whereas certain land parcels were wrongly excluded at the time of Section 6 notification. The State Govt. ordered to exclude the land parcels of (a) objector No.41, M/s Micron Precision Screws Limited, Delhi Road, Rohtak, on account of an existing factory with boundary wall and had submitted an application for CLU permission; (b) objector No.47 of MRDAV Educational Trust, Sonipat Road, Rohtak, on account of an existing school established after obtaining CLU permission; and (c) objector No.48 of DAV Sanctuary Public School, Delhi Road, Rohtak on account of an existing school set up after obtaining CLU permission, at the time of approving Section 6 Notification, but these were inadvertently included in the Section 6 notification due to a clerical mistake. Therefore, the State Govt. issued two corrigenda dated 12.02.2009 to the Section 6 notification in order to rectify the mistakes. Copies of the corrigenda dated 12.02.2009 are enclosed as Annexure R-IV for kind perusal of the Hon’ble Court. 6.4 That in this regard, it is respectfully submitted that major portion of the subject land and the construction raised thereon is situated in the statutory green belt. It is also submitted here CWP Nos. 9892 of 2009 (O&M) and other connected cases 8 that subject land is situated in the ROW of 30 mtrs. wide road in the proposed layout plan of IMT Rohtak. The petitioner has not obtained statutory CLU permission from the Department of Town and Country Planning, Haryana. It is also submitted that conversion of green belt to any other use except a petrol pump or a bus queue-shelter, is not permitted as per the Act No.41 of 1963. The subject land is essentially required for the integrated project.” In the affidavit, it is further stated that the construction raised by the petitioner falls in an industrial zone and further that initially Change of Land Use Certificate was issued in favour of M/s Marshall Shoes to set up an industry. The petitioner purchased that land afterwards and instead of complying with the terms and conditions of the above-said certificate, it started using the premises for commercial purposes and also raised construction without getting any permission from the competent authority. This Court was not satisfied with the answers given to some of its queries. In view of above, in order dated 27.10.2010, it observed as under:- “ We find that there is non-compliance with the order passed by this Court on September 21, 2010. In the affidavit dated September 20, 2010, it is stated that the land owned by M/s Micron Precision was included in the Notification issued under Section 6 of the Land Acquisition Act, 1894 (in short 'the Act') due to some inadvertent mistake. However, in the affidavit, it is not stated as to whether any conscious decision was taken to exempt that land from acquisition before issuance of notification under Section 6 of the Act. If such CWP Nos. 9892 of 2009 (O&M) and other connected cases 9 decision was not taken as mentioned above, then it is not open to the Government to exempt land from acquisition by issuing a corrigendum to the Notification issued under Section 6 of the Act. If any order was passed, the same shall also be produced in Court for perusal. On request, adjourned to November 12, 2010. Copy of this order be supplied to the State counsel and the counsel for HSIDC under signatures of the Court Secretary. A photocopy of this order be placed in the connected cases.” In response thereto, an affidavit of Sh. T.L.Satyaprakash, was filed, wherein it was specifically stated that decision to release land in favour of M/s Micron Precision Screws Limited, MR DAV Educational Trust and DAV Sanctuary Public School was taken much prior to the issuance of notification under Section 6 of the Act.. However, when that notification was issued, due to some clerical error, the land ordered to be released from acquisition was also included in the declaration issued under Section 6 of the Act. In view of that, by issuing a corrigendum thereafter, the above-said mistake was rectified. To say that the order was passed to release the land prior to the issuance of the above-said declaration, reference was made to document Annexure R-V, wherein it was specifically mentioned that after looking into the recommendation made by the Commissioner, Industries, the above-said area was ordered to be released. On 12.11.2010, we had perused the original records also and averments made in the affidavit appear to be correct. Contention of CWP Nos. 9892 of 2009 (O&M) and other connected cases 10 counsel for the petitioner that discrimination has been done to the petitioner, does not appears to be correct. It is apparent from the record that three land owners, in whose favour land was released, got a Change of Land Use Certificate, before issuance of notification under Section 6 of the Act and raised construction thereon after getting proper permission. In one case, it was a running industry and in two other cases, educational institutions were in existence. So far as the petitioner is concerned, it is apparent from the record that initially Change of Land Use Certificate was issued in favour of M/s Marshall Shoes Ltd. to set up an industry. The above-said concern sold the land in question to the petitioner, who instead of complying with the terms and conditions of the Change of Land Use Certificate, started running commercial activities in that land by converting it into a marriage palace/hotel and resort. No permission to run the above-said activities was ever obtained from the competent authority. Not only as above, in the reply filed, it has specifically been stated that the land of the petitioner falls in mandatory 150 meters greet belt next to the G.T. Road and further that the land in dispute falls in an area, which is earmarked for industrial zone, in which commercial activity of the petitioner cannot be allowed to run. In terms of the information supplied by the State authorities, we feel that decision of the Land Acquisition Collector is perfectly justified. The petitioner is a law breaker. The Court cannot be supposed to give equitable relief to it, in the exercise of jurisdiction under Articles 226 and 227 of the Constitution of India. CWP No. 11297 of 2009 It is case of the petitioners that their constructed house has been ordered to be acquired arbitrarily. In the reply thereto, it has been CWP Nos. 9892 of 2009 (O&M) and other connected cases 11 stated that qua this land only, some of the petitioners have filed objections under Section 5-A of the Act, which were adjudicated upon by the Land Acquisition Collector and it was found, as a matter of fact, that over 8 Kanal of land only three rooms are in existence, which were not used for residential purposes. We have seen the photographs and are convinced that the findings given by the Land Acquisition Collector are perfectly justified. The contention of counsel for the petitioners that three brothers along with their families are residing in the three rooms, is not plausible. We are not going to accept the same. It appears that the construction was raised with a view to save the land from acquisition, therefore, no relief can be given to the petitioners. Otherwise also, in the reply, it has rightly been stated that since the land falls in area earmarked for industrial zone, its release will hamper the proper development of the area. In view of above, no relief can be given to the petitioners in this case. CWP No. 11678 of 2009 So far as this writ petition is concerned, constructed residential house of the petitioner was released from acquisition and rest of the vacant land has been ordered to be acquired. CWP No. 11681 of 2009 In this writ petition, more than 11 Kanal of land of the petitioners, as per objection raised, was kept out of acquisition. CWP No. 11763 of 2009 In this case, it is an admitted fact that the petitioner has not filed any objection under Section 5-A of the Act. CWP Nos. 9892 of 2009 (O&M) and other connected cases 12 In view of ratio of judgments of the Hon'ble Supreme Court in the cases of Municipal Corporation of Greater Bombay vs. Industrial Development and Investment Company (P) Limited, (1996) 11 SCC 501; Municipal Council, Ahmednagar vs. Shah Hyder Beig, (2000) 2 SCC 48; C.Padma vs. Deputy Secretary to the Government of Tamil Nadu, (1997) 2 SCC 627; Star Wire (India) Ltd. vs. State of Haryana, (1996) 11 SCC 698, M/s Swaika Properties Pvt. Ltd. vs. State of Rajasthan, JT 2008 (2) SC 280 and Swaran Lata etc. vs. State of Haryana and others, AIR 2010 Supreme Court 1664,this writ petition is not maintainable. Further more, as per facts on record, land of the petitioner falls in the green belt. No case is made out for interference. In view of above, all the writ petitions stand dismissed. ( JASBIR SINGH ) JUDGE ( AUGUSTINE GEORGE MASIH ) JUDGE November 18, 2010 pj CWP Nos. 9892 of 2009 (O&M) and other connected cases 13