CWP No. 3080 of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 3080 of 1994 Date of Decision: May 24 , 2010 Kanshi Ram …Petitioner Versus State of Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Sudhir Mittal, Advocate, for the petitioner. Mr. Kamal Sehgal, Additional AG, Haryana, for the respondents. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges notification dated 21.3.1991 (P-1) issued under Section 4 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’) and declaration dated 18.3.1992, made under Section 6 of the Act (P-3). The petitioner has claimed that he had purchased land measuring 3 Kanals from Mehant Ayodhadas Gaddi Nashin Mandir Narsinghpuri, comprised in Khewat No. 231, Khasra No. 26(1-1), 6/2(0-16) and 7/1(1-3), situated in Hisar, vide registered sale deed dated 6.11.1990 for a sum of Rs. 1,80,000/-. Thereafter, he is stated have raised construction of A-Class residential house on 2 CWP No. 3080 of 1994 2 Kanals, consisting of two rooms, two stores, drawing room, stair- case, cattle shed, kitchen and two toilets, in November 1990. He has further claimed that apart from the above construction, he also constructed other rooms such as tokka machine room, (where grass cutting machine is installed), Chakki room, fooder room a baithak and chobara, by spending about Rs. 6/7 lacs. He also started living there along with his family members. The land is within the municipal limits of Hissar which is fully developed area, bounded by two main-roads viz. Hissar-Delhi road, which is a national highway, and Hissar-Tosham road, which is a State highway. There exists a fully developed modern commercial and residential Model Town, which is across the road. The Model Town has all facilities of well developed markets, schools, banks, various Government offices, sewerage, water supply, electricity, telephone facilities etc. It is thus claimed that the land belonging to the petitioner is highly valuable. On 21.3.1991, the respondent State issued a notification under Section 4 of the Act for acquisition of land for development of residential Sector 16 and Parts of Sectors 11, 13, 15 and 17 of Hisar by the Haryana Urban Development Authority (P-1). On 4.4.1991, the petitioner filed objections under Section 5-A of the Act against the proposed acquisition of his land. He has submitted that since there is residential house along with cattle shed etc. therefore, his land may be released from acquisition. The petitioner also requested for grant of personal hearing to the objections submitted by him (P-2). However, the declaration was made under CWP No. 3080 of 1994 3 Section 6 of the Act on 18.3.1992 acquiring 428.91 acres of land including the residential and cattle shed of the petitioner constructed on Rect. No. 231, Khasra Nos. 26, 6/2 and 7/1 (P-3). The petitioner has pointed out that the land/houses of prominent/influential persons have been left out from acquisition. He has cited the example of one Shri Baljeet Singh Nehra, who is stated to be husband of the real sister of Shri Joginder Singh, the then Minister in the State of Haryana when Ch. Bhajan Lal was the Chief Minister. It has been highlighted that 3 Kanals 12 Marlas of land belonging to Shri Baljeet Singh Nehra has been released from the acquisition. According to the petitioner out of the said land, 1 Kanal 8 Marlas falls in Killa No. 4709, 1 Kanal 4 Marlas falls in Killa No. 4702 and 1 Marlas 19 Marlas falls in Killa No. 4705. It has further been pointed out by the petitioner that land of Goyal Dharamshala, Dr. Satish Jawa, Water works and other plots and houses shown in red colour of the site plan Annexure P-4 has also been left our from the acquisition whereas the constructed residential house and cattle shed belonging to him, which was constructed by him prior to issuance of notification under Section 4 of the Act (shown in black colour in the site plan Annexure P-4), has been acquired. The petitioner has also placed on record copies of the orders passed by the Estate Officer, HUDA, releasing the land of Sarvshri Baljeet Singh Nehra, Jagdish Singh, Ranbir Singh, Satbir Singh, Mukesh Kumar etc. (P-5 & P-6). In the written statement filed by the respondents, it has been asserted that at the time of issuance of notification under CWP No. 3080 of 1994 4 Section 4 of the Act the land of the petitioner was vacant. A reference has been made to an application filed by the petitioner before the Land Acquisition Collector, Urban Estates Department, Haryana, Hisar. It has been submitted that although the area belonging to the petitioner falls within the limit of Municipal Committee, Hisar City but the said area was not fully developed area. The land in dispute is far away from Schools, Banks and other buildings mentioned in the petition. The modern facilities were also not available there at that point of time. The respondents have also denied that the petitioner has filed objection under Section 5-A of the Act, which has been appended with the petition as Annexure P-2, rather he had filed an application on 29.4.1991 stating that he has only one residential plot which may not be acquired (R-1). After recording the statement of the petitioner during personal hearing, the spot was inspected by the Land Acquisition Collector and it was found that the land of the petitioner was vacant. Accordingly, the land belonging