C.W.P.No.12888 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.12888 of 2011 Date of Decision:- 27.07.2011 Surinder Kaur ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH *** Present:- Mr.Ashok Aggarwal, Sr. Advocate with Mr.Mukul Aggarwal, Advocate and Mr.Naveen Sharma (Bhardwaj), Advocate, for the petitioner. Mr.Kamal Sehgal, Addl.A.G., Haryana. *** AUGUSTINE GEORGE MASIH, J. This writ petition has been filed by the petitioner challenging notification dated 31.10.2008 (Annexure P-9) published under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') and declaration dated 8.7.2009 (Annexure P-10) issued under Section 6 of the Act as also the award dated 22.3.2010 whereby the land of the petitioner stands acquired by the State of Haryana. As per the pleadings, petitioner is stated to be the wife of Major General Amarjit Singh, who retired in the year 1986 from Army and is resident of Noida (U.P.). She along with her husband purchased land measuring 13 Kanals 16 marlas vide sale deed dated 5.5.2006 in village Asalwas Tehsil Bawal, District Rewari. She constructed a house over land measuring 10 marlas and installed a tubewell there. One Satish Kumar son C.W.P.No.12888 of 2011 -2- of Janak Pal was kept as a Care-taker of the house and was staying in the premises. Application under Rule 8 of the Haryana Development and Regulation of Urban Area Rules, 1976 (for short 1976 Rules) framed under Section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975 (for short 1975 Act) was submitted by the petitioner on 10.4.2008 requesting for change of land use (hereinafter referred to as CLU) for the purpose of developing the land as a Motel. The requisite charges were paid. This application of the petitioner for CLU dated 10.4.2008 was duly considered by the competent Authority and rejected vide order dated 2.1.2009 on the main ground that out of the total area of 1.72 acres, an area of 0.75 acres fell under 60 meter wide green belt proposed along National Highway 8 and the remaining area fell in Public Utility Zone of Sector 4-A of the Draft Development Plan, 2021-Bawal and, thus, the entire site was located in a non-conforming zone for the purpose of establishment of a Motel. Apart from this, it was observed that the site does not fulfil the area norms prescribed for grant of CLU permission for a Motel (without banquet facililty) and that no permission from National Highway Authority of India (for short NHAI) for deriving direct access to the site had been submitted. The petitioner had, as a matter of fact, earlier moved an application with the NHAI on 6.4.2008 for providing access to her property. After obtaining various reports and compliance as per the requirements of the NHAI, 'in principal approval' was granted vide letter dated 2.9.2009 for access to the property belonging to the petitioner. In January, 2009, State of Haryana issued an Ordinance for regularization of C.W.P.No.12888 of 2011 -3- the construction existing along the Scheduled Roads/Controlled Areas. Since the petitioner had construction over the land, she submitted an application dated 10/14.9.2009 for regularization of the same in the office of the District Town Planner, Rewari (Haryana). Some time before the submission of this application, the petitioner came to know that the land belonging to her had been notified for acquisition by the State of Haryana and a notification had been issued under Section 4 of the Act on 31.10.2008 (Annexure P-9) for acquiring 679 acres 7 kanals and 8 marlas of land for a public purpose, namely, for development of Industrial Growth Centre, Bawal, to be planned as an integrated complex for industrial, recreational and other public utilities in villages Karnawas, Deodhai Tehsil Rewari and village Asalwas, Baghthala, Patuhera, Banipur, Suthani, Rudh and Bawal, Tehsil Bawal District Rewari by the Haryana State Industrial and Infrastructure Development Corporation Limited (for short HSIIDC). Land of the petitioner was also included in this notification and declaration under Section 6 of the Act has been issued on 08.07.2009 (Annexure P-10). She could not file objections under Section 5-A of the Act as she was not aware of the acquisition proceedings prior thereto. Award in respect of the land of the petitioner was announced on 22.3.2010 without serving the mandatory notice under Section 9 of the Act. Despite there being acquisition of the land of the petitioner, the District Town Planner, Rewari vide memo. dated 15.7.2010 called upon the petitioner to deposit the requisite fee to regularize the unauthorized construction. As per the demand raised, the