CWP Nos.17208, 17292, 16755, 1 16760, 16807 & 17217of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:- 18.11.2011 (1) C.W.P. No. 17208 of 2010 Ved Pal .....Petitioner Versus State of Haryana and others .....Respondents (2) C.W.P. No. 17292 of 2010 Ram Gopal .....Petitioner Versus State of Haryana and others .....Respondents (3) C.W.P. No. 16755 of 2010 Hirdey Ram .....Petitioner Versus State of Haryana and others .....Respondents (4) C.W.P. No. 16760 of 2010 Shiv Narain .....Petitioner Versus State of Haryana and others .....Respondents (5) C.W.P. No. 16807 of 2010 Om Parkash .....Petitioner Versus State of Haryana and other .....Respondents CWP Nos.17208, 17292, 16755, 2 16760, 16807 & 17217of 2010 (6) C.W.P. No. 17217 of 2010 Bharat Singh .....Petitioner Versus State of Haryana and others ....Respondents CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL, HON'BLE MR. JUSTICE PARAMJEET SINGH. Present:- Mr. Narender Sura, Advocate, for the petitioners. Mr. Ajay Kumar Gupta, Addl. AG Haryana. Mr. Arun Walia, Advocate, for respondents No. 2 and 3-HUDA. **** Paramjeet Singh, J This order shall dispose of Civil Writ Petitions No. 17208, 17292, 16755, 16760,16807 and 17217 of 2010 which have been filed by various oustee farmers of Village Wazirabad (in CWP Nos.17208 and 16755 of 2010), and Village Haiderpur Viran (in CWP Nos. 17292, 16760, 16807 and 17217 of 2010), Tehsil and District Gurgaon, whose land was acquired for establishment and development of residential area as Sector 55 and 56, Gurgaon by the Haryana Urban Development Authority (for short 'HUDA'). For brevity, facts are taken from C.W.P. No. 17208 of 2010. The petitioners are the persons who have been affected by the paradigm of development resulting to their displacement. The rehabilitation and resettlement policy CWP Nos.17208, 17292, 16755, 3 16760, 16807 & 17217of 2010 appears to be ill-equipped to counter the attitude of the instrumentality of State. The displacement of petitioners witnessed in law has resulted from the acquisition of land by the State of Haryana in the year 1989 for development of residential, commercial and institutional Sectors 55 and 56, Gurgaon by the instrumentality of State i.e. Haryana Urban Development Authority (hereinafter referred to as the `HUDA'). The entire holdings of the petitioners and other co-sharers have been acquired. In recognition of the displacement of the petitioners and the related persons, rehabilitation and resettlement policy was framed by the HUDA and the Government of Haryana and amended from time to time. More than two decades had passed, the petitioners are unable to get plot under the Oustee's Quota Policy. It appears that the State machinery is ill-equipped to do justice to such persons. Every day this Court is flooded with petitions whereby the petitioners approach this Court for seeking allotment of plots under the “Oustee Quota” or alternate plot and possession of the plots carved out by the HUDA. HUDA, now is not an institution providing infrastructure and affordable housing to the persons, rather is working as profit making organization. CWP Nos.17208, 17292, 16755, 4 16760, 16807 & 17217of 2010 All the petitioners claim that being oustees, they are/ were entitled for residential plots as per the oustee policies framed by HUDA from time to time. Till date HUDA has framed policies dated 10.9.1987, 9.5.1990, 18.3.1992, 12.3.1993, 22.1.1997, 28.8.1998, 27.03.2000, 10.7.2002, 8.12.2003, and Govt. of Haryana had notified polices dated 7.12.2007 and 09.11.2010. The petitioners claim as per policy dated 18.3.1992 as well as the subsequent policy dated 12.3.1993 modifying the earlier policy. It would be appropriate to reproduce the extract from relevant policies framed by HUDA as were applicable when the land was acquired . First Policy dated : 10.9.1987 “……. the plots to the oustees will only be offered if they were owners of the land proposed to be acquired for one year before the issue of Notification under Section 4 of the Land Acquisition Act, 1894 and the plots will be made available only if 75% of the total land owned by the landowners is acquired. The plots will be allotted to such persons as under: i) Among others, those who own land up to 500 sq. yards, should be offered a plot of 100 sq. yards, those who owns more than 500 sq. yards and owner of larger land should be offered plots of 350 Sq. yards. ii) If there are a number of owners for particular kind efforts should be made to accommodate them subject to the limit of one plot of 250 sq. yards for CWP Nos.17208, 17292, 16755, 5 16760, 16807 & 17217of 2010 every acre of land acquired. Such plots should be offered to the person when he filed an affidavit to the effect that he does not hold any