IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.3418 of 1987 Date of decision: 8.04.2011 Capt. Bhanwar Singh and others …..Petitioners versus State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Rakesh Kumar Garg Present: Mr.Raj Mohan Singh and Mr.Jagat Singh, Advocates for the petitioners Mr.D.S.Bali, Senior Advocate with Mr.Salil Bali, Advocate Mr.Kamal Sehgal, Addl. A.G. Haryana Jasbir Singh, J. This order will dispose of CWP Nos.3418 and 3457 of 1987, involving similar question of law and facts. It is necessary to mention here that in CWP No.3418 of 1987, except petitioner Nos.1 and 6, all other petitioners have withdrawn from this writ petition and after passing of an award on 10.11.1987, had accepted the compensation for their land under acquisition. Similarly, in CWP No.3457 of 1987, except petitioner Nos.13, 14, 29 to 32, 35 and 41, all other have also withdrawn from this writ petition and had accepted compensation after passing of an award, as mentioned above. For facility of reference, facts are being taken from CWP No.3418 of 1987. Civil Writ Petition No.3418 of 1987 This writ petition has been filed with a prayer to quash a notification, issued under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) on 4.6.1986, proposing to acquire 355.50 acres of land situated in revenue estate Bhiwani Lohar for a public purpose, namely, to develop and utilize land for residential and commercial purpose. Further challenge has been made to a declaration issued on 15.4.1987 finally ordering acquisition of land measuring 352.33 acres for that purpose. Award in this case was passed on 10.11.1987. During pendency of this writ petition, by moving an application, petitioners brought on record photographs Annexure P7 (colly.), to show that in the land under acquisition three residential houses, some rooms for offices and other construction is in existence. To say that construction was in existence at the time when notification under Section 4 of the Act was issued on 4.6.1986, reference was made to the objections filed under Section 5-A of the Act on 1.7.1986. It has further been stated that the petitioner No.1 has a large family and needs entire land falling in khasra No.124//25(8-0), 123//21/1(4-0), 143//5(8-0), 144//1/1(4-0) for use of his family for residential purposes. It is further stated that land has been acquired to develop it for residential and commercial purposes. Petitioner also intends to use the land for that very purpose, as such, acquisition is not justified. It is further stated that the notification issued under Section 4 of the Act was not published properly as per the mandatory provisions of Section 4 of the Act. It is further averred that a vast tract of land earlier acquired by the respondents adjoining to the land of the petitioner is lying vacant, as such, there was no necessity to acquire land of the petitioner. In reply to the averments made, counsel for the State, by making reference to the written statement on record, argued that notification 2 Civil Writ Petition No.3418 of 1987 under Section 4 were published as per law and further that a very small construction was in existence when that notification was issued in the year 1986. Rest of the construction shown in the photographs Annexure P7 (colly.) was raised after getting a stay order passed from this Court. Counsel further stated that after taking conscious decision vide notification dated 30.12.2010, land measuring 3274 square yards was ordered to be released in favour of the petitioners. The said land fully cover buildings of the petitioners and some vacant land shall also remain available for their use. A portion of the land under construction could not be released because it falls within the green belt/ road alignment. It is further stated that land was acquired for the Scheme to develop the area and the exercise was not malafide, as alleged. Heard counsel for the parties. It is coming out form the records that when notification under Section 4 of the Act was issued, a very small construction was in existence in the land, in dispute. It is so mentioned in the objections filed under Section 5-A of the Act on 1.7.1986, wherein it is stated that petitioner No.1 Bhanwar Singh had constructed one kothi and had secured the land by raising a boundary wall. It is further stated that his two sons, who are also advocates, had also constructed their offices and also constructed part of their kothis. In this writ petition also, in paragraph No.5, it is mentioned that before start of acquisition proceedings, the petitioner had constructed a boundary wall around the land, detail of which was given in that paragraph and had constructed a residential house in khasra No.143//5 and a cattle shed in khasra No.124//5. There is no mention of any other construction in the above said paragraph. 