petitioner deposited an amount of ` 11,323/- as fee at the rate of ` 500/- per sq. meter. Vide C.W.P.No.12888 of 2011 -4- memo. No.3393 dated 15.7.2010 order regularizing the construction on the land was issued in favour of the petitioner. No objection with regard to the land having been acquired by the State was either raised or intimated to the petitioner. In the meanwhile, the petitioner approached the concerned Patwari to ascertain the true status of the land and the stage of acquisition and at this stage she came to know that no notice under Section 9 of the Act was served upon her either through her Caretaker, who was residing in the constructed area, nor was it sent to her at the residential address i.e. Noida. She probed the matter further and came to know that there was non- compliance of the mandatory provisions of Sections 4, 6 and 9 of the Act. As per Sections 4 and 6 of the Act, notices were required to be pasted or published at convenient places in the locality and no proclamation of any nature whatsoever was carried out in village Asalwas in which the land of the petitioner falls. The Rapat Roznamcha only mentions that the proclamation was carried out by Duli Chand, Chowkidar of village Banipur on 23.1.2009 in villages Asalwas, Patuhera and Banipur, which according to the petitioner, could not have been done by beat of drum in three villages on the same day. This proclamation is also nearly after three months of the publication of notification under Section 4 of the Act i.e. 31.10.2008. As regards declaration under Section 6, it has been pleaded that the proclamation was carried out on 7.9.2009 by Chowkidars of villages Asalwas, Patuhera and Banipur. The publication of the notification under Section 4 and declaration under Section 6 of the Act in the newspapers were also not in accordance with the Statute. Section 4 notification was published in C.W.P.No.12888 of 2011 -5- English newspaper “The Indian Express” Delhi and Lucknow Edition on 8.11.2008. There is disparity in the two editions as the Lucknow Edition does not contain the full notification and does not have much circulation in the area of Rewari (Bawal) much-less amongst the farmer community. In the Hindi newspaper, it was published in New India Herald, which has no circulation outside Faridabad and that too merely 61,000 copies. In support of this assertion, reliance has been placed on the 'Annual report of the Press In India' published by the Registrar of Newspapers for India, Ministry of Information and Broadcasting for the year 2007-2008. This was done intentionally to defeat the object of the Legislation and deprive the land owners of their right to file objections under Section 5-A of the Act. As a matter of fact, no objections under Section 5-A of the Act were filed by any land owner. Declaration under Section 6 was published in English newspaper “The Indian Express” Chandigarh Edition on July 16, 2009. It was published in Hindi Newspaper “Dainik Bhaskar” Hisar Edition on 15.7.2009. It is the contention of the petitioner that both these newspapers have no circulation in Uttar Pradesh where the petitioner resides and, therefore, the publication in the newspaper is not in accordance with the Statute. Accordingly, it has been prayed that all proceedings emanating from the notification issued under Section 4 to its culmination or till the passing of the award under Section 11 of the Act deserve to be quashed as the mandatory provisions of Sections 4, 6 and 9 have not been complied with according to the statutory requirements. It has also been asserted that the construction having been regularized by the District Town Planner, Rewari vide order dated 15.7.2009 after the passing of the award dated 22.3.2010 would amount to releasing the land of the petitioner and C.W.P.No.12888 of 2011 -6- acquiescence on the part of the State from acquisition by withdrawal thereof. Initially the case came up for hearing before this Court on 22.7.2011 when on submissions made by the counsel for the petitioner, Mr.Kamal Sehgal, learned Additional Advocate General, Haryana was directed to produce the records of the acquisition of the land. Today, Mr.Sehgal has produced the records of the acquisition and we have, with his assistance, gone through the same. We have heard counsel for the parties. Mr.Ashok Aggarwal, learned Senior Advocate has argued that the notifications issued under Sections 4 and 6 of the Act are not in accordance with law for the reasons, which have already been discussed above, as were pleaded in the writ petition. The requirement of Section 4 of the Act is that a notification