C.W.P. No.19923 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.19923 of 2010 DATE OF DECISION: APRIL 20, 2011 Kanwal Roop Singh Brar .....PETITIONER Versus The Union of India and others ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE M. JEYAPAUL --- Present: Mr. Arun Jain, Sr.Advocate, with Mr. P.S. Dhaliwal, Advocate, for the petitioner. Ms. Harmanjit Kaur, Advocate, for Ms. K.K. Kahlon, Advocate, for respondent No.1-Union of India. Mr. N.K. Sahore, Advocate, for respondent No.2-NHAI. Mr. Sandeep Moudgil, DAG, Punjab, for respondent No.3. Mr. Harsh Bunger, Advocate, for respondent No.4. ... SATISH KUMAR MITTAL, J. The petitioner has filed the present writ petition seeking direction to respondents No.1 to 3 to withdraw the notifications dated 10.7.2006 (Annexure P3) and 22.1.2007 (Annexure P5); and for quashing the award dated 25.5.2007 passed by respondent No.3 qua the land of the petitioner, which was alleged to have been acquired for the purpose of widening the Ambala-Chandigarh Road under the provisions of the National Highways Act, 1956 (hereinafter referred to as `the Act'). C.W.P. No.19923 of 2010 -2- It is the case of the petitioner that the parents of the petitioner, namely, Kanwaljit Singh Brar and Rupinderjit Kaur had purchased the land measuring 4 bigha 15 biswas bearing Khasra Nos. 1043/683 (2-10), 1042/683 (0-10) and 1045/684 (1-15) by two sale deeds dated 16.1.1992 and 21.1.1992 from the vendees of the original owner Santokh Singh. After purchase of the land, the mutation was sanctioned in favour of the parents of the petitioner. Thereafter, the mother of the petitioner had expired and the property was inherited by the petitioner and his brother, and thereafter, the petitioner, his brother and his father became owners in possession of the said land. Vide notification dated 10.7.2006 issued under Section 3-A of the Act, the National Highways Authority had acquired strips of the land on both sides of the existing road for widening of the road. Thereafter, the notification under Section 3-D of the Act was issued on 22.1.2007. In the said acquisition, 14 biswas of land from Khasra No.1042-1043/683 and 9 biswas of land from Khasra No.1045/684 belonging to the petitioner and his family members, was acquired. Since the petitioner and his parents were not residing in village Singhpura where the land is situated, they did not know about the aforesaid acquisition. Subsequently, the award was also announced in absence of the petitioner and his family members. It is further the case of the petitioner that the land of the petitioner and his family does not abut the Ambala-Chandigarh Road, rather their land is situated behind the land of Jai Singh and his legal heirs, who had sold the same to Sandeep Kumar-respondent No.4 and the said land of Sandeep Kumar is abutting the road and falls in the required alignment for widening the road. When the petitioner after coming to India came to know C.W.P. No.19923 of 2010 -3- about the acquisition of part of their land, he moved an application before the revenue authorities for demarcation of his land at the spot. On that application, Kanungo reported that the land of the petitioner comprising in Khasra No. 1043/683 (2-10), 1042/683 (0-10) and 1045/684 (1-15) does not abut the Chandigarh-Ambala Road, whereas Khasra Nos.1042/683/2 (1-0) and 1044/684/2(0-10), which belongs to respondent No.4, touch along with the Chandigarh-Ambala Road. On the basis of that demarcation report, the petitioner filed a representation to the Sub Divisional Magistrate-cum- Competent Authority for withdrawal of the acquisition qua the land of the petitioner, which is not abutting the road, as the same is not required or utilized for the public purpose i.e. widening of the road. On that application/representation, a report was sought by the Competent Authority from the Tehsildar. The Tehsildar, Dera Bassi submitted his report dated 10.6.2009, copy of which has been annexed as Annexure P12. According to the said report, the land of the petitioner's family comprising in Khasra No. 1043/683 (2-10), 1042/683 (0-10) and 1045/684 (1-15) does not abut the Chandigarh-Ambala Road and in between the road and their land, the land comprising in Khasra Nos.1042/683/2 (1-0) and 1044/684/2(0-10) falls, which was owned by Jai Singh son of Santokh Singh (now Sandeep Kumar-respondent No.4), therefore, the land acquisition notice should have been issued to said Jai Singh son of Santokh Singh and not to the petitioner. The Sub Divisional Magistrate-cum- Competent Authority submitted the said report to the Project Director, National Highways Authority of India with the following recommendations:- "The acquisition in 2007 for NHAI for widening of road should C.W.P. No.19923 of 2010 -4- have been conducted by taking into account the previous acquisition for PWD in year 1955. Since the acquisition of land, which took place