IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Civil Writ Petition No. 11412 of 2004(O&M) Date of decision:25th August, 2011 Lehri Singh and others .......Petitioners Versus Union of India and others ........Respondents 2. Civil Writ Petition No. 11043 of 2004 Ajit Singh and another ......Petitioners Versus State of Haryana and another .......Respondents 3. Civil Writ Petition No. 12371 of 2004 Kishan Kumar .......Petitioner Versus State of Haryana and others .......Respondents 4. Civil Writ Petition No. 15107 of 2004 Ravi Bhatt and others ......Petitioners Versus State of Haryana and others .......Respondents 5. Civil Writ Petition No. 16673 of 2003 Rajinder ........Petitioner Versus Union of India and others .......Respondents 6. Civil Writ Petition No. 9121 of 2004 M/s Baba Industries, Krishna Nagar, Behind Power House, Jhajjar Road, Bahadurgarh, District Jhajjar throuh its owners/proprietor Civil Writ Petition No. 11412 of 2004(O&M) ........Petitioner Versus State of Haryana and others .......Respondents 7. Civil Writ Petition No. 10051 of 2006 Sunil Dahiya .......Petitioner Versus State of Haryana and others .......Respondents 8. Civil Writ Petition No. 16846 of 2004 Narender .......Petitioner Versus State of Haryana and others ......Respondents 9. Civil Writ Petition No. 7444 of 2004 Harpal Singh and others .......Petitioners Versus Union of India and others .......Respondents CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Tushar Sharma, Advocate, Mr. Harkesh Manuja, Advocate, Mr. M.L.Sharma, Advocate and Mr. G.S.Dhaliwal, Advocate, Ms. Neha Mann, Advocate for Mr. Salil Bali, Advocate for the petitioner(s). Ms. Kamla Malik, Advocate for Union of India in CWP No. 7444 of 2004. Mr. Kamal Sehgal, Addl.A.G.Haryana for the respondent-State. 1. Whether Reporters of local papers may be allowed to see 2 Civil Writ Petition No. 11412 of 2004(O&M) the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No Jasbir Singh, J.(Oral) This order will dispose of 9 writ petitions bearing CWP Nos.11412, 11043, 12371, 15107, 9121, 16846, 7444 of 2004, 16673 of 2003 and 10051 of 2006 involving similar questions of law and facts. For the purpose of dictating order, facts are being taken from CWP No. 11412 of 2004 titled as Lehri Singh and others vs. Union of India and others. By filing this writ petition, the petitioners have challenged a notification issued under Section 4 of the Land Acquisition Act 1894 (in short, the Act), whereby the land measuring 1311.05 acres has been put under acquisition for a public purpose, namely, for the development and utilization of land as residential, commercial institutional areas in Section 1 (Part), 10, 11 (Part), 12 and 13 at Bahardurgarh. Further challenge has been made to a declaration issued under Section 6 of the Act on 10.04.2003 (P-4), finally ordering acquisition of the land measuring about 922.71 acres. The land under acquisition is situated in four villages namely Bahadurgarh, Ballaur, Sarai Aurangabad and Baraktabad. Petitioners who are 20 in number in this writ petition, their land is situated in village Ballaur. Petitioners are the owners in possession of 413 kanals 5 marlas of land, detail of which is given in paragraph No. 2 of the writ petition. It is a case of the petitioners that in some part 3 Civil Writ Petition No. 11412 of 2004(O&M) of their land they had constructed their residences and also the farm houses to tether their cattle. As per policy of the State Government dated 26.10.2007 built up areas cannot be put under acquisition. However, contrary to that policy their constructed residences/houses and farm houses were put under acquisition. It is further a case of the petitioners that samadhs constructed by them in memory of their ancestors were also not spared from acquisition. As per information supplied for the land under acquisition separate awards were passed on the following dates:- 1. Award no. 6 announced on 25.06.2004 regarding the village Sarai Aurangabad and Baraktabad 2. Award no. 7 announced on 3.01.2005 passed regarding the village Bahadurgarh, Ballaur Before passing of an award, qua their land the petitioners approached this Court and on 2.08.2004, their dispossession was stayed. Thereafter, on an application moved vide order dated 26.05.2006 interim stay was vacated. The petitioners went to the Hon'ble Supreme Court by filing SLP (Civil) No. 10043 of 2007 which was disposed of on 30.03.2011 by passing the following order:- “This petition is directed against order dated 26.05.2006 of the Division Bench of Punjab and Haryana High Court, whereby the writ petition filed by the petitioners questioning the acquisition of their land was admitted, but ad-interim order passed earlier was vacated. While issuing notice of this special leave petition on 14.05.2007, this Court had stayed all further 4 Civil Writ Petition No. 11412 of 2004(O&M) proceedings