IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH CWP No. 15641 of 2001 Date of Decision: April 1, 2008 Brij Lal …Petitioner Versus State of Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MRS. JUSTICE SABINA Present: Mr. Ajay Jain, Advocate, for the petitioner. Mr. Ashish Kapoor, Addl. AG, Haryana, for respondent Nos. 1 and 2. Mr. Sanjiv Bansal, Advocate, for respondent No. 3 JUDGMENT M.M. KUMAR, J. The instant petition filed under Article 226 of the Constitution prays for quashing notification dated 2.6.1999 (P-2), issued under Section 4 of the Land Acquisition Act, (for brevity, ‘the Act’) and notifications dated 29.5.2000, issued under Section 6 of the Act (P-6 and P-7). The petitioner has claimed that he is owner of one plot on which there is ‘A’ Class construction made prior to the issuance of notification under Section 4 of the Act. It is claimed that C.W.P. No. 15641 of 2001 he has been living there alongwith his family members and that an electric connection has also been got installed in the shops constructed by him. He has also claimed that he is running his business in the premises made prior to the year 1980. The case has a chequered history because on 27.8.1981, a notification under Section 4 of the Act was issued and thereafter a declaration was made under Section 10.1.1983 in respect of the same land. It was on 24.11.1983 that the petitioner filed C.W.P. No. 5559 of 1983 and challenged the aforementioned notifications. The dispossession of the petitioner was initially stayed. Fresh notifications under Sections 4 and 6 of the Act were issued during the pendency of the earlier petition. However, the earlier petition came up for hearing on 16.5.2003 and following order was passed:- “ Learned counsel for the respondents on the instructions received from Mr. C.S. Pawria, A.D.A., L.A.C., Panchkula, has stated that the land in dispute in the instant writ petition belonging to Brij Lal (petitioner) was subsequently released from acquisition being out of the lay-out plan. Mr. C.S. Pawria has made this statement before this Court on the basis of the record maintained by the L.A.C. In view of the aforesaid statement, this writ petition has become infructuous. Dismissed as infructuous.” 2 C.W.P. No. 15641 of 2001 The instant petition came up for consideration on 14.1.2002. On account of the statement made by the Advocate General, Haryana in C.W.P. Nos. 7972 of 2000 and 7765 of 2001, this petition was disposed of with a direction to the respondents that the petitioner shall be given a plot. The order dated 14.1.2002, passed in the instant petition reads thus:- “ Heard the learned counsel for the parties. It is conceded by the learned counsel for the respondents that the petitioner is the owner of one Marla of land bearing Rectangle No. 49 Khasra No. 30/17 and that he would be entitled to the allotment of a residential plot on the basis of the decision taken by respondent No. 3, as per the statement made by the learned Advocate General in C.W.P. Nos. 7972 of 2000 and 7765 of 2001. Accordingly, we dispose of the writ petition with a direction that the respondents shall give a plot to the petitioner along with the petitioners in the connected writ petitions.” The aforementioned order was subjected to Review Application No. 99 of 2007, filed by the Shree Mata Mansa Devi Sharine Board-respondent No. 3 (for brevity, ‘the Sharine Board’), which was allowed on 4.10.2007, holding that the concession given by the Advocate General, Haryana, was inadvertent when he stated that the petitioner was owner of one marla of land and was, thus, entitled to allotment of a residential plot because the correct position 3 C.W.P. No. 15641 of 2001 could not be brought to the notice of this Court when the writ petition was disposed of on 14.1.2002. It has been conceded position that the petitioner owned one marla of land and he had constructed two shops over it. The shops have already been rented out. The aforementioned fact stand admitted in his objections dated 19.6.1999, filed under Section 5-A of the Act (P-5). The relevant paragraph from objections reads as under:- “It is pertinent to mention here that on the other land measuring 1 marla bearing Rect. No. 36 Khasra No. 17min the applicant had constructed 2 shops, boundary wall, toilet in the year 1994 and got an electric connection installed in the year 1994 itself. Both the shops have been let out by the applicant and the applicant is getting from them moderate rent of the shops.” On the basis of the aforementioned factual position, the Division Bench allowed the review application on 4.10.2007, by recording the following findings:- “ Coming to the review application, it is apparent that the petitioner is staking claim to two different pieces of land. One is a plot measuring 1 marla, upon which he has constructed two shops, boundary wall and toilet. He has let out those shops and getting moderate rent, as a result thereof. It is not disputed by learned counsel for respondent No. 3-applicant that the 4 C.W.P. No. 15641 of 2001 petitioner is owner of the said plot. The other plot measures 6 marlas. Though the petitioner claims to be its owner, but as per the revenue record, it is Shamlat Deh and owned by the Provincial Government. The petitioner is recorded as a tenant only. Under these circumstances, the petitioner cannot be said to be the owner of the said 6 marlas of land. Therefore, he can not stake any claim for allotment of a plot, as a result of acquisition of the aforementioned 6 marlas of land. Through (Though?) the petitioner is owner of 1 marla of