CWP No.14452 of 2010 etc. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 6 .12.2010 1.CWP No.14452 of 2010 Ram Bhagat and others ...Petitioners VERSUS State of Haryana and others …Respondents 2.CWP No.14451 of 2010 M/s Uddar Gagan Property Pvt. Ltd. and others ...Petitioners VERSUS State of Haryana and others …Respondents 3.CWP No.14453 of 2010 Ram Mehar and others ...Petitioners VERSUS State of Haryana and others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr. Suman Jain, Advocate for the petitioners Mr.RD Sharma, DAG, Haryana Permod Kohli, J. Based upon common factual background and questions of law, these CWP No.14452 of 2010 etc. 2 petitions were heard and are being disposed of by this common judgment. Facts leading to the filing of these petitions are being usefully noticed here- in-after. Petitioners No.1 to 48 in CWP No.14452 of 2010 (hereinafter referred to as “the owners) were the owners of land measuring 83.83 acres situated in revenue estate of village Pehrawar, Garhi Bohar and Khedi Sadh in Sector 27, District Rohtak. Jamabandis for the year 1998-99 and 2000-2001 pertaining to the aforesaid villages do reflect their ownership at the relevant time. Petitioners No.2 to 73 in CWP No.14451 of 2010 (hereinafter referred to as “the owners) were the owners of land measuring 84.04 acres situated in revenue Estate of village Garhi Bohar and Khedi Sadh in Sector 27, District Rohtak. Similarly, Petitioners No.1 to 205 in CWP No.14453 of 2010 (hereinafter referred to as “the owners) were the owners of land measuring 11304 acres situated in revenue Estate of village Garhi Bohar and Khedi Sadh in Sector 27, District Rohtak. State of Haryana issued Notification No.LAC(F)-2002/NTLA/92 dated 11.4.2002 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the “1894 Act”) proposing to acquire the lands described here-in-above alongwith other tracts of land in the aforementioned villages for alleged public purpose, namely, development of residential/commercial Sectors 27-28, District Rohtak. This acquisition was notified, in view of provisions of Section 14 of the Haryana Urban Development Authority Act, 1977 (hereinafter referred to as “the 1977 Act”). It is alleged that due to inadequate publicity to the acquisition, the notification having been published in newspaper having no CWP No.14452 of 2010 etc. 3 wide circulation, all the owners of the land could not know about the proposed acquisition. Some of the land owners, including some of the petitioners, however, objected to the acquisition by filing their objections under Section 5-A of the 1894 Act, when they came to know about the proposed acquisition. It is, however, common case of the petitioners that their objections under Section 5-A were not disposed of nor they were granted any further opportunity of being heard. It is alleged that without complying with the mandatory provisions of Section 5-A, the Collector proceeded with the acquisition. Declaration under Section 6 of the Act was issued on 8.4.2003. The land owners/petitioners, in the meanwhile, entered into collaboration agreement with M/s Uddar Gagan Properties Private Limited arrayed as petitioner no.49 in CWP No.14452/2010, petitioner no.1 in CWP No.14451 of 2010 and petitioner no.206 in CWP No.14453 of 2010 (hereinafter referred to as the “Company”) incorporated under the Companies Act, 1956 for development of the area for group housing and commercial purposes on 2.3.2005. Under the collaboration agreement, the owners were to contribute their land and the Company to provide financial and technical help for the development of the land. The Company was also authorised to obtain necessary licence for establishment of the Housing Colony and commercial area from the competent authority. Some of the land owners were issued notices under Section 9 of the 1894 Act asking them to submit their claims. It is alleged that these notices were not served upon all the owners. Such of the owners who were served with notice under Section 9 filed their objections against the acquisition of the land and also CWP No.14452 of 2010 etc. 4 communicated that they have already entered into collaboration agreement with the Company for development of Group Housing/Residential Colony. Government of Haryana framed a policy with regard to grant of licence under the provisions of Haryana Development and Regulation of Urban Areas Act, 1975 and Haryana Development and Regulation of Urban Areas Rules, 1976 (hereinafter referred to as “the 1975 Act” and “1976 Rules”, respectively). The original policy decision was taken on 21.11.1999 to allow Starred Hotel in the residential zones of development plans of controlled areas which was followed by another decision dated 6.1.2000 notified vide policy decision dated 6.3.2000. It was