3 Civil Writ Petition No.3418 of 1987 During the course of these proceedings, we asked the Financial Commissioner and Principal Secretary to Government of Haryana, Urban Estates Department, to file an affidavit, stating position of the construction existing at the time when notification under Section 4 of the Act was issued. Vide an affidavit, it was intimated as under:- “8. That now, the position of the constructed area in respect of petitioner No.1 and 2 is as follows:- Sr.No . Petitioner No. & Name Land Total area Khasra No. Construction as on Section 4 Construction of 10.11.2010 1. 1.Bhanwar Singh 14520 sq.yard 124//2 5 Under construction house (four room, barmada, latrine bathroom) one room 12x16 and one room 14x27 3 kothi 20 karam x 43 karam = 2904 sq.yards 1 room 6x5 karam = 100 sq. yard 1 room 6x5 karam = 100 sq.yard 1 room 6x5 karam = 100 sq.yard 1 room and latrine & bathroom 10x11 karam = 370 sq.yard 1 room 4x4 kaream = 54 sq.yard total constructed area 3628 sq.yard 2. 6. Raghubir Singh 4567.7 sq.yard 83//25 5 rooms and 1 kitchen 4 room 4x12 karam-161 sq.yard 3 rooms latrine bathroom 9x3 karam =91 sq.yard total constructed area = 252 sq.yard It was further stated that if the land owned by the petitioner No.1 is released, it will affect 18 plots of 2 kanal category, 4 plots of 1 kanal, besides 12 meters wide road. In the same fashion, it was stated that if 4 Civil Writ Petition No.3418 of 1987 released out of acquisition land owned by petitioner No.6 will affect 18 plots of 6 marla and also alignment of 12 meters and 9 meters wide internal roads. In the report made by the Land Acquisition Collector, it is mentioned that in the land in dispute owned by petitioner No.1, there exists one house and a boundary wall only. It was recommended that the land under construction be released from acquisition. Above said facts clearly demonstrates that when land was put to acquisition in the year 1986, very small construction was in existence and thereafter, after getting benefit of the pendency of this writ petition, a full-fledged houses and other construction was raised by the petitioners. Though in view of the ratio of the judgment of the Hon’ble Supreme Court in shanty Sports Club and another v. Union of India and others, AIR 2010 Supreme Court 433, such a litigant is not entitled to get any relief, yet, taking note of a fact that the petitioners were the land owners and are residing in the land under acquisition, on 8.9.2010, this Court passed the following order:- “We have seen the site plan. Land of the petitioners falls on one corner of the land proposed for acquisition. Making reference to the photographs put on record, counsel for the petitioners states that the petitioners have raised their residential houses in the property in dispute, however, it is not clear whether these houses were constructed after or before issuance of notification under Section 4 of the Land Acquisition Act. Be that as it may, counsel for the respondents is directed to effect measurement of the area under construction and report be submitted in that regard. It be also stated that 5 Civil Writ Petition No.3418 of 1987 whether any of the constructed house falls within the road alignment or not. The competent authority shall also opine as to how exemption of the constructed portion of the land will interfere in the overall planning of the scheme. Counsel for the petitioners in CWP No. 3419 of 1987 states that in the disputed land under acquisition, a residential colony exists, which has now been approved by the State Government. Sh. Sehgal seeks time to get instructions. On request, adjourned to 28.09.2010.” Secretary to Government of Haryana, Urban Estates Department, put on record an affidavit dated 14.11.2010, reference to which has been made in earlier part of this order. On the date fixed i.e. 15.11.2010, Special Secretary to Government of Haryana, Mr.T.C.Gupta made a statement that case of the petitioners for adjustment of their constructed portion, shall be considered sympathetically. Thereafter on 24.12.2010, following order was passed by this Court:- “In response to an order passed by this Court on 15.11.2010, copy of a communication addressed by the Director General, Urban Estate Department, Haryana, addressed to the Advocate General, Haryana, has been put on record, in which it is stated as under:- “ Accordingly the matter has been thoroughly examined after obtaining report from Administrator, HUDA, Hisar. It has been decided that:- 6 Civil Writ Petition No.3418 of 1987 1. Three constructed houses measuring 2904 sq. yards and one house measuring 370 sq. yards on the land involved in CWP No. 3418 (Capt. Bhanwar Singh & others versus State of Haryana & others) which do not affect road/services may be released. 2. Rest of the land/structures involved in CWP Nos. 3418, 3419 and 3457 of 1987 can not be released as it affects roads and services. 3. In case of CWP No. 14244 of 1993, constructed structures which are inhabited at the moment and which do not adversely affect the public utility services like roads, sewerage, water supply, green belt etc. will be released. 