house/shop or plot in that town. This condition will be in conformity with the decision of the Hon’ble Supreme Court in Pista Devi’s case. The land owners will be given compensation for their land which is acquired while they will have to pay for these plots at the normal allotment rate of Haryana Urban Development Authority. Those, whose constructed houses are released will pay Development cost for their portion of land. The persons whose part of the land of some houses have been released from the acquisition and the remaining land stands acquired, should not be considered in the category of oustees for allotment of plots under this category…..” Policy dated 9.5.1990 provided as under:- “…. In order to move these ambiguities, the Authority has amended the decision taken on 14.8.87 as under:- i) Plots to the oustees may be offered if the land proposed to be acquired as under the ownership of oustees for a continuous period of 5 years before the publication of Notification under Section 4 of the Land Acquisition Act and if 75% of the total land owned by the landowners in that Urban Estate is acquired. ii) Oustees whose land acquired is : a) Less than 500 sq. yards should be offered 40 sq. yards plot. CWP Nos.17208, 17292, 16755, 6 16760, 16807 & 17217of 2010 b) Between 500 sq. yards and one acre should be offered a plot of 250 sq. yards. c) More than one acre should be offered a plot of 350 sq. yards. iii) In case, there are a number of co-sharers for the land acquired such co-sharers be accommodated by offering one plot each of 250 sq. yards subject to the condition that the land acquired is at least one acre. In case acquired land of the co-sharer is less than one acre, then only one plot of 250 sq. yards may be allotted in the joint name of the co-sharers. iv) Such plots should be offered to the oustees only if he does not own any house/shop/plot in any of the Urban Estates of that town. v) The persons whose house or part of land has been released from acquisition shall not be considered under the category for allotment of such plots. vi) Allotment of plots to the oustees will be made at the normal sector rate of HUDA. As regards allotment of commercial sites to the oustees, the matter is under re-examination and the decision as and when arrived at would be communicated. Claims of the oustees shall be invited before the Sector is floated for sale.” Another policy was issued on 18.3.1992. “….the plots to the oustees will only be offered if they were owner of the proposed land to be acquired on the following terms and conditions:- i) Plots to the oustees would be offered if he the land proposed to be acquired is under the ownership CWP Nos.17208, 17292, 16755, 7 16760, 16807 & 17217of 2010 of the oustees prior to the publication of the Notification under Section 4 of the Act and if 75% or more of the total land owned by the landowners in that Sector is acquired. ii) Oustees whose land acquired is: a) Less than 500 sq. yards would be offered a plot of 50 sq. yards. b) between 500 sq. yards and one acre would be offered a plot of 250 sq. yards. c) From one acre and above would be offered a plot of 500 sq. yards or where 500 sq. yards plot are not provided in the layout plan, two plots of 250 sq. yards each may be given. iii) the above policy shall also apply in case there are a number of co-sharers of the land, which has been acquired. If the acquired land which has one acre, then for the purpose of granting benefits under this policy, the determining factor would be the area owned by each co-sharer respectively as per his/her share in the joint holding. In case the acquired land of the co-sharer is less than one acre, only one plot of 250 sq. yards would be allotted in the joint name of the co-sharers. iv) If the land of any landowners is released from acquisition, he/she would not be eligible to avail of any benefit under this policy (irrespective of the area of land released). v) As per the policy, the oustees shall be entitled to a developed plot/plots, the size of which would depend upon the area of his acquired land, subject to a maximum of 500 sq. yards. The oustee shall be entitled to this benefit under this policy only once in CWP Nos.17208, 17292, 16755, 8 16760, 16807 & 17217of 2010 the same town where his land was situated/located. However, in case where the land is acquired in pockets at different times, the owner shall be entitled to claim the benefit on account of the entire area acquired (at different times) for purpose of claiming the benefit under this policy. vi) Allotment of plots to the oustees will be made at the allotment rates advertised by the Haryana Urban Development Authority for that sector. Land owners will be given compensation for their land which