has to be published in the official Gazette (which fact is not in dispute) and in two daily newspapers circulated in that locality of which at least one shall be in regional language. Further mandate is that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. It is not in dispute that the notification dated 31.10.2008 was published in the English newspaper “The Indian Express” Delhi and Lucknow Editions on 8.11.2008. Although it has been alleged that there is a little circulation of the Delhi Edition of the Indian Express in the locality but there is no proof in support thereof. The contention with regard to publication of the notification being not a complete one in the Lucknow edition which has no circulation in the locality where the land is being acquired, does not have any effect on the publication for the reason C.W.P.No.12888 of 2011 -7- that notification in Hindi newspaper “New India Herald” was published in the locality. The allegation of the petitioner based on the 'Annual report of the Press in India' for the year 2007-2008 that it has circulation of merely 61,000 copies may be right but that is not enough unless it is proved that it has no circulation in the locality. This report does not give the break-up of the circulation of the newspaper in various areas and, thus, would not help the cause of the petitioner. The requirement of the Statute is publication in two daily newspapers circulated in that locality where the land is being acquired of which at least one should be in regional language. The mandate stands complied with. As regards the contention that no proclamation whatsoever was carried out also cannot be accepted in the light of the records which have been produced in Court wherein it has been stated in the Rapat Roznamcha that the proclamation was carried out in villages Patuhera, Banipur and Asalwas on 23.1.2009 by Duli Chand, Chowkidar of village Banipur. The contention, thus, of the counsel for the petitioner with regard to the non- compliance to Section 4 of the Act cannot be accepted. Similar is the position regarding the contention of the counsel for the petitioner with regard to the declaration under Section 6 which according to the petitioner itself was published in English Newspaper “The Indian Express” Chandigarh Edition on July 16, 2009 and in Hindi newspaper “Dainik Bhaskar” Hisar Edition. With regard to these publications in the newspaper, the objection which has been raised is that these newspapers have no circulation in Noida (U.P.) where the petitioner resides. The requirement of Section 6 with regard to publication of the declaration in the newspapers is that it should be done in two daily C.W.P.No.12888 of 2011 -8- newspapers circulated in the locality in which the land is situated, of which at least one should be in regional language. The requirement stands fulfilled as it has been duly circulated in the locality where the land was being acquired. It is not required to be published in the newspapers where the land owners reside. If this contention of the counsel for the petitioner is accepted, the publication of the notification under Section 4 and declaration under Section 6 of the Act in the newspapers would have to be done all over India which is neither required under the Statute nor is it desirable. The objection with regard to the proclamation with respect to declaration under Section 6 in the locality also does not cut any ice as the records clearly spell out that the Munadi was carried out on 7.9.2009 through Chowkidars of village Asalwas, Patuhera and Banipur. Accordingly, the contention of the petitioner with regard to non-compliance of the provisions of Section 6 of the Act cannot be accepted. Another contention which has been pressed by the counsel for the petitioner while challenging the award passed under Section 11 of the Act dated 22.3.2010 is that notice under Section 9 of the Act has not been sent to the petitioner or served upon her by the Land Acquisition Collector as mandated under the Act. He, on this basis, contends that the acquisition proceedings stand vitiated. Mr.Sehgal, on the basis of records, submits that no notice under Section 9 of the Act was sent to the petitioner at her Noida address. He, however, states that notices to other land owners were duly sent. The contention of the counsel for the petitioner cannot be accepted in the light of the judgments of the Supreme Court in the case of State of T.N. and another vs. Mahalakshmi Ammal and others, (1996) 7 Supreme C.W.P.No.12888 of 2011 -9- Court Cases 269 and Nasik Municipal Corporation vs. Harbans Lal Laikwant Rajpal and