IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 18064 of 2004 DATE OF DECISION: November 25, 2008 Atlas Cycles (Haryana) Ltd. …Petitioner Versus State of Haryana and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JORA SINGH Present: Mr. Avnish Mittal, Advocate, for the petitioner. Mr. Ashish Kapoor, Addl. AG, Haryana, for respondent Nos. 1, 4 and 5. Mr. Mahavir Sandhu, Advocate, for respondent Nos. 2 and 3. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This petition filed under Article 226 of the Constitution prays for quashing notification dated 29.11.2001 (P-13) issued under Section 4 and declaration dated 28.11.2002 (P-18) issued under Section 6 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’). 2. The case of the petitioner is as follows: C.W.P. No. 18064 of 2004 The petitioner Atlas Cycles (Haryana) Limited is an export oriented unit and engaged in manufacturing of export quality bicycles and their parts for the last about 30 years. It is claimed that the factory/unit of the petitioner has been established over the land comprised in Khasra Nos. 36/12/2(1-3), 13(7-11), 14(7-11), 15(7-4), 27(0-8), 16(7-12), 17min (4-2), 17min(2-12), 24(7-9), 17min (1-0), 18(6-14), 23(3-1) and 38/4(0-7), total area 56 kanals 12 marlas, situated at Village Rasoi, District Sonepat, as per jamabandi for the year 1993-94 (P-1). The land in question was purchased by the petitioner in the year 1974 and after obtaining approval from the Government, factory was constructed. On 11.7.1974, the then Director, Urban Estate, Haryana, issued a ‘No Objection Certificate’ in favour of the petitioner clearly mentioning in para 2 that the land in question was not declared as controlled area under the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (for brevity, ‘the 1963 Act’) till that date nor any proceedings under the Act could be initiated in respect of the said land. It was further mentioned that there was no need of any permission to be obtained from the department but construction was to be raised within the limits of 30 meter road reservation with the G.T. Road (P-2). On 9.4.1975, the Chief Inspector of Factories, Haryana also approved the building plans of the factory of the petitioner (P-3). The petitioner after obtaining requisite approval set up its industry by investing crores of rupees, which started functioning w.e.f. 11.8.1975, as is evident from photograph Annexure P-5. 2 C.W.P. No. 18064 of 2004 3. On 27.5.1983, the petitioner again applied for grant of permission for construction of additional water tank and extension to the Generator Room in the existing factory in accordance with the plans, which was granted on 19.8.1983 by the Director, Town and Country Planning, Haryana (P-4). 4. On 29.11.2001, a notification under Section 4 of the Act was issued for acquiring the land for the public purpose, namely, for development and utilisation of land as residential and commercial Sector 58, Sonepat under the Haryana Urban Development Authority (P-13). Since the land belonging to the petitioner company was also included in the aforementioned notification, it filed objections under Section 5A of the Act and prayed for release of their land on the ground that the factory of the petitioner was running successfully for the last 30 years. It was also claimed that huge investment has been made by installing plant and machinery and the factory was generating avenues of employment in the area. The petitioner also agitated that the land has been sought to be acquired for residential and commercial purposes, whereas in the area there is already development and a number of industries are already functioning. Various other grounds have also been raised which includes that more than 250 families are directly and about 1000 families are indirectly dependent upon the petitioner’s industry and petitioner’s unit is an export oriented upon and earns crores of rupees in the shape of foreign currency etc. were also raised (P-14). The petitioner has also placed on record statement of accounts pertaining to the years 2002- 03, 2003-04 as well as Certificate of the Chartered Accountant 3 C.W.P. No. 18064 of 2004 showing the income of the petitioner pertaining to the year 2003-04 (P-15 to P-17). 5. It has been alleged that without intimating the decision taken on the objections, declaration under Section 6 of the Act was made on 28.11.2002 (P-18). On 20.10.2004, the Land Acquisition Collector-respondent No. 5 issued notice under Section 9 of the Act (P-19). 6. The petitioner has also raised the issue of discrimination by asserting that a number of adjacent industries have been left out of acquisition. In that regard reliance has been placed in the cases of M/s Musvi International Limited and Naseeb & Sons Auto Pvt. Ltd. Reliance has also been placed on the judgment of Hon’ble the Supreme Court rendered in the case of Sube Singh and others v. State of Haryana and others (2001) 7 SCC 545 (P-20). The petitioner has also placed on record a site plan of Sonepat as well as another site plan showing location of its industry and the land of those industries which have been left out from acquisition (P-21 & P- 22). 