CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: November 22nd , 2010. Parties Name Sh. Dalmer Singh ...PETITIONER. VERSUS The State of Haryana and others ...RESPONDENTS CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice Augustine George Masih. PRESENT: Mr. G.S.Punia, amicus curia Shri L.N.Verma, Advocate; Mr. Vinod S. Bhardwaj, Addl. A.G., Haryana, for respondents No. 1 and 2. Mr. Pritam Saini, Advocate, for respondents No. 3 to 10. JASBIR SINGH, J. JUDGMENT This judgment will dispose of nine petitions, i.e., Civil Writ Petitions No. 2272 of 2003 (O&M), 472 of 2003, 8968 of 2003, 2912 of 2003, 17866 of 1999, 3364 of 2002, 9179 of 2002, 8671 of 2008 and also CWP No. 13012 of 2006. The petitioners in all the cases except CWP No. 13012 of 2006 are in unauthorised occupation of rural/ urban evacuee / agricultural land/ property and they are claiming its allotment to them in terms of the policy decision of the State of Haryana dated November 1, 2001 (P-3). However, in CWP No. 13012 of 2006, the petitioners belong to a weaker section of the society. Their prayer is to quash the State Government's policy , stated above, on a ground that allotment of land to the CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -2- unauthorised occupants under the policy would amount to giving premium to them and it will be against the principles of Rule of law and natural justice. It is their further prayer that as per their representation, land be allotted to them for earning their livelihood. Background of the litigation: At the time of independence of the country in the year 1947, many Muslim land owners migrated from this part of the country to Pakistan and vice versa. The land left by the Muslim owners became part of the evacuee property, which originally was being managed by the custodian. In the year 1954, the evacuee properties were acquired and made part of the compensation pool as envisaged in Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. The properties in the pool were meant for settlement of those, who had migrated from Pakistan to this part of the country. Their claims were verified on the basis of revenue record, which was received from Pakistan. The process continued till the year 1961. The State of Punjab and thereafter the State of Haryana under package deals and administrative and financial arrangements purchased vast track of land, detail of which is given below: “1. Total evacuee land at the time of partition of the Country(1947) =47,35,310 Acres 2. Year of Package Deal/ Land/Property Rate Administrative Arrangement transferred -- ----------------------------------- ----------------- -------------------- (a) 1961 Rural 80,000 Acres+ Rs. 450/- per Gair Mumkin 1,11,000 Acres standard Acre + Banjar (b) 1963 Urban 2800 Acres Rs. 1100/- per Acre to 500/- CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -3- (c) 1970 Urban Remaining --- Rs. 1100/- properties per Acre (d) 1976 Nilokheri 60 Acres Rs. 1.5 lacs per Acre (e) 1981 Faridabad NIT 1329 Acres Rs. 1.60 Crore” As per admitted facts, the State of Haryana is the owner of the land, which was transferred to it under the Package Deal and other instructions. With a view to give benefit to those, who were in an unauthorised occupation of part of the evacuee property, firstly the State of Punjab and thereafter the State of Haryana started issuing instructions/ press notes from time to time for transfer of evacuee properties to its occupants against price to be fixed by the Government. One such policy was issued on July 2, 1963, envisaging allotment of surplus evacuee rural land to the unauthorised occupants on the following terms and conditions: “S.No.Category of occupants Rate per standard Acre for Garden Sub Urban Rural For For colonies villages of villages Scs Ors. i) Long term lesses in Rs.1800/- Ludhiana 5000/- 450/- They continuous occupation Jullundur 2200 would City &Cantt. be of unallotted evacuee Amritsar 2200 intimated lands whose leases have Sirsa lateron not been cancelled or Sonepat 2000 resumed for any infringment Muktsar of the condition of the lease. ii)Annual / lesses in continuous Phagwara possession of evacuee land Rohtak since Kharif 1957 Others 1800 iii)Preparation lesses/ tenants in continuous possession from Rabi 1947 iv)Preparation tenants paying no rent beyond land revenue CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -4- 2) Unauthorised cultivators of -do- -do- 450/- -do- evacuee lands who originally came into possession as regular lesses in Kharif 57 or earlier but who could not continue as such due to non auction of leases in subsequent years. 