CWP No. 1835 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 1835 of 1984 Date of decision: 21.07.2010 The General Rubber Company Private Limited ….. PETITIONER VERSUS State of Haryana and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Adarsh Jain, Advocate, for the petitioner. Mr. Kamal Sehgal, Addl. A.G. Haryana. for the respondent. *** AUGUSTINE GEORGE MASIH, J. Challenge in this writ petition is that the notification dated 04.11.1977 (Annexure P-3) issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') and notification dated 01.11.1980 (Annexure P-4) issued under Section 6 of the Act and the Award No. 13 of 1982-83 dated 18.11.1982 (Annexure P-5) made by CWP No. 1835 of 1984 2 respondent No. 3 and the Daily Diary Report No. 111 of the Revenue Patwari Atmadpur dated 18.11.1982 as far as it relates to the taking over of possession of the land owned and possessed by the petitioner, on which buildings and other superstructures of the petitioner-company are in existence, be quashed being violative of the Act. Counsel for the petitioner contends that the petitioner is a private limited company incorporated under the Companies Act, 1956. It became owner of 20 Kanals and 6 Marlas of land situated within the revenue estate of Atmadpur, Tehsil Ballabgarh, District Gurgaon now District Faridabad. The petitioner-company has been in production since 1962 and is involved in manufacture and production of rubber products and supplies to various indenting Departments of the Government of India. The factory of the petitioner, which has been constructed in the land, is subject to the control of the Central Excise Department. It has an underground tank of the capacity of 10,000 litres for storage of solvent oil and another tank of the same capacity for storage of furnace oil. The petitioner has also constructed office complex and chowkidar hut. The boundary is marked with the barbed wire and the open space within the boundary is used for storage and display for inspection and approval of the goods manufactured by the petitioner-company. The open space is also necessary for the safety purposes of the workers in accordance with the specifications prescribed by the Chief Inspector of Explosives and the Chief Inspector of Factories. The land is being acquired for residential purpose, which would be injurious to the health of the people and all around the factory of the petitioner, there are other factories. After the enactment of the Punjab Scheduled Roads and Controlled Areas Restriction of unregulated Development Act, 1963, the CWP No. 1835 of 1984 3 State Government declared certain areas around Faridabad town as controlled area. A development plan for the controlled area was prepared. Notification under Section 4 of the Act was issued initially in 1964 for acquiring lands for residential and industrial purposes as described in the development plan. The petitioner-company submitted a representation to the Director, Urban Estates, Punjab (as State of Haryana had not come into existence by then) for releasing the land of the petitioner-company, on which the factory of the petitioner had been constructed. The said representation was allowed and the land of the petitioner-company was exempted from being acquired vide letter dated 31.12.1965. Thereafter respondent No. 1-State of Haryana on 01.10.1973 issued notification under Section 4 of the Act, which was published in the Government Gazette dated 09.10.1973, whereby land measuring 197.22 acres situated within the revenue estate of village Atmadpur including the land of the petitioner was sought to be acquired. No action was taken thereafter by the respondents to complete the process of acquisition and the notification dated 01.10.1973 issued under Section 4 of the Act was allowed to lapse. Fresh notification was issued by respondent No. 1 under Section 4 of the Act in respect of the same land and for the same purpose of development and utilization of the land as residential area in Sectors 31, 32, 35 and 36 of the Faridabad-Ballabgarh Control Area by the Haryana Urban Development Authority-respondent No. 2 (Annexure P-3). By this notification, it was proposed to acquire 285.77 acres of land. Notification under Section 6 was issued on 01.11.1980 acquiring 243.92 acres of land . A large area of land has been excluded from the acquisition out of the land for which notification under Section 4 of the Act was issued. While issuing notification under Section 6 of the Act, the land of the petitioner, on which CWP No. 1835 of 1984 4 the factory building stood, has been left out from the acquisition but the remaining land has been acquired. He submits that some land, on which there was no construction and was vacant, has also been excluded while issuing notification under Section 6 of the Act from acquisition. The Award was passed by respondent No. 3 on 18.11.1982 (Annexure P-5). Before the passing of the Award, no notice was issued to the petitioner under Section 9 of the Act, which is