IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.8973 of 1990 (O&M) Date of decision:20.04.2011 Gurcharan Singh ....Petitioner versus The State of Punjab and another ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr.P.C.Rakra, Advocate, for the petitioner. Ms. Reeta Kohli, Additional Advocate General, Punjab, for respondent No.1. None for respondent No.2. --- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? ---- K.Kannan, J. 1. The writ petition contains a challenge to a notice issued by the second respondent under Sections 16 and 47 of the Land Acquisition Act by delivery of possession of property to an extent of 1 kanal and 17 marlas in khasra No.30811/3408. The contention of the petitioner is that over the property, which was notified under the Town Improvement Act of 1922, constructions have already been made and representations had been given by such persons that the properties which had been actually utilized for putting up constructions ought not to be acquired and that their lands should be exempted from the scheme. The Improvement Trust Civil Writ Petition No.8973 of 1990 (O&M) - 2 - itself had passed resolutions recommending exemption from the scheme. The petitioner would make particular reference to the memo issued by the Chairman, Jalandhar Improvement Trust on 28.02.1977 that built up houses in Satnam Nagar and Guru Nanak Pura, falling within the development scheme of 110 acres, would be exempted under Section 56 of the Punjab Town Improvement Act of 1922 on payment of development charges. The petitioner would also refer to the minutes of a special meeting of the Jalandhar Improvement Trust held on 1st March, 1977, considering favourably a proposal for exempting lands which had been used by putting up constructions. The Administration Jalandhar Improvement Trust had adverted to the representations of several landowners and issued a letter on 22.05.1981, making a recommendation for re-determining the price of land at the maximum/average price fetched in the auction in the vicinity and recover the same from the persons whose lands were to be exempted. It appears that this letter issued did not evoke any response, but the Land Acquisition Collector, however, issued notice under Sections 16 and 47 for delivery of possession of properties which is the subject of challenge before this Court. 2. The petitioner points out about several other lands which were also part of the scheme and owners of such lands who were not disturbed from possession. In response to the names contained in paragraph 12 of the writ petition, the Government had merely stated that action was being taken in accordance with law and that in any event, the petitioner cannot plead for or against the owners of other lands of which Civil Writ Petition No.8973 of 1990 (O&M) - 3 - he himself had not interest. This contention, in my view is not tenable. Though there is no vested right for landowner to insist that his property shall be released from acquisition, he has a right to point out to any discrimination being practiced in the manner of release. In a case arising under the Land Acquisition Act, in relation to proceedings under section 48, the Supreme Court held in Hari Ram Versus State of Haryana, (2010) 3 SCC 621, at page 636 : “40. It is true that any action or order 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 acquisition in respect of a particular land, the landowners who are similarly situated have a right of similar treatment by the State Government. Equality of citizens’ rights is one of the fundamental pillars on which the edifice of the rule of law rests. All actions of the State have to be fair and for legitimate reasons. 41. 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 Civil Writ Petition No.8973 of 1990 (O&M) - 4 - 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 the same acquisition proceedings and for the same public purpose is definitely violative of Article 14 of the Constitution and must be held to be discriminatory.” 3. Even so, there is one important aspect brought through the reply of the government that cannot be ignored. That is, the fact that after the property was acquired from the petitioner’s father as an oustee, he had been favoured with two plots in the scheme in plot Nos.67 and 42 measuring 12 marlas each in the development scheme of 110 acres, but it was withdrawn and in lieu thereof, the father of the petitioner had been allotted plot No.672 and that plot was actually in the possession of the petitioner's father and after his death, the petitioner and other heirs had transferred it in favour of Ranbir Kaur wife of S. Uttam Singh. The contention, therefore, was that the petitioner had taken the benefit of acquisition of the property over which he was said to have constructed a building now through allotment of yet another plot and he had also transferred the same. After taking such a benefit, the petitioner was not entitled to urge that he would also retain the property which had been acquired. 