others, (1997) 4 Supreme Court Cases 199, wherein it has been held that in the absence of notice or failure to serve notice, it would be an irregularity. If there is an irregularity in the service of notice under Section 9 of the Act, it would be curable irregularity and on account thereof, award made under Section 11 of the Act does not become invalid. It needs mention here that notification under Section 4 of the Act pertained to 679 acres 7 kanals and 8 marlas out of which no land has been released and the award has been passed qua the total land. As per the State, possession was taken on 22.3.2010. Total land owners were 1011. Total compensation which was assessed was more than ` 159 crores and the said amount stood deposited by the Haryana State Industrial and Infrastructure Development Corporation with the Land Acquisition Collector. An amount of more than ` 110 crores approximately stands disbursed to the land owners. Compensation amounting to about ` 37 crores is under dispute leaving ` 12 crores as undisputed amount of compensation of which about ` 8 crores belong to the Gram Panchayat. Only about ` 4 crores remain with the Land Acquisition Collector which has not been claimed by the remaining 90 land owners only. It has not been pleaded by the petitioner that apart from her, any other land owner had approached this Court on the plea of non-compliance of the provisions of Sections 4, 6 and 9 of the Act or that any other writ petition qua this land is pending adjudication. This shows that the land owners are satisfied with the acquisition of their land by the State of Haryana and have no grievance. C.W.P.No.12888 of 2011 -10- Next contention of the counsel for the petitioner is that the regularization of the construction by the District Town Planner, Rewari, vide order dated 15.7.2010 which is after the passing of the Award dated 22.3.2010 would amount to release of land of the petitioner as the Government had withdrawn from acquisition, cannot be accepted. A perusal of the documents which have been placed on record by the petitioner with regard to the regularization of the construction of the petitioner would indicate that the petitioner applied for regularization of unauthorized construction erected along National Highways and Scheduled Roads on 10/14.9.2009 and the same was only accepted on 15.7.2010, the petitioner was called upon to deposit Rs.11,323/- (Annexure P-12) which amount was deposited by her on the same date through demand draft dated 14.7.2010. This creates a doubt with regard to the bona fides of the order passed in favour of the petitioner. The building of the petitioner was regularized subject to certain terms and conditions enumerated in the order itself which read as follows:- “i) That the Committee/Department shall not be responsible for the structural safety, fire safety and any other damage to the building/property and human life etc. ii) That you shall not object to the acquisition of any portion of the site/building for the purpose of widening of the road and laying of essential infrastructure as and when required. 3. That you shall not make any addition/alteration to the existing building without prior approval of the C.W.P.No.12888 of 2011 -11- competent authority. 4. That in case any encroachment on the Govt. land is noticed at any stage, the competent authority shall remove the same and the regularization order shall stand deemed cancelled. 5. That the regularization order shall not provide any immunity from any other Act/Rule applicable on the above referred site/building.” These terms and conditions leave no manner of doubt that the unauthorized construction of the petitioner was not regularized unconditionally nor did it absolve or grant immunity from other Acts or Rules applicable to the site/building. It also specifies that if there is any encroachment on the Government land, the competent Authority shall remove the same and the regularization order shall stand deemed cancelled. In this view of the matter, the contention of the counsel for the petitioner that on regularization of the unauthorized construction of the petitioner, the land and the constructed area stood released from acquisition or the State had withdrawn from acquisition of the land of the petitioner, cannot be accepted. It is the submission of the counsel for the petitioner that the petitioner had applied for CLU under Section 3 of the 1975 Act on 10.4.2008 which was rejected on 2.11.2009 primarily on the ground that no permission from NHAI for deriving direct access to the site has been submitted. Subsequently, it was granted by the NHAI in