CWP No.18 of 2004 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.18 of 2004 (O&M) Date of decision: 28.1.2011 Women Education Trust and another ......Petitioner(s) Versus State of Haryana and another ......Respondent(s) CWP No.3005 of 2006 (O&M) Vinod Kumar ......Petitioner(s) Versus State of Haryana and others ......Respondent(s) CWP No.3274 of 2004 (O&M) Jai Chand ......Petitioner(s) Versus State of Haryana and others ......Respondent(s) CWP No.10888 of 2010 (O&M) Dr. Charu Gupta and others ......Petitioner(s) Versus State of Haryana and others ......Respondent(s) CWP No.10006 of 2010 (O&M) Prem Parkash ......Petitioner(s) Versus State of Haryana and others ......Respondent(s) CWP No.10887 of 2010 (O&M) Pritam Singh ......Petitioner(s) Versus CWP No.18 of 2004 (O&M) 2 State of Haryana and others ......Respondent(s) CWP No.10880 of 2010 (O&M) Subhash Chahal ......Petitioner(s) Versus State of Haryana and others ......Respondent(s) CWP No.17206 of 2005 (O&M) Roshan Lal Dhanda and another ......Petitioner(s) Versus State of Haryana and others ......Respondent(s) CWP No.3745 of 2004 (O&M) Gulshan Kumar and another ......Petitioner(s) Versus State of Haryana and others ......Respondent(s) CWP No.11558 of 2010 (O&M) Balbir Singh and another ......Petitioner(s) Versus State of Haryana and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. O.P. Goyal, Sr. Advocate with Ms. Ranjeeta Gill, Advocate Mr. Arun Jain, Sr. Advocate with Mr. Rakesh Nagpal, Advocate, Mr. S.K. Garg, Narwana, Advocate, Mr. Pritam Saini, Advocate, for the petitioners. Mr. Kamal Sehgal, Additional Advocate General, Haryana. CWP No.18 of 2004 (O&M) 3 Mr. Gitish Bhardwaj, Advocate for Mr. Arun Walia, Advocate for HUDA. Rakesh Kumar Garg, J. This judgment shall dispose of 10 writ petitions i.e. CWP Nos.18, 3274, 3745 of 2004, 17206 of 2005, 3005 of 2006, 10006, 10880 10887, 10888, 11558 of 2010 as, on similar facts and grounds, the acquisition of the land of the petitioners vide the same notifications has been challenged. However, for the sake of convenience, facts are being culled out from CWP No.18 of 2004. As per the averments made in this writ petition, the petitioner No.1 is a public charitable trust which was created with the aims and objects of women empowerment through education. The petitioner-Trust purchased land comprised in Khasra No.136/14/2 by way of registered sale deed dated 19.2.2001, Khasra No.136/5/2/1, 136/6 and 136/15/1 by way of registered sale deed on 28.2.2001 and a part of Khasra No.136/14/2 by way of registered sale deed dated 26.3.2001. It is the further case of the petitioners that construction of the building for school upto VIIIth Class in the name and style of Silver Oak Public School was started with effect from 23.4.2001 and the same was completed in June, 2002. The nature of the construction of the school building is A-Class. The Silver Oak Public School, which was running in the tents on temporary basis with effect from 1.4.2001 was shifted in the present building in June, 2002. The construction of the building was made under the deemed permission of Municipal Council, Kaithal. It is further alleged that the respondent issued notification under Section 4 of the Land Acquisition Act, (hereinafter referred to as the 'Act') intending to acquire the land specified in the notification dated CWP No.18 of 2004 (O&M) 4 11.11.2002. The land of the petitioners was also sought to be acquired and was included in the aforesaid notification (Annexure P-6). The petitioner filed objections dated 2.12.2002 under Section 5A of the Act which were duly received. The petitioners received notice for hearing of objections fixed for 19.9.2003 at PWD Rest House, Kaithal. On the stipulated date, petitioner No.2 had reached at PWD Rest House, Kaithal. Many other objectors were also present but the Land Acquisition Collector, Kaithal was not present. The objections were heard by one Raj Bir Patwari who also got signed the statement of petitioner No.2. It was specifically stated that no hearing was provided by the Land Acquisition Collector as he was absent at the time of hearing of the objections. Thereafter, respondents issued notification (Annexure P-9)under Section 6 of the Act on 7.11.2003 including the land of the petitioners. However, certain other areas where buildings were constructed were left out. It was further averred by the petitioners that there was a policy dated 26.6.1991 (Annexure P-10) issued by the respondents to the effect that existing factories should not be acquired and should be released from proceedings under Section 4 Notification with further instructions that constructed area of A and B grade should be left out of acquisition. On the basis of the aforesaid facts, the petitioners filed