land, but as is clear from the above, the same has not been used by him for residential purpose. On the other hand, he has put the said plot measuring 1 marla to commercial use by constructing two shops and renting them out. Once it is clear that 1 marla of land belonging to the petitioner, which was subject matter of the acquisition, was not used for residential purpose, but was used for commercial purpose by earning rent after constructing two shops thereon, he will have no case for allotment of a plot.” Mr. Ajay Jain, learned counsel for the petitioner has submitted that once on 25.11.1983, dispossession of the petitioner has been stayed and a statement by the State counsel was made on 16.5.2003 to the effect that the land in dispute belonging to the 5 C.W.P. No. 15641 of 2001 petitioner has been subsequently released from acquisition being out of the lay out plan then acquisition by the impugned notifications issued in the year 1999 and 2000 (P-2, P-6 and P-7) cannot be sustained. According to the learned counsel, once a statement has been made in the earlier petition, namely, C.W.P. No. 5559 of 1983, on 16.5.2003, it would have its favourable effect on the prayer made by the petitioner. Mr. Ashish Kapoor, learned State counsel and Mr. Sanjiv Bansal, learned counsel for the Sharine Board, have, however, submitted that it would have been ideal situation for the learned State counsel to bring to the notice of the Bench, which disposed of C.W.P. No. 5559 of 1983 on 16.5.2003 that the land in dispute has been subsequently notified in 1999-2000 by issuance of notifications under Sections 4 and 6 of the Act (P-2, P-6 and P-7). However, it has been submitted that the non-mentioning of the subsequent acquisition would not result into estoppel to make submission on merit of the acquisition proceedings undertaken in 1999-2000. According to the learned counsel, the whole proceedings of the acquisition has been religiously followed and if the petitioner has constructed area, he would be duly compensated for the structure. They have also pointed out that the stay order issued by this Court has been kept intact and the petitioner has not been dispossessed. After hearing learned counsel for the parties, we find that in pursuance to notification dated 2.6.1999 (P-2), the petitioner had filed objections under Section 5-A of the Act on 19.6.1999 (P-5). It 6 C.W.P. No. 15641 of 2001 is admitted position that the objections were duly considered and the petitioner was given opportunity of hearing. The land has been notified for the public purpose of development works and facilities to be provided to the devotees/pilgrimage who visit Shree Mata Mansa Devi Sharine Board, Panchkula. The proclamation of the notification was made in the locality on 10.6.1999 and it was also duly published in the Press – English as well as Vernacular on 19.6.1999 and 16.6.1999 respectively. There are entries in the revenue record to that effect, as is evident from the perusal of paras 1 and 2 of the preliminary objections raised by respondent Nos. 1 and 2 in their written statement. After hearing of objections, report was sent to the Government for final decision. We have summoned for the original record to satisfy ourselves as to whether the petitioner was issued any notice for hearing of objections under Section 5-A of the Act. The original record has been produced before us, which shows that letter bearing No. 317-48/Reader, dated 10.3.2000, was issued to the petitioner informing him that he was to appear before the Land Acquisition Collector, Panchkula, on 3.4.2000 at 10.00 a.m. in his office. The Carbon copy of the letter has been duly signed by the petitioner in Urdu. The record further shows at page 197 that the petitioner attended the hearing and has signed the attendance sheet again in Urdu. It was thereafter that a report by the Land Acquisition Collector was prepared. The Land Acquisition Collector in his report has stated that he has visited the spot also and has heard the 7 C.W.P. No. 15641 of 2001 objections and report in respect of the land of the petitioner was duly sent. It is conceded position that no alternative site to the petitioner could be allotted because the area of one marla on which he has raised construction is admittedly being used for commercial purposes by inducting tenants in those shops which have been constructed on the land. The State policy does not provide for allotment of any residential site to expropriated persons from a commercial area like the shops belonging to the petitioner in the present case. The aforementioned relief which was granted to the petitioner at one stage by disposing of the petition on 14.1.2002 was set aside by reviewing that order on 4.10.2007 and detailed discussion is available in that order. The argument of the learned counsel for the petitioner that acquisition made in 1999-2000 is deemed to have come to an end when the statement was made on 16.5.2003 in C.W.P. No. 5559 of 1983 that the land in question stand released from acquisition, has failed to impress us because the aforementioned statement made by the learned State counsel has to be confined to that petition alone. It cannot be read to replace and nullify the notifications issued in 1999- 2000, under Sections 4 and 6 of the Act. Therefore, there is no substance in the aforementioned submission made by the learned counsel for the petitioner and the same is rejected. For the reasons aforementioned, this petition fails and the same is dismissed. 8 C.W.P. No. 15641 of 2001 (M.M. KUMAR) JUDGE (SABINA) April 1, 2008 JUDGE Pkapoor 9