principal on 2.9.2009 and, therefore, as per the policy dated 24.2.2009 (Annexure P-27), C.W.P.No.12888 of 2011 -12- since the petitioner had applied for CLU before issuance of notification under Section 4 of the Act, was entitled to the grant thereof. This contention of the counsel for the petitioner cannot be accepted for the reason that CLU permission for setting up of a Motel at village Asalwas by the petitioner in her land was not merely rejected on the ground which has been asserted by the petitioner's counsel but also for the reason that out of the total area of 1.72 acres owned by the petitioner and for which CLU permission was sought, an area of 0.75 acres fell under 60 meter wide green belt proposed along NH 8 while the remaining area fell in public utility zone of Sector 4-A of Draft Development Plan, 2021-Bawal. Thus, the entire site was located in a non-conforming zone for the purpose of establishment of a Motel. Excluding the area which fell in the 60 meter wide green belt, the remaining area of the site did not fulfil the area norms prescribed for CLU permission for a Motel (without banquet facility). In any case, the in-principal approval was granted by the NHAI on 2.9.2009 which fact, it appears was not brought to the notice of the competent Authority which had rejected the application of the petitioner for permission for CLU. The application was rejected on 2.11.2009 but the petitioner did not pursue it any further. It would not be out of way to mention here that this order of rejection is appealable which remedy the petitioner did not avail of rather she proceeded to seek regularization of her unauthorized construction on the land as is apparent from the pleadings. The petitioner cannot now make a grouse about non-grant of CLU by the respondents. It is not in dispute that the award of the land was passed on 22.3.2010 which fact was known to the petitioner as is apparent from the pleadings which have been referred to above. In any case with regard to the C.W.P.No.12888 of 2011 -13- issuance of notification under Sections 4 and 6 of the Act, she became aware in 2009 as is apparent from her application dated 10/14.9.2009 submitted by her for regularization of unauthorized construction raised where it has been mentioned by her that notification under Sections 4 and 6 of the Act have been issued by the State of Haryana. Despite this knowledge, the petitioner did not take any steps to challenge the notifications issued under Section 4 and declaration under Section 6 of the Act. The grounds which have been raised in the present petition challenging the said notifications were available to her if not prior at least from the date of knowledge of the issuance of the notifications which were prior to 10/14.9.2009. The challenge thereto has now been raised by the petitioner through this writ petition which came for hearing before this Court on 22.7.2011 after more than 2 years. There is an unexplained delay on the part of the petitioner for not approaching this Court earlier which dis- entitles her to the extraordinary and equitable jurisdiction of this Court. Another aspect which requires to be taken note of is that the petitioner had filed a Reference Petition under Section 18 of the Act on 28.2.2011 which fact was not disclosed by her in this writ petition and it was the counsel for the State who has brought the same to the notice of the Court and also produced a copy of the said reference. When confronted with this fact, counsel for the petitioner, on instructions from the petitioner, has accepted this fact. A perusal of the said application with specific reference to para 14 thereof wherein it has been mentioned that the petitioner acquired knowledge of the alleged acquisition proceedings only about a week ago and prior thereto, she had absolutely no knowledge of issuance of notifications and award in which she was seeking reference, C.W.P.No.12888 of 2011 -14- speaks volumes about the truthfulness and bona fides of the petitioner. As has been discussed above, the petitioner has admitted in her application dated 10/14.9.2009 (Annexure P-8) that notifications under Sections 4 and 6 of the Act had been issued by the State of Haryana for acquiring the land of the petitioner. Nothing more is required to be said on the conduct of the petitioner except that she has disentitled herself to the discretionary relief which this Court exercises under its writ jurisdiction. For the reasons mentioned above, finding no merit in the present writ petition, the same stands dismissed. ( JASBIR SINGH ) ( AUGUSTINE GEORGE MASIH ) JUDGE JUDGE July 27, 2011 poonam