the instant writ petition challenging the notifications Annexures P-6 and P-9 alleging discrimination, violation of Government Policy and non-providing of opportunity of hearing on objections filed under Section 5-A of the Act. On 6.1.2004, at the time of preliminary hearing, this Court passed the following order : “On the basis of pleadings and photographs, that have been annexed with the present petition, learned counsel contends that a running school has been acquired in which 203 students are being imparted CWP No.18 of 2004 (O&M) 5 education. This is not only against the policy of the Government but further that objections filed under Section 5A of the Land Acquisition Act were not at all heard by the competent authority. Notice of motion for 1.3.2004. Stay dispossession meanwhile.” The respondents filed written statement contesting the claim of the petitioners submitting therein that the acquisition proceedings were carried out in accordance with law and the objections under Section 5-A of the Act were disposed of after giving full opportunity of hearing. It was specifically averred that after giving full opportunity of hearing, the Land Acquisition Collector, made a report on individual objections and sent them to the Government for final decision and after receiving the report from the Government, the declaration was issued. It was also submitted that the objections were heard by the Land Acquisition Collector at PWD Rest House, Kaithal and the stand taken by the petitioners in this regard was false. It was further pointed out that only 0.75 acre land which was a religious place was left out from acquisition and the land of the petitioners was falling in the 100 meter wide green belt running parallel to the Kaithal Bye Pass road as shown in Annexure R-2, and, the same could not be released from acquisition. It may also be relevant to mention that on an application, vide order dated 27.5.2004, HUDA was permitted to be impleaded as respondent No.3. Replication was filed by the petitioners to the written statement. Certain documents were also placed on record as Annexures P- 15 to P-18 vide CM No.20322 of 2005 which was allowed on 1.12.2005. During the course of arguments, on 28.4.2007, this Court passed the following order: “Various site-plans including the one prepared by the CWP No.18 of 2004 (O&M) 6 Revenue Authorities have been examined with the help of Revenue Officials, who are present in the Court. There is no doubt that a green belt on both sides has been carved out alongside the road which connects two existing highways on both sides of acquired land. However, the green belt which is stated to cover the petitioners' school, also covers nearly 17-18 acres of land for the Police Lines. Therefore, unless the respondents include the land for Police Lines, they simply cannot, in all fairness, include the School in the green belt because between the School and the road, exists some portion of Police Lines. Faced with this situation, learned counsel for the respondent-State seeks time to obtain instructions to clarify the position. To come up on 22.5.2007.” On 28.9.2007, on the submissions of learned counsel for the petitioners, the following order was passed: “Learned senior counsel for the petitioners submits that till April 2003, no permission was required to run unaided private schools. He further submits that under the Land Acquisition Act and the Rules, only 30 meters green belt is required to be maintained on the national highway and on bye-pass, it is 100 meters. He also submits that in the adjoining sector, a 30 meters green belt has been left, whereas in the sector, in question, a 100 meters green belt has been made. In view of the aforesaid, learned Additional Advocate General, Haryana, prays for and is granted a week's time to file an additional affidavit with site plan. Adjourned to 12.10.2007. It is also relevant to mention that an affidavit of Mr. Ram Kumar, District Town Planner, Kaithal, Department of Town and Country Planning, Haryana dated 16.11.2007 was filed by the respondent which reads as follows:- “1. That a school in the name of M/s Women CWP No.18 of 2004 (O&M) 7 Education Trust, Kaithal (Petitioner) is running in sector- 32, Kaithal. The site in question falls within the controlled area Kaithal, declared under Sub-Section 1 of Section 4 of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 on 25.8.1971. The land in question has been acquired for green belt adjoining Sector 19, 20, Kaithal. 2. That the peripheral road/Bye Pass road with 100- meters wide green belt on both sides was reserved in the published Draft Development Plan 2021 AD for Kaithal, Drg. No.KTL-136/2006, dated 9.10.2006 (Copy attached as Annexure R/1), which is shown in green colour. The site of petitioner in question is shown in Black colour on the attached Draft Development Plan 2021 AD Kaithal and Shazra Plan of Sector 19-20, Kaithal. 3. That the road abutting the land in question is known as V-1 Road and according to the Draft Development Plan 2021 AD published on 4.4.2007, 75- meter wide road with 100-meter green belt on both sides has been provided. Following is the extract: “(1) Land reservation for major roads marked in the Drawing shall be as under:- 1 V-1 75 mtrs width with 100 metres green belt on both sides 2 V-1(a) Existing width with 45 metres green belt on both sides 3 V-1(b) National Highway-65 Existing width with 60 metres green belt on both sides 4 V-1(c ) Existing width with 45 metres green belt on both sides 5 V-1(d) Existing width 6 V-1(e) Existing width with 45 metres green belt on both sides 7 V-1(f) Existing width 8 V-1(g) National Highway-65 Existing width with 60 metres green belt on both sides CWP No.18 of 2004 (O&M) 8 1 V-1 75 mtrs width with 100 metres green belt on both sides 9 V-1(h) Existing width with 30 metres green belt on both sides 10 V-1(i) Existing width 11 V-1(j) Existing width 12 V-1(k) Existing width 13 V-3 45 metres (2) Width and alignment of other roads shall be as per sector plans or as per approved layout plans of colonies. (3) The area under green belt and sector roads shall not be included under 'net planned area' while approving layout plans for colonies to be developed by HUDA and private developers. The FAR and saleable area shall continue to be permitted only on the net planned area.” 4. That the structure (Site Plan attached as Annexure R/2) in question is unauthorized and Change of Land Use permission has not been obtained from the Director, Town and Country Planning, Haryana under Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963, before raising of the structure. 5. That 100-meters wide green belt along peripheral road/Bye pass road in the adjoining sector 19 & 20 have also been provided as per published Draft Development Plan 2021 AD for Kaithal and maintained.” It is also relevant to refer to the order dated 27.2.2008 passed by this Court which reads as follows: “Learned State counsel while placing reliance upon a policy of the State Government framed on 26.10.2007, has submitted that in case where where is interim order of stay granted by this Court, the petitioner whose land has been acquired, is entitled to consideration by Director, Urban Estates and CWP No.18 of 2004 (O&M) 9 accordingly, it has been submitted that the petitioner may appear before the Director, Urban Estates (Haryana), Yojna Bhawan, Madhya Marg, Sector 18-A, Chandigarh on 24.3.2008 and 25.3.2008 at 10:00 A.M and his case shall be considered by taking into account the claim made in the writ petition by treating it as a representation. Put up for further consideration on 10.4.2008. If any decision is taken, the same shall be placed on the record by the said date. Copy of this order be given to learned State counsel under the signatures of Court secretary. Copy of this order be also given dasti by tomorrow to learned counsel for the petitioners on payment of usual charges. A photocopy of this order be placed on the file of each connected case.” In pursuance of the aforesaid order, the Director, Urban Estates Department Haryana, Chandigarh passed an order dated 5.4.2008 which was placed on record of the case. The operative part of the aforesaid order reads as follows: “In pursuance of these orders, on behalf of the petitioners of CWP No.18 of 2004, Shri Kamlesh Chaudhary, Chairman of the Women Education Trust appeared on 24.3.2008. The representative for the petitioners stated that they have deposited 73772/- as development charges to Municipal Council, Kaithal on 28.2.2001 and further stated that house tax is also being charged by Municipal Council, Kaithal. But no proof regarding payment of house tax was produced by the representative for the petitioners. He further argued that permission for change of land use was not obtained by them because the area was not planned and no development plan was prepared at the time of construction. He further stated that the petitioners are the owners of the land measuring 2400 CWP No.18 of 2004 (O&M) 10 Sq.yards bearing Khasra Nos.136//5/2/1, 6 & 15/1 of village Patti Kaisth Seth, Tehsil & District Kaithal on which school building exists & further pleaded that one of the purposes of acquisition is institutional and their building is also for institutional use. He also produced the copies of the judgments passed by the Hon'ble Punjab and Haryana High Court in the cases of United Rice Land Ltd. V/s State of Haryana & Pritam Singh V/s State of Haryana & others in support of his contention of the “protection of