IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.7655 of 2005 Date of decision: 17.11.2010 M/s Sindhu Education Foundation and others …..Petitioners versus State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.M.L.Sharma, Advocate for the petitioners Mr.Kamal Sehgal, Addl.A.G. Haryana Mr.Amit Sharma, Advocate for Mr.Arun Walia, for HUDA Mr.Ashok Aggarwal, Senior Advocate for respondent No.11 Jasbir Singh, J. (Oral) C.M. Nos.16315-1616 of 2010 Applications allowed, document is taken on record. Civil Writ Petition No.7655 of 2005 Facts of this case indicate a strange method of the administration to harass its citizens. How draconian powers given to the State under the provisions of the Land Acquisition Act, 1894 (in short, the Act) can be misused, this case is a glaring example of the same. This writ petition has been filed to lay challenge to a notification issued under Section 4 of the Act on 11.4.2002, proposing to acquire 850.88 acres of land for a public purpose i.e. to develop the land for residential and commercial purpose. Further challenge has been made to a declaration issued under Section 6 of the Act on 8.4.2003, declaring an intention of the authorities to acquire only 441.11 acres of land for the Civil Writ Petition No.7655 of 2005 above said purpose. Award in this case was passed on 6.4.2005 for an area measuring 422.44 acres. It is an admitted fact that the petitioners are running an educational institution under the name and style of M/s Sindhu Education Foundation, at 96-A, Subash Nagar, Rohtak (hereinafter referred to as ‘the Society’), which is registered in accordance with law. The Society owns land comprising in Khasra No.329/17(8-9), 24(7-12), 350/4/2(7-12) total measuring 23 kanals – 13 marlas situated in the revenue estate of Village Gadi Bohar, Hadbast No.135/1, Tehsil & District Rohtak and is running a School under the name and style of ‘Indus Public School at Rohtak. It is case of the petitioners that originally, the land comprising in khasra No.328/21 min, 329/16 min, 25, 350/4/2, 5, 6/1, 6/2, 15, 351/1/2 was purchased in the name of Sindhu Farms Private Limited and thereafter this land was transferred to Sindhu Education Foundation, which is also a part of Sindhu Farms Private Limited. To establish that institution, the petitioners applied to get a change of land use certificate on 22.5.1998 and that certificate was granted to it on 24.10.2000 (P5) for an area measuring 2948.50 square yards, falling in khasra Nos.328/21 min, 329/16 min, 25, 350/4/2, 5, 6/1, 6/2, 15, 351/1/2. Thereafter, the permission was also given to the petitioner’s Society to raise construction of an Institutional Building in the controlled area, Rohtak, it is how the present School was constructed. However, the land for the School was not sufficient, in view of that, an additional piece of land was purchased comprising in khasra No.329/17, 329/24 in the year 2001. It is apparent from the facts on record and not controverted at the time of arguments, that the educational institution is running at the spot. It is further apparent from the record that the petitioners again moved an 2 Civil Writ Petition No.7655 of 2005 application for getting change of land use certificate on 20.12.2001 (P32) for land measuring 9706 square yards falling in khasra No.329/17, 24. That application was pending when a notification under Section 4 of the Act was issued to acquire 850.88 acres of land. The petitioners filed objections under Section 5A of the Act, which did not find any favour with the Land Acquisition Collector and the land falling in khasra No.329/17/24 was recommended for acquisition. Thereafter, declaration under Section 6 of the Act was issued to acquire above said area along with land falling in khasra No.350/4/2, regarding which, change of land use certificate had already been granted in the year 2000. At the time of arguments, it has come to our notice and not denied by the State counsel and the counsel appearing for other respondents that after issuance of notification under Section 4 of the Act, many land owners moved applications under Section 3 of the Haryana Urban Area Control and Regulation Act, 1975 (in short, 1975 Act) for grant of licence to develop the colonies, it is admitted on record that their land was lying vacant and regarding that land, notification under Section 6 of the Act had already been issued. Licence bearing No.1081-1104 of 2006 was granted to some of the land owners and qua others, licence No.1105-1124 of 2006 was also issued and the land measuring more than 110 acres was released in their favour. It is apparent from the record that in the first case, application was moved to get licence, for an area measuring 84.5 acres of land and after completing necessary formalities, licence was granted for an area measuring 52.05 acres on 1.9.2006 and 2.9.2006 respectively. Similarly, in the second case, application was moved for grant of a licence for an area measuring 76.90 acres and after completing formalities, licence was granted for an area measuring 60.49 acres of land on 