3) Unauthorised occupants in -do- -do- 450/-For 800 continuous possession since the kharif 1960 or earlier first 2 Sas 4) Occupants who came into 450/-For 1000/ possession as regular lessees the in Rabi, 1958 or after as next regular losses but whose leases 3 S As For the Next 5SAs1200/- were not extended due to non-auction For above 10 Std.acre1500 of leases in subsequent. All the above categories would be entitled to purchase evacuee land at the uniform scale upto 5 Std. Acres and any one of them already owns some land, he would be allowed to purchase the evacuee land in his possession to the extent to which his original holding falls short of 5 std. Acres.” On August 25, 1981, the State of Haryana again issued a policy (R-2) ordering the sale of land to those who were in unauthorised occupation of rural evacuee agricultural land since Kharif 1975 or earlier. Similar instructions were again issued on November 10, 1981 (R-3), February 28, 1984 (R-4), July 11, 1988 (R-5), August 11, 1988 (R-6), July 19, 1989 (R-7) for transfer of urban evacuee land/ properties to the unauthorised occupants, who were in possession before January 1, 1982. Terms and conditions of allotment to the unauthorised occupants were further liberlised by issuing instructions on July 11, 1988 (R-9) and thereafter on March 20, 1989 (R-10). Again on April 17, 1997, policy (R- 11) was issued regarding disposal of surplus rural evacuee land by transfer CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -5- on the basis of possession to its unauthorised occupants. Thereafter came the consolidated policy for transfer of rural/ urban evacuee land/ properties to the unauthorised occupants, which is under scrutiny in this case. It is stated by the petitioners that they are in possession of evacuee land, which is ownership of the State of Haryana, to the extent of 5 to 12 Acres. Their applications for allotment of that land have not been considered. A prayer was made in this writ petition for issuance of a writ of mandamus directing the respondents to decide their cases for purchase of unauthorisedly occupied land as per policy dated November 1, 2001. In CWP No. 13012 of 2006, it has been prayed by the petitioners that the above said policy being contrary to the public interest be quashed and as per their representation, land be allotted to them. How this dispute was ordered to be treated as Public Interest Litigation When this matter came up for hearing before this Court on February 11, 2003, a Division Bench of this Court passed the following order: “We have heard the learned counsel for the petitioner at length and perused the record of the case. The petitioner has been in unauthorised occupation of the land mentioned in paragraph 2 of the writ petition since 1965. He claims benefit of the policy issued by the State of Haryana on 01.11.2001 with regard to transfer of the rural/ urban evacuee lands/ properties to the unauthorised occupants. In this policy, the market price has to be determined by the “High Level Price CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -6- Recommendation Committee” under the Chairmanship of the Divisional Commissioner concerned. The unauthorised occupant who is in continuous cultivating possession of the rural evacuee agricultural land since Kharif 1947 to date, has to pay cost of the land at the rate of 20% of the “Market Price”. Similarly, the unauthorised occupant who has occupied the land after Kharif 1947 and is in continuous cultivating possession since Kharif 1985 to date, has to pay the cost of the land at the rate of 40% of the “Market Price”. In the case of unauthorised occupant who has occupied the land after Kharif 1985 and is in continuous cultivating possession thereof since Kharif 1995 to date, has to pay the cost of the land at the rate of 60% of the “Market Price”. The unauthorised occupant includes predecessors-in-interest and successors-in-interest. Since the petitioner has been in unauthorised occupation since 1965, he claims to be entitled to purchase the land by paying 40% cost of the market price. Although, the petitioner has submitted a representation to the authorities concerned for the purchase of the land on 04.08.2002, yet the authorities have not taken any decision on the same. After perusing the averments made in the writ petition, we are of the considered opinion that the petitioner does not deserve any interim relief. However, after prima facie examination of the policy, we have not been able to discern the justification for the same. Prima CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -7- facie, it appears that this policy has legalised illegal and forcible possession of the land belonging to the State. Upon proving that the land has been illegally occupied, the same is permitted to be sold to the unauthorised occupant. In fact, longer