to the petitioner has been included in the declaration under Section 6 of the Act. The respondents have not disputed the factual position of release of land belonging to Shri Baljit Singh Nehra but denied the allegation that there was any extraneous consideration. It has been pointed out that Shri Baljit Singh Nehra was co-owner of land measuring 1300 sq. yards comprised in Khasra Nos. 4700/2, 4702/2, 4701, 4703 and 4705/2, out of which there was built up area of A-Class construction over 250 square yards. Accordingly, proportionate vacant area was left out from the CWP No. 3080 of 1994 5 acquisition at the time of issuance of notification under Section 6 of the Act. However, Shri Baljit Singh Nehra made a representation for release of his entire land on the ground that no entrance was provided to him to access his released land. After considering the difficulty being faced by him his entire land was left out from acquisition. It has further been denied that land belonging to Goyal Dharamshala and Dr. Satish Jawa was released because their land was never acquired vide notification dated 21.3.1991 under Section 4 of the Act, therefore, the question of releasing the same did not arise. On 25.11.2008, the petitioner has filed replication to the written statement. The petitioner has denied the averments made by the respondents in para 2 of the written statement that there was no construction over the land in dispute at the time of issuance of notification under Section 4 of the Act. It has been reiterated that his residential house was in existence on the date of notification issued under Section 4 of the Act. It has further been pointed out that prior to the purchase of the land in dispute, he was a tenant and had constructed a residential house. In support of the said averment, the petitioner has placed on record a copy of the jamabandi for the year 1983-84 wherein entry with the words “gair mumkin makan’ has been recorded in Khasra No. 231/26 (P-7). The same entry has been repeated in the jamabandi for the year 1988-89 (P-8). He has further claimed that after the land was purchased by him, mutation No. 8140 was entered on 15.11.1990, which was CWP No. 3080 of 1994 6 sanctioned on 27.11.1990, wherein also it has been recorded that there is “gair mumkin makan” (P-9). Still further it has been pointed out that in the notice issued under Section 9 of the Act, it has been recorded that there exists a residential house in Khasra No. 231/26 (P-10). The petitioner has also placed on record a report obtained from the DHBVN, Hisar, which is to the effect that electricity meter was installed in the residential house on 12.8.1986. Other than this, he has also placed on record photocopies of the electricity bills along with receipts dated 9.5.1990 and 16.7.1990 [P-12 & P-13 (Colly)] in support of his claim. On 11.12.2009, when the instant petition came up for consideration before a Division Bench of this Court, the following order was passed:- “ The petitioner has filed this petition challenging the notifications dated 21.3.1991 and 18.3.1992, whereby land measuring 441.45 acres, including the land of the petitioner, was acquired. In para 2 of the petition, he has made the following averments: “2. That the petitioner has purchased the land measuring 3 kanals comprised in Khewat No. 231 Khasra No. 26(1-1), 6/2 (0-16) and 7/1(1-3) situated in Hisar from Mehant Ayodhadas Gaddi Nashin Mandir Narsinghpuri vide registered sale deed dated 6.11.1990 for a sum of Rs. 1,80,000/-. Just after the purchase of the aforesaid land in CWP No. 3080 of 1994 7 November, 1990 the petitioner constructed his A- Class residential house on 2 kanals having 2 rooms, 2 stores, drawing room, stair-case, cattle-shed, kitchen and 2 toilets. Apart from this he has also constructed in front of the room a tokka machine, Chakki room, fodder room and a bathak and chobara thereon by spending thereon about 6/7 lakhs of rupees and started living there along with his family members. It is pertinent to mention here that out of the land measuring 3 kanals plot which the petitioner has purchased in November 1990, the petitioner is having A-Class construction on 2 kanal of plot and living therein alongwith his family members. This land on which the petitioner has raised his residential house may hereinafter referred to as the land in dispute.” In the written statement, the contents of para 2 of the writ petition have been denied to the extent that no construction was existing on the above land of the petitioner at the time of issuance of notification under Section 4 of the Land Acquisition Act, 1894. In reply to this, the petitioner filed replication and took a stand that prior to the purchase of the land in dispute, he was a tenant thereon and had constructed a residential house and thereafter, he had purchased the CWP No. 3080 of 1994 8 property. Prima facie it appears to be a concocted fact, as in the writ petition as well as in the objections filed by the petitioner under Section 5-A of the Act, no such stand was taken that prior to the purchase of the land, he was tenant on the said land and he had raised construction on the same. It appears that the petitioner has taken a false stand in the replication, in order to mis-lead the Court. In these circumstances, let notice be issued to the petitioner for December 21, 2009, to