in the year 1955, was not recorded in the revenue record, the subsequent acquisition for NHAI and its award for village Singhpura announced on 22-5-2007 too doesn't seem to be correct. It is pertinent to mention here that the acquisition record for NHAI acquisition was prepared by contractual revenue staff hired by NHAI for the purpose of land acquisition and payment of award. The contractual staff consisted of I.S. Singla, Retd. Tehsildar and Sumer Chand, Retd. Naib Tehsildar and other revenue staff. It is pertinent to mention here that a number of court cases have arisen lately because of this problem. In a separate case of same nature, with regard to Khasra No.243/1 is pending in Civil Court. Likewise more cases may also arise if the acquisition made in year 1955 is not incorporated in the revenue record and the resultant acquisition is made thereafter. It is brought to your notice that due to pendency of various court cases regarding enhancement of compensation amount payable for the land acquired in village Singhpura, no amount has yet been disbursed. The NHAI has taken the possession of the land as per physical measurement i.e. 7 ½ Gattha (35.62 feet) from the berm of the road. There is a requirement to rework and reassess the land which has come under the acquisition for widening of NH 22 to avoid multiplicity of court cases and harassment to general public. Since no money has been disbursed for village Singhpura, there would be no loss to the public exchequer. It is suggested that you may take up the matter with your head office and look out for a legally workable way to undo this mistake." Thereupon, the Project Director, National Highways Authority of India wrote a letter to the Competent Authority-cum-Sub Divisional Magistrate, C.W.P. No.19923 of 2010 -5- Dera Bassi on 10.07.2009, copy of which has been annexed as Annexure P14 stating therein that in reference to his letter, the matter was examined and it was found that there has been some mistake/omission with regard to acquiring of the land comprising in Khasra No. 1044/684/2(0-9) and 1042/683/2 (0-14). Accordingly, draft 3-A was enclosed for kind information and as regards acquisition of Khasra Nos.1042/1043/683 (0-14) & 1045/684(0-9) was concerned, the case for de-notification shall be taken separately. It is the case of the petitioner that even after the letter written by the Project Director, National Highways Authority of India, Competent Authority-cum-Sub Divisional Magistrate (respondent No.3) is not taking any action for de-notification of their land from the acquisition. In this background, the petitioner filed the instant petition. After notice, respondent No.2- National Highways Authority of India, respondent No.3-Competent Authority-cum-Sub Divisional Magistrate, Dera Bassi and respondent No.4-Sandeep Kumar son of Mohinder Partap, who had purchased the land from Jai Singh in the year 2008 after the acquisition, have filed separate written statements. As far as respondent No.2 is concerned, in his written statement, the said respondent does not dispute the aforesaid factual position. It has been admitted that there was a mistake in the acquisition. It has also been admitted that Khasra Nos.1042/1043/683 (0-14) & 1045/684 (0-9) does not abut the road, and between the land of the petitioner and the Highway the Khasra No. 1044/684/2(0-9) and 1042/683/2 (0-14) belongs to Jai Singh is situated. It has also been admitted that respondent No.2, after noticing mistake, has sent to the prescribed authority for issuing fresh C.W.P. No.19923 of 2010 -6- notification with regard to Khasra No. 1042/1043/683 (0-14) & 1045/684(0- 9) and for de-notification of the land of the petitioner. In the written statement filed by respondent No.3, it has been stated that there is certain ambiguity in the revenue record with regard to sanction of the mutation and preparation of 'Tatimas' on the back of the mutation sheets. It has been further stated that the ambiguity, which is in the revenue record, and the correction thereof is beyond his jurisdiction. Though it has not been disputed that in the year 1991-92 the petitioner became owner of Khasra No. 1042/683 (0-10), 1043/683 (2-10) and 1045/684 (1-15) on the basis of the sale deeds dated 4.11.1991, 16.1.1992 and 21.1.1992, and accordingly the mutations were sanctioned. In the reply, the report submitted by the Kanungo, duly verified by the Tehsildar, also has not been disputed. Respondent No.4 in his written statement has broadly taken the stand that when the mutations of the sale deeds of the petitioner were sanctioned, wrong `Tatimas' were carved out, and due to which the land of the petitioner was wrongly shown as abutting the road situated behind the land of respondent No.4. It has been submitted that the answering respondent has a strong case for correction of the revenue record. According to the respondent, the mistake in the