is acquired. vii) Claims of the oustees for allotment of plots under this policy shall be invited by the Estate Officer, Haryana Urban Development Authority concerned before the sector is floated for sale. viii) The commercial sites/building are sold by auction. The sites/buildings be also allotted to oustees on reserve price as and when the auction of the same is held. While putting such sites/buildings to public auction, the oustees who want to purchase the sites/building could represent before hand for allotment, so that requisite number could be reserved for them. However, if the area acquired of the commercial site is equivalent or less to the area of booth/shop-cum-flat being auctioned by HUDA, they may be given a booth/SCO sites keeping in view the size of acquisition under this policy.” Policy dated 12.03.1993 “Further to it, Authority while laying down the procedure to settle such claims, have decided, in partial modification of the earlier policy as under:- CWP Nos.17208, 17292, 16755, 9 16760, 16807 & 17217of 2010 i) Benefit under oustees policy is not to be allowed to those oustees who have got residential/commercial plots from HUDA in that Urban Estate. However, this restriction will not supply to those oustees who might have acquired property there otherwise. ii) Benefit under oustees policy shall be restricted to one plot according to the size of the holding irrespective of the number of co-sharers.” Annexure `A’ “Procedure for inviting, scrutinizing, deciding of claims and mode of allotment to the oustees. “(i) Filing of Claims. L.A.O. concerned will prepare a list of eligible oustees at the time of announcement of award and send the same to the Estate Officer for reference and record. The Estate Officer concerned shall invite the claims through press/newspapers for allotment of plots under the oustees policy much before floatation of the sector. Each applicant would be required to send the application in the prescribed proforma, alongwith the supporting documents and earnest money equivalent to 10% of the cost of the plot of the sector in question and if the price has not been determined till then, of the previous sector floated in the same urban estate. (ii) The allotment of plots under oustee policy be restricted to the claimants within the sector for which the land has been/is being acquired. (iii) The past claims which have also been received in different offices of HUDA/Urban Estates for allotment of residential plots under Oustee policy be scrutinized CWP Nos.17208, 17292, 16755, 10 16760, 16807 & 17217of 2010 by the proposed Committee in terms of the policy applicable at the relevant time. Such past claims will be considered and got decided within a time-frame of 4 months, as one time measure. (iv) The onus to file the claims under oustee policy shall rest with the claimants and Estate Officer concerned will publish a public notice through press/New Paper for inviting such claims within one month of taking possession of the land. However, the record of LAO’s office will be consulted for verification of these claims by a Screening Committee, constituted for the purpose. (v) Scrutiny and acceptance of claims. The documents received with the application will be scrutinized with reference to the record supplied by LAO. For the purpose a Screening Committee is proposed to be constituted, which will make its recommendations within one month of the last date of filing of the claims:- 1. Zonal Administrator Chairman (concerned) 2. Land Acquisition Officer Member of the area 3. District Town Planner Member of the area 4. Estate Officer of the Member Urban Estates Secretary The Committee shall forward its recommendations to the Chief Administrator for accepting the claims of such applicants. (vi) Mode of allotment After the claims have been finally accepted by the Competent Authority, the applicant’s claim will be kept in a live register and applicants shall be asked CWP Nos.17208, 17292, 16755, 11 16760, 16807 & 17217of 2010 to deposit the earnest money equivalent to 10% of the cost of the plot as and when sector scheme is to be floated. The allotment of plots to such claimants shall normally be done prior to or atleast alongwith other applicants, who have been declared successful in the draw of lots after the floatation of the scheme. By doing so, the number of plots, which are to be offered in general draw will be identified after the claims of the oustees have been scrutinized/accepted and the residual plots are earmarked for the general draw. Those allottees who do not prefer their claims within the stipulated period alongwith requisite information will have no right for consideration of their claims after the general draw is over in respect of that sector.” Policy