CWP No. 6560 of 1990 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 6560 of 1990 (O&M) Date of Decision: 22.11.2011 Bimal Chand & others ……… Petitioners Versus The State of Haryana & others ………… Respondents ***** CORAM : Hon’ble Mr. Justice M.M. Kumar Hon’ble Mr. Justice Rajiv Narain Raina Present: Mr. Pankaj Nanhera, Advocate for the petitioners. Mr. Anil Rathee, Addl. A.G., Haryana. Mr.Bikram Chaudhary, Advocate for respondent No.4. **** 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the digest. RAJIV NARAIN RAINA, J. 1. The present petitions filed under Articles 226/227 of the Constitution of India challenges the Punjab Town Improvement (Haryana Amendment and Validation) Act, 1985 as ultra vires Article 14 of the Constitution of India. The further prayer is for issuance of a writ in the nature of certiorari quashing the notification dated 28.10.1986 (P-3) by which the period of execution of the Charkhi-Dadri Improvement Trust Scheme No.1-B dated 23.1.1976 was extended for 3 years that is upto 28.10.1989 and still further for quashing the scheme itself. Petitioners No. 1 to 18 claim to be owners in possession of land falling in Khasra No. 937 measuring 101K-9M situated in the revenue estate of village Charkhi Dadri, District Bhiwani at the time of acquisition. Petitioner No. 19 CWP No. 6560 of 1990 -2- claims to be owner in possession of land bearing Khasra No. 581 measuring 9K- 6Ms in the same village. The Charkhi Dadri Improvement Trust, respondent No.2 prepared a development Scheme for construction of a ‘Harijan Colony’ in exercise of its powers under Section 24 read with Section 23(2) of the Punjab Town Improvement Act, 1922 (for brevity 'the Act'). Total land measuring 46.51 acres falling within the limits of MC Charkhi Dadri was acquired including the land of the petitioners. It is not disputed that the scheme was published on 6.2.1976 under Section 42 of the Act. The award was pronounced on 3.11.1976 and the petitioners thereafter accepted compensation. Possession of the land was taken on 19.1.1977. It appears that the scheme of constructing the Harijan Colony was not implemented within a period of five years, the period prescribed under Section 44-A of the Act. Instead the Trust carved out plots for 302 houses, 41 booths and 17 SCFs for disposal by public auction to the general public. It is averred that these plots were carved out in 1981 and certain auctions were also held, but not confirmed. By the impugned notification (Act No. 12 of 1985) the period for execution of the scheme was extended by the period of three years from the date of notification dated 28.10.1986. That period was till 28.10.1989. 2. The scheme in question was challenged by some landowners questioning change of land use to residential and commercial sector. The Civil Writ Petition No. 467 of 1982 titled Nawal Singh v. Administration, Municipal Committee, Charkhi Dadri was finally decided by a Full Bench of this Court on 11.10.1983 and the scheme was quashed [1984 PLR 57: ILR 1984(1) (P&H) 249]. It is averred that some of the petitioners in the present case had filed CWP No. 5822 of 1981 titled Smt. Naraini Devi and another v. State of Haryana, which was allowed on the same day in the same terms. Aggrieved by the decision rendered by the Full Bench the Municipal Committee, Charkhi Dadri took the matter to Hon’ble the Supreme Court in Civil Appeals No. 391 to 395 of 1985 questioning the decision of the Full Bench that the period of five years laid down for completion of scheme was inflexible unless duly extended by the State Government under the proviso to Section 44-A of the Act. It is stated that Haryana Government then exercised its jurisdiction by the impugned amendment CWP No. 6560 of 1990 -3- extending the scheme. Hon’ble the Supreme Court vide order dated 4.3.1987 dismissed the appeals since a fresh cause of action had arisen on the happening of an event subsequent to the Full Bench decision. The judgment of the Full Bench of this Court was set aside without expressing any opinion on the correctness of the judgment but granting liberty to the petitioners to challenge the constitutional validity of the amended provision and the impugned notification. 3. By order dated 7.5.1990 the Division Bench of this Court directed that the present petition be put up after the decision of CWP No. 1317 of 1987. Since that writ petition has been decided this matter has been placed before us. 4. When this matter came up for hearing on 7.9.2011 the following order was passed:- “Learned counsel for the State points out that the impugned amendment is valid as per Division Bench judgment in Municipal Committee, Bhiwani, Improvement Trust, Bhiwani Vs. Munshi and State of Haryana 1989(2) PLR 202. He also states that the Government has not approved the extension of the scheme. The point which survives as per the amended petition is whether surplus land which has not been used in the scheme is liable to be returned to the petitioners. Learned counsel for the State seeks time to file reply on this issue. Adjourned to 22.11.2011, as prayed.” 