pending before the High Court. That order has continued for the last almost four years. Learned counsel for the respondents submitted that the land in question is required for completing construction of National Highway No. 10. In view of the above, we deem it proper to dispose of this special leave petition with a request to the High Court to take up the pending matter and make endeavor to decide the same within a period of four weeks from the date of receipt/production of copy of this order. As soon as copy of the order is made available to the Registrar (Judicial) of the Punjab and Haryana High Court, he should, after obtaining instructions from the Chief Justice, list the case before an appropriate Bench. It is needless to say that the High Court will decide the matter without being influenced by the observations made in the impugned order. The parties shall maintain status quo for a period of four weeks. If for any reason, the writ petition is not disposed of within that period, the petitioners shall be free to make a prayer to the High Court for extension of the order of status quo.” As per prayer made by learned counsel for the parties, this writ petition along with other writ petitions was ordered to be fixed for regular hearing. At the time of arguments, Shri Tushar Sharma 5 Civil Writ Petition No. 11412 of 2004(O&M) Advocate confined his objection to the impugned notifications on the following two grounds:- (a) that contrary to the policy of the State Government dated 26.10.2011 not to acquire the land under construction, the petitioners residences and farm houses were not released from acquisition. (b) that qua many other land owners, not only the residential buildings, even their vacant land was released from acquisition. By saying as above, it is argued that a great discrimination has been done to the petitioners which is in violation to the provisions of Article 14 of the Constitution of India. Shri Kamal Sehgal, Addl.A.G.Haryana, to the contrary has argued that after passing of an award, possession has been taken and as such at this stage, the petitioners cannot challenge the acquisition in question. Be that as it may, this writ petition was filed before passing of an award on 3.01.2005. Not only as above, at the time of arguments we have seen the entry made in the Roznamcha vide which it is stated, that the possession was taken at the spot. It is only mentioned that the possession was taken on the date when the award was pronounced by taking a round of the land and in the same manner, after taking the land in possession, it was handed over to a Patwari working in Haryana Urban Development Authority, (HUDA). The said entry is not signed by any of the right holders. It is also not mentioned in the said entry as to qua which part of the land stay has 6 Civil Writ Petition No. 11412 of 2004(O&M) been granted by this court or any other court. The area under stay order is not included in the roznamcha entry. It is an admitted fact that a large number of writ petitions were pending when the awards were passed and qua a huge tract of land stay orders were in existence as in the present case. Not only as above, the acquisition of land vide the impugned notifications came up for consideration before this Court in the case of Reshman Footwears (P) Ltd. Vs. State of Haryana and others, CWP No. 2308 of 2004 decided on 21.06.2010. In that case also acquisition was challenged on the grounds similar to the one which have been agitated before us in this writ petition. Division Bench of this Court by taking note of the grave discrimination done with the land owners and also noting a fact that the construction raised by some was kept out of acquisition and qua the others acquisition was ordered, it was observed as under:- 16. “The petitioner has raised the issue concerning releasing of residential or industrial areas which have been constructed. A perusal of the table prepared in para 6 would show that wherever residential or industrial areas are shown and construction is claimed, the same is raised before issuance of notification under Section 4 of the Act. For example, the first item on the table shows CWP No. 8223 of 2003, which is a residential house and which is stated to be fully developed and construction has been raised prior to Section 4 notification. Likewise Item Nos. 2, 3, 7 Civil Writ Petition No. 11412 of 2004(O&M) 4 19, 20 and 21 also depicts the similar position. Item Nos. 6, 7, 9, 10, 11, 12, 13, 15, 16, 17 and 18 deals with industrial constructions, which were admittedly raised before issuance of notification under Section 4 of the Act. However, only in Item Nos. 5 and 14 the agricultural land is involved, which has no construction. A perusal of the table further shows that all items concerning residential houses have small areas and construction has been raised after obtaining sanction