7. The case of respondent Nos. 1 and 5 is as follows: In the written statement, dated 9.1.2006, respondent Nos. 1 and 5 have taken the stand that land in question has been acquired by complying with all the mandatory provisions of the Act. It has been asserted that there is no legal infirmity in acquiring the land in question because notification under Section 4 of the Act was issued on 29.11.2001, which was duly published in two daily newspapers, one in English, namely, ‘The National Herald’, dated 7.12.2001, and 4 C.W.P. No. 18064 of 2004 the second in Hindi, namely, ‘The Dainik Bhaskar’, dated 4.12.2001. The substance of the notification under Section 4 of the Act was announced loudly by beat of empty drums on the spot and in the locality and the same was also pasted at various places. Due opportunity of hearing was given to the petitioner and statement of the representative of the petitioner was also recorded. The Land Acquisition Collector-respondent No. 5 prepared his report and sent the same to the Government for taking final decision. Thereafter, declaration under Section 6 of the Act was made on 28.11.2002, acquiring 111.12 acres of land, substance of which was also published in two daily newspapers as well as by other modes. It has also been asserted that the acquisition proceedings have already been completed after announcement of award dated 24.11.2004 by the Collector-respondent No. 5. However, possession of the land belonging to the petitioner could not be taken over because of interim order of stay passed by this Court. Respondent Nos. 1 and 5 also denied the allegation of discrimination by asserting that the land in the cases cited by the petitioner in para 8 of the petitioner, has been released at the level of Government because the same were situated in compact block area. In that regard, reliance has also been placed on the judgment of Hon’ble the Supreme Court in the case of Yadu Nandan Garg v. State of Rajasthan, 1997 (1) LAC 451. It has further been asserted that the State Government is empowered and has absolute right to acquire the land or constructed area for the public purpose and the land owners/interested persons are entitled to the compensation as awarded by the Land Acquisition Collector. The 5 C.W.P. No. 18064 of 2004 respondents have prayed for dismissal of the petition by placing reliance on the Division Bench judgment of this Court in the case of M/s Neeraj Textile v. State of Haryana (C.W.P. No. 6833 of 1995, decided on 20.12.1996). 8. In the written statement dated 8.8.2006, filed on behalf of respondent Nos. 2 and 3 similar averments have been made. However, it has been mentioned therein that land measuring 6.38 acres has been left out from acquisition after hearing objections under Section 5-A of the Act. It has been pointed out that the land belonging to the petitioner could not be released from acquisition because the same falls within the centre of the scheme and plans. 9. On 13.10.2006, the petitioner has filed separate but identical replications to the written statement filed by the respondents. While reiterating most of the averments already made in the writ petition, it has been pointed out that on an earlier occasion also the respondents sought to acquire the land and issued a notification dated 11.12.1998 under Section 4 of the Act. In response to the said notification, the petitioner filed objections under Section 5-A of the Act. Subsequently, notification dated 11.12.1998 was withdrawn after consideration of the objections. According to the petitioner, second notification for the same purpose is not maintainable. It has been alleged that the objections filed by the petitioner in response to the second notification under Section 4, dated 29.11.2001, have not been dealt with objectively. In that regard, the petitioner has placed reliance on order dated 23.9.2004, passed by a Division Bench of this Court in CWP No. 8515 of 2003 6 C.W.P. No. 18064 of 2004 as well as judgment of Hon’ble the Supreme Court in the cases of Shri Mandir Sita Ramji v. Lt. Governor of Delhi and others, (1975) 4 SCC 298 and Hindustan Petroleum Corporation Ltd. v. Darius Shanpur Chenai and others, (2005) 7 SCC 627. 10. It is pertinent to mention here that on 23.11.2004, while issuing notice of motion, the Division Bench also stayed dispossession of the petitioner and the interim order is continuing till then. On 22.5.2007, when the matter came up for consideration, the Division Bench directed the petitioner to place on record the material to show that on the date of notification, its unit was in working conditions. The respondents were also directed to place on record the material contrary to the stand of the petitioner. 11. The petitioner by filing C.M. No. 14658, dated 16.8.2007, placed on record various documents viz. electricity bills, sales-tax/excise receipts, pollution certificate, licence, ESI return, Sample Sales Bills and photographs (P-23 to P-29) to show that its unit was in working condition at the time of issuance of notification under Section 4 of the Act. 12. On 29.2.2008, during the course of arguments, the Division Bench noticed the fact that no specific reply was given in the written statements filed by respondent Nos. 1 & 5 or respondent Nos. 2 & 3 to the averments raised by the petitioner in para 3 of the petitioner that it had set up the factory after obtaining necessary approval from the Government and the area in question was not a controlled area at that time. It was also noticed that no material was 7 C.W.P. No. 18064 of 2004 placed on record by the respondents contrary to the stand taken by the petitioner. 13. In pursuance to the aforementioned observation, the Estate Officer-cum-Sub Divisional Magistrate, Sonepat, submitted his report dated 19.3.2008 to the effect that ‘at present in Atlas Auto Industry some assembling, packing and some processing is being done of Cycles and its parts and some part of factory stands dismantled also’. 