12.6.2006. Admittedly, licences were 3 Civil Writ Petition No.7655 of 2005 granted after passing of an award on 6.4.2005, and the land measuring more than 110 acres was released vide letters dated 12.6.2006 (P83) & (P84). There is nothing on record to show that any notification under Section 48 of the Act was issued to release the above said land. It is also an admitted fact that after release of that land, the same was purchased by a Colonizer i.e. (respondent No.11) and it has developed a colony thereon. After carving out the plots in the Colony, those were sold to the general public. Counsel for the respondent, for non-grant of relief to the petitioners, has vehemently contended that the relief was not granted to them because possession of the land was taken by making an entry in Roznamcha Waqaiti on 6.4.2005 and award was passed thereafter. Qua the land owners, whose land was released, it is stated that the possession could not be taken because crop was standing thereon. We have perused the entries in the Roznamcha Waqaiti, no khasra No. on which, crop was standing is mentioned therein. Otherwise also, it is very surprising as to how possession of the property of the petitioners can be taken in such a manner when admittedly, the property is being used by the petitioners as a part of a running educational institution. It is a case, in which naked discrimination has been done with the petitioners for the reasons best known to the authorities. The petitioners moved an application for change of land use for an area measuring 9706 square yards on 2.2.2002. The application was kept pending and not processed because in the meantime, notification under Section 4 of the Land Acquisition Act, to acquire land measuring 850.88 acres was issued on 11.4.2002. Despite an objection raised, land of the petitioners was not released. The Land Acquisition Collector, before issuance of Section 6 4 Civil Writ Petition No.7655 of 2005 notification, released more than half of the land. No plausible explanation is given as to why the petitioners were not held entitled to the release of their land and how they were differently situated so far as those whose land was released from the acquisition. The petitioners also filed objections under Section 9 of the Act and categorically pleaded that the land comprising in khasra No.329/17 and 329/24 is wrongly being acquired as it falls in the agricultural zone, outside the residential zone and the same cannot be acquired, if so, the same is directly against the Haryana Urban Development Act, 1978 and also against the provisions of the Land Acquisition Act, 1894 as well as in contravention to the provisions of Section 11, 12(1), 19, 27, 28 and 29 of the National Capital Regional Planning Board Act No.2 of 1985 and also in contravention to the National Capital Regional Plan of 2001, as the area is already declared as Agricultural Zone and falls within the green belt. Further the area has not been declared as a residential area under the HUDA Act and the same cannot be acquired being in agricultural zone. The petitioners further stated that they are running a school much prior to the notification under Section 4 of the Land Acquisition Act, 1894 and it is a well reputed school. Even the construction of the School was made with the permission of the respondents and they have also compounded the unauthorized construction when CLU was granted. The School is affiliated to Central Board of Secondary Education (hereinafter referred to as ‘the C.B.S.E.) and it is also recognized by the Director, Secondary Education Haryana, Chandigarh. Every Room of the School is having ‘A’ Class construction. It is a Public Convent School, providing Technical, Computer, Vocational and Scientific education to the students. More over, the School have all basic amenities like electricity, water, 5 Civil Writ Petition No.7655 of 2005 sewerage etc. and the building of the School has also been approved by the Municipal Committee. The petitioners contended that the School has developed a big play grounds for the sport of Hockey, Football, Cricket, Badminton, Basketball, Horse riding etc. for the students in the area in dispute. The School has also boarding and lodging facilities for its students and it has a large and fully furnished Library with e-lib facilities. So, the petitioners have invested Crores of rupees apart from the value of the land to run the School. Apart from this, the petitioners pleaded that the acquisition is in contravention to the provisions of Section 4, 5-A, 6, 7, 8 and 9 of the Land Acquisition Act and also in contravention to the provisions of Articles 14, 16, 19 and 21 of the Constitution of India. To assail an arbitrary and discriminatory act of the respondents, the petitioners relied upon the law, as laid down by the Hon’ble Apex Court in case B.M. House Building Society v. State of Karnataka, A.I.L.L.R. – 2005, 368, that when there is a discrimination between two individuals standing on the same footing, the action is discriminatory and the same is violative of Article 14 of the Constitution of