CWP No.6973 of 2009 1 In the High Court of Punjab and Haryana, Chandigarh. CWP No.6973 of 2009 Date of Decision: 13.08.2009 Shri Mahakaleshwar Mandir ....petitioner Versus State of Haryana and others ....Respondents. Coram:- Hon'ble Mr.Justice J.S. Khehar Hon'ble Mr. Justice Nirmaljit Kaur Present: Mr. R.S. Sihota, Sr. Advocate with Mr. B.R. Rana, Advocate for the petitioner. Mr. Ashish Kapoor, Addl. A.G., Haryana for respondent No.1, 3, 4 and 6. Ms. Sheenu Sura, Advocate for respondents No.2 and 5. ... J.S. Khehar, J. (Oral). The intention to acquire the land of the petitioner was expressed by the State government by issuing a notification dated 16.3.1999, under Section 4 the Land Acquisition Act, 1894 (hereinafter referred to as the 1894 Act). Dissatisfied with the tentative determination of the State government to acquire the petitioner's land, the petitioner filed objections under Section 5-A of the 1894 Act. For purposes of the present writ petition, learned counsel for the petitioner has invited this Court’s CWP No.6973 of 2009 2 attention to paragraphs 2 and 3 of the objections filed by the petitioner under Section 5-A of the 1894 Act. Paragraphs 2 and 3 of the aforesaid objections filed by the petitioner, are being extracted hereunder: -- “2. That the above said land had been donated by the owners of the said land to the objectors for putting up religious place in the shape of temple etc. Accordingly, the objectors constructed the Kutia over the land. The aforesaid construction was also noticed by the officials of the Land Acquisition Department/Haryana Urban Development Authority during their survey of this area two months back. In this regard, the concerned Patwari has also given in writing that the Kutia of Baba Paglanand is in existence at the site. Since the land has been used for the religious purpose and the Temple/Kutia is in existence over the area, thus, the land in possession of the objectors be not acquired. This is so as per the settled law such institutions like temple and mosque etc. are to be exempted in case of acquisition of land. Therefore in the facts and circumstances, the acquisition of the land by Government of Haryana is bad qua the land of the objectors. 3. That it is also submitted that the Kutia/Temple is in existence at the site and accordingly the people who are living in nearby area have been coming to the temple for paying their obeisance. In this regard the sentiment of the people living in nearby area are attached to this temple and consequently it has emotional value. Therefore, the area in possession of the objectors deserves to be exempted.” CWP No.6973 of 2009 3 Inspite of the aforestated objections raised by the petitioner, the State government issued a declaration under Section 6 of the 1894 Act, on 15.3.2000, crystallizing its intention to acquire the petitioner's land. It is not a matter of dispute, that after the announcement of the award by the Land Acquisition Collector, the petitioner has withdrawn the compensation in lieu of the acquired land. The instant writ petition was filed on 25.4.2009. Whilst entertaining the instant writ petition, after the respondents had entered appearance, the motion Bench passed the following order on 14.5.2009: -- “This petition challenges acquisition initiated vide notification dated 16.3.1999. The petition has been filed after 10 years. It is stated that other petitions, raising same questions, are pending in this Court. Learned counsel for the State confirms that other petitions which are pending pertain to the same acquisition but submits that case of the petitioner is distinguishable as the petitioner had already received compensation on 9.3.2004 by a cheque. Learned counsel for the petitioner seeks time to verify the facts and make submission, whether case of the petitioner is distinguishable from the other writ petitions which are pending.” It is in the background of the aforesaid order, as also, the pleas raised by the petitioner, that we shall render a determination on the controversy raised on behalf of the petitioner. During the course of hearing, the solitary contention of the CWP No.6973 of 2009 4 learned counsel for the petitioner was based on the policy instructions dated 26.10.2007 (Annexure P-11). Under the aforesaid policy, the State government had framed guidelines for release of land from acquisition proceedings. The contingencies wherein the acquired land could be released, as have been depicted in the policy instructions dated 26.10.2007, are being extracted hereunder: -- “The government has framed a comprehensive policy as detailed below: -- 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. 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 and 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. That the government may also consider release of land in the CWP No.6973 of 2009 5 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 stated above under Section 48(1) of the Act under exceptionally justifiable circumstances for the reasons to be recorded in writing.” In order to support his case, learned counsel for the petitioner has placed emphatic reliance on the decision rendered by a Division Bench of this Court in Abhishek Gupta Vs. State of Haryana and another (Civil Writ Petition No.12510 of 2000, decided on 15.7.2008). During the course of hearing, learned counsel for the petitioner placed reliance on the following observations recorded in the aforesaid judgement: -- “We are, therefore, of the considered opinion that the respondents have failed to show before this Court that there was any justifiable exercise of power while disposing of the objections of the petitioners under Section 5-A of the Act. Thus, a great prejudice has been caused to the petitioners. In view of the above, there is little hesitation to conclude that the petitioners having been seriously prejudiced by non- application of mind of the respondents, the impugned notification dated 16.3.2000 issued under Section 6 of the Act deserves to be quashed. The second limb of the arguments of the learned counsel for the petitioners is that the petitioners have been discriminated against and the action of the respondents in subjecting their CWP No.6973 of 2009 6 land to acquisition while not acquiring the land of other similarly situated persons, especially that of Maharaja Harinder Singh `Khalaf' Maharaja Varjinder Singh, the action is clearly discriminatory and his hit by Article 14 of the Constitution of India. The facts of the case are not in dispute. The land of Maharaja Harinder Singh `Khalaf' Maharaja Varjinder Singh with whom the petitioners seeks parity was certainly notified as one of the pieces of land to be acquired by the State while issuing