Civil Writ Petition No.12391 of 1994 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.12391 of 1994 Date of decision: 27.10.2010 Teja Singh ...Petitioner Versus State of Punjab and another ...Respondents CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. A.S.Gill, Advocate for the petitioner Mr. S.C.Pathela, Advocate for the respondent No.2. **** ADARSH KUMAR GOEL, J ( Oral) 1. This petition seeks quashing of acquisition of plot of the petitioner under the provisions of the Punjab Town Improvement Act, 1922 (hereinafter referred to as “the Act”). 2. Case of the petitioner is that he purchased a plot of one kanal in the year 1969 and constructed boundary wall and two rooms thereon. In the year 1971, the Improvement Trust framed a scheme for development to which the petitioner raised an objection. Considering the said objection area was left out from the acquisition vide resolution dated 22.1.1973. However, in April, 1977, the scheme was notified and contrary to the earlier decision, land of the petitioner was also covered by acquisition. According to the Civil Writ Petition No.12391 of 1994 -2- **** petitioner notification dated 19.8.1977 including the area of the petitioner in the development scheme was illegal being contrary to the earlier decision to exclude the said area. It is also stated that large part of acquired area was exempted vide notification dated 5.7.1993 Annexure P-9 without any criteria resulting in denial of right of equality of the petitioner. 3. In the reply filed on behalf of the Improvement Trust, stand taken is that land of the petitioner was never excluded from the acquisition and criteria for exemption was land of which possession could be taken and land of which possession could not be taken. 4. Thus, the question for consideration is whether land of the petitioner was liable to be exempted from acquisition on account of parity with the other land which was excluded from acquisition. 5. It is an admitted fact that out of 1238 kanals of land originally notified only 377 kanals of land was retained and the remaining was excluded from acquisition vide notification dated 5.7.1993 Annexure P-9. No valid distinction has been shown in the area excluded from acquisition and in the area retained for acquisition. If almost 75% of notified land was excluded from acquisition without following any rational criteria, plea of the petitioner that not excluding land of the petitioