CIVIL WRIT PETITION NO. 9997 OF 2006(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: February 16, 2011. Parties Name Ashok Kumar ...PETITIONER VERSUS The State of Haryana and others ...RESPONDENTS CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice Rakesh Kumar Garg PRESENT: Mr. Ramesh Sharma, Advocate, for the petitioner Mr. Narender Hooda, Sr. Addl. A.G., Haryana, for respondents No. 1 and 2. Mr. Kapil Kakkar, Advocate, for respondent No. 3. Jasbir Singh, J. (oral) JUDGMENT CM Nos. 2516-17 OF 2011: C.M. applications are allowed and documents Annexure P-6 to P-9 are taken on record. CWP No. 9997 of 2006: This writ petition has been filed with a prayer to quash a notification, issued under Section 4 of the Land Acquisition Act, 1894 (in short the Act) on December 15, 2004, proposing to acquire 305 Kanals 9 CIVIL WRIT PETITION NO. 9997 OF 2006(O&M) -2- Marlas of land for a public purpose, namely, construction of New Grain and Vegetable Market in village Jatauli, Tehsil Pataudi. Petitioner's land measuring about 2 Kanals was the subject matter of above said notification. Further challenge is made to a declaration issued under Section 6 of the Act on January 9, 2006, showing intention of the authorities to acquire land measuring 305 Kanals 9 Marlas. Land measuring 279 Kanals and 16 Marlas was the subject matter of an Award, passed on June 15, 2007. This writ petition was dismissed vide order dated May 12, 2008, in which it was specifically noted that the land owned by the wife of Mr. Rambir Singh, former MLA, was also the subject matter of acquisition. By making reference to para No. 6 of the reply filed by the respondents, this Court found that it was not a case of discrimination, as alleged by the petitioner. Petitioner went to the Hon'ble Supreme Court, his S.L.P. was dismissed vide order dated December 16, 2008. Thereafter, he filed an application to recall an order passed on May 12, 2008, by stating that after getting information under the provisions of Right to Information Act, 2005, it has transpired that the land falling in Khasra No. 162//17/1/2, owned by Rambir Singh, former MLA, was in fact released from acquisition, whereas in the reply filed, above fact was wrongly stated . By taking note of the same, order earlier passed was recalled and this writ petition was set down for hearing on merits. On February 2, 2011, following order was passed by this Court: “Vide order dated August 27, 2010, opportunity was granted to respondents No. 1 and 2 to file detailed reply with regard to all CIVIL WRIT PETITION NO. 9997 OF 2006(O&M) -3- the facts concerning release of the land, owned by the wife of a former MLA within four weeks. However, nothing has been done. Prayer has again been made to file reply. Though there is no justification, yet in the interest of justice, it is granted subject to payment of Rs. 40,000/- (forty thousand) as costs, to be deposited with the Secretary, Legal Services Authority, UT Chandigarh, within 15 days. At an earlier point of time, respondents got this writ petition dismissed vide order dated May 12, 2008, which order was recalled vide order dated August 27, 2010, and opportunity was granted to file the written-statement . Today, costs have been imposed because when the writ petition was pending, despite availing many opportunities since the year 2006, reply was not filed. In the reply to be filed, State counsel is directed to provide the following information: “1. Whether land falling in Khasra No. 17/1/1, 17/1//2, 13/1, 13/2 and 26 was the subject matter of notification issued under Section 4 of the Land Acquisition Act,1894, on December 15, 2004, or not? If not, why it was kept out of acquisition. Report made by the authority in that regard be put on record. 2.When it was decided to acquire the land falling in the above said Khasra numbers and at whose instance? 3. Whether proposal to acquire the land was accepted? If not, why ? 4. When wife of the MLA, namely, Shri Rambir Singh CIVIL WRIT PETITION NO. 9997 OF 2006(O&M) -4- purchased land falling in Khasra No. 17/1/1 and 17/1/2 and from whom? 5. Whether there was any construction in existence in the land owned by the petitioner when notification under Section 4 of the Land Acquisition Act, 1894, was issued? On request, adjourned to February 16, 2011.” In response thereto, written-statement has been filed on behalf of respondent No.1, wherein it is specifically stated that land falling in Khasra No. 17/1/1, 17/1/2, 13/1, 13/2 and 26 of Rectangle No. 162 was not the subject matter of notification issued under Section 4 of the Act on December 15, 2004. As such, there was no question of releasing land of the former MLA falling in Khasra No. 17/1/2. To strengthen this argument, reference has been made to the detail of land shown in the above said notification. Perusal thereof clearly indicates that the land