14. Some more material in the shape of electricity bills, sales-tax/excise-tax receipts, telephone bills, ESI returns, sample sales bills and photographs (P-30 to P-35) has also been placed on record by the petitioner by filing C.M. No. 14820 of 2008 on 2.8.2008, to show that the report submitted by the Estate Officer-cum- Sub Divisional Magistrate, Sonepat, dated 19.3.2008, is factually incorrect in so far as permission for working of the factory is concerned. However, the material clearly causes confusion because apart from Atlas Auto Industries, a number of documents of sister firms have been attached which are not relevant. 15. On 24.9.2008, an additional affidavit by Shri Amarjit Singh Mann, HCS, Estate Officer, HUDA, Sonepat, was filed wherein it has been mentioned that only Atlas Auto Industries is existing at the site and some assembling, packing and processing is being done of auto cycles and its parts. The main industry of manufacturing Atlas Cycles is located in the Sonepat City at some other site away from the land under acquisition. In para 3 of the affidavit it has been stated that the bills appended by the petitioner alongwith the 8 C.W.P. No. 18064 of 2004 aforementioned civil miscellaneous application pertain to the sale and purchase of material by other firms involving the payment of petty amount in some cases. It has also been pointed out that the site of Atlas Auto Industries, G.T. Road, Rasoi (Sonepat) was inspected by the team of Labour Officer, Sonepat on 20.11.2006 and only 32 workmen were found on roll. On 19.3.2008, again unit was inspected and total 37 workers were found on roll (R1 & R2). It has been opined that Atlas Auto Industries, Rasoi is not in running position at the spot. It has been specifically mentioned in para 5 that there are various units of the petitioner in Sonipat and they have clubbed all the other units for showing the number of 200 employees working in these industries. But the area under acquisition fall only in one unit, namely, Atlas Auto Industries, G.T. Road, Rasoi, Sonepat, where only 32-37 workers were found to be on the roll as per the inspection reports. It has also been asserted that now the area under acquisition falls within the limit of National Capital Region (NCR). 16. We have heard learned counsel for the parties and have perused the paper book. It has come on record that acquisition proceedings were initiated by issuing notifications under Section 4 and 6 of the Act on 29.11.2001 and 28.11.202 respectively. The instant petition was filed on 15.10.2004 and refiled on 19.11.2004. Award was announced on 24.11.2004 and thereafter the land vested free from all encumbrances in the State. The possession in respect of the land in dispute could not be taken because of stay order passed by this Court. The objections of the petitioner have been heard and declaration was made on 28.11.2002. Even otherwise only 9 C.W.P. No. 18064 of 2004 assembling, packing and processing is being done of auto cycles and its parts and the main manufacturing industry of Atlas Cycle is located in Sonepat City far away from the present site. In any case wrong exemption of some constructed area does not itself entitled the petitioner to claim similar relief. The question has been considered by Hon’ble the Supreme Court in the case of Union of India v. International Trading Company, (2003 5 SCC 437. The observations in so far relevant to the controversy in hand reads as under:- “... It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short “the Constitution”) cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strengthen their case. They have to 10 C.W.P. No. 18064 of 2004 establish strength of their case on some other basis and not by claiming negative equality.” 17. We are further of the view that there is no legal bar to acquire even constructed area. However, there could be state policy regulating acquisition of structure. In para 13 of the judgment rendered in the case of M/s Anand Buttons Ltd. v. State of Haryana, AIR 2005 SC 565, the following observations have been made:- “13. It is trite law that not only land but also structure on land can be acquired under the Act. As to whether in a given set of circumstances certain land should be exempted from acquisition only for the reason that some construction had been carried out, is a matter of policy, and not of law. If after considering all the circumstances, the State Government has taken the view that exemption of the lands of the lands of the appellants would render askew the development scheme of the industrial estate, it is not possible for the High Court or this Court to interfere with the satisfaction of the concerned authorities. We see no ground on which the appellants could have maintained that their lands should be exempted from acquisition. Even if three of the parties had been wrongly exempted from acquisition, that gives no right to the appellants to seek similar relief.” 18. There is, thus, no legal right vested in the petitioner to have its land exempted from acquisition. Moreover, land belonging 11 C.W.P. No. 18064 of 2004 to other industries like Standard Polymers Ltd. have also been acquired as is evident from the order dated 30.10.2006, dismissing its CWP No. 3088 of 2005. Therefore, we find no ground warranting admission of this petition. The petition is, thus, liable to be dismissed. 19. As a sequel to the above discussion, this petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (JORA SINGH) November 25, 2008 JUDGE Pkapoor 12