school” & “Act No.41 of 1963 does not override Municipal Act” respectively. He further stated that his daughter Dr. Sonali Chaudhary, is highly educated being M.A., Ph.D. And is running this school by constituting a 'Women Education Trust.' District Town Planner, Kaithal along with his staff & Sh. Parkash Chand, Naib Tehsildar from the office of Land Acquisition Officer, Panchkula were also present and produced record pertaining to planning & acquisition. Sh. Parkash Chand, Naib Tehsildar stated that as per the proceedings of Joint Site Inspection Committee meeting held on 25.6.2003 under the chairmanship of the Administrator, HUDA, Panchkula, this structure was recommended for acquisition. He also stated that the petitioners had filed objections under Section 5-A of the Land Acquisition Act, 1894 and the recommendation of the Land Acquisition Collector is that “as the structure is of 'A' class and a public school is running in it, so it is not proper to acquire this structure/site. District Town Planner stated that the whole area requested for release falls within 100 meters wide restricted belt of the bye pass to the Ambala-Kaithal- Uklana Fatehabad scheduled road prescribed under section 3 of the 'Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 (Act No.41 of 1963). I have seen the location of the site on the Sajra CWP No.18 of 2004 (O&M) 11 Plan placed at Annexure 'A'. I have also gone through the scheme of Act No.41 of 1963. Section 2(3) of the Act ibid gives definition of bye- pass, which is as follows: 2(3) “Bye-pass” means a road provided as a permanent diversion to scheduled road, whether such diversion is situated within or without the limits of a local authority and whether it is constructed before or after the commencement of this Act; Further Section 3 & Section 7-A of the Act ibid are reproduced below for the better appreciation of the issue at the hand:- 3. Prohibition to erect or re-erect buildings along scheduled roads- No person shall erect or re-erect any building or make or extend any excavation or lay out any means of access to a road within one hundred meters of either side of the road reservation of a bye-pass or within thirty meters on either side of the road reservation of any scheduled road not being bye-pass. 7A Power of relaxation – The Government may, in public interest, relax any restrictions or conditions in so far as they relate to land use prescribed in the controlled area in exceptional circumstances. The construction has been raised in violation of the provision of Section 3 of the Act ibid. The Act doesn't provide any relaxation for the restrictions imposed under Section 3. The Government is empowered only to relax the land use restrictions in the Controlled area under Section 7-A of the Act ibid as described in the Development Plan prepared under section 5 of the Act ibid. The construction has been raised after submitting the building plans to the Municipal council. The site is although located in the extended Municipal limits but the land use proposals of the development plan is applicable because the site was part of Controlled area at the time of extension of Municipal limits. This fact has CWP No.18 of 2004 (O&M) 12 been taken note of while making provision in the amended Section 203 of the Municipal Act, 1973. Hence the building plans submitted to the authority, not competent to entertain such matters cannot be considered to be deemed to have been approved. The Municipal Authorities cannot approve the building plans in violation of Section 3 of the Act ibid. Keeping in view the above mentioned facts and circumstances of the case, I find no ground to consider the release of the above said structure raised in violations of the Act No.41 of 1963. The representation is, therefore, rejected. The party may be informed accordingly.” Thereafter, the following order was passed by this Court on 4.10.2010: In this writ petition, despite request made, land of the petitioners was not released from acquisition on the ground that construction raised by them falls in the Green Belt. On April 28, 2007, following order was passed by this Court: “Various site plans including the one prepared by the Revenue Authorities have been examined with the help of Revenue Officials, who are present in the Court. There is no doubt that a green belt on both sides has been carved out alongside the road which connects two existing highways on both sides of acquired land. However, the green belt which is stated to cover the petitioners' school, also covers nearly 17-18 acres of land for the Police Lines. Therefore, unless the respondents include the land for Police Lines, they simply cannot, in all fairness, include the School in the green belt because between the School and the