mandatory which requires the owners of the land to submit their claim with regard to the value of the land sought to be acquired by the State. He contends that the Award passed by the respondents is not sustainable nor are the acquisition proceedings, as the petitioner has been discriminated against by only releasing the built up area and the open area of the petitioner has been acquired without taking into consideration the statutory requirements under the Explosives Act and the Factories Act as also the need of the petitioner-company. He submits that the utilization of the land adjacent to the factory for residential purposes would be hazardous to the occupants of the building as it would be situated near the factory of the petitioner. He further contends that as per the detailed plan, the areas of the petitioner and the adjoining areas have been described as existing industries, even in the master plan of Haryana Urban Development Authority, the land has been kept out of the acquisition by describing it to be an area under existing industries. The adjacent industries form a compact regular block and the acquisition of a part of the factory premises of the petitioner cannot be said to be a planned development as the same cannot be developed in isolation of the other lands. He has placed reliance on the plans attached with the replication in support of his submissions. He, on this basis, prays that the impugned notifications and the Award deserve to be quashed. CWP No. 1835 of 1984 5 Per contra, counsel for the respondents has raised a preliminary objection by contending that the Award was passed on 18.11.1982 and the present writ petition has been filed by the petitioner on 23.04.1984 after a period of 18 months from the date of announcement of the Award, on which date the possession of the land has also been taken and handed over to respondent No. 2-Haryana Urban Development Authority and there is a delay of about 3 ½ years from the issuance of the notification under Section 6 of the Act and in the light of the 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 and M/s Swaika Properties Pvt. Ltd. vs. State of Rajasthan, JT 2008 (2) SC 280, the present writ petition is not maintainable. On merits, he contends that on consideration of the objections filed by the land owners under Section 5-A of the Act, the land, on which the factory of the petitioner is standing, has been left out of the acquisition and only the open space and two small rooms, which were in very poor condition and were used for chowkidar hut, have been acquired. As regards the ground of discrimination as alleged by the petitioner, counsel submits that only those lands, after making spot inspection, have been left out, which could not be adjusted in the plan and which could not be utilized. The land of the petitioner can be adjusted in the planning. One side of the land is required for broadening of the roads, as per the master plan and, therefore, the land of the petitioner cannot be released or left out of the CWP No. 1835 of 1984 6 acquisition. The land of the petitioner is actually required for the purpose mentioned in the notification and the same has been acquired as per the master development plan of the area. The land of the petitioner can be properly utilized and adjusted in the said plan and, therefore, cannot be left out, otherwise the purpose of the acquisition may be adversely affected. He has referred to the plans attached with the writ petition to elaborate and support his contentions. He submits that the notification under Section 4 dated 01.10.1973 could not be acted upon and lapsed due to heavy rush of work with the Land Acquisition Collector at that time and no prejudice was caused to the petitioner by issuance of the said notification. He contends that notice under Section 9 of the Act was duly issued to the petitioner and in any case, non-compliance of Section 9 of the Act would not vitiate the acquisition proceedings or the Award passed on 18.11.1982. He, on the basis of the above submissions, prays that the writ petition deserves to be dismissed. We have heard counsel for the parties and have gone through the records of the case. The contention of the counsel for the petitioner that the land of the petitioner-company was earlier de-notified vide letter dated 31.12.1965 and, therefore, could not be acquired thereafter, cannot be accepted as it does not bar the acquisition of the land subsequently. The lapse of the notification issued under Section 4 of the Act dated 01.10.1973 has not prejudiced the rights of the petitioner in any manner. A reasonable justification has been submitted by the respondents for not completing the acquisition proceedings by stating that because of heavy rush of work with the Land Acquisition Collector at that time, the proceedings could not be completed despite issuance of notice under Section 4 on 01.10.1973. CWP No. 1835 of 1984 7 The notification under challenge in the present writ petition issued under