dated 28.08.1998 “….. if the plot under the oustees policy cannot be offered to the oustees in the same sector then they should be offered residential/commercial plots in the next residential sector of that Urban Estate, which may be floated and developed by HUDA”. This amendment/provisions will be made applicable prospectively. All other terms and condition, shall however remain the same.” Policy dated 27.03.2000 “The existing policy laws down that only the land owners, whose land was acquired on or before 10.9.1987 are eligible to acquire a residential plot. As a follow-up to the decision of Hon’ble Punjab & Haryana High Court given in CWP No. 14708 of 1990 titled as “Suman Aneja vs. State of Haryana” circulated vide memo referred to above, the matter CWP Nos.17208, 17292, 16755, 12 16760, 16807 & 17217of 2010 was placed before the Authority in its 77th meeting held on 24.2.2000. It has accordingly been decided that in view of the judgment of the Punjab & Haryana High Court, where the land was acquired prior to 10.9.87 and plots are still available. While floating the plots on such land, the oustees claims shall also be invited and they will have the prior right for the allotment of plots.” Policy dated 08.12.2003 “The amendment in the oustees policy proved by the Authority, for allotment of plots to the oustees in the various urban estates developed by HUDA, as circulated vide memo/circular referred to above specifically states that if the plot under the oustees policy cannot be offered to the oustees in the same sector (developed as “Non-residential”) then they shall be offered only a residential plot, in the next residential sector of the Urban Estates which may be floated & developed by HUDA. Meaning thereby, the land owner whose land is acquired for the development of a sector shall be entitled for a residential plot only, as per laid down eligibility/entitlement criteria”. The word commercial wherever figured in the circular dated 28.08.1998 referred to above, inadvertently, may be treated as withdrawn.” The Government has formulated and notified a policy for rehabilitation and resettlement of landowners – land acquisition oustees dated 07.12.2007 and thereafter, notified a comprehensive revised policy dated 09.11.2010. CWP Nos.17208, 17292, 16755, 13 16760, 16807 & 17217of 2010 In the light of the above policies of the relevant period, we have examined the case of the petitioners: Clause (i) of the oustee policy dated 18.3.1992 provides that the plot would be offered to the oustee if his land has been acquired. Clause (ii) of the said policy provides that an oustee whose acquired land is less than 500 sq. yards, he will be offered a plot of 50 sq. yards. If the acquired land is between 500 sq. yards and 1 acre, then a plot measuring 250 sq. yards will be offered and if acquired land is 1 acre and above, then a plot of 500 sq. yards or where 500 sq. yards plots are not provided in the layout plan, two plots of 250 sq. yards each will be given. Clause (vii) of the said policy specifically provides that the claim of the oustees for allotment of plot under the said policy shall be invited by the Estate Officer before the Sector is floated for sale. The petitioners have alleged that in gross violation of the aforesaid clauses the respondent-HUDA advertised and floated scheme for allotment of free hold residential plots to general public in Sector 55 and 56, Gurgaon in the year 1992, vide advertisement/brochure (Annexure P/11). Admittedly in the said advertisement, applications were not invited from the oustees for allotment of plot under the oustee policy, therefore, CWP Nos.17208, 17292, 16755, 14 16760, 16807 & 17217of 2010 the petitioners, who are rustic villagers and farmers, could not have an opportunity to get the plots under the oustee policy. As per the oustee policy it is incumbent upon the HUDA to prepare a list of oustees and to inform them that they are entitled for plots and invite applications from them for allotment of plots. The Land Acquisition Collector concerned is required to prepare list of eligible oustees at the time of passing the award and send the same to the concerned Estate Officer. As per clause (vii), Estate Officer is required to invite the claim of the oustees through press or newspaper for allotment of plots much before floating the said scheme. In this case inspite of availability of list of eligible oustees the Estate Officer, HUDA never made any attempt to invite applications/claims from the oustees for allotment of plots. In gross violation of the aforesaid oustee policy, respondent-HUDA invited applications from general public for allotment of plots by draw of lots. It is pertinent to mention that vide aforesaid advertisement (Annexure P/11), more than 700 plots were floated and put to general public for allotment, but applications were not invited from oustees to apply for allotment of plots under the oustee policy. In the year 2003 also, respondent-HUDA invited applications for residue plots which were only two in number from general public. The advertisement/brochure (Annexure R/3) with the written CWP Nos.17208, 17292, 16755, 15 16760, 16807 & 17217of 2010 statement of HUDA is with respect to application invited for allotment of residential plots in Sector 51. No plots were offered in Sectors 55-56 Gurgaon to the oustees. In the affidavit filed by Mukesh Kumar Estate Officer-II, HUDA, Gurgaon, dated 8.10.2011, it has been stated that in the years 2003 and 2004, plots were advertised in Sector 51, Gurgaon for the oustees but the newspapers are not readily available on record. During the course of hearing, another affidavit dated 09.11.2011 has been filed by Mukesh Kumar Estate Officer-II HUDA, Gurgaon showing that vide advertisement dated 1.1.2003 published in Times of India and vide advertisement dated 13.2.2004 published in the Indian Express Chandigarh with respect to Sector 55-56, Gurgaon, oustees were also asked to apply. It is also pertinent to mention here that vide advertisement dated 1.1.2003 only 18 plots were advertised in Sector 56 and in second advertisement regarding Sector 56 only 10 plots were advertised. The respondents have averred that in the said advertisement though the oustees were asked to apply but the petitioners did not make applications against those advertisements. In the year 2007, the petitioners made representations to the respondents for allotment of residential plots of suitable size to them according to their entitlement as per the policy, but the respondents did not take any action on CWP Nos.17208, 17292, 16755, 16 16760, 16807 & 17217of 2010 those representations and kept silent. Thereafter the petitioners served a legal notice dated 29.8.2008 upon the respondents. In response to the said legal notice the respondents informed that whenever the plots are floated by HUDA in future, the petitioners may apply for the same and if found eligible then action for allotment shall be taken and then the petitioners will be allotted plots according to the policy. Then the petitioners wrote when the respondents are proposing to advertise for allotment of plots to the oustees. The respondent HUDA vide letter dated 8.1.2010 rejected the prayer, stating that they had not submitted applications for allotment of plots under oustee category at the time of floating of Sectors 55 and 56, therefore their request for allotment cannot be considered. Thereafter, the petitioners approached this Court by filing the instant writ petitions. In the written statement the respondent-HUDA has taken a stand that the land of the petitioner was acquired in 1989 and award No. 8 dated 5.7.1990 had been passed. Petitioners have filed the writ petition(s) after 20 years, so are liable to be dismissed on the grounds of delay and latches and are not maintainable. HUDA has taken an objection that the petitioners are not owners of the acquired land. This fact has been clarified that at the time of acquisition of land fathers' of the petitioners were owners and during the course of hearing CWP Nos.17208, 17292, 16755, 17 16760, 16807 & 17217of 2010 this fact has been admitted and the objection has been withdrawn by HUDA. In the written statement it is not the stand of the HUDA that the petitioners are not oustees and are not eligible for allotment of plots. HUDA has taken a stand that the plots could not be allotted to them because they did not apply for allotment of plots when HUDA offered the same to the general public by the aforesaid advertisements. We have heard the learned counsel for the parties and perused the record. Learned counsel for the petitioners has contended that the land of the petitioners has been acquired in the year 1989, but they have not been allotted plots as per the policy existing at the time and policy dated 18.03.1992. The petitioners are eligible oustees and are entitled to allotment of plots and has made reference to clause (vii) of the Policy. Learned counsel for the respondent – HUDA has opposed the contention of the petitioners by submitting that there is delay in filing the writ petitions. They did not raise any objection nor applied for the plot when plots were offered in the year 1992 (Annexure P/11) to general public and subsequently in the year 2003. Hence, the petitioners are not entitled to the relief claimed on account of delay and laches. CWP Nos.17208, 17292, 16755, 18 16760, 16807 & 17217of 2010 We have considered the rival contentions of the learned counsel for the