decided to approve the proposal to release the land purchased by the Coloniser before issue of notification under Section 4 of the 1894 Act for which application for commercial licence was made. Thereafter if the Director Town and Country Planning, Haryana finds that the case is fit for grant of commercial licence, he will obtain the concurrence of the government for grant of licence. This decision was formulated for the integrated development of urban areas and generation of resources for the State in the shape of conversion charges, scrutiny fee and external development charges. Petitioners herein applied for licence on 21.3.2005 under the 1975 Act in the prescribed form LC-1 for grant of licence to develop group housing/residential/commercial colony over the tracts of land of the petitioners/owners for which collaboration agreements were executed with the Company. The petitioners in CWP No.14452 of 2010 deposited an amount of Rs.36,87000/- vide demand draft dated 21.3.2005 as licence fee, CWP No.14452 of 2010 etc. 5 Rs.33,93,440/- as scrutiny fee in respect of 83.83 acres of land. Similarly, petitioners in CWP No.14451 of 2010 applied for licence on 21.3.2005 in respect of 84.04 acres of land for which licence fee of Rs.42,0,2000/-, scrutiny fee amounting to Rs.34,0,1940/- were paid vide demand draft dated 20.3.2005. Similar application was made by petitioners in CWP No.14453 of 2010 for grant of licence on 19.4.2006 in respect of land measuring 113.04 acres. A licence fee of Rs.5.00 lacs vide demand draft dated 17.4.2006, an additional amount of Rs.3,3,90,0000/- and Rs.41.00 lacs vide demand drafts both dated 26.4.2006 were deposited with the respondents. Petitioners' contention is that despite deposit of the licence fee and scrutiny fee, respondents did not decide the applications for grant of licence and proceeded to pass the award dated 6.4.2005. It is further case of the petitioners that even when the award was passed, none of the land owners (petitioners) received the compensation nor possession of the land was taken over by the Collector or any other authority pursuant to the acquisition. Petitioners have placed on record copies of Khasra girdawaris for Kharif 2007 to establish their possession over the land. The Company (petitioner no.49 in CWP No.14452 of 2010) received a communication dated 12.5.2005 from the District Town Planner indicating certain deficiencies and asked for further information in respect of the lands in question. The Company vide its letter dated 21.6.2005 not only forwarded the requisite documents but also made clarifications to remove the deficiencies pointed out by the respondents. The applications of the petitioners having not been decided, the petitioners filed CWP No.1894 of CWP No.14452 of 2010 etc. 6 2006 (Swaraj Singh vs. State of Haryana and others) challenging the notification under Sections 4 and 6 of the Act with the further prayer to grant licence for setting up of group housing residential/commercial colony in respect of the tracts of land indicated here-in-above. While issuing notice of motion and asking the respondents to ascertain the status of the case, status quo qua the possession was ordered to be maintained vide order dated 7.2.2006. Respondent no.2 issued memo dated 19.6.2006 to the petitioners informing that the request of the petitioners for grant of licence has been examined/considered and it is proposed to grant licence. The petitioners were required to complete certain formalities and were also asked to furnish 25% bank guarantee on the estimated costs of internal and external development works etc. Charges for internal and external development works were also specified in the aforesaid communication. It was, however, mentioned to grant licence in respect of land measuring 51.89 acres out of 83.88 acres in CWP No.14452 of 2010. A similar letter was issued to petitioners in CWP No.14451 of 2010 proposing to grant licence in respect of 60.43 acres out of 84.04 acres whereas no decision was taken in respect of land of the petitioners in CWP No.14453 of 2010. Apart from above, one of the conditions was that the petitioners to whom it is proposed to grant licence will withdraw the writ petition. Petitioners accordingly withdrew CWP No.1894 of 2006 on 18.7.2006 reserving liberty to challenge the acquisition regarding portion of the land for which letter of intent has not been issued. Since the respondents did not grant licence in respect of the remaining land, petitioners filed another CWP CWP No.14452 of 2010 etc. 7 No.11408 of 2006,( Ram Bhagat and others vs. State of Haryana and others) seeking direction for grant of licence for the remaining land. This writ petition was, however, withdrawn with liberty to approach the respondents pursuant to the letter