Section 4 of the Act dated 04.11.1977 (Annexure P-3) is for the development and utilization of the land as residential area in Sectors 31, 32, 35 and 36 of the Faridabad-Ballabgarh controlled area under the Haryana Development Authority Act, 1977, which is the public purpose. The notification was published in accordance with law. The objections were preferred by the land owners under Section 5-A of the Act. On consideration of the same, built up area, wherever it would possible, was not included in the declaration under Section 6 of the Act. Some vacant area was also left out which could not be adjusted in the plan and could not be utilized for any purpose. Following that policy uniformly, the land of the petitioner, on which the factory of the petitioner was built, was left out of the acquisition. No specific instances have been given where factories similar to the petitioner having large chunk of vacant land, have been left out of the acquisition. An explanation has been given with regard to the open areas left out of the acquisition by the respondents by stating that it could not be adjusted in the plan and could not be utilized. This fact has not been contradicted or disputed by the petitioner in the replication preferred by it. Therefore, the allegation of discrimination, as made by the petitioner, cannot be accepted as the same is unsubstantiated. It would not be out of way to mention here that although the counsel for the petitioner has submitted that the factory of the petitioner has obtained license under the Explosives Act but has not placed any material on the record nor has referred to any rules and regulations which would be violated by acquiring the open land of the petitioners. The specifications, as prescribed by the Chief Inspector of Explosives, have also not been placed on record nor has it been pleaded by the petitioner CWP No. 1835 of 1984 8 that by the acquisition of the open land of the petitioner, the said specifications would stand violated, therefore, no benefit can be derived by the petitioner on this score. It has been specifically pleaded by the respondents that the land of the petitioner, which has been acquired, can be adjusted in the planning and will be utilized for the purpose, for which the acquisition has been made. A portion of the acquired land of the petitioner is required for widening of the roads, which is a public purpose. The maps attached with the writ petition have been perused by us and we are in agreement with the contention raised by the counsel for the respondents that the acquired land can be used for the purpose the land is being acquired. The contention of the counsel for the petitioner that notice has not been served on them as mandated under Section 9 of the Act and, therefore, the acquisition proceedings stood vitiated, has factually been denied by the respondents. However, non-compliance of the provisions of Section 9 of the Act would not be fatal as far as the proceedings of Land Acquisition Act are concerned. It has been held by the Hon'ble Supreme Court in the case of State of Tamilnadu vs. Mahaluxmi Ammal, (1996) 7 SCC 269 that in the absence of notice under Sections 9 and 10 of the Act or failure to serve such notice does not invalidate the Award passed under Section 11 of the Act. This preposition has been reiterated by the Hon'ble Supreme Court in the cases of Nasik Municipal Corporation vs. Harbans Lal Laikwant Raipal, (1997) 4 SCC 199 and Union of India vs. Parmod Gupta, (2005) 12 SCC 1 while dealing with Section 9 of the Act where it was contended that the Award would be vitiated for non-compliance of the provisions of Section 9 of the Act. CWP No. 1835 of 1984 9 In any case, there is an inordinate delay by the petitioner in approaching this Court by way of present writ petition. The notification under Section 4 of the Act was issued on 04.11.1977, notification under Section 6 of the Act was issued on 01.11.1980 and thereafter, the Award was passed on 18.11.1982 and the present writ petition has been filed on 23.04.1984. There is a delay of about 6 ½ years in approaching this Court when taken from the date of issuance of the notification under Section 4 of the Act, delay of about 3 ½ years from the date of issuance of notification under Section 6 of the Act and about 1 ½ years from the date of announcement of the Award. In the light of the judgments of the Hon'ble Supreme Court in the cases of Municipal Corporation of Greater Bombay vs. Industrial Development and Investment Company (P) Limited (supra), Municipal Council, Ahmednagar vs. Shah Hyder Beig (supra), C.Padma vs. Deputy Secretary to the Government of Tamil Nadu, (supra), Star Wire (India) Ltd. vs. State of Haryana (supra) and M/s Swaika Properties Pvt. Ltd. vs. State of Rajasthan (supra), the present writ petition is not maintainable. In view of the above, the present writ petition fails and the same stands dismissed. ( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH ) JUDGE JUDGE July 21, 2010 pj