IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.8262 of 1989 Date of decision: 29.6.2010 Surender Kumar Jain and another …..Petitioners versus State of Haryana and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.Shailendra Jain, Advocate for the petitioners Mr.Kamal Sehgal, Addl.A.G. Haryana Jasbir Singh, J. The petitioners have filed this writ petition for issuance of a writ of certiorari to quash award dated 21.9.1986 (P7) passed by the Land Acquisition Collector Urban Estate Department, State of Haryana at Gurgaon (respondent No.2). It is apparent from the records that the petitioners were owners/ lessees of land measuring 10 kanals comprised in khasra Nos.21//15(5-2), 16/1(3-10), 16/2/1(0-12) and 17/2 (0-16), which was taken on lease/ purchased by the petitioners vide lease deeds/ registered deeds. It is case of the petitioners that they had acquired this land to set up handloom industry therein. It was further stated by them that after purchase, they had constructed boundary wall and also a shed measuring 500 sq.ft. over the Civil Writ Petition No.8262 of 1989 land in dispute. They also submitted a project report to the Industry Department of the State of Haryana to establish that industry. The building plans were also got prepared. It is further case of the petitioners that they were issued registration certificate as a small scale industrial unit on 22.3.1985. Record reveals that in the meantime, on 6.7.1981, respondent No.1 issued a notification under Section 4 of the Land Acquisition Act, 1894 (in short, the Act) proposing to acquire vast tract of land situated in villages Dundahera, Mulahera (including land of the petitioners), Sarhaul and Shahpur etc. It is case of the petitioners that substance of the aforesaid notification was not published as per requirement of the Act. Record further reveals that declaration under Section 6 of the Act was issued on 25.6.1982. Thereafter, respondent No.2 initiated proceedings to pronounce award regarding land under acquisition and accordingly after performing necessary formalities award was pronounced on 25.3.1983, regarding vast tract of land, which did not include the land owned by the petitioners. The petitioners started sending representations to the authorities for release of their land (which have been put on record as Annexures P5 dated 7.10.1983, P5A dated 8.4.1985, P5B, P6-B dated January 1987), with a prayer that their land be released from acquisition on the ground that they had already raised construction therein. It is also coming out from the records that award was pronounced qua land of the petitioners on 21.9.1986. It is case of the petitioners that qua the building constructed by the petitioners in the land in dispute, no award was passed. In view of above facts, the petitioners prayed that the award, under challenge, be set aside. After notice reply has been filed wherein contentions raised by the petitioners have been refuted and it has 2 Civil Writ Petition No.8262 of 1989 been stated that the land of the petitioners which was vacant at the time when notification under Section 4 of the Act was issued, has rightly been acquired. It has further been stated that before passing the award under challenge, notices were sent to the petitioners. Respondents also prayed that the writ petition having been filed much after the passing of the award by respondent No.2 be dismissed. Mr.Shailendra Jain, Advocate appearing for the petitioners has vehemently contended that before passing award, under challenge, no notice was sent to the petitioners and in view of that they failed to pursue their case before respondent No.2 at the relevant time. It was further argued that because no compensation has been paid for the super-structure, as such, the award, under challenge, cannot be sustained. He also argued that by not releasing land of the petitioners a discriminatory treatment has been given to them because under similar circumstances, land owned by other right holders was released by the respondents. After hearing counsel for the parties, we feel that all the arguments raised by counsel for the petitioners are liable to be rejected. Perusal of award dated 21.9.1986 indicates that before passing the above said award, right holders and other interested persons filed their claim under Section 9 of the Act, in which, they claimed compensation for the land under Acquisition. In the award, it was further stated that when award was pronounced the right holders and other interested persons came present before respondent No.2. Counsel for the petitioners has failed to indicate any averment in the writ petition stating that the above said facts were wrongly recorded by respondent No.2 and the petitioners never appeared before the Collector as stated in the award. Otherwise also, the respondents in their written statement have specifically stated that as per 3 Civil Writ Petition No.8262 of 1989 address shown in the revenue record, registered notices were sent to the petitioners, however, the same were received back. In the written statement it was stated as under:- “19. That in reply to para No.19 of the writ petition, it is submitted that notices u/s-9 of the Land Acquisition Act were issued and sent to the petitioners at the addresses given in the jamabandi of the year 1982-83. In the said jamabandi, the address of the petitioner No.1 was not complete. The registered letter sent to petitioner No.1 was received back as unserved. The notice sent to petitioner No.2 was served by means of pasting as petitioner No.2 was also not available over the land in dispute. Notices u/s 11(2) and 12(2) of the Land Acquisition Act were also served upon the petitioners fully in accordance with law. The allegation of the petitioners that no notice u/s-9 or 11(2) had been served is wrong and hence denied.” It was further stated that notices were also affixed in the piece of land under acquisition. No replication has been filed to controvert the averments made by the respondents in the written statement. Whether non- issuance of notice under Section 9 of the Act is a ground to set aside the award, came up for consideration before a Division Bench of this Court in Automax Limited v. State of Haryana 2008(4) RCR(Civil) 275, wherein while dealing with a similar situation, it was observed as under:- “8. The argument of Mr.Khosla that no notice under Section 9 of the Act has been issued has failed to impress us because firstly the reply filed by respondent No.3 has categorically asserted that a notice under Section 9 of the Act was issued to 4 Civil Writ Petition No.8262 of 1989 the petitioner. Even otherwise, non-issuance of notice under Section 9 of the Act would not vitiate the award, as has been held by Hon’ble Supreme Court in the case of Union of India v. Parmod Gupta, 2005(4) RCR(Civil) 235: (2005)12 SCC 1. Any irregularity in issuance of notice under Sections 9 and 10 of the Act would not render the announcement of award as illegal. Such an argument was raised in the case of State