of intent issued in the meantime. Petitioners in CWP No.14452 of 2010 have been granted licence Nos.1081 to 1104 dated 1.9.2006 in respect of land measuring 51.89 acres. Similarly, licence has been issued in respect of land measuring 60.43 acres in favour of writ petitioners in CWP No.14451 of 2010. But no licence has been granted in favour of writ petitioners in CWP No.14453 of 2010. Petitioners accordingly made a representation dated 2.3.2007 to respondent no.2. This representation remained pending with the respondents. In the meanwhile, the State reviewed its earlier policy in respect of acquisition and grant of licence for group housing/residential and commercial development of urban areas and a new comprehensive policy was notified in the year 2007 vide memo dated 30.9.2007.. Relevant extract of this policy is reproduced here under:- “4.That the following policy frame work for release of land from acquisition proceedings has been approved and this includes the parameters conveyed vide memo no.5/30-2007/2TCP dated 30.9.2007. 1) No request will be considered after one year of award. Only those requests will be considered by the government where objections under Section 5-A were filed; CWP No.14452 of 2010 etc. 8 2) Any request or application where structures have been constructed will only be considered for the release under Section 48(1) provided the structure exists prior to Section 4 and is inhabited; 3) Any factory or commercial establishment which existed prior to Section 4 will be considered for release; 4) Any religious institution or any building owned by community will also be considered for release; 5) Any land in respect of which an application under Section 3 of the Haryana Development Regulation of Urban Areas Act, 1975, has been made by the owners prior to the award for converting the land into a colony, may also be considered for release subject to the condition that the ownership of the land should be prior to the notification under Section 4 of the Act; 6) The Government may also consider release of land in the interest of integrated and planned development for the lands where the owners have approached the Hon'ble Courts and have obtained stay dispossession. Provided that the Government may release any land on the grounds other than above under Section 48(1) of the Act under exceptionally justifiable circumstances for the reasons to be recorded in writing.” CWP No.14452 of 2010 etc. 9 Receiving no response in respect of their representation dated 3.2.2007, the petitioners made another representation dated 12.4.2007 to the Chief Minister of the State for grant of licence in respect of the remaining land. This representation too was not responded. Petitioners thus filed three writ petitions (CWP Nos.4767 of 2008, 4808 of 2008 and 4809 of 2008) in respect of the lands detailed here-in-above. All the writ petitions were disposed of by this Court by a common order with a direction to respondents to consider the petitioners' applications for grant of licence for the remaining land and dispose it of in accordance with law and as per government policy within a period of three months from the date of receipt of certified copy of the order. It was further directed that till the above stated application is decided, status quo with regard to the possession be maintained by the parties which would mean that the petitioners shall also not raise any construction or change the nature of the land in any manner. As a consequence of the aforesaid directions, respondent no.2 vide memo dated 30.6.2008 asked the petitioners to appear in person for personal hearing. Representative of petitioners accordingly appeared before respondent no.2 on 4.7.2008 and placed their case before him. Despite personal appearance, no order has been issued by the respondents for grant of licence for the remaining land within the stipulated period. These petitions have accordingly been filed seeking directions for grant of licence in respect of lands specified in each of the petitions i.e. 31.94 acres situated in village Pehrawar, Garhi Bohar and Khedi Sadh in Sector 27, District Rohtak, 23.61 acres situated in village Garhi Bohar and Khedi Sadh in CWP No.14452 of 2010 etc. 10 Sector 27, District Rohtak and 113.04 acres measured by respondents as 93.631 acres situated in village Garhi Bohar in Sector 27, District Rohtak. Two sets of replies have been filed by respondents no. 1 and 2. While admitting the entire factual averments made in the writ petitions regarding the ownership of the acquired land by the petitioners, their applications for grant of licence and release of the part of the land and grant of licence to the petitioners in CWP No.14452 of 2010 and 14451 of 2010, it is stated that possession of the land where the Rabi crop