notification under Section 4 of the Act on 16.3.1999, but surprisingly, in his case, the proceedings were allowed to lapse while in the case of the petitioners, their detailed objections were dealt with in a slip-shod manner and their land was subjected to acquisition. The respondents have tried to steal the thunder from the contention of the learned counsel for the petitioners by saying that the ground of discrimination is not available to the petitioners as the land of Maharaja Harinder Singh `Khalaf' Maharaja Varjinder Singh has been acquired in the year 2007. We have examined this aspect of the matter and feel that the action of the State is adding insult to the injury. Firstly, the respondents chose to treat the case of the petitioners differently from that of Maharaja Harinder Singh `Khalaf' Maharaja Varjinder Singh by acquiring their land and permitting the acquisition to lapse in his case, but by acquiring the land of Maharaja Harinder Singh `Khalaf' Maharaja Varjinder Singh in CWP No.6973 of 2009 7 the year 2007, they have not enhanced their case in any manner. There is no dispute that the State, in the exercise of its eminent domain, can subject any land to acquisition if it conforms to the basic development plan which has been propounded, but had the land of the petitioners been exempted at that point of time and subjected to acquisition now at the same time when the land of Maharaja Harinder Singh `Khalaf' Maharaja Varjinder Singh is being acquired, then the petitioners too would have benefitted from the ultimate calculation of the compensation as the relevant price to be considered would have been the date when notification under Section 4 of the Act would have come into existence. The petitioners whose lands were sought to be acquired in the year 1999, have, therefore, been set at disadvantage vis-a-vis similarly situated persons whose land was not touched for apparent reason when the original intent was published.” A perusal of the aforesaid judgement, however, reveals that the acquisition proceedings were initiated by issuance of declaration under Section 6 of the 1894 Act, on 16.3.2000, and the petitioner approached this Court in the very year of the acquisition. It is, therefore, not possible for us to accept, that the judgement relied upon by the learned counsel for the petitioner, as has been rendered by a Division Bench of this Court, can be precedent to overcome the delay of approximately ten years in approaching this Court. Be that as it may, from the observations extracted hereinabove, as were relied upon by the learned counsel for the petitioner, it is evident that discrimination was treated as a good ground to allow the release of the CWP No.6973 of 2009 8 petitioner's land from acquisition proceedings, but then, the plea of discrimination has not been raised in the instant writ petition nor has been pressed by the learned counsel for the petitioner during the course of hearing. All the same, it is also necessary for us to examine the veracity of the submission made by the learned counsel for the petitioner based on the objections filed by the petitioner under Section 5-A of the 1894 Act. It is the vehement contention of the learned counsel for the petitioner, that the petitioner was running a religious institution in a constructed area, and as such, in terms of the policy instructions dated 26.10.2007, the petitioner's claim for the release of his land from acquisition proceedings, was liable to be considered. It is submitted by the learned counsel for the petitioner, that the petitioner also submitted a representation on the same lines. In fact, we find it strange that the petitioner should have raised such a plea. In the background of the affidavit filed in this Court by the Land Acquisition Collector, Urban estate, Haryana, Panchkula, wherein it has been pointed out that the report received by the State government consequent upon the examination of the objections raised by the petitioner revealed, that on the acquired land, under reference, the petitioner had constructed one room along with verandah and one lintel kitchen. In other words, the existence of any religious institution or building owned by a community, was expressly repudiated. In fact, it is very fairly brought to our notice by the learned counsel for the petitioner, that after the culmination of the process of acquisition, the petitioner has installed a “Shivling” within the building erected by the petitioner on the acquired land. Not only the fact, that the conditions contained in the policy instructions must be fulfilled on the date when the notification under CWP No.6973 of 2009 9 Section 4 of the 1894 Act is issued, we are also of the view, that the policy instructions relied upon by the petitioner issued in 2007, could not be invoked by the petitioner to seek release of his land on the basis of a notification issued in the year 1999. In view of the factual position noticed hereinabove, we are satisfied that the claim raised on behalf of the petitioner is wholly misconceived. In addition thereto, we are also satisfied that the petitioner made a false representation before the Land Acquisition Collector, as also, before this Court seeking release of his land by asserting, that the construction effected thereon is a “religious institution” or a building “owned by a community”. As a matter of fact, the sole construction effected by the petitioner on the acquired land is one room along with a verandah and one lintel kitchen. The same would not have been released under any circumstances whatsoever, even if the policy instructions dated 26.10.2007 (Annexure P-11) were treated as applicable to the facts and circumstances of this case. We are also satisfied, that the petitioner has misused the jurisdiction of this Court. He has approached this Court ten years after the process of acquisition was initiated. What is more serious is, that the petitioner has approached this Court challenging the action of the respondents acquiring his land, after having withdrawn compensation for the same. Such a behaviour at the hands of the litigant needs to be curbed with the strongest hand. We, therefore, dismiss this petition with costs quantified at Rs.10,000/-. The aforesaid costs shall be deposited by the petitioner with the Legal Services Authority, Haryana, within one month from today and a receipt thereof shall be placed on the record of the instant case. In case, no such receipt is placed on the record of this case within the CWP No.6973 of 2009 10 time stipulated hereinabove, the Registry is directed to re-list this case for motion hearing for recovery of costs. Disposed of in the aforesaid terms. ( J.S. Khehar ) Judge ( Nirmaljit Kaur ) Judge 13.08.2009 sk.