India and entire land acquisition proceedings will be vitiated including the notification under Section 4 of the Act. Above said facts clearly indicate that the State powers were exercised with a view to give favour to some persons and that very power was used to cause loss to the petitioners. In the process of acquisition, more than half of the land has been ordered to be released from the acquisition. Inspite of a very good case for the release of land in favour of the petitioners, their land was kept under acquisition. Even the land of the petitioners falling in khasra No.350/4/2, regarding which, change of land use certificate was granted way back in the year 2000, was also included in 6 Civil Writ Petition No.7655 of 2005 declaration issued under Section 6 of the Act. As per Policy of the State Government, land regarding which such a certificate has been issued cannot be acquired. Even that Policy was ignored in the case of the petitioners. We may have initiated an action regarding release of land in favour of the land owners, which subsequently was purchased by respondent No.11. However, because initially, respondent No.11 was not made a party and it was added vide order dated 22.2.2010, in the meantime, a colony had already been developed and plots have been sold to various individuals, so, we are not going to pass any order at this stage. If anybody lay challenge specifically to the release of land, it will be open for the Court to look into the same. Their Lordships of the Hon’ble Supreme Court in Hari Ram and another v. the State of Haryana and others, JT 2010(2) SC 235, observed that the State authorities are observing a principle that show the face and you will get favourable relief accordingly. By noting similar facts, it was observed as under:- “It is true that any action or order contrary to law does not confer any right upon any person for similar treatment. It is equally true that a landowner whose land has been acquired for public purpose by following the prescribed procedure cannot claim as a matter of right for release of his/her land from acquisition but where the State Government exercises its power under Section 48 of the Act for withdrawal from acquisition in respect of a particular land, the landowners who are similarly situated have right of similar treatment by the State Government. Equality of citizens' rights is one of the fundamental pillars on which edifice of rule of 7 Civil Writ Petition No.7655 of 2005 law rests. All actions of the State have to be fair and for legitimate reasons. The Government has obligation of acting with substantial fairness and consistency in considering the representations of the landowners for withdrawal from acquisition whose lands have been acquired under the same acquisition proceedings. The State Government cannot pick and choose some landowners and release their land from acquisition and deny the same benefit to other landowners by creating artificial distinction. Passing different orders in exercise of its power under Section 48 of the Act in respect of persons similarly situated relating to same acquisition proceedings and for same public purpose is definitely violative of Article 14 of the Constitution and must be held to be discriminatory.” In view of facts of this case, action taken by the authorities is in complete violation of the principles laid down under Article 14 of the Constitution. In this case, different treatment has been given to the petitioners though they were better situated than those in whose favour discretion was exercised. In view of the facts mentioned above, we allow this writ petition and quash the notifications issued under Section 4 of the Act on 11.4.2002 and declaration issued under Section 6 of the Act on 8.4.2003 qua land of the petitioners. Administrative authorities have forgotten a fact that the all officers of the State are getting powers under the Constitution, its Preamble starts with the words “We, the people of India” and Preamble ends with the 8 Civil Writ Petition No.7655 of 2005 words “adopt, enact and give to ourselves this Constitution.” It is a common man’s power, which runs throughout, from page one to the end of the Constitution. Facts of this case clearly indicate that the common man has been reduced virtually to a zero figure. The State authorities have shown their utter disregard to the law. As per the Constitution, the officers of the State are supposed to act as a guardian of the general public and not as its detractors. Such an attitude cannot be tolerated. In view of facts of this case, we impose costs of ` 2,50,000/-, to be deposited with the Registry of this Court within one month and liberty is given to the petitioners to withdraw the same. After deposit, the costs be recovered from the Land Acquisition Collector and the competent authority who has sanctioned acquisition of land of the petitioners. The Chief Secretary, Haryana is directed to conduct an enquiry and a copy of enquiry report be placed upon record of this case. (Jasbir Singh) Judge 17.11.2010 (Augustine George Masih) gk Judge 9