CWP No. 172 of 1991 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 172 of 1991 Date of Decision: October 31, 2011 Ascons (Delhi), Pvt. Ltd. 24 Mile Stone, Faridabad …Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV NARAIN RAINA Present: Mr. Lokesh Sinhal, Advocate for the petitioners. Mr. Kamal Sehgal, Addl. A.G., Haryana 1. To be referred to the Reporters or not? YES 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, Acg. CJ. 1. The instant petition filed under Article 226 of the Constitution seeks quashing of notification dated 10.06.1988 (P-7), issued under Section 4 of the Land Acquisition Act, 1894 (for brevity 'the Act') and declaration dated 07.06.1989 (P-8) issued under Section 6 of the Act. 2. The petitioner firm is running an industrial unit under the name and style of M/s Ascons (Delhi) Private Ltd. at 24, Mile Stone, Delhi Mathura Road, Balabgarh, Faridabad, which was registered as Small Scale Unit on 17.02.1989 (P-1). The site plan of the unit was also attached with the registration certificate (P-2). 3. In para 3 of the writ petition, it has been averred that the CWP No. 172 of 1991 -2- petitioner raised construction over 5000 sq. yards out of the total area measuring about 15,340 sq. yards, comprised in Khasra Nos. 12, 13, 14 and 17. According to the averments made, the land was utilised for the fabrication and mechanical pressing jobs for manufacturing of equipment as also for loading of heavy equipment in the truck as an inseparable part of the industrial unit. A boundary wall measuring 1840 feet was also constructed (P-3). Before raising the construction of the building, on 26.11.1983 the petitioner applied to the Faridabad Complex Administration for approval of the site lay out plans, of the boundary wall, Administration 'B' Lock, Structural Sheds Phase- I, II and III, Security Block and Ablution Block. The petitioner firm was informed by the Faridabad Complex Administration that it has to apply first before the Director, Town and Country Planning, Haryana for Change of Land Use (CLU), because the area fell within the controlled area of the Development plan of Faridabad. Accordingly, the petitioner-firm moved an application dated 21.04.1984 (P-4) before the Director, Town and Country Planning, Haryana for obtaining CLU. On 5.7.1984, (P-5A), the Director, Town and Country Planning, Haryana, granted sanction for the CLU (P-5A) in favour of the petitioner and subsequently the Chief Administrator, Faridabad Complex Administration further sent permission to the petitioner vide letter dated 20.11.1984 (P-5). Accordingly, the petitioner-firm had been carrying on the process of manufacturing since 1984-85. By reference to the approval given by the Director, Town and Country Planning, Haryana (P-5A), it has CWP No. 172 of 1991 -3- been pointed out that the Director, Town and Country Planning, has categorically noticed that the Khasra Nos. 12, 13, 14 and 17 of Rectangle No. 78 of Village Jharsantly, Faridabad fell within Sector 59 of the Development Plan. According to the petitioner-firm, the CLU was granted by keeping in view the inclusion of the area in the Development Plan. 4. The land of the petitioner was notified for acquisition under Section 4 of the Act on 10.06.1988 (P-7) and a declaration under Section 6 of the Act was issued on 07.06.1989 (P-8). On 18.12.1989, notices under Section 9 of the Act were issued (P-6). The petitioner-firm has approached this Court by filing the instant petition and on 11.02.1991, a Division Bench of this Court has stayed dispossession of the petitioner. 5. In response to the notice of motion having been issued, the respondents have filed their reply asserting that the land was acquired for a public purpose of setting up Sector 59. According to them, all necessary formalities stand completed and the provisions of Section 4, 5A, 6 and 9 of the Act have also been complied with. In that regard, detail reply is available in para 1 of the preliminary objection. In para 2, it has been stated that the Land Acquisition Collector has awarded the just and adequate amount of compensation in respect of the acquired land. The petitioner has right to file a reference under Section 18 of the Act for determination of the market value of the land. However, in para 11 of the written statement it has been stated that the petitioner has not filed any CWP No. 172 of 1991 -4- objection under Section 5A of the Act and the report submitted by the Joint Inspection Committee, State of Haryana directed the Land Acquisition Officer, Urban Estates, Faridabad to release the constructed portion which was raised prior to the notification under Section 4 of the Act from acquisition, whereas the remaining vacant and open land has been acquired by Award No. 9, dated 20.03.1991. It is evident that the dispossession was stayed by this Court on 11.02.1991 before announcement of the award and the possession of the land could not be taken on the date of announcement of the award which continues to remain with the petitioner-firm. 6. Mr. Lokesh Sinhal, learned counsel for the petitioner-firm has made two submissions before us. He has drawn our attention to the averments made in para 3 of the writ petition to show that the open and vacant area is inseparable part of the industrial unit and release of constructed portion alone would not be sufficient because the vacant/ open area in dispute is required for the purposes of fabrication of equipments. His second argument is that CLU was granted by the Chief Administrator with the knowledge that the land was part of industrial area plan where Sector 59 was to be set up. Mr. Sinhal, learned counsel has further submitted that apart from the constructed area, vacant area of land was released in favour of M/s. Indo Americal Electricals Ltd., who had filed CWP No. 4558 of 1990. In that regard, reference has been made to order dated 22.03.2011 passed by this Court whereby the writ petition was permitted to be withdrawn on the ground that by order dated 07.01.2000, the CWP No. 172 of 1991 -5- respondent-State had decided to release the land of M/s. Indo American Electricals Ltd., which was in fact, vacant plain area. Therefore, it would be discriminating if the vacant land of the petitioner is not released which is needed for enjoying the constructed and running industrial unit. Mr. Sinhal, learned counsel has also pointed out that the area which falls in the road may be acquired but the rest of the vacant area would deserve to be released. 