4. It is also brought out in the reply that that entire property falling within 110 acres had been the subject of notification under Civil Writ Petition No.8973 of 1990 (O&M) - 5 - Section 36 of the Punjab Town Improvement Act of 1922 and a final notification had also been made under Section 42 on 6th August/10th September, 1975 and an award was passed by the Collector on 6th July, 1977. After the award was passed, it is impermissible for the petitioner to challenge the acquisition or seek for quashing of proceedings issued under Section 16 and 47 of the Land Acquisition Act. The Supreme Court observed held in Swaika Properties (P) Ltd. Versus State of Rajasthan,(2008) 4 SCC 695, at page 699 : “16. This Court has repeatedly held that a writ petition challenging the notification for acquisition of land, if filed after the possession having been taken, is not maintainable.” The Court quoted itself in an earlier judgment thus: In Municipal Council, Ahmednagar Versus Shah Hyder Beig (2000) 2 SCC 48 wherein this Court, following the decision of this Court in C. Padma Versus Dy. Secy. to the Govt. of T.N. (1997) 2 SCC 627 held: (Shah Hyder case, SCC p.55, para 17) “17. In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases (C. Padma Versus Dy. Secy. to the Govt. of T.N.)….” 5. After the filing of the petition, the petitioner had had the benefit of stay of dispossession from the property. It must be noticed that a notice issued under Sections 16 and 47 of the Land Acquisition Civil Writ Petition No.8973 of 1990 (O&M) - 6 - Act is really in the nature of giving effect to the acquisition which had already taken place. Without a challenge to the acquisition or without obtaining an order of exemption or release from the Government in the manner contemplated by law, notices under Section 16 and 47 themselves cannot be quashed in the manner sought for by the petitioner. Further it is brought out from the counter that the land and the building had been assessed and a compensation had been fixed at Rs.32,936/- through the award dated 06.04.1977 and the right of the petitioner was only to take the compensation amount which had been already determined and he cannot have the benefit of stay. I also find that the notices of taking possession cannot themselves be challenged without challenge to the award that had been already passed pursuant to the notification issued already. 6. If the petitioner's prayer were to be construed as a challenge to an alleged discriminatory action of delivery of possession, then the action must be complained of not merely at the stage when delivery is taken but even as regards the acquisition itself. The petitioner himself is not bona fide in his attempt to stall the further proceedings in delivery when the petitioner's father was a beneficiary of an alternative allotment of a plot which was also purported to have been sold by the petitioner to one Ranbir Kaur wife of S. Uttam Singh. The petitioner has not controverted this particular averment relating to the benefit of an alternative allotment and the sale of the property as contained in the written statement filed by the government. A right of demand for issuing a notification for release of the property from acquisition does not obtain Civil Writ Petition No.8973 of 1990 (O&M) - 7 - as a matter of course. The petitioner cannot have the benefit of retaining the plot which was offered to his father as a quid pro quo for acquisition of his land without ceding the property to the Government which was acquired. If the petitioner wanted to retain possession of the property, which had been acquired, it could have been best only in terms of the recommendation made by the Collector to the Government seeking for determination of the auction price for the land. 7. Since the year of institution of writ petition was 1990 and the interim order had been passed by a Bench of this Court allowing the petitioner to retain possession of the property, the best course, in my view, would be to avail to the petitioner the benefit of retention of possession by the petitioner on condition that he pays the value of the property now determined. The said value shall be in terms of the market value in and around the vicinity. The Government shall have due regard to the average value of the property for three years prior to the date when the price is determined, afford an opportunity to the petitioner to bring evidence relating to the value and give him an option to pay the price for retention of the property. This determination shall be on a notice given to the petitioner by the respondents for participating in the enquiry for fixing the price and affording to him an opportunity to make the payment within a reasonable time not exceeding 12 weeks. If the petitioner is not prepared to pay the price, the notice already issued could be renewed and the petitioner could be dispossessed in the manner provided under Section 16 and 47 of the Land Acquisition Act. If the petitioner is dispossessed in any eventuality for non-payment of the price, the Civil Writ Petition No.8973 of 1990 (O&M) - 8 - petitioner will be entitled to take back the amount which was determined as the compensation with whatever interest that has yielded over a period of time when the award was passed on 06.04.1977. The impugned notice issued by the government shall stand stayed till the price is determined in the manner indicated above and will be put in operation only on the contingency already indicated. 8. The writ petition is disposed of on the above terms. (K.KANNAN) JUDGE 20.04.2011 sanjeev