road, exists some portion of Police Lines. CWP No.18 of 2004 (O&M) 13 Faced with this situation, learned counsel for the respondent – State seeks time to obtain instructions to clarify the position.” No response has been filed to the above said order. Furthermore, in CWP No. 17206 of 2005, counsel has drawn our attention to an order passed by Director, Urban Estate Department, Panchakula, Haryana, dated August 16, 2005, (Annexure P-14) ordering release of 85 houses falling in green belt. If that is so, the authorities are to explain as to why the same relief cannot be granted to the petitioners. Counsel for the petitioners states that to save their constructed portion, they are ready to leave as much area adjoining the road already in existence for its convenient use. Counsel has further brought to our notice that vide the Punjab Schduled Road and Controlled Areas (Restriction of Unregulated Development)(Haryana Amendment Act 2009), amendment has been effected in the provisions of Sections 3 and 6 of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963, which would benefit the petitioners because vide that amendment buildings existing before 2009 were saved from application of 1963 Act. Shri Sehgal is directed to file response to the above said facts. Needful be done within a period of three weeks from today. Adjourned to October 28, 2010. Copy of this order be supplied to the State counsel under signatures of the Court Secretary. Copy of this order be placed on the files of the connected cases.” In compliance of the aforesaid orders, an affidavit was filed on CWP No.18 of 2004 (O&M) 14 behalf of the respondents, which was also taken on record. The relevant part of the said affidavit reads as follows:- “1. That the above subjected CWPs are pending before this Hon'ble Court and the same being connected matters are being heard jointly. The land of the petitioners in above said CWP's was notified u/s-4 dated 11.11.2002 for development and utilization of land for purpose commercial, professional, institutional and for green belt, notified u/s-6 dated 7.11.2003 and the award was announced on 31.10.2005. On the last date of hearing i.e 9.11.2010 this Hon'ble Court was pleased to direct the respondents to file specific affidavit in compliance of the order passed by the Hon'ble High Court on 4.10.2010. The present affidavit is thus being filed in compliance of said directions of this Hon'ble Court. 2. That vide order dated 4.10.2010 this Hon'ble Court had directed the respondents to file response to the observations of this Hon'ble Court in its order dated 28.4.2007. In the said order it was observed by this Hon'ble Court that “the green belt which is stated to cover the petitioners' school also covers nearly 17-18 acres land for the Police Lines. Therefore, unless the respondents include the land for Police Lines, they simply cannot, in all fairness, include the School in the Green belt because between the School and the road, exists some portion of Police Lines”. Regarding the said observation it is submitted that the total area of the petitioners which has been acquired and which falls in the green belt and belt reserved for road widening is as under:- CWP No.18 of 2004 (O&M) 15 Sr No CWP No. and name Total area of the petitioner Total constructe d area which has been acquired Area under Green Belt as per Developme nt plan Area under belt reserved for Road widening as per Developme nt Plan. 1 CWP No.18 of 2004- Women Education Trust V. State of Hr. 2400 sq Yd (approx) 2400 sq yd (approx) 2400 sq yd (approx) (i.e 100%) 2 CWP No.3274 of 2004- Jai Chand v. State of Haryana 7320 sq yd (approx) 2619 sq yd (approx) 1228 sq yd (approx) 3 CWP No.3745 of 2004- Gulshan Kumar v. State of Haryana 480 sq yd (approx) 480 sq yd (approx) 480 sq yd (approx) (i.e 100%) 4 CWP No.17206 of 2005- Roshan Lal v. State of Haryana 2034 sq yd (approx) 2034 sq yd (approx) 204 sq yd (approx) 1830 sq yd (approx) 5 CWP No.3005 of 2006- Vinod Kumar v. State of Haryana 1119 sq yd (approx) Nil Vacant site It is pertinent to mention here that the answering respondents had acquired land measuring 82.80 acres vide Award No.8 of 31.10.2005 for development of road widening of existing bye pass/N.H 65, green belt and commercial purpose as per the published Draft Development Plan 2021 AD, Kaithal. The area for Police Lines was not acquired by the CWP No.18 of 2004 (O&M) 16 answering respondents and the same has been acquired by the Home Department vide separate notification. Details of the said acquisition are not available with the answering respondent as Home Deptt is not a party in the present writ petitions. However, it is significant to mention here that since the Draft Development plan 2021 for Kaithal has already been published,