7. Mr. Kamal Sehgal, learned Addl. A.G., Haryana, has, however, argued that the grant of CLU would not make any material difference because in a similar matter, a Division Bench of this Court has dismissed the claim made by those petitioners. In that regard reliance has been placed on a judgment dated 18.01.2011 passed by a Division Bench in CWP No. 14307 of 1990 (Asha Garg and another v. State of Haryana). Learned State counsel has also placed reliance on the site plan and argued that the area is substantially developed. According to Mr. Sehgal, plots have been carved out, which is evident from site plot Mark 'X'. The land belonging to the petitioner falls in those plots as well as road. A copy of the site plan is taken on the record as Mark 'X'. 8. Having heard learned counsel for the parties and perusing the record minutely, we are of the considered view that this petition deserves to be partly allowed. In para 3 of the writ petition, it has been averred that apart from the constructed area, the rest of the vacant area was being utilised for fabrication of the equipment CWP No. 172 of 1991 -6- and mechanical pressing jobs for manufacturing of equipment and for loading of heavy equipment in truck, which is inseparable part of the industrial activity. It has further been observed that the boundary wall measuring 1840 feet had also been constructed. Ordinarily whenever constructed area is released then proportionate vacant area for enjoyment of the land is always released. The averments made in para 3 of the writ petition have not been controverted in corresponding para 3 of the written statement filed by respondent Nos. 1, 2 and 3. Therefore, on facts it has to be concluded that the constructed area is inseparable for the industrial activity and it would not be possible to run the industry without vacant area. 9. Moreover, we find that the respondents have been releasing the vacant land in respect of this very acquisition as is evident from order dated 23.02.2000 passed in CWP No. 4558 of 1990, which reads as under: “In this application prayer made is to dismiss the writ petition as withdrawn. It is contended that by order dated 7.1.2000 respondents No. 1 and 2 have decided to release the land of the petitioner from acquisition. In view of this submission prayer made in the application is allowed. Civil Writ Petition No. 4558/90 shall stand dismissed as withdrawn.” 10. A perusal of the aforesaid order would show that it was CWP No. 172 of 1991 -7- on the basis of decision taken by the State that the vacant land belonging to M/s. Indo American Electricals Ltd. was released from acquisition and the writ petition was permitted to be dismissed as withdrawn. Therefore, there is no substance in the argument that only constructed area could be released without any concession for release of vacant area. The petitioner has made a fair offer that the land, which is required for construction of road may continue to be under acquisition but the rest of the vacant area may be released. 11. It has also remained uncontroverted that the constructed/ vacant area in respect of similarly situated land owners like M/s. Indo American Electronics Ltd. was released by the respondents. Even otherwise it is now well settled that if the land belonging to a similar situated person is released in preference to the land of another citizen then it is imperative for the Courts to interfere lest the citizen are left with the impression that those who have close connection could succeed in getting their land released, which has been found to be violative of Article 14 of the Constitution. In that regard reliance may be placed on the judgment of Hon’ble the Supreme Court rendered in the case of Hari Ram v. State of Haryana, (2010) 3 SCC 621. After adverting to some instances where the land was released and similar situated owner was not granted the relief, their Lordships’ of Hon’ble the Supreme Court has indicted the respondent State of Haryana in severest terms as under:- “26. ……The policy articulated in the Letter dated 26.6.1991, thus, hardly helps the respondents. Rather CWP No. 172 of 1991 -8- it is seen that neither the aforesaid policy nor any other policy has been followed by the State Government while releasing land of various landowners whose lands have been acquired in the same acquisition proceedings. As a matter of fact, the only policy that seems to have been followed is: “you show me the face and I’ll show you the rule”. (emphasis added) 12. Accordingly, we are of the view that the principle laid down by Hon’ble the Supreme Court would clearly be attracted to the facts of the present case. 13. For the reasons aforementioned, this petition is partly allowed. Both notifications dated 10.06.1988 and 07.06.1989 issued under Sections 4 and 6 (P-7 and P-8) are set aside in respect of the land belonging to the petitioner except the land which is covered by the road as per site plan placed on record as Mark 'X'. The compensation with regard to acquisition of land under road be disbursed to the petitioner as per awarded amount within a period of two months. The petitioner shall be at liberty to move an appropriate application under Section 18 of the Act for reference, if so advised. (M.M. KUMAR) ACTING CHIEF JUSTICE (RAJIV NARAIN RAINA) JUDGE October 31, 2011 Atul