IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 1443 of 2008 Date of Decision : November 14, 2008 Phool Singh …Petitioner versus State of Haryana and Others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JORA SINGH Present: Mr. Ashok Sehgal, Advocate, with Mr. Vivek Khatri, Advocate for the petitioner. Mr. Ashish Kapoor, Additional A.G. Haryana. Mr. Sanjeev Kaushik, Advocate, for the respondent No. 3. M.M. KUMAR, J. 1. This is a bunch of five petitions(*) filed under Article 226 of the Constitution which involve common questions of facts and law. All these petitions are directed against notification dated 22.02.2007 (P-4) issued under Section 4 of the Land Acquisition Act, 1894 (for brevity the 'Act') and declaration dated 08.01.2008 made under Section 6 of the Act and the principal ground of challenge is C.W.P. No. 1443 of 2008 that their land be released from acquisition because there is constructed area built on the land. 2. A few facts which are necessary for disposal of the controversial issues are being taken from C.W.P. No. 1443 of 2008 (Phool Singh v. State of Haryana and others). The petitioner purchased land in dispute vide sale deed dated 18.09.2006 after making all inquiries that the land was free from all encumbrances (P-1). The petitioner has claimed that he has purchased the land for his own use and for the purpose of his residence. It is further claimed that a number of persons have constructed their houses in the adjoining area and have been granted exemption. In that regard the names of Bhagwati Devi, Ashok Yadav and Bir Singh have been mentioned. 3. The respondents issued notification dated 22.02.2007 under Section 4 of the Act for acquisition of land measuring 129 Kanal 4 Marlas for the construction of New Fruit and Vegetable Mandi at Rewari. Through the notification, objections were invited from all the concerned persons in writing which were required to be submitted to the Land Acquisition Collector-Respondent No. 2 who was to send his report to the Government under Section-5A. Accordingly, the petitioner submitted his objections (P-4) and respondent No. 2 sent his report to the Government. Thereafter, the Government issued a declaration dated 08.01.2008 under Section 6 of the Act. The petitioner has alleged that only land owned by Shri Bir Singh has been released whereas the land of the petitioner as well as other persons mentioned in the preceding para has been acquired which is absolutely discriminatory and violative of Article 14 of the Constitution. The 2 C.W.P. No. 1443 of 2008 respondent has contested the claim made by the petitioner. In the written statement filed by respondent No. 3, it has been asserted that the land owner had raised construction of Kothris over 108 sq. yds. area which is of 'C' class. In para-2 of the preliminary objections, respondent No. 3 has asserted that the construction has been raised after issuance of notification under Section 4 and accordingly the Land Acquisition Collector-respondent No. 2 had recommended the acquisition of the land. It has further been asserted that the existing Vegetable and Fruit Market was established in the year,1974 over an area measuring 14 Kanals 8 Marlas. With the passage of time, the old market became part of thickly populated area of the city of Rewari, making it difficult for the vegetable growers, transporters, dealers and the consumers to carry on their respective transactions. In fact, the existence of old Vegetable and Fruit Market within the city has become a cause of nuisance to the local residents. Accordingly, a conscious decision was taken to shift the existing market to a newly built up and spacious area which could be easily accessible to all those who were to visit the Mandi. To achieve the aforementioned object, a survey was carried and the present site was selected by the Committee. The present area under acquisition falls within the controlled area of city Rewari and the extension plan of city Rewari for 2021 has already been notified. On the date of survey before issuance of notification under Section 4, the Committee had found that the whole track of the area was vacant except 'A' class construction of residential house of one Bir Singh. The construction as claimed by the petitioner as well as other persons who have filed connected petitions, has been raised after 3 C.W.P. No. 1443 of 2008 the issuance of notification under Section 4 of the Act. The petitioners have also filed their objections under Section 5-A of Act which have been duly considered and after affording opportunity of hearing to objectors, notification under Section 6 of the Act was issued. 4. Learned counsel has reiterated the averments made in the petition by filing a replication. He has also attached photographs (P-7 and P-8) to claim that their construction is 'A' class. 