was standing could not be taken over by the Estate Officer, HUDA, Rohtak/Land Acquisition Collector, Hissar as the land owners were granted time upto 30.4.2005 at their request. Subsequently, the matter was referred to the Deputy Commissioner, Rohtak who vide his report dated 17.3.2006 confirmed the possession of the land owners upto October, 2005. Thereafter on account of status quo issued by the High Court in CWP Nos.1893 and 1894 of 2006, possession of tracts of land for which licence was granted could not be taken over from the petitioners. It is further stated that in respect of remaining land, it was presumed that the same was not considered fit having been vested in the government on 6.4.2005 of which possession was taken and handed over to the Estate Officer, HUDA, Rohtak. In respect of the directions of the High Court issued in CWP No.4767 of 2008 to decide the application for grant of licence for remaining land within three months, it is stated that after affording hearing to the petitioners and their counsel, the file was forwarded to the government for CWP No.14452 of 2010 etc. 11 obtaining its concurrence. Section 3 of the 1975 Act deals with the making of an application for licence by the owners of land, payment of licence fee, conversion charges to develop a colony. Director i.e. respondent no.2 has been empowered to consider application by taking into consideration the parameters prescribed under sub-section (2) of Section 3 which, inter-alia, relates to the title of the land, extent and situation of the land, capacity to develop colony, the lay out of the colony etc. Rule 3 of 1976 Rules prescribes the manner of making application and documents to be annexed thereto. Rules 4 and 5 require certain conditions to be fulfilled for development of the colony whereas Rule 8 deals with the powers of the Director to hold an enquiry and Rule 9 deals with the rejection of the application. In consonance with Section 3 of the 1975 Act, the State Government formulated its first policy for grant of licence vide memo dated 28.8.1991. It was decided to acquire land not only by HUDA and Private Sector for development, but even individuals were permitted to acquire land, for development and to apply/get a licence. It was further decided in cases where applicants have applied for licence or have acquired land, but could not apply for licence before the issue of acquisition notification, release of land could be considered on individual merits of each case. This policy was reiterated vide subsequent policy dated 6.3.2000 where under it was further decided that where the land is purchased by the Colonizer before issuance of notification under Section 4 of the Land Acquisition Act and the Director Town and Country Planning, Haryana decides to issue licence, CWP No.14452 of 2010 etc. 12 release of such land from acquisition may be allowed for development. This policy was further modified on 30.9.2007 where under the release was even allowed after acquisition and passing of the award under the Land Acquisition Act where the owners continue to be in possession or have obtained stay orders with regard to their possession. Respondents in their reply have not exhaustively dealt with the question relating to the possession of the petitioners over the tract of lands, subject matter of these writ petitions, though petitioners have specifically pleaded that they continue to be in possession of the land even after the passing of the award till the date of filing of these petitions. Such averments have been made in paragraphs 9 and 10 of the writ petitions. In addition to the averments, in the pleadings, they have also placed on record Khasra girdawari for the period 2007 i.e. even two years after the passing of the award to substantiate the factum of their possession. These averments have not been denied in reply to these paragraphs. With a view to avoid the answer to the specific averments, it is pleaded that HUDA and Land Acquisition Officer, Rohtak have not been impleaded as party respondents as they alone can comment on the claim of the petitioners regarding the physical possession. In preliminary objections, respondents have referred to Rapat Roznamcha which also establishes that possession was allowed to remain with the owners, in view of Rabi crops standing in the year 2005. The possession of the petitioners over the land cannot be disputed as there is no material on record to establish that at any time before or after the passing of award, the possession was taken over from them by the Land Acquisition Collector or CWP No.14452 of 2010 etc. 13 any other competent authority. To the contrary, while disposing of CWP Nos.4767 of 2008 and 4808 of 2008 and 4809 of 2008 vide order dated 20.3.2008, status quo with regard to the