IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.990 of 1985 (O&M) Date of decision: 23.5.2011 Parmod Kumar Sharma and others ......Petitioner(s) Versus State of Haryana and another ......Respondent(s) CWP No.1152 of 1985 (O&M) Bhagwat Dayal ......Petitioner(s) Versus State of Haryana and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Sh. Harbhagwan Singh, Sr. Advocate with Sh. Dinesh Sharma, Advocate for the petitioner(s). Sh. Narender Hooda, Sr. Additional Advocate General, Haryana. Rakesh Kumar Garg, J. This judgment shall dispose of two writ petitions i.e. CWP No.990 and 1152 of 1995 as the writ petitioners in both these petitions have challenged the same notifications issued under Section 4 and 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') on similar facts and grounds. As per the averments made, the petitioners in CWP No.990 of 1985 are joint owners of a piece of land measuring 1 kanal 12 marlas bearing Rectangle/Killa No.11/26 situated in village Salokhra. The respondent-State issued notification dated 28.10.1983 under Section 4 of the Act intending to acquire land measuring 35.18 acres, including the aforesaid land of the petitioners, for a public purpose, namely, for the development and utilization of land as institutional, residential, commercial and industrial area for Sector 16 under the Haryana Urban Development Authority Act, 1977, for the Haryana Urban Development Authority in the area of village Hidayat Pur Chhawani, Hadbast No.95, village Sukhrali, Hadbast No.71 and village Salokhra, Hadbast No.72, Tehsil and District Gurgaon. It is the further case of the petitioners that they filed objections against the proposed acquisition submitting that a built up house was in existence on the land in dispute and therefore, the same be not acquired. However, the petitioners were not given any personal hearing as envisaged under Section 5-A of the Act and notification dated 21.1.1985 was issued under Section 6 of the Act declaring the acquisition of land measuring 9.94 acres only (pertaining to village Sukhrali 9.27 acres + village Salokhra 0.67 acres) and thus, released land measuring 25.24 acres from acquisition which amounts to hostile discrimination towards the petitioners. Moreover, adjacent plots, which had been earlier notified for acquisition, were released being constructed houses. In the writ petition, it was also averred that the HUDA, for whom the land was acquired, is a Company within the meaning of the Land Acquisition Act and thus, the acquisition without complying with the provisions of Part-VII of the Act, was illegal. It may also be relevant to mention that petitioner in CWP No.1152 of 1985 is owner of a plot measuring 2000 sq.yards situated in village Salokhra which has been acquired vide the same impugned notifications which are under challenge in CWP No.990 of 1985. Upon notice, the respondents had filed written statement denying the allegations of discrimination as averred in the writ petition. It was further submitted that the land measuring 25.24 acres was released pertaining to village Hidayatpur as a whole. It was also stated that the land of village Hidayatpur was not notified under Section 6 of the Act as high tension voltage wires were spread over the village of Hidayatpur which could not be shifted. Thus, there was no question of any favour shown to the aforesaid land owners. It was also stated that the petitioners appeared before the Land Acquisition Collector and were heard. It was incorrect that their land was situated within the Lal Dora. It was specifically averred that there was no construction on the land in dispute at the time of issuance of notification under Section 4 of the Act. On 9.12.1983 at the time of spot inspection, it was found that the petitioners were raising construction. The specific instances given by the petitioners regarding the release of adjacent plots were denied and the circumstances under which the said plots were released were explained. In the end, it was requested that the writ petitions be dismissed. Writ petition was dismissed by this Court vide judgment dated 4.9.1985. The aforesaid order reads thus: “The petitioners have challenged through this petition the acquisition proceedings and prayed for the quashing of Notifications, Annexures P-1 and P-2. One of the law points raised in this petition regarding the point that the Haryana Urban Development Authority is a company stands settled now against the petitioner by a Division Bench judgment of this Court in Harchand Singh Duggal etc. v. State of Haryana etc. (C.W.P No.694 of 1984) decided on 16th of July, 1985, with the result that the learned counsel for the petitioners did not press that point. The next point urged before us by the learned counsel for the petitioners is that a discriminatory treatment has been meted out to the petitioners inasmuch as the adjoining land belonging to some other people, which is similarly situated, has been released from acquisition, whereas the petitioners' land has been notified for acquisition. A specific plea in this respect has been taken in Para 5 of the writ petition which reads as under: “That as stated earlier, the land is being sought to be acquired for the purpose of residential area for Sector 16, Gurgaon. The petitioners having a house on the said plot for the last many years, the purpose of the acquisition already stands fulfilled. Moreover, adjacent plots, which had been earlier notified for acquisition, have already been released because