5. Mr. Ashok Sehgal and Mr. Vivek Khatri, learned counsel for the petitioners have argued that once the constructed area of Bir Singh has been released from acquisition then there was no reason for the respondent to acquire the constructed area of the petitioners by making distinction between 'A' class construction and 'C' class construction. Learned counsel have placed reliance on a judgment of Hon'ble the Supreme Court in the case of Sube Singh v. State o f Haryana, A.I.R. 2001 S.C. 3285, and argued that no criteria for making the distinction between 'A' class construction and 'C' class construction has been devised which may be a basis for discrimination releasing the land from acquisition in favour of 'A' class construction in contradiction to 'C' class construction. They have further argued that irrespective of the nature of construction all construction deserves to be released from acquisition. However, to the query raised by the Bench, learned counsel has not been able to answer satisfactorily that the construction has been raised before issuance of notification under Section 4 of the Act. 6. Mr. Ashish Kapoor, learned State counsel and Mr. Sanjeev Kaushik, learned counsel for respondent No. 3 have 4 C.W.P. No. 1443 of 2008 produced the original record to show that at the time of survey there was no construction on the land of the petitioners and the construction by the petitioner in all these petitions, have been raised after issuance of notification under Section 4 on 22.02.2007. They have maintained that the petitioner Phool Singh had purchased the land after issuance of notification under Section 4 of the Act as is evident from the sale deed dated 18.09.2006. Referring to the facts from C.W.P. No. 1468 of 2008 (Ashok Kumar Yadav v. State of Haryana and others), learned counsel have pointed out that he had purchased land on 09.02.2007 vide registered sale deed which is barely 13 days before the notification issued under Section 4 on 22.02.2007. Therefore, it has been claimed that the ratio of the Judgment in Sube Singh's case (supra) would not apply to the facts of the present case because the construction has been raised after issuance of notification under Section 4 which is wholly illegal. 7. Having heard learned counsel, perusing the paper books with their able assistance and the original record, we have reached the conclusion that this bunch of petition lacks substance and is thus liable to be dismissed. It has come on record that in order to establish a New Fruit and Vegetable Market in Rewari, land measuring 129 Kanals 4 Marlas has been acquired which is admittedly for a public purpose. The whole procedure of acquisition by affording an opportunity to the petitioner to file objections has been followed. The Land Acquisition Collector considered the objections filed by the petitioner under Section 5-A and reported that in the case of Bir Singh, the construction on the land had been raised before notification under Section 4 was 5 C.W.P. No. 1443 of 2008 issued. The construction on his land was found even when survey was conducted before issuing notification under Section 4 of the Act. He has accordingly recommended that the land deserves to be released from acquisition. In respect of Phool Singh, petitioner in C.W.P. No. 1443 of 2008, Ashok Yadav, petitioner in C.W.P. No. 1468 of 2008, Bhagwati Devi, petitioner in C.W.P. No. 1442 of 2008, Maman Singh and others, petitioners in C.W.P. No. 2686 of 2008 and Suresh Yadav, petitioner in C.W.P. No. 10300 of 2008, the Land Acquisition Collector has reported that the constructions have been raised after issuance of notification under Section 4 and therefore, it was recommended that the land be acquired. However, the final decision was left to the discretion of the Government. 8. It is trite to observe that any construction raised by the land owner after issuance of notification under Section 4 of the Act has to be considered illegal. Such construction would not qualify for exemption from acquisition because it would amount to putting a premium on illegality. Therefore, we are of the view that the notification issued under Section 4 and declaration under Section 6 deserve to be upheld. The award in respect of this land has already been issued and compensation stand deposited with the Land Acquisition Collector. 9. The argument of the learned counsel for the petitioner based on the Judgment of Hon'ble the Supreme Court in the case of Sube Singh (supra) does not require any detailed consideration because firstly the construction in the present case irrespective of its classification 'A' or 'C' has been raised after Section 4 notification. 6 C.W.P. No. 1443 of 2008 Secondly, there is no assertion by the petitioner in the writ petition that construction raised by them is inclusive of R.C. Roofing, Mozaic flooring and other attributes of high class construction which was the assertion made in Sube Singh's case. In any case whereas the construction is found to be raised after Section 4 notification, the classification of 'A' class and 'C' class becomes irrelevant and accordingly the argument is mis-conceived and the same is hereby rejected. 10. For the reasons aforementioned, these petitions fail and the same are dismissed. (M.M. KUMAR) JUDGE (JORA SINGH) JUDGE November 14, 2008 sjks (*)C.W.P. No. 1443 of 2008 – Phool Singh v. State of Haryana and others. C.W.P. No. 1442 of 2008 - Bhagwati Devi v. State of Haryana and others. C.W.P. No. 1468 of 2008 - Ashok Kumar Yadav v. State of Haryana and others. C.W.P. No. 2686 of 2008 - Maman Singh and others v. State of Haryana and others. C.W.P. No. 10300 of 2008 – Suresh Yadav v. State of Haryana and others. 7