possession of the petitioners was maintained, though the petitioners were also restrained from raising construction and changing the nature of the land. This further strengthens the petitioners' claim of possession, same having been protected by this Court. When the matter was heard and reserved, State was asked to produce the record relating to the payment of licence fee, scrutiny fee as also consideration of the applications of the petitioners for grant of licence and regarding the possession. The respondents have produced the record. I have carefully examined the record. In all the awards passed in respect of land in question, there is stipulation of existence of crops over the land and on oral request of the land owners, they were allowed to reap the crops by 30.4.2005. On the day of passing of the awards i.e. 6.4.2005, a document was prepared saying that the “possession handed over”. This document is neither signed by the land owners nor the persons to whom the possession is said to be delivered. It is also relevant to note that the total land acquired by these three awards is 280.14 acres and the above stipulation relates to the entire land without any exception. The total acquired land of the petitioners is 280.95375 acres. I have also perused the notings in Files produced by the State. It has been categorically recorded that the physical possession of the land has not been taken and continues to be with the land owners, though paper possession was taken over on the CWP No.14452 of 2010 etc. 14 date of passing of the awards. It has further been recorded that the land owners have not received any compensation for the acquired land. On this basis, the recommendation was made to the Government by the DTP (BP) on 24.4.2006 for consideration of grant of licence on the conditions stipulated therein. It has also come on record that the applications for grant of licence are in order and the entire land for which the licence has been applied for is lying vacant at site. As regards the land measuring 84.50 acres relating to CWP No.14452 of 2010 is concerned, it has been recorded that this land falls in Sectors 26, 27 and 28. No acquisition proceedings were initiated in respect of land falling under Sector 26 and the proposal for acquisition of land under Sector 28 was not published. It is further noted that only 73.01 acres of land falls in Sector 27. Thus there is absolutely no reason to refuse licence in respect to land falling in Sectors 26 and 28. The petitioners have made specific reference to the policies of the State Government framed from time to time regarding release of land right from the year 1991 to 30.9.07. These policies are in operation as on date. All these policies, inter alia, provide for release of the land not only after issuance of notification under Sections 4 and 6 of the Land Acquisition Act, but even after the passing of the final award provided the application under Section 3 of the 1975 Act has been made prior to the passing of award for converting the land into colony and the applicant was the owner of the land prior to the notification under Section 4 of the Act. Another category is where the possession continues to be with the owners and CWP No.14452 of 2010 etc. 15 there is stay against dispossession by Courts. Claims of the petitioners are squarely covered by the government policies referred to here-in-above. Section 48 of the Land Acquisition Act provides for release of the land from acquisition of which possession has not been taken. This Section reads as under:- “48.Completion of acquisition not compulsory, but compensation to be awarded when not completed- (1) Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2)Whenever the Government withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceedings thereunder, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3)The provisions of Part III of this Act shall apply, so far as may be, to the determination of the compensation payable under this Section.” It is common case of the parties that the notification under Section 4 CWP No.14452 of 2010 etc. 16 was issued on 11.4.2002 and declaration under Section 6 was made on 8.4.2003 whereas the applications for licence were made on March 21, 2005, except land in CWP No.14453 of 2010 where the application was made on 27.4.2006 under the provisions of 1975 Act. Final award came to be passed on 6.4.2005. From the record, it appears that the actual physical possession of the land remained with the owners all along. This Court while disposing of CWP Nos.4767 of 2008, 4808 of 2008 and 4809 of 2008 protected the possession of the petitioners. The claim of the respondents regarding taking over the possession has not been established. To the contrary, the possession of the petitioners has not