the unauthorised occupation, lesser the price to be paid. We find the policy in question to be wholly unreasonable, arbitrary and against public interest. Prima facie, this policy seems to put a premium on the unauthorised, forcible and illegal occupation of the land held in trust by the State, for the benefit of the general public. Notice of motion. On our asking, Ms. Palika Monga, Assistant Advocate General, Haryana, accepts notice of motion on behalf of the respondents. She prays for a short adjournment to seek instructions and to file the written statement, if necessary. Adjourned to 17.02.2003. Let this matter be placed before Hon'ble the Ist Division Bench by treating the present writ petition as a “Public Interest Litigation” on the adjourned date. No further land be sold to the unauthorised occupants in pursuance of this policy till further orders are made by Hon'ble the Ist Division Bench.” It was observed by this Court that there was no justification to legalise unauthorised occupation, by allotting land to the unauthorised CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -8- occupants. It was further observed that the policy appears to be unreasonable, arbitrary and against public interest. It is how this writ petition was ordered to be treated as 'Public Interest Litigation'. View point of the Government: After passing of the above said order, reply was filed by respondent No. 1. An attempt was made to justify the policy under challenge on the following grounds: “(i) to avoid long protracted litigation; and (ii) to earn revenue rather than to loose it; and (iii) to avoid harassment to the public due to demolition/ eviction of people/ public at large.” It was further mentioned that to formulate the policy, to achieve the above said object, a high level committee under the Chairmanship of Revenue Minister was constituted on March 27, 2001, and on its recommendation, the policy was drafted. It was further stated that more than 500 cases involving 1268 Acres of land had already been finalised under this policy. To say that the policy was formulated to serve the public purpose, it was detailed as under: “That as per survey conducted by the concerned Sub Divisional Magistrates, Tehsildars/ Naib Tehsildars (Revenue) and Tehsildars/ Naib Tehsildars (Sales), approximately 9500 Acres rural evacuee agricultural land, 750 Acres of Urban Evacuee Agricultural lands (majority of which has been converted into CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -9- Gair Mumkin Abadi Deh), 2600 rural evacuee houses/ sites and 1300 urban evacuee houses/ sites are/ were available with the Rehabilitation Department, most of which are under unauthorised occupations. The Deptt. Is facing litigation involving evacuee properties. Many cases are pending before the departmental tribunals i.e. Secretary (Rehabilitation)/ Chief Settlement Commissioner/ Settlement Officers / Tehsildar (Sales) in the State. At present about 1000 civil suits/ appeals claiming certain rights over evacuee properties are also continuing in the civil courts/ appellate courts and in many cases Regular Second Appeals & Writ Petitions are pending in this Hon'ble Court and in some of them, the Hon'ble Supreme Court is also ceased with the matter. To speed up the protracted litigation, the Government viewing the matter seriously, decided to review the whole process and procedure with regard to disposal of left out evacuee properties.” Counsel for the parties heard. Shri L.N.Verma, Advocate, and Shri Vinod S. Bhardwaj, State counsel, made an attempt to justify the formulation of the policy. It was stated by them that respondent No. 1 is owner of the land / property in dispute and it has the power to dispose it of the way it likes. The framing of the policy is in public interest, to avoid pending litigation and displacement of the occupants from the land under their possession. If, to the contrary, proceedings are initiated to eject unauthorised occupants, it will consume CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -10- huge time and money at the level of the Government, which will now be avoided. To the contrary, by selling this property to the unauthorised occupants, revenue can be generated. Shri Verma stated that most of the land is under occupation of the weaker section of the society and if they are not allowed to purchase it, they will be deprived of their source of livelihood. By stating that the petitioners in CWP No. 13012 of 2006 have failed to allege any malafide against the Government, it is not open for this Court to interfere in the policy decision taken by respondent No. 1. The State Government had been issuing such like policies in the past also, which were considered and