CWP No.3302 of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.3302 of 1995 Date of decision:09.03.2010 Brig. Michael A.R. Skinner and others. ...Petitioners Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR.JUSTICE M.M.KUMAR HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.James R.Skinner, petitioner no.2 in person. Mr. Kamal Sehgal, Addl.A.G., Haryana for respondent Nos. 1 and 2. Ms.Sangeeta Dhanda, Advocate for HUDA-respondent No.3. 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest? JITENDRA CHAUHAN, J. The present writ petition has been filed by the descendants of late Col. James Skinners, CB who settled at Hansi in the year 1983 and raised three regiments including Skinner's Horse Regiments. The present writ petition is for the benefit of all the members of the Skinner's family. The petitioners No. 1 to 6 along with Major Albert F. Skinner and Mr. Decil H.Skinner are in possession of land, measuring 104 kanals and 13 marlas falling in Khasra No.1038 within the municipal limits of Hansi. The petitioners are also the owners in possession of the part of Khasra No.1037. The other co-sharers in Khasra No.1037 are Ian Philip Skinner son of Mr. John A. Skinner etc. The land measuring 8 kanals 5 marlas is owned by Skinners' family exclusively and 4/9th share, i.e., 66 CWP No.3302 of 1995 2 Kanals 17 marlas, out of 109 Kanals 8 Marlas is owned by Mrs.Marget A. Skinner, petitioner No.7 and John Skinner, in equal shares. The property constitutes residential house, servant rooms, kitchen and more than a century old orchard in Khasra No.1038. The residential building existing in Khasra No.1038 was initially used as Officers' Mess during the 19th Century. The building is spread over 13 bighas and 12 biswas and consists of more than 17 rooms as is evident from the return (P-2) filed by the petitioners under Urban Immovable Property Tax for the year 1976. The plan of the various khasra numbers is reflected in Annexure P/1. The construction existing on khasra No.1038 are stated to be of great historical and sentimental importance to the petitioners. It has also been pointed out that many visitors come to pay their obeisance to the grave yard located in Khasra No.1038. The State of Haryana on 18.3.1992 issued a notification under Section 4 of the Land Acquisition Act, 1894 (for brevity `the Act') intending to acquire 35.93 acres of land located within the Hadbast No.119 village Hansi, comprised of Khasra Nos. 1033, 1034, 1035, 1036, 1037 and 1038. The petitioner filed three separate set of objections under Section 5A of the Act which were sent by Registered A.D. post on 13.4.1992 against proposed acquisition pointing out to the huge constructions existed on the land; and that the acquisition proceedings were malafide and colorable exercise of power with the prayer that their properties be exempted from acquisition. The objections pertaining to the land i.e. Khasra No.103 was found to be time barred. It was also asserted that the Government in the name of public purpose wants to sell the land on higher rates with business motive. The land of the applicants was deliberately acquired as they belong CWP No.3302 of 1995 3 to the minority community. The ancestors of the petitioners as well as the petitioners served this nation as part of the Indian Army. The building being a historical monument and by acquisition its character should not be destroyed. The land in question is situated within the municipal limits and has a great potential. A notification under Section 6 of the Act was issued on 16.3.1993, whereby 31.15 acres of land was declared to be needed for a public purpose i.e. for setting up of residential and commercial areas. The State of Haryana issued a letter dated 20.6.1994, whereby the land measuring 10.09 acres was released on the recommendations of local MLA, namely, Sh.Amir Chand Makkar. The respondents filed written statement controverting the averments made by the petitioners that the objections of the petitioners filed under Section 5A of the Act were duly considered and even objections which were received beyond the prescribed time were also considered. The petitioners were also afforded opportunity of hearing. There existed two types of construction, i.e., Type B and Type C and after considering the objections of the petitioners, only “C' type of construction was acquired whereas `B' type construction along with proportionate vacant land was left out of acquisition. The acquisition was for the purpose of development of residential and commercial site, the award had already been announced on 13.5.1995. The rationale provided in the written statement is that the land released by the respondents could be easily adjusted in the lay out plan. The petitioners filed replication and specifically asserted that it is incorrect that the construction over the acquired land is consisted of two types. There is no construction which could be classified as Type C. It has CWP No.3302 of 1995 4 been further pointed out that opportunity of hearing and the nature of construction has to be seen by the Land Acquisition Collector and not by the HUDA authorities for whose benefit the land is being acquired. It is further asserted that at no stage of the proceedings, the petitioners were informed that only Type B construction would be released from the acquisition. It has also been specifically stated that 1000 sq. yards plot of said MLA has been left out from the acquisition. The grouse of the petitioners is that the land of the petitioners with construction thereon has been acquired, whereas the vacant land has been released by the Government of Haryana on the recommendations of local MLA (P-11), which