of the site plan. The petitioner has pointed out that in village Bahadurgarh 58.16 acres area has been released; in village Balour 25 acres area has been released and likewise in village Bakhtaban 4.79 acres of land has been released from acquisition. A specific reference was made in CWP No. 9204 of 2004, where factory belonging to that petitioner has been released whereas in the case of the petitioner stock reply has been proffered that the factory/residence area belonging to the present petitioner falls within non-conforming area which are for non compatible purpose. The letter dated 26.6.1991 (P-48), sent by the Chief Administrator, HUDA to various other authorities would show that as a matter of policy existing factory should not be acquired and should be released from proceedings initiated under Section 4 of the Act. The constructed areas of 'A' and 'B' Grade should be left out of acquisition and that survey of existing construction be undertaken before issuance of 8 Civil Writ Petition No. 11412 of 2004(O&M) notification under Section 4 of the Act. Similar vies have been expressed in the meeting dated 20.2.2003, which was held by PHD Chambers of Commerce and Industry, New Delhi, with the Commissioner and Secretary, Department of Industries, Haryana. In the inter-active sessions various issued concerning industry were highlighted by the Members of the PHD Chamber before the Commissioner and Secretary Industries and they agreed to initiate follow up action, inter-alia, on the following issues: “6. Acquisition of Land in Behrampur and Begum Pura Khatola area of Gurgaon. The members from Gurgaon expressed concern at the imposition of Section 4 for acquisition of land in Behrampur and Begum Pura village. In these areas more than 100 small and medium size units are already operating and only few pockets of land are available. The existing units have already taken the required permissions for operating? These pockets of land would be needed for expansion purpose by the existing industry. Therefore, all existing units and their land be exempted from the final acquisition notification and also the land proposed for industrial use. Construction of which has not taken place as yet, should be exempted after 9 Civil Writ Petition No. 11412 of 2004(O&M) taking an undertaking from these entrepreneurs that the land will not be used for any purpose except Industrial. In his response, the Commissioner and Secretary, Industries informed that as a Policy, the State Government does not acquire land where Industries are operating. He advised the District Town Planner to inspect the land use and submit a report.” 17. The aforesaid factual position would highlight the background policy of the State which has been in operation since 1991 and accordingly the constructed residential as well as industrial units are ordinarily exempted from acquisition. The aforesaid policy was subject matter of consideration before Hon'ble the Supreme Court in the case of Hari Ram (supra). After referring to the judgment rendered in the case of Sube Singh v. State of Haryana, (2001) 7 SCC 545, their Lordships have observed in paras 25 and 26 as under:- “25. The only guideline discernible from the aforesaid letter dated 26.6.1991 is that survey of existing construction should be done before notification is issued under Section 4 of the Land Acquisition Act; that an existing factory should not be acquired and it should be released from the proceedings of Section 4 notification and that constructed area of 'A' and 10 Civil Writ Petition No. 11412 of 2004(O&M) 'B' grades should be left out of acquisition. 26. In Sube Singh 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 differential and a rational basis germane to the purpose. The policy articulated in the Letter dated 26.6.1991. 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 fact and I'll show you the rule.” 18. Hon'ble the Supreme Court also made a reference to various orders releasing the land/constructed area from acquisition and proceeded to hold that the release of land from acquisition has been arbitrary and unfair. The only principle which is followed in the State of Haryana is 'You show me the face and I'll show you the rule.' On the basis of the aforesaid unfair treatment given to similarly situated persons, Hon'ble the Supreme Court indicted the respondent-State in para 43 by observing as under:- “43. It is unfair on the part of the State 11 Civil Writ Petition No. 11412 of 2004(O&M) 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 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 the State Government in treating the present appellants differently although they are situated similar to the landowners whose lands have been released can not be countenanced and has to be declared bad in law.” 19. In the instant case also the factory belonging to Daya Chand, Jagat Kishore