approved by this Court in Bishan Singh and others v. Chief Settlement Commissioner and others, 1973 Punjab Law Journal 183, and Soran Singh alias Swaran Singh and others v. Mehta Sita Ram and another, 1984 Punjab Law Journal 570. To say that the Courts cannot interfere in the formulation of a policy decision by the Government, reliance was placed by Shri Verma upon the following passage in the judgment of the Hon'ble Supreme Court in State of Orissa and others v. Gopinath Dash and others, (2005) 13 Supreme Court Cases 495:- “7.The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown the courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the property of a CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -11- decision of the Government the Court cannot interfere even if a second view is possible from that of the Government.” To support his contention, Shri Verma has also placed reliance upon judgment of the Supreme Court in Ekta Shakti Foundation v. Govt. of NCT of Delhi, (2006) 10 Supreme Court Cases 337, and also another judgment of the Supreme Court in Shri Sachidanand Pandey and another v. The State of W.B. and others, AIR 1987 Supreme Court 1109(1). Shri Verma argued with vehemence that as per policy, petitioners are eligible and directions be issued to the respondents to allot them the land under their possession. Vide order dated May 8, 2009, passed by a Division Bench of this Court, Shri Punia was requested to assist this Court as amicus curia in this case. He has vehemently contended that the policy under challenge is against the public interest. If allowed to stand, it would amount to giving largesse and benefit to those, who are the law breakers and had entered property of the State forcibly without any justification. He further argued that the policy violates the principle of equality before law and equal protection of law as envisaged under Article 14 of the Constitution of India because it gives undue benefit to those who have forcibly occupied the State's land whereas denying opportunity to a common law abiding citizen to purchase the same. By making reference to the documents on record, he argued that the State has failed to give any justification to formulate this policy, merely because at present about 1000 suits/ appeals are pending is no ground to allot it to the unauthorised occupants. Legal action, civil as CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -12- well as criminal, can be initiated against them and after retrieving the land from unauthorised occupants, it be sold in open auction, which will generate much more revenue as compared to the one, which the Government is going to realise by selling the land under this policy. By making reference to the provisions of the policy, he further argued that it will encourage forcible occupation of Government properties in future also, which will be very dangerous trend and should not be allowed to encourage. To say that the Courts can enter upon judicial scrutiny of Government policy/ decision, he has placed reliance upon judgment of the Hon'ble Supreme Court in M/s Kasturi Lal Lakshmi Reddy etc. v. State of J. and K. and another, AIR 1980 Supreme Court Cases 1992(1); Indian Charge Chrome Ltd. and another v. Union of India and others, (2006) 12 Supreme Court Cases 331; Ram Singh Vijay Pal Singh and others v. State of U.P, and others, (2007)6 Supreme Court Cases 44, and Netai Bag and others v. State of W.B. and others, (2000) 8 Supreme Court Cases 262. He prayed that the policy under challenge be quashed. The policy under challenge: Before proceeding to note respective contentions of learned counsel for the parties, it is imperative to know the salient features of the policy under challenge dated November 1, 2001 (P-3). Market price of the property, to be allotted to the unauthorised occupants is to be determined by high level Price Recommendation Committee and it shall be charged from the unauthorised occupants in the following manner: “(a) The unauthorised occupant who is in continuous CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -13- cultivating possession of the rural evacuee agricultural land since Kharif 1947 to date shall have to pay the cost of land at the rate of 20% of the “Market price”. (b) The unauthorised occupant who has occupied the land after Kharif, 1947 and is in “Continuous cultivating possession” thereof since Kharif 1985 to date shall have to pay the cost of land at the rate of 40% of the “Market Price.” (c) The unauthorised occupant who has occupied the land after Kharif 1985 and is in “continuous cultivating possession” thereof since Kharif 1995 to date shall have to pay the cost of land at the rate of 60% of the “Market Price”. Note(1) Unauthorised