includes 1000 sq. yards plot owned by the MLA himself and after various releases as reflected in para 2, only the land of the petitioner has been acquired. Mr. James R. Skinner, petitioner No.2, appeared in person. He has submitted brief written arguments, wherein it has been mentioned that the petitioners are in possession of the land in dispute. During the pendency of the present writ petition, agricultural land belonging to Sh.Amir Chand Makkar comprising in Khasra Nos.1033, 1034, 1035, 1036 and 1037 has released by the Government of Haryana on 20.6.1994, whereas the land of the petitioners, on which residential houses and grave yard is located, has not been released. It has also been stated that in case the land is not released, they would suffer an irreparable loss and injury and no fruitful purpose would be served. The petitioner is 85 years old and his petition be decided on the basis of above submissions, equity, natural justice and submissions made in the writ petition. By way of the written arguments, the petitioner has further prayed that he may be permitted to cancel the power of CWP No.3302 of 1995 5 attorney given in favour of his counsel. Learned counsel for the respondents has submitted that the land released could be adjusted in the plan, whereas the land of the petitioner could not be adjusted in the plan. He has admitted that land measuring 10.09 acres has been released on the recommendations of local MLA. Learned State counsel has admitted that the land of the petitioner which was found to be with `C' class construction has been acquired. From the facts on record, it is established that the land of the petitioner having `C' type construction has been acquired by the State, whereas the adjacent vacant land has been released on the recommendations of local MLA. A specific averment has been made that a plot of 1000 sq. yard in Khasra No.1037 owned by the local MLA had also been released. The fact of owning the plot by Sh. Amir Chand Makkar in Khasra No.1037 as stated in the replication has not been controverted by the learned counsel for the State. The release of the land on the recommendations of said MLA is reflected in letter dated 20.6.1994 addressed by Director Urban Estate to Administrator, HUDA (P-11). It makes interesting reading which is as under:- “Subject: Release of land at Hansi-Shri Amir Chand Makkar. This is in reference to your letter No.1588 dated 9.3.94. You are hereby informed that the land pointed out by Sh.Amir Chand Makkar, MLA in the enclosed plan marked as block `A' and `B' to the Urban Estate Hansi has been considered to be released by the Haryana Govt. on the usual conditions. The land to be released is part of Khasra Nos. 1033, 1034, 1035, 1036 and 1037 min as per the reports of Land Acquisition CWP No.3302 of 1995 6 Collector Hissar measuring 10.09 acres. The proportionate development charges are to be recovered from the respective land owners. Therefore, kindly get the agreement executed from all the parties on the usual conditions. Director Urban Estate Department, Haryana Manimajra (U.T.) Chandigarh 20.6.94” The fact that the earlier Municipal Council, Hansi also tried to acquire the land twice but exempted the same on account of the construction thereupon has also not been denied by the learned counsel for the State. In Sube Singh and others v. State of Haryana and others, (2001)7 SCC 545, Hon'ble the Supreme Court has observed as under: “10. In the counter and the note of submission filed on behalf of the appellants it is averred, inter alia, that the Land Acquisition Collector on considering the objections filed by the appellants had recommended to the State Government for exclusion of the properties of appellants 1 and 3 to 6 and the State Government had not accepted such recommendations only on the ground that the constructions made by the appellants were of B or C class and could not be easily amalgamated into the developed colony which was proposed to be built. There is no averment in the pleadings of the respondents stating the basis of classification of structures as A B and C class, nor is it stated how the amalgamation of all A class structures was feasible and possible while those of B and C class structures was not possible. It is not the case of the State Government and also not argued before us that there is no CWP No.3302 of 1995 7 policy decision of the Government for excluding the lands having structures thereon from acquisition under the Act. Indeed, as noted earlier, in these cases the State Government has accepted the request of some land owners for exclusion of their properties on this very ground. It remains to be seen whether the purported classification of existing structures into A, B and C class is a reasonable classification having an intelligible differentia and a rational basis germane to the purpose. If the State Government fails to support its action on the touch-stone of the above principle then this decision has to be held as arbitrary and discriminatory. It is relevant to note here that the acquisition of the lands is for the purpose of planned development of the area which includes both residential and commercial purposes. That being the purpose of acquisition it is difficult to accept the case of the State Government that certain types of structures which according to its own classification are of A class can be allowed to remain while other structures situated in close vicinity and being used for same purposes (residential or commercial) should be demolished. At the cost of repetition, it may be stated here that no material was placed before us to show the basis of classification of the existing structures on the lands proposed