they had been built upon. A plan of the land is being appended herewith as Annexure P-3. A look at the said plan would show that almost the adjoining land comprised in Rectangle Killa/Khasra No.12/10, 12/26, and 12/27, which had a factory shed and houses respectively, though notified for acquisition under Section 4 initially, were released and not notified under Section 6 of the Act. This action is discriminatory and amounts to violation of Article 14 of the Constitution of India (the area released is shown coloured blue and the petitioners' land is shown in red colour).” The respondents have filed written statement in which the reply to the aforesaid para has been given as under: “In reply to para 5 of the writ petition, it is submitted that the land is being acquired for the purposes mentioned in the notification issued under sections 4 and 6. There was no construction on the land at the time of issue of notification under section 4 of the Land Acquisition Act. At the time of hearing the objections against the notification under section 4 and spot inspection on 9.12.83 it was found that the petitioners were raising construction on this land at the spot. As far as Khasra Numbers 12/10, 12/26 are concerned, it is submitted that a separate notification dated 31.12.82 including this land was issued under section 4 earlier and the constructed portion out of Khasra No.12/10 was released and the remaining vacant portion of Khasra Number 12/10 has been acquired and award has been announced on 27.1.1984. As far Khasra Number 12/26 is concerned, it is submitted that this has been excluded from acquisition proceedings as there was residential houses/factory shed in this Khasra. Khasra Number 12/27 was never a matter of acquisition proceedings. The land of the petitioners is not similarly situated as that of other Khasra Numbers mentioned in writ petition of this para. The averments of the petitioners that the action is discriminatory and amounts to violation of Article 14 of the Constitution of India is wrong and hence denied. It is further added that no plan etc. has been received with the copy of the writ petition received by the respondents.” A perusal of the reply goes to show that no discriminatory treatment has been meted out to the petitioners and that the acquisition of their land has been made in accordance with law, and no other ground for interference has been made. Consequently, the writ petition is dismissed in limine.” However, the aforesaid judgment was set aside by the Hon'ble Supreme Court vide judgment dated 2.2.1993 passed in SLP No.433 of 1993 and other connected matters and the matter was remitted back for fresh decision. The order of the Hon'ble Supreme Court reads as follows: “Special leave granted. Mr. Sibal states that the connected matters arising out of the High Court judgment in C.W.P. No.694 of 1984 dated 16.7.1985 have already been remanded back by this Court by its order dated October 14, 1986. He has placed a copy of the order on the record of this case. Mr. Sibal states that he does not want to challenge the finding of the High Court to the effect that HUDA is a local authority. We allow these appeals, set aside the impugned judgment of the High Court and remand these matters back to the High Court for fresh decision in similar terms in which the earlier cases were remanded by this Court. We give one month to the appellants before us from today to file their additional affidavits before the High Court if they so desire. We further request the High Court to finally dispose of the bunch-matters expeditiously and if possible within three months from today.” After remand, the petitioner filed amended writ petition vide CM No.19782 of 2008. Apart from the grounds taken earlier in the unamended writ petition, the petitioner further raised a ground that according to his information, the land was not acquired for the purpose mentioned in the notification under Section 4 of the Act but was acquired for respondent No.3 which is a Company without complying with the procedure as envisaged under Chapter-VII of the Land Acquisition Act and therefore, the acquisition proceedings were liable to be set aside. The writ petition remained pending. Noticing the averments of the petitioners and the fact that no reply was filed to the amended writ petition, the following order was passed on 4.10.2010:- “In these five writ petitions i.e. CWP Nos.990, 1152 of 1985, 5872, 6081 of 1983 and 2334 of 1984, it is contention of the petitioners that the land was actually acquired to give it to respondent No.3 i.e. M/s Engineers India Ltd. By making reference to the documents on record, it is stated that the above-said respondent has stated that it is not interested to get any more land than the one already allotted to it. Counsel for the petitioners made a reference to the order passed in CWP No.2583 of 1984 decided on 30.05.1990 to say that the land of the similarly situated land owners was ordered to be released from acquisition. Sh. Sehgal is directed to file reply in all these writ petitions taking note of the facts mentioned above especially order passed by this Court on 30.05.1990. Adjourned to 26.11.2010. A photocopy of this order be placed on the files of other connected cases.” On 26.11.2010, the following order was passed: “This writ petition was filed in the year 1984. Thereafter, it came up for hearing many a times. On 04.10.2010, even we directed the State counsel to file reply taking note of the facts mentioned in the