explain as to why the contempt proceedings be not initiated against him.” In pursuance to the aforementioned order dated 11.12.2009 passed by the Division Bench, the petitioner has filed his reply dated 25.1.2010 by way of affidavit through C.M. No. 990 of 2010. Showing his highest esteem to this Court, tendering unconditional apology and praying for forgiveness, the petitioner has submitted that he has no intention of misleading this Court. Further averments made in the affidavit are almost similar to the one which have been made in the replication. The petitioner has placed on record revenue record i.e. jamabandi for the year 1983-84 and 188- 89, certificate of the AGM, Civil Line, Customer Care Centre, Rajgarh Road, DHBVN, Hisar, notice under Section 9 of the Act to substantiate the fact that he had constructed a house for his residence. We have heard learned counsel for the parties at a considerable length and are of the view that the instant petition CWP No. 3080 of 1994 9 deserves to be allowed. It has come on record that the land/houses belonging to influential persons have been left out from acquisition. The land belonging to Shri Baljeet Singh Nehra measuring 3 Kanals 12 Marlas has been released from the acquisition, likewise, land belonging to Shri Jagdish Singh, Shri Ranbir Singh, Shri Satbir Singh and Shri Mukesh Kumar has also been released from acquisition, which is highlighted by the order dated 18.03.1992 (Annexure P5 and P6). The order dated 18.03.1992 reads thus: “From Director, Urban Estate Deptt., Haryana Mani Majra, U.T., Chandigarh. To The Estate Officer, HUDA, Hisar. Memo No. S-3-93 dated: Sub: With regard to the release of land/ construction belonging to S/ Shri Jagdish Singh, Ranbir Singh, Satbir Singh and Mukesh Kumar etc. situated in sectors 16, 17 at Hisar bearing khasra No. 4700min, 4701min, 4702min, 4703min 4705min 4706min, 4726min. On the subject noted above you are hereby informed that Haryana Govt. has decided to release the land in accordance with the general conditions in sector CWP No. 3080 of 1994 10 16 and 17 Hisar, Dabra Road bearing Khasra No. 4700min, 4701min, 4702min, 4703min, 4705min 4706min and 4726min measuring 1650 Sq. yards belonging to S/Shri Jagdish Singh, Ranbir Singh, Satbir Singh and Mukesh Kumar etc. The applicants have to be executed agreement regarding the conditions and the development changes for the released land are to be recovered from them. The agreement proforma and rate of development charges would be intimated by the Chief Administrator, HUDA, Mani Majra, U.T. Chandigarh. Sd/- Joint Director, Urban Estate Deptt., Haryana, Mani Majra, U.T., Chandigarh. Endst. No. S-3/93-627 dated 18.03.93 A copy is forwarded to the following for information and necessary action:- 1. Chief Finance Controller, HUDA, Mani Majra, U.T. Chd. 2. Land Acquisition Officer, Hisar. 3. Distt. Town Planner, Hisar. 4. Applicants S/Shri Jagdish Singh, Ranbir Singh, Satbir Singh and Mukesh Kumar etc. Dabra Road, Hisar. Sd/- Joint Director, Urban Estate Deptt., Haryana, Mani Majra, U.T., Chandigarh. The aforesaid facts have not been controverted in the CWP No. 3080 of 1994 11 written statement. In respect of the land belonging to Shri Baljeet Singh, it has been stated that he was co-owner of the land measuring 1300 sq. meters and there was A-class construction over 250 sq. yards. Accordingly, built up area along with proportionate vacant area was left out from the acquisition at the stage of making declaration under Section 6 of the Act. It is further conceded that on the representation made by Shri Baljeet Singh, his entire land was released on the excuse that there was no access available. The aforesaid excuse is wholly superficial because for providing access, it was not necessary to release the entire 1300 sq. yards land belonging to Shri Baljeet Singh. When we examine the status of land belonging to the petitioner, it is clear from the facts that petitioner had construction over the land, which was built in November 1990. The aforesaid assertion of the petitioner is supported by the revenue record. In the jamabandi for the year 1983-84, entry is that in the land there is “gair mumkin makan”. The aforesaid entry was repeated in the subsequent jamabandi, which is recorded after every four years. For the year 1988-89, after petitioner has purchased the land, mutation No. 8140 was entered on 15.11.2009, which was sanctioned on 27.11.1990 which also shows that there was a “gair mumkin makan” (Annexures P-7, 8 and 9). Apart from the aforesaid evidence, notice issued under Section 9 also shows that there is a residential house. The aforesaid overwhelming evidence is supported by the Electricity CWP No. 3080 of 1994 12 Bill on which report has been obtained from the Dakshin Haryana Bijali Vitran, Hisar (DHBVN) (Annexure P 12 & 13). Therefore, it is established on record that there is construction on the land before the notification issued under Section 4 on 21.03.1991, the constructed area deserves to be released in view of the constant policy published by the State of Haryana, for not acquiring the land, having construction. Even in the case of Baljeet Singh Nehra, plain land measuring 1300 sq. yards has been released along with 250 sq. yards constructed area. The petitioner should have been accorded the same treatment as has been accorded to