to be acquired. This assumes importance in view of the specific contention raised on behalf of the appellants that they have pucca structures with R.C.roofing, Mozaic flooring etc. No attempt was also made from the side of the State Government to CWP No.3302 of 1995 8 place any architectural plan of different types of structures proposed to be constructed on the land notified for acquisition in support of its contention that the structures which exist on the lands of the appellants could not be amalgamated into the plan. “11. On the facts and circumstances of the case revealed from the records, we are persuaded to accept the contention raised on behalf of the appellants that the rejection of the request of the appellants for exclusion of their land having structures on them was not based on a fair and reasonable consideration of the matter. We are of the view that such action of the Government is arbitrary and discriminatory. Unfortunately, the High Court failed to judge the cases in its proper perspective. However, in the present case, the facts are even more glaring. The construction, though assessed as Class `C' by the State is existing , whereas the vacant land has been released. It is discernible from the perusal of the Sajra-Survey plan that the land of different land owners has been released in a hap-hazard manner which suggests that respondents do not seem to have adopted any uniform pattern on the basis of which the said land could be said to have been released. We are unable to persuade ourselves to accept the logic given by the learned counsel for the State that the land having `C' type of construction only has been acquired. From the description of the house in various paras of the writ petition, it is clear that the entire building is one compact unit, and the so called `C' type construction is an integral part of the building.. CWP No.3302 of 1995 9 We are further unable to appreciate the fact that the location of `C' class construction has not been pointed out. The entire construction being one complete unit, therefore, the very idea of categorisation of various parts/rooms, which are part of the same building is bereft of any logic and reasoning. In a given case, such construction, i.e., `B' class could be in the middle of the house and the acquisition of which would render the use and enjoyment of the whole complex impossible. Therefore, we do not recognise the categorisation of the building in various types/classes, which supported by the view expressed by Hon'ble the Supreme Court. In the present case, the vacant land has been released, whereas the constructed area of the petitioners which is an integral part of the dwelling unit has been acquired. The only material distinction between the land released and land acquired is that the land of the petitioner was not recommended for release by the local M.L.A. In somewhat similar facts and circumstances, Hon'ble the Supreme Court in one of its rare scathing remarks has observed in paras 20 and 24 in the case titled as Hari Ram & Another v. The State of Haryana and others, JT 2010 (2) SC 235 as follows:- “20. The only guideline discernible from the aforesaid letter dated June 26, 1991 is that survey of existing construction should be done before notification is issued under Section 4 of the Land Acquisition Act; that existing factory should not be acquired and it should be released from the proceedings of Section 4 notification and that constructed area of `A' and `B' grade should be left out of acquisition. In Sube Singh (supra), this Court has already held that classification on the basis of CWP No.3302 of 1995 10 nature of construction cannot be validly made and such policy is not based on intelligible differentia and a rational basis germane to the purpose. The policy articulated in the letter dated June 26, 1991, thus, hardly helps the respondents. Rather it is seen that neither the aforesaid policy nor any other policy has been followed by the State Government while releasing land of various landowners whose lands have been acquired in the same acquisition proceedings. As a matter of fact, the only policy that seems to have been followed is : you show me the face and I'll show you the rule. Insofar as policy of 2007 is concerned, apparently that has not been applied to any of the landowners whose land was acquired along with the appellants' land under the same acquisition proceedings and released later on. We are pained to observe that when this Court directed to the State Government vide order dated August 19, 2008 to consider release of the land of the appellants from acquisition, obviously the State Government was required to consider the representations of the appellants by applying the same standards as were applied to other landowners whose lands were acquired for the same purpose and under the same acquisition proceedings and released later on. However, the representations made by the appellants were rejected by relying upon the policy dated October 26, 2007 which on its face is erroneous and unsustainable in law. 24. As a matter of fact, lands of more than 40 landowners out of the same acquisition proceedings have been released by the CWP No.3302 of 1995 11 State Government under Section 48 of the Act. Some of the release orders have been passed in respect of landowners who had not challenged the acquisition proceedings and some of them had challenged the acquisition proceedings before the High Court and whose cases were not recommended by Joint Inspection Committee for withdrawal from acquisition and whose writ petitions were dismissed. Some of these landowners had only vacant plots of land and there was no construction at