order. But there is no compliance to the order passed. Request is for adjournment. There is no justification for the adjournment. In the interest of justice, the case is adjourned to 9.12.2010 subject to payment of Rs.5,000/- as costs (in each case) to be deposited with the Secretary, Chandigarh Legal Services Authority, Addl. Delux Building, Sector-9, Chandigarh. Reply be filed before the next date of hearing. A photocopy of this order be placed on the files of other connected cases.” On 9.12.2010, the Court observed as under: Reply filed in CWP Nos.990 of 1985 and 1152 of 1985. The same are taken on record. On request, adjourned to December 14, 2010. Photocopy of this order be placed on the files of the above said connected cases.” Affidavit of Sh. S.K. Chahal, Land Acquisition Collector, Urban Estates, Haryana, Gurgaon reads as follows: “1. That the above mentioned Civil Writ Petition is pending in the Hon'ble Court and is fixed for hearing on 9.12.2010. 2. That the land in question was acquired for public purpose namely for the development and utilization of the land as institutional, residential, commercial and Industrial purpose for sector-16 at Gurgaon as was notified vide notification No.LAC(G)-83/NTLA/1883 under section-4 dated 28.10.83 and vide notification No.LAC(G)-85/NTLA/784 under section-6 dated 21.01.85. The award has not been announced. 3. That vide notification No.LAC(G)-83/NTLA/1883 under section-4 dated 28.10.83 the land measuring 25.24 acre situated in the revenue estate of village Hayatpur Chawani, land measuring 9.87 acre situated in the revenue estate of village Sukhrali and measuring land 0.67 acre situated in the revenue estate of village Salokhra was notified. Vide notification No.LAC(G)- 85/NTLA/784 under section-6, the land measuring 9.27 acre situated in the revenue estate of village Sukhrali and the land measuring 0.67 acre situated in revenue estate of village Salokhra was notified. 4. That the award No.6 dated 6.8.85 announced for acquisition of land situated in revenue estate of village Sukhrali. 5. That the land in question was basically acquired for the public purpose namely for the development and utilization of land as institutional, residential, commercial and industrial purpose for sector-16 at Gurgaon. 6. That so far as the question of release from acquisition of similarly situated land is concerned. It is informed by District Town Planner, Gurgaon that land coming under CWP Nos.990, 1152 of 1985, 5872, 6081 of 1983 and 2334 of 1984 is earmarked for public and semi public use i.e. Institutional as per development plan and this land is required for institutional purpose. During the course of hearing on 1.3.2011, the following order was passed by this Court:- Vide order dated December 14, 2010 the State was directed to file an affidavit showing the following details: 1. Total area of land notified under Section 4 of the Land Acquisition Act, 1894; 2. How much land was notified under Section 6 of the said Act? 3. How much land was released under orders passed by the Court giving detail of each case? 4. Whether land falling in Khasra No.1768 was released or not? 5. How much land out of the total acquired land is now available under acquisition? In response thereto, one affidavit was shown to us in the Court on December 22, 2010 which was not as per the requirement of the Court. It was returned to the State counsel with a direction to file a better affidavit. The same thing happened again on 01.02.2011. Today, in Court an affidavit of Mr.Vikas Yadav, Additional Director-cum-Deputy Secretary, Urban Estates, Haryana, Panchkula has been placed on record. Rather than clearing the matter, it further confuses the situation. Above said affidavit is again returned to the State counsel with a clear warning to Mr. Vikas Yadav, Additional Director-cum-Deputy Secretary, Urban Estates, Haryana, Panchkula, that in case he fails to comply with the order passed by this Court on the next date of hearing, contempt proceedings shall be initiated against him. He is directed to come present in Court on the next date of hearing. Adjourned to 09.03.2011. A copy of the order be placed on the files of all connected cases.” In pursuance of the directions dated 14.12.2010 passed by this Court, affidavit of Sh. Vikas Yadav, Additional Director-cum-Deputy Secretary, Urban Estates, Haryana, Panchkula was filed. The aforesaid affidavit reads thus: “That the above noted writ petition is pending for motion hearing before this Hon'ble Court and now the same is fixed for 9.3.2011. That vide order dated 14.12.2010 this Hon'ble Court was pleased to direct the respondents as follows:- “Affidavit on behalf of the respondent has been filed today in Court. The same is taken on record. Shri Sehgal is directed to file an affidavit showing: 1. Total area of land notified under Section 4 of the Land Acquisition Act, 1894; 2. How much land was notified under Section 6 of the said Act? 3. How much land was released under orders passed by this Court giving detail of each case? 4. Whether land falling in Khasra No.1768 was released or not? 5. How much land out of the total acquired land is now available under acquisition?” 3. That in deference to the aforesaid directions of this Hon'ble Court the instant affidavit is being filed for kind consideration of this Hon'ble Court. 