of Tamil Nadu v. Mahalakshmi Ammal, (1996) 7 SCC 269. After observing that publication of declaration under Section 6 of the Act gives conclusiveness to the public purpose and after the award if possession is taken then the land stand vested in the State under Section 16 of the Act free from all encumbrances and the Government acquires absolute title to the land, Hon’ble the Supreme Court went on to observe as under:- “9……Equally, even if there is an irregularity in service of notice under Sections 9 and 10, it would be a curable irregularity and on account thereof, award made under Section 11 does not become invalid. Award is only an offer on behalf of the State…..” Likewise, such an argument was rejected in the case of Nasik Municipal Corporation v. Harbanslal Laikwant Raipal, (1997) 4 SCC 199. In this case, Hon’ble the Supreme Court went on to the extent of observing that even if there is failure to serve notice, the award would not be rendered invalid. The relevant observation made in Para 5 reads thus: “5. It is then contended by Mr.U.R.Lalit, that the respondents had not been given the information of the 5 Civil Writ Petition No.8262 of 1989 notification under Section 9 of the Land Acquisition Act. Therefore, the award is bad in law. We find no force in the contention. In the absence of notice or failure to serve notice, the award does not become invalid. Due to the fact that immediately after the award and before the publication of the award, the writ petition came to be filed on 25.9.1980, we direct the appellants to make an application within six weeks under Section 18(1) of the Land Acquisition Act seeking reference. The Land Acquisition Officer is directed to refer the matter to the competent civil Court for disposal within two months according to law.” 9. In view of the above, the argument raised by learned counsel for the petitioner is without any substance and we have not hesitation to reject the same……” In view of above, contention raised by the petitioners is rejected. Further contention of Mr.Jain that no award has been passed for the super structures and as such, the award is liable to be quashed, also failed to attract attention of the Court. Be that as it may, if there was any construction in existence, the petitioners may have claimed compensation for the same by moving an application under Section 18 of the Act and non- grant of compensation is no ground to set aside the award. In the reply filed, it has specifically been stated that when notice under Section 4 of the Act was issued the land in dispute was lying vacant. The construction was raised after issuance of the above said notice. This averment appears to be correct. In the representations sent by the petitioners to the authorities for 6 Civil Writ Petition No.8262 of 1989 release of their land on 7.10.1983 (P5) and on 8.4.1985 (P5/A), it is nowhere mentioned that they have raised any construction over the land in dispute. Subsequent thereto, they had started asserting the above said fact but on record there is nothing proved that the construction was raised by them before issuance of the notification under Section 4 of the Act. In his award, respondent No.2 has specifically stated that ‘as per the latest jamabandis, the classification of the entire land under acquisition is Chahi’. Counsel for the petitioners was asked to show Jamabandi for the relevant year to prove that construction was in existence in the land in dispute but he has failed to do so. He has made reference to the Jamabandi which pertains to the period after the issuance of the notification under Section 4 of the Act. Merely because in the award passed, the Collector has said that the authorities have failed to supply him details of the construction over the property, in dispute and in view of that award regarding construction will be passed separately, is no ground to say that any construction was in existence when notification under Section 4 of the Act was issued. In their representations, as referred to above, the petitioners had mentioned about the preparation of building plans and not of construction. In paragraph No.18-A of the amended writ petition, the petitioners have alleged that by not releasing their land, discrimination has been done with them. To say so, reference has been made regarding release of land in favour of the other right holders. In reply to above said averment, in the written statement, it has been averred as under:- “18-A. Para No.18A of the writ petition is wrong and denied. The petitioner is not entitled to get the land in question released merely due to the registration of the Handloom Unit with Industries Department of Haryana. The land could not be 7 Civil Writ Petition No.8262 of 1989 released. Same was vacant at the time of issuance of Notification u/s 4 of L.A. Act. The land released orders vide annexure P-10 to P-17 were issued by the competent Govt. after considering facts and circumstances of the each case and report of Land Acquisition Collector concerned as there was constructions in existence over the land of said Sh.Khem Chand, Randhir Singh, Roop Chand and Harbans Kaur prior to issuance of notification u/s 4 of the said lands were being used for Industrial purpose. It is pertinent to mention here that the petitioner case is completed different from the cases cited in the para. Remaining para is wrong and denied.” There is nothing on record to show that the above said averment made by the respondents was not correct. The land was released in favour of some right holders, whose position was altogether different from the petitioners. It has specifically been stated that the land was released because construction was in existence over the property of those right holders. Contention of Mr.Sehgal that the writ petition having been filed after passing of the award cannot be entertained appears to be justified. It is apparent from the records that the award was passed on 21.9.1986 and this writ petition was filed in the year 1989. As per Roznamcha Waqayti (P8), possession of land was taken by the respondents on 21.9.1986. This Court is of the opinion that the writ petition having been filed at a belated stage, is liable to be rejected. Otherwise also, in view of ratio of judgments of the Hon’ble Supreme Court, the writ petition, after passing of the award, cannot be entertained. Reliance in that regard may be placed on the judgments rendered in the cases of Municipal Corporation of Greater 8 Civil Writ Petition No.8262 of 1989 Bombay v. Industrial Development and Investment Company (P) Limited, (1996) 11 SCC 501; Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48; C. Padma v. Deputy Secretary to the Government of Tamil Nadu, (1997) 2 SCC 627; Star Wire (India) Ltd. v. State of Haryana, (1996) 11 SCC 698; and M/s Swaika Properties Pvt. Ltd. v. State of Rajasthan, JT 2008 (2) SC 280. In view of facts mentioned above, no case is made out for interference. Dismissed. (Jasbir Singh) Judge 29.06.2010 (Augustine George Masih) gk Judge 9