others like Baljeet Singh Nehra. In the case of Hari Ram v. State of Haryana and others JT 2010 (2) SC 235, the Hon'ble Supreme Court has taken the view that once land belonging to influential person has been released from acquisition then refusal to exercise of power by the Courts by rejecting the claim of such aggrieved person, would convey the impression that only those persons have their way who are influential and or close to power. The Hon'ble the Supreme Court indicted the respondent-State of Haryana as is discernible from para 20 of the report which reads thus: “The only guideline discernible from the aforesaid letter dated June 26, 1991 is that survey of existing construction should be done before notification is issued under Section 4 of the Land Acquisition Act; that existing factory should not be acquired and it should be released CWP No. 3080 of 1994 13 from the proceedings of Section 4 notification and that constructed area of 'A' and 'B' grade should be left out of acquisition. In Sube Singh (supra), this Court has already held that classification on the basis of nature of construction cannot be validly made and such policy is not based on intelligible differentia and a rational basis germane to the purpose. The policy articulated in the letter dated June 26, 1991, thus, hardly helps the respondents. Rather 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. Insofar as policy of 2007 is concerned, apparently that has not been applied to any of the landowners whose land was acquired along with the appellants' land under the same acquisition proceedings and released later on. We are pained to observe that when this Court directed to the State Government vide order dated August 19, 2008 to consider release of the land of the appellants from acquisition, obviously the State Government was required to consider the representations of the appellants by applying the same standards as were applied to other CWP No. 3080 of 1994 14 landowners whose lands were acquired for the same purpose and under the same acquisition proceedings and released later on. However, the representations made by the appellants were rejected by relying upon the policy dated October 26, 2007 which on its face is erroneous and unsustainable in law.” (Emphasis added) Dealing with the individual cases, it was further held by their Lordships that the principle governing fair play, emanating from Article 14 would be applicable in such cases and the land of similar situated persons deserves to be released. Some observations are extracted from para 24 of the judgment which reads thus: “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. More so, it is not even the case of the respondents that release CWP No. 3080 of 1994 15 of land from acquisition in favour of various landowners, as noticed above, was in violation of any statutory provision or actuated with ulterior motive or done due to some mistake or contrary to any public interest. The State Government has sought to set up make believe grounds to justify its action that development planning has been kept into consideration and that the appellants have been offered developed plots of double the area of construction while the fact of the matter is that in some cases where the plots were vacant and had no construction, the entire plot has been released from acquisition and also the cases where one room or two rooms construction was existing, the whole of plot has been released. While releasing land of more than 40 landowners having plots of size from 150 sq. yards to 1500 sq. yards, if development plan did not get materially disturbed in the opinion of the State Government, the same opinion must hold good for the appellants' land as well. It is unfair on the part of the State Government in not considering representations of the appellants by applying the same standards which were applied to other landowners while withdrawing from acquisition of their land under the same acquisition proceedings. If this Court does not correct the wrong action of the State Government, it may leave citizens with the belief that CWP No. 3080 of 1994 16 what counts for the citizens is right contacts with right persons in the State Government and that judicial proceedings are not efficacious. The action of State Government in treating the present appellants differently although they are situated similar to the landowners whose lands have been released cannot be countenanced and has to be declared bad in law.” (Emphasis added) The aforesaid observation leave no manner of doubt that the petitioner has been subjected to hostile discrimination and his case is covered by the judgment of Hari Ram's case (supra). We have also considered the explanation rendered by the petitioner with regard to raising of construction and we are satisfied that the petitioner has successfully explained the averments which have been made in para 2 of the writ petition. For the reasons aforementioned, this petition succeeds. Accordingly, notification dated 21.03.1991 and 18.03.1992 issued under Sections 4 and 6 of the Act, which has included the land of the petitioner for acquisition are quashed and respondents are directed to release the land of the petitioner from acquisition as has been done in the case of others. (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) May 24 , 2010 JUDGE Atul