5. The M.C. Bhiwani case (supra) was entertained and decided as an aftermath of the decision of Hon’ble the Supreme Court dated 4.3.1987 (P-4). The Division Bench of this Court in M.C. Bhiwani case (supra) found that non- execution of the scheme within the period of five years from the date of notification was beyond the control of the Trust for executing the sanctioned scheme inasmuch as the writ petition was filed in 1981 and order was obtained staying dispossession of the writ petitioners. In view the protracted litigation in the High Court and thereafter in the Supreme Court the Trust could not execute the scheme and the State Government under the circumstances was justified in extending the period for executing the scheme and that there was sufficient material to so conclude. This Court upheld Section 44-A of the Act as valid as CWP No. 6560 of 1990 -4- also the action taken under it by the State Government. 6. We have heard learned counsel for the parties at length. 7. In view of the decision in M.C. Bhiwani case (supra) upholding the Haryana Amendment impugned in this petition, this Court is now required to examine the limited issue whether the land of the petitioners acquired under due process of law can be rolled back of such land which has not been used in the scheme. 8 The petitioners have filed CM No. 3634 of 2011 under Order 6 Rule 17 of the Code of Civil Procedure praying for amendment of the writ petition on behalf of petitioner No.11 alone through his LRs, for which a separate C.M. No. 3633 of 2011had been preferred, which stands allowed by order dated 11.3.2011. The amendment application was ordered to be heard with the main case. A prayer has been now made for release of land on the strength of information received under the Right to Information Act, 2005. This application has been opposed by the Improvement Trust/respondent by filing a reply and taking the objection that the application does not satisfy the provisions of Order 6 Rule 17 C.P.C. since proposed amendments have not been identified and sworn on affidavit. It has been pointed out in the reply filed by the Secretary, M.C. Charkhi Dadri that the petitioners had accepted compensation qua their land as long back as 35 years ago and, therefore, have no rights left in the land which vests in the Improvement Trust by operation of the provisions of Section 16 & 17 (A) of the Land Acquisition Act, 1894 and that it is now the exclusive business of the respondent- Trust to use the land for public purpose by even departing from the original land use for Harijan Colony. Learned counsel for the Improvement Trust submits that the public purpose remains essentially residential and commercial. Learned counsel for the Improvement Trust has relied upon a Division Bench decision of this Court in CWP No. 9819 of 1992 decided on 16.11.1993 titled Nawal Singh vs State of Haryana and others involving Improvement trust Charkhi Dadri itself where a similar prayer for return of land was repelled. A copy of the order has been placed on record as Annexure R4/1. The Rapat Roznamcha No. 147 dated 19.1.1977, by which the possession of the land was taken, has been placed on CWP No. 6560 of 1990 -5- record as Annexure R4/2. The Division Bench has held as under:- “Learned counsel for the petitioner also states that the scheme was to expire in the year 1989 and it has not been extended. We find no force in the submission of learned counsel for the petitioner and even if it is so the land cannot be returned back to the petitioner. It vests with the improvement trust. It is for the improvement trust to see how to use the land or to extend the scheme. Even in respect of this contention again the petition suffers from laches as the scheme according to the petitioner herself expired in 1989 and the petitioner approached this Court in the year 1992.” 9. We are unable to subscribe to the view that the land should be returned or rolled back to the original land owners after compensation stands paid and land has vested irrevocably in the Trust/State by operation of law and possession duly taken in 1977. 10. In the light of the decisions of this Court rendered in M.C. Bhiwani case and Nawal Singh case (supra) we find no merit in this petition and accordingly dismiss it. Since we are dismissing the petition on the merits and that there cannot be any roll back of the land the events narrated in the amendment application need not be gone into, the CM 3634 of 2011 stands disposed of accordingly. (M.M. KUMAR) (RAJIV NARAIN RAINA) JUDGE JUDGE 22 .11.2011 'sp'