occupant includes his “predecessors-in- interest” or “Successors-in-interest” also as the case may be. xxx xxx xxx xxx (iii)“Continuous cultivating possession” shall be determined only on the basis of the entries made in the revenue record. (iv)“stray entry” regarding dispossession shall be ignored as per practice and procedure prevailing in the Revenue Department. (v)Only “Cultivable agricultural land” shall be transferred to the unauthorised occupants. However, any piece of land recorded as “Gair Mumkin”, Banjar Qadim/ Banjar jadid forming part of the main piece of land and not exceeding 4 Kanals may also be transferred alongwith the main piece of land on the same rates as mentioned above if the said piece CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -14- of land is under his unauthorised occupation. (vi)The Gair Mumkin lands like Banjar Qadim, Banjar Jadid, Gair Mumkin Nadi/ Nalah, gair Mumklin” Rait, Gair Mumkin Johar etc. shall not be transferred under this policy to the individuals on the basis of possession. (vii) CEILING FOR TRANSFER OF LAND. The “maximum ceiling” for transfer of land shall be upto the “permissible area” under the provisions of the Haryana Ceiling on Land Holdings Act, 1972 including the land already owned by the unauthorised occupant. If any occupant is occupying excess land including his own land beyond the “permissible area”, then he shall have to vacate the said excess area first and only thereafter his application for transfer of the remaining land shall be considered. (viii)USE AND OCCUPATION CHARGES. Use and Occupation charges shall be recovered for a maximum period of 30 years or from the date of occupation whichever is later at the prescribed rates applicable from time to time. The amount of use and occupation charges already paid shall be adjusted against total charges.” This policy envisages allotment of rural agricultural house/ sites against reserve price to those occupants who are in continuous possession since January 1, 1995. It also talks of allotment of urban evacuee agricultural land to those unauthorised occupants who are in CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -15- possession w.e.f. January 1, 1995, if they had raised construction before the above said date. Same provision has been made so far as urban evacuee agricultural land is concerned. This policy also provides for transfer of urban evacuee houses/ sites to the unauthorised occupants in the following manner: “4.URBAN EVACUEE HOUSES/ SITES. Urban evacuee sites/ house which is under continuous possession of an unauthorised occupant since 1.1.1995 or before and upon which construction has been raised, may be transferred to him on the same terms and conditions as applicable to urban evacuee agricultural land upon which construction has been raised as mentioned in para No. 3(i) above. 5. UNUSED LAND OF MODEL TOWNS AND REHABILITATION COLONIES. The unutilised land of model towns and Rehabilitation colonies may be transferred to the unauthorised occupants on the same terms and conditions which are applicable to the unauthorised occupants belonging to urban houses and sites.” Para No. 9 of the policy envisages concession to the extent of 25 % of the total price in allotment of land/ property/ sites to the members of the Scheduled caste unauthorised occupants. The payment schedule has been fixed as under: CIVIL WRIT PETITION NO. 2272 OF 2003 (O&M) -16- “PAYMENT SCHEDULE OF THE COST OF LAND/ HOUSES/ SITES. i) The unauthorised occupant shall have to deposit 25% of the price within one month from the date of intimation of the approval of transfer by the competent authority. ii)Rest of the price shall be recovered in 10 half yearly instalments over a period of 5 years. 1st instalment shall fall due from the first harvest following immediately after the expiry of six months from the date of approval of transfer by the competent authority i.e. 15th of June and 15th of December of the year in question as the case may be. iii)In case of delay in payment of instalment, penal interest at the rate of 18% per annum shall be charged on the delayed amount of instalment for the delayed period. However, if any unauthorised occupant makes default in payment of four consecutive instalments, amount already deposited may be forfeited and the land/ property may be resumed but the defaulter shall have the right to make an appeal. iv)If an unauthorised occupant opts to make the payment of price in lump sum within 30 days from the date of intimation of approval of transfer by the competent authority, he shall be entitled for a concession of 10% on the total price of land house/ site.” Now it is to be seen whether this Court has the jurisdiction to CIVIL WRIT PETITION