revenue record cropped up because the land acquired by the PWD Department in the year 1955 for the construction of Chandigarh-Ambala Highway Road was not mutated in favour of the revenue department. However, in the written statement, respondent No.4 does not dispute the report submitted by the Tehsildar and the recommendation made by the Project Officer, National Highways Authority of India to the Sub Divisional Magistrate-cum-Competent Authority. C.W.P. No.19923 of 2010 -7- We have heard the learned counsel for the parties. From the pleadings of the parties and the documents annexed, it emerges that the parents of the petitioner had purchased 4 bighas 15 biswas of land situated in village Singhpura comprising in Khasra No. 1043/683 (2-10), 1042/683 (0-10) and 1045/684 (1-15) vide registered sale deeds from vendees of original owner Santokh Singh and accordingly mutation Nos. 1254,1255,1259 and 1260 were sanctioned. At the time of sanctioning the mutation, `Tatima' was prepared showing their possession on the specific portion of the aforesaid khasra numbers. In the year 2007, National Highways Authority of India had acquired certain lands vide notifications dated 10.7.2006 and 22.1.2007 for widening the Chandigarh- Ambala Highway. 7 ½ Gattha (35.62 feet) was to be acquired from the berm of the road on both the sides. In the said acquisition, out of the aforesaid land of the petitioner, 1 bigha 3 biswas comprising in Khasra Nos.1042- 1043/683 (0-14) and 1045/684 (0-9) was acquired. It further emerges from the report of the Kanungo and Tehsildar that the aforesaid land does not abut the Ambala-Chandigarh Highway Road and rather the land comprising in Khasra No. 1042/683/2 (1-0) and 1044/684/2(0-10) is abutting the Chandigarh-Ambala road and the said land exists in between the road and the land of the petitioner's family. This picture has been made clear by the site plan Annexure P-6. It is the stand of the respondent- National Highways Authority of India that only the land measuring 1 Bigha 3 Biswas, which is abutting the road, is required for widening the road. Thus, the land of the petitioner's family is not required for the public purpose for which it was shown to have been acquired. When the petitioner made a representation in this regard, after getting their land demarcated, the Sub Divisional C.W.P. No.19923 of 2010 -8- Magistrate-cum-Competent Authority got it verified from the revenue authority. Vide Annexure P-12, Tehsildar, Dera Bassi submitted his report to the Sub Divisional Magistrate-cum-Competent Authority, Dera Bassi. In the said report, it has been stated that the land of the petitioner's family does not abut the road and the acquisition notices were wrongly issued to him. Actually the land comprising in Khasra No.1044/684/2 and 1042/683/2 (14 Marlas) belonging to Jai Singh son of Santokh Singh, which is now purchased by the Sandeep Kumar after the notification, abuts the road and the acquisition notice should be issued to said Jai Singh or his vendees. The Sub Divisional Magistrate, Dera Bassi submitted that report to the Project Director, National Highways Authority of India vide Annexure P-13 and recommended that the mistake be corrected. In the said report, it has also been mentioned that in number of cases this problem is arising particularly in village Singhpura, therefore, it was requested that the matter be looked into and there is requirement to re-assess the land, which has come under the acquisition, for widening of National Highway 22 to avoid multiplicity of court cases and harassment to general public. It has been specifically stated that since no money has been disbursed for village Singhpura, therefore, there would be no loss to the public exchequer. On the said recommendation, the Project Director, National Highways Authority of India sent recommendation to the Competent Authority-cum-Sub Divisional Magistrate, Dera Bassi to issue fresh notification under Section 3-A of the Act with regard to the land comprising in Khasra Nos. 1044/684/2(0-9) and 1042/683/2(0-14), which abuts the road and simultaneously it was recommended that the land comprising in Khasra Nos.1042/1043/683(0-14) and 1045/684(0-9) belonging to the petitioner's family be de-notified under C.W.P. No.19923 of 2010 -9- Section 3-D of the Act. Learned counsel for respondent No.2, during the course of arguments, stated that the National Highways Authority of India stand by the recommendation made by its Project Director to the Competent Authority-cum-Sub Divisional Magistrate, Dera Bassi for issuing fresh notification regarding the land comprising in Khasra Nos. 1044/684/2(0-9) and 1042/683/2(0-14) and de-notification of Khasra Nos.1042/1043/683(0- 14) and 1045/684(0-9) as only the land abutting the National Highway is required for widening the road. According to the learned counsel, as per the factual position on the record, the Tehsildar