4. That the total land notified under Section-4 of the Land Acquisition Act dated 28th October, 1983, attached as annexure P-1 with the writ petition, was 34.78 acres. The village-wise bifurcation of the above said total land notified vide notification annexure P-1 is as under:- Hidayatpur 25.24 Acres. Sukhrali 09.87 Acres. Silokhra 00.67 Acres. ______________________________ TOTAL 34.78 Acres. ______________________________ Total land notified under Section-6 of the Land Acquisition Act (for short the Act) in pursuance to the notification (annexure P-1) was 9.94 acres. Thus, the land measuring 25.84 Acres was released after hearing objections under Section-5A of the Act. After Section-6 the award was announced only qua land measuring 9.27 acres out of a total of 9.94 acres notified under Section-6 of the Act since land measuring .67 acres came to be challenged before this Hon'ble Court by way of CWP No.990/1985 and CWP No.1152/1985 wherein stay with regard to possession was ordered and hence award could be issued only qua 9.27 acres. Thus, out of the total land sought to be acquired in pursuance to the notification issued under Section-4 (annexure P-1) now a total of 9.27 acres land is available with the Government. That it is respectfully submitted that the land falling in Khasra No.1768 Min in the revenue estate of Village Gurgaon measuring 1 Bigha 7 Bishwas (0.84 acre) was released by the Government vide order dated 25.8.2005. However, the said land falling in Khasra No.1768 Min was under acquisition under a different notification dated 21.12.1982 issued under Section-4 of the Act. 6. That the deponent tenders totally unconditional and unqualified apology for the inconvenience caused to this Hon'ble Court on the last date of hearing.” It is also relevant to mention that in the written statement filed to the amended writ petition, a specific stand has been taken by the respondents that the land in dispute was acquired for a public purpose as categorically mentioned in the notifications under Sections 4 and 6 of the Act. It was further submitted that Sector 16-Gurgaon was earmarked as institutional sector and land was allotted to institutions. It was specifically denied that the land was acquired for respondent No.3. We have heard learned counsel for the parties and perused the pleadings and the documents on record. Learned Senior Advocate Sh. Harbhagwan Singh, appearing on behalf of the petitioners has vehemently argued that from the documents on record, it is clearly established that the land was acquired for respondent No.3 which is a Company and admittedly, the procedure as envisaged under Chapter-VII of the Land Acquisition Act (i.e. Acquisition for a Company) has not been adopted and therefore, the acquisition was bad in law and was liable to be set aside. The argument raised by the learned counsel for the petitioners is without any merit as under Section 44-B of the Land Acquisition Act, it has been provided that the procedure for acquiring land for a Company as given under Chapter-VII of the Land Acquisition Act, is not applicable to a Government Company. It is petitioners' own case that respondent No.3 is a Government Company. In view of the aforesaid express provisions of law, the argument is rejected. Faced with this situation, Sh. Harbhagwan, learned Senior Advocate has submitted that the Company has already conveyed to the HUDA that they do not require more land and thus, land of the petitioners being surplus was liable to be denotified and released in their favour as there was no public purpose for acquiring the same. Again the argument raised is without any merit and is liable to be rejected. As discussed above, it is not that the land was acquired only for the needs of the Company, in fact, as established, the land was acquired for development of residential, commercial and institutional area for Sector 16, Gurgaon by the HUDA and respondent No.3 was allotted some land and the remaining land is needed by the HUDA for achieving the public purpose. The plea of discrimination could not be substantiated by the learned counsel for the petitioners as the instances of release of adjacent plots are not from the acquired land. As per record, no land of village Sukhrali and Salokhra has been released. The land measuring 25.24 acres which was not notified by the respondents under Section 6 of the Land Acquisition Act, pertains to village Hidayatpur and whole of the land was left out of acquisition because of the high tension wires spread over the aforesaid land. Thus, in view of the aforesaid facts, no discrimination can be alleged by the petitioners. Mr. Shailender Jain, Advocate, in addition to the aforesaid arguments, has argued that publication of the impugned notifications was not proper. However, the aforesaid argument remained unsubstantiated as learned counsel for the petitioners could not point out any illegality in this regard. No other point was urged. For the reasons recorded above, we find no merit in these writ petitions. Dismissed. (JASBIR SINGH) (RAKESH KUMAR GARG) JUDGE JUDGE May 23, 2011 ps IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.1152 of 1985 (O&M) Date of decision: 23.5.2011 Bhagwat Dayal ......Petitioner(s) Versus State of Haryana and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Sh. Harbhagwan Singh, Sr. Advocate with Sh. Dinesh Sharma, Advocate for the petitioner(s). Sh. Narender Hooda, Sr. Additional Advocate General, Haryana. Rakesh Kumar Garg, J. For orders, see judgment of even date passed in CWP No.990 of 1985 (Parmod Kumar Sharma and others Versus State of Haryana and another). (JASBIR SINGH) (RAKESH KUMAR GARG) JUDGE JUDGE May 23, 2011 ps