all. In most of these cases, the award has been passed and, thereafter, the State Government has withdrawn from acquisition. It is not the case of the respondents that withdrawal from acquisition in favour of such landowners has been in violation of any statutory provision or contrary to law. It is also not their case that the release of land from acquisition in favour of such landowners was wrong action on their part or it was done due to some mistake or a result of fraud or corrupt motive. There is nothing to even remotely suggest that the persons whose lands have been released have derived the benefit illegally. As noticed above, prior to October 26, 2007, the State Government did not have uniform policy concerning withdrawal from acquisition. As regards the guidelines provided in the letter dated June 26, 1991, this Court has already held that classification on the basis of nature of construction cannot be validly made and such policy is not based on intelligible differentia and a rational basis. What appears from the available material is that for CWP No.3302 of 1995 12 release of the lands under the subject acquisition, no policy has been adhered to. This leads to an irresistible conclusion that no firm policy with regard to release of land from acquisition existed. 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 right of similar treatment by the State Government. Equality of citizens' rights is one of the fundamental pillars on which edifice of rule of law rests. All actions of the State have to be fair and for legitimate reasons. 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 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 same acquisition proceedings and for same public purpose is definitely violative CWP No.3302 of 1995 13 of Article 14 of the Constitution and must be held to be discriminatory. More so, it is not even the case of the respondents that release of land from acquisition in favour of various landowners, as noticed above, was in violation of any statutory provision or actuated with ulterior motive or done due to some mistake or contrary to any public interest. As a matter of fact, vide order dated August 19, 2008, this Court gave an opportunity to the State Government to consider the representations of the appellants for release of their land and pass appropriate order but the State Government considered their representations in light of the policy dated October 26, 2007 ignoring and overlooking the fact that for none of the landowners whose lands have been released from acquisition, the policy dated October 26, 2007 was applied. The State Government has sought to set up make believe grounds to justify its action that development planning has been kept into consideration and that the appellants have been offered developed plots of double the area of construction while the fact of the matter is that in some cases where the plots were vacant and had no construction, the entire plot has been released from acquisition and also the cases where one room or two rooms construction was existing, the whole of plot has been released. While releasing land of more than 40 landowners having plots of size from 150 sq. yards to 1500 sq. yards, if development plan did not get materially disturbed in the opinion of the State Government, the same opinion must CWP No.3302 of 1995 14 hold good for the appellants' lands as well. It is unfair on the part of the State Government in not considering representations of the appellants by applying the same standards which were applied to other landowners while withdrawing from acquisition of their land under the same acquisition proceedings. If this Court does not correct the wrong action of the State Government, it may leave citizens with the belief that what counts for the citizens is right contacts with right persons in the State Government and that judicial proceedings are not efficacious. The action of State Government in treating the present appellants differently although they are situated similar to the landowners whose lands have been released can not be countenanced and has to be declared bad in law.” In our considered view, this kind of discrimination cannot be permitted. In a democratic system, the representative of the people has to respond to the aspiration of the common man. A very onerous duty has been cast upon him to give positive momentum to the social system and their conduct should be such which reinforces the people's faith in the system of governance. The society is a system in action. The people at the helm of affairs must discharge their duties in a manner that solidarity and one-ness of the society is not fragmented and the persons belonging to the minority community do not feel unsafe and discriminated. The State cannot act in an arbitrary manner and contrary to law of the land. There is an illuminating instance related in Rajatarangini, IV, 55-70, as to how Chandrapida, the king of Kashmir (680-688 A.D.), upheld the rule of law. The officers of the king undertook construction of a temple CWP No.3302 of 1995 15 of Lord Tribhuvanaswami on a certain site. On a portion of that site there was a hut belonging to a Charmakara (cobbler). He refused to remove his hut in spite of being asked to do so by the king's officers. Thereupon the officers complained the matter to the king reporting the obstinacy of the Charmakara. However, to their surprise, the officers got a rebuff from the king, who censured them for lack of foresight in encroaching upon the site belonging to the Charmakara and starting construction without taking his consent. The king ordered thus: “Stop the construction or build (the temple) somewhere else. Who would