falling in above said Khasra numbers was not proposed for acquisition and accordingly it was not the subject matter of notification issued under Section 6 of the Act and Award passed thereafter. It has also come on record that on the date when notification under Section 4 of the Act was issued, wife of the MLA, namely, Smt. Prem Lata was not owner of the land in dispute. She purchased the land falling in Khasra No. 17/1/2 only on March 30, 2006. If that is so, by not including that land in those notifications, it cannot be treated as a case of discrimination with the petitioner. Faced with the situation, counsel for the petitioner tried to raise an argument that subsequently by passing a resolution, the above said land CIVIL WRIT PETITION NO. 9997 OF 2006(O&M) -5- owned by the MLA was proposed to be acquired. To say so, reference was made to a letter written by Zonal Administrator, Haryana State Agricultural Marketting Board, Gurgaon, to the Chief Administrator, Haryana State Agricultural Marketting Board at Panchkula, in which it is suggested that to provide wide frontage to the land acquired, the land falling in Khasra No. 162//13/2, 17/1/2 be also acquired. However, subsequent thereto, the proposal was accepted only qua Khasra No. 13/2, while Khasra No. 17/1/2 was not acquired on the ground that construction was in existence on that land. Once it has come on record that when initial notification under Section 4 of the Act was issued, wife of the MLA was not owner of the adjoining land to the land of the petitioner and that land was also not a part of the notification issued at that time, then the petitioner's contention that favour has been shown to a political personality is not acceptable. Furthermore, an attempt was made to show that land falling in Khasra Nos. 160//5/1, 4,5, 3min was released from acquisition after issuance of declaration under Section 6 of the Act. No averment to that extent has been made in the writ petition because it was a subsequent development. Be that as it may, in response to our order passed on February 2, 2011, it is specifically stated that the land falling in those Khasra numbers was released on account of existence of construction thereon. There is nothing on record to show to the contrary. It is contention of counsel for the petitioner throughout that on his land measuring about 2 Kanals, he had raised his residential/ commercial building. It was also so stated in the objections filed under Section 5-A of the Act. Para No. 10 of the objections reads thus: CIVIL WRIT PETITION NO. 9997 OF 2006(O&M) -6- “10. That after purchasing the above said plot, the objector/ petitioner had raised the construction on the said plot prior to the issue of notification u/s 4 of the L.A.Act and the objector has been utilizing the premises for residential cum commercial. As per policy of State Government the land having construction prior to issue of notification u/s 4 of L.A. Act is exempted from the array of acquisition. Moreover, the public purpose as shown in notification is the same for which the land was purchased by the objector and has been utilizing. Therefore, the land in question deserves to be released from acquisition.” With the reply now filed recommendation made by the Land Acquisition Collector, to acquire land of the petitioner, has been placed on record. Perusal thereof clearly indicates that there was only a boundary wall in existence without any construction and the plot was lying vacant. At the time of arguments, when counsel for the petitioner insisted that he has his residential and commercial construction in existence, we directed him to show us the photographs of the building allegedly constructed by him before issuance of notification under Section 4 of the Act. Photographs were produced in the Court. Perusal thereof indicates that there is only one small room existing on one corner of the plot. There is nothing on record to show that it was constructed before issuance of notification under Section 4 of the Act. To a specific question as to when the electric connection was obtained by the petitioner, it was said by his counsel that no electric connection was released in favour of the petitioner. The building was CIVIL WRIT PETITION NO. 9997 OF 2006(O&M) -7- constructed without getting a building plan approved from the competent authority and further that the petitioner is using the same as his day time dispensary. We are of the view that all the averments clearly establish that the construction of a small room was not in existence when notification under Section 4 of the Act was issued and it has been constructed afterwards. Such a litigant, who tried to create evidence, is not supposed to get any benefit from this Court, especially under Article 226 of the Construction of India. Dismissed. ( Jasbir Singh ) Judge (Rakesh Kumar Garg) Judge February 16, 2011. DKC