and Taran Kumar sons of Deep Chandigarh of village Balore, Tehsil Bahadurgarh, District Jhajjar, has been released, which is also situated in the so called residential zone and excuse put forward by the respondents in not releasing the factory of the petitioner is Daya Chand's case (CWP No. 9204 of 2004) was that the land comprised in Rectangle No. 34/9, measuring 7 Kanals 11 Marlas, was being used for the purpose of Drying Card Board. The land comprised in Khasra No. 34//10/2, measuring 3 12 Civil Writ Petition No. 11412 of 2004(O&M) Kanals 11 Marlas, was being utilised for the purposes of running a factory in the name and style of 'M/s Balore Hat Kargha Board Udyog'. Therefore, the land owners had claimed that khasra No. 35//16//2 has a Well. The aforesaid area was released from acquisition and the learned State counsel could not controvert the aforesaid fact. Likewise, vacant land to the tune of 24.9 acres in village Balore itself has been released from acquisition. It has also not been disputed that a huge residential area has also been released from acquisition. 20. During the course of arguments, Mr. M.L.Sharma, learned counsel for the petitioner has also pointed out that the land comprised in Khasra Nos. 1//16, 17, 24, 25, 2//6/1, 6/2, 7, 8/1, 8/2, 11, 12, 13/1, 13/2, 14/15, 18/1, 18/2, 19, 20, 21 and 10//5/1, 5/2, 26, measuring 12.14 acres, situated in the revenue estate of Barktarabad, Bahadurgarh, which was acquired for Sectors 10, 12 and 13, has been released, vide Letter No. 7602, dated 25.9.2003, after declaration under Section 6 of the Act was made. The aforementioned land belonged to Sarushri Det Ram, Shri Ram and Sheo Singh sons of Silk Ram, Ajit Singh son of Heera Lal, residents of Sarai Aurangabad, Tehsil Bahadurgarh, District Jhajjar, and Haniff Poddar c/o Mahavir Traders, M-77, Street No. 3, Shashtri Nagar, Delhi-52. Learned counsel for the petitioner has also placed on record a photocopy of the aforementioned letter dated 25.9.2003, which is taken on 13 Civil Writ Petition No. 11412 of 2004(O&M) record as Mark-'A'. Likewise, land comprised in khasra Nos. 587, 631/1 Min, 3274/642 Min, 681, 691, 692, 694 Min, measuring 5.66 acres, situated in the revenue estate of village Bahadurgarh, and another piece of land comprised in Khasra Nos. 13//12/2, 25//5/1, 5/2, 5/3, 5/4 and 5/5, measuring 0.33 acres, situated in the revenue estate of village Balore, was also released, vide notification dated 21.6.2004 under Section 48 of the Act, which is much after declaration dated 10.4.2003, made under Section 6 of the Act. The aforesaid facts would prove hostile discrimination against the petitioners because the industry set up by them or smaller residential area constructed by them would not stand on a different footing. Even plain agricultural land which is scattered could have been acquired. The observations made by Hon'ble the Supreme Court in Hari Ram's case (supra) would fully apply to the facts of the present case and there is clear violation of Article 14 of the Constitution.” As in the present case, it was noted in the case of Reshma footwears (supra) that the vacant land to the extent of about 100 acres was kept out of acquisition whereas acquisition was ordered qua land owned by the petitioners. Such a discrimination has been negated by the Hon'ble Supreme Court in case of Hari Ram & Another v. The State of Haryana and others JT 2010(2) SC 235, wherein it was observed as under:- “It is true that any action or order 14 Civil Writ Petition No. 11412 of 2004(O&M) 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 acquistiion 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 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.” 15 Civil Writ Petition No. 11412 of 2004(O&M) At the time of arguments Shri Kamal Sehgal, Addl.A.G.Haryana has failed to show any distinguished feature on the basis of which relief can be declined to the petitioners. The petitioners are the poor farmers and their land and buildings have been put under acquisition, whereas, by releasing vacant land, about 100 acres, relief has been granted to the other land owners who were similarly situated. Not only as above, as per policy of the State Government dated 26.10.2007 residential houses cannot be put under acquisition whereas in the present case, the buildings were also ordered to be acquired. In view of the above fact, we feel that the case of the petitioners is squarely covered by the ratio of judgment of a Division Bench of this Court in Reshma Footwears case (supra). In view of the above, Civil Writ Petition Nos. 11412 of 2004 and 11043, 12371, 15107, 9121, 16846, 7444 of 2004, 16673 of 2003 and 10051 of 2006, qua the petitioners, the impugned notifications are quashed and the writ petitions are allowed. No orders as to cost. [JASBIR SINGH] JUDGE 25th August, 2011 [AUGUSTINE GEORGE MASIH] Shivani Kaushik JUDGE 16