had submitted the report to the effect that the acquired land of the petitioner's family, i.e., Khasra No. 1043/683 (2-10), 1042/683 (0-10) and 1045/684 (1-15) is not abutting the road. The National Highways Authority of India had accepted the said report, and after considering the issue, the Project Officer, NHAI has made recommendation to the Competent Authority-cum-Sub Divisional Magistrate, Dera Bassi for issuing fresh notification with regard to the land comprising in Khasra Nos. 1044/684/2(0-9) and 1042/683/2(0-14) and for de-notification of the land comprising in Khasra Nos.1042/1043/683(0-14) and 1045/684(0-9). Learned counsel for respondent No.3 also does not dispute the aforesaid factual position. Even in his written statement, respondent No.3 has pointed out that there is a mistake in the revenue record and he is not competent to correct that mistake. Only respondent No.4 is objecting the prayer of the petitioner. He is a subsequent purchaser who has purchased the land from Jai Singh after the notification. His contention is that due to the mistake in the revenue record, his land is shown to have been abutting the C.W.P. No.19923 of 2010 -10- road and if the mistake is corrected, then his land might fall behind the road or he may get a share in the land behind the road on partition of the land. But, as a matter of fact, he does not dispute the report of the Tehsildar, which has been given, depicting the existing position in the revenue record. This Court in these proceedings cannot go into the correctness of the revenue record as it will otherwise cause prejudice to many persons, who had purchased the land on the basis of the existing revenue record. The department, which is acquiring the land, has accepted that only the said land will be required which is abutting the National Highway and that too only to the extent of 7 ½ Gattha in width. As per the existing record, the land of the petitioner, which was shown to have been acquired in the notification, does not abut the road. Rather the land comprising in Khasra Nos.1042/683/2 (1- 0) and 1044/684/2(0-10), which belongs to Jai Singh, which is now purchased by respondent No.4, is abutting the road and is required for the said purpose. In this regard, National Highways Authority of India, while accepting the report and factual position, has sent a fresh draft notification to the Competent Authority-cum-Sub Divisional Magistrate, Dera Bassi for issuing fresh notification with regard to the land comprising in Khasra Nos. 1044/684/2(0-9) and 1042/683/2(0-14) and for de-notification of the land of the petitioner's family comprising in Khasra Nos.1042/1043/683(0-14) and 1045/684(0-9). In view of this factual position, we are of the opinion that the Prescribed Authority should have acted on the recommendation made by the National Highways Authority of India, which is the department for whom the land is to be acquired. The Prescribed Authority is only an implementing agency under the Act and has to act according to the requirement sent by the National Highways Authority of India. It is C.W.P. No.19923 of 2010 -11- pertinent to point that the National Highways Authority of India has acquired the land of certain other persons, which was not required for the purpose and they were directed by this Court in CWP No.2548 of 2010 (Didar Singh Versus Union of India and others) decided on 22.7.2010 (Annexure P19) to rectify the mistake by de-notifying the land, which was not required, and notifying the land, which was required for widening of the road. In that case, an assurance was given to this Court that the process to de-notify the excess acquired land had already started and it will be completed expeditiously. In that case, a direction was issued to de-notify the un-required land expeditiously, preferably within a period of four months, and further directed to submit the compliance report. In view of the above, this writ petition is allowed with a direction to respondents No.2 and 3 to act according to the decision already taken by them and to de-notify the land of the petitioner comprising in Khasra Nos.1042/1043/683(0-14) and 1045/684(0-9), which is not required for widening of the Ambala-Chandigarh Road, and to issue further notification with regard to the land, which is required for the purpose and abutting the road. The needful be done expeditiously, preferably within three months from the date of receipt of a copy of this order. It is made clear that in case respondent No. 4 has any grouse against the acquisition of the land in his possession, it will be open for him to raise his grouse before the appropriate authority in accordance with law. It will also be open for him to get the joint land partitioned from the competent revenue authority, if he has any share in the joint land. (SATISH KUMAR MITTAL) JUDGE C.W.P. No.19923 of 2010 -12- April 20, 2011 ( M. JEYAPAUL ) vkg JUDGE