'In Principle' approval of the Hon'ble Chief Minister Haryana for the same has been obtained. Exact area of land to be released will be decided after detailed site report including videography and photographs. It is requested that the Hon'ble High Court may please be informed accordingly.” Perusal of the contents of the letter, mentioned above, do not indicate as to what will be the dimension of the area to be left out. State counsel is directed to file site plan showing exact length and width of the area and its location, to be left out from acquisition. On request, adjourned to 10.01.2011.” 7 Civil Writ Petition No.3418 of 1987 It is apparent from the contents of the order mentioned above that land measuring 3274 square yards was ordered to be released in favour of petitioner No.1 and it was further stated that rest of the land in dispute in this writ petition and CWP No.3457 of 1987 cannot be released, because it will affect the road alignment. As detail/measurement regarding length and breadth of the land released was not given, the State counsel was directed to file a site plan showing exact detail regarding the released land. On 15.2.2011, copy of the site plan was put on record in which dimensions of the exempted land are clearly mentioned. We are convinced that against a very small construction which was existing at the time when notification under Section 4 of the Act was issued in the year 1986, the respondents in a very sympathetic manner, have released more than 6 kanal of land which will save the construction raised by the petitioners (3 houses), most of which was raised during pendency of this writ petition. Some construction lying at the outskirts has been ordered to be acquired. We feel that decision taken is perfectly justified. Contention of counsel for the petitioners, that acquisition be quashed because the petitioners also intend to use the land for residential purpose, is liable to be rejected. The respondents are going to use the land in a planned manner as per the Scheme prepared. If entire land owned by the petitioners is released that is going to affect the sector dividing roads and also plots carved out by the respondents. To support their contention, reliance of the petitioners upon a Division Bench judgment of this Court in Eros City Developers Private Ltd. V. State of Haryana and others, 2008(2) RCR (Civil) 291, is of no help to them. That was a case in which, to the petitioners therein, before start of acquisition proceedings, change of land use certificate to develop a colony had already been granted and a huge 8 Civil Writ Petition No.3418 of 1987 amount was deposited towards external development charges. Position is not the same in this case. Photographs Annexure P7(colly.), put on record, will indicate that the petitioners have constructed house as per their own choice, without getting any change of land use certificate and also without getting any building plan sanctioned from the competent authority. Further contention of counsel for the petitioners that the publication of Section 4 notification was not proper is also liable to be rejected. Reply filed at the instance of Land Acquisition Collector clearly shows that the notification was published as per requirement of Section 4 of the Act. Opportunity of hearing to file objections and hearing was given to the land owners under Section 5-A of the Act and only thereafter declaration under Section 6 of the Act was issued. Land measuring about 3.07 acres was released from acquisition on account of existence of houses therein, we are satisfied with the stand taken and there is no ground to say that notification was not properly published. Further contention of counsel for the petitioners that a vast tract of land is lying vacant, on account of which acquisition of their land was not justified, is also liable to be rejected. In reply filed by the respondents in paragraph Nos.6 (vii), it is specifically mentioned that the land which was acquired in the year 1972-75, after taking its possession, was handed over to the Urban Estate Department for development. Otherwise also, if some portion of the land earlier acquired is lying vacant, it does not mean that for further development, the State cannot acquire land of a land owner. It is an admitted fact that the land involved in CWP No.3457 of 1987 was lying vacant when notification under Section 4 of the Act was issued. In reply filed, it is stated that if released, it will affect the road alignment and also Scheme to establish many other public utility services. 9 Civil Writ Petition No.3418 of 1987 In that writ petition, most of the petitioners have also withdrawn their writ petition. In view of facts mentioned above, these writ petitions are disposed of. Petitioner No.1 in CWP No.3418 of 1987 will get benefit of the order now passed in their favour on 30.12.2010, releasing 3274 square yard of his land. So far as petitioner No.6 in this writ petition and petitioner Nos.13, 14, 29 to 32, 35 and 41 in CWP No.3457 of 1987 are concerned, in view of a fact that release of their land will affect road alignment and establishment of other public utility services, as such, no relief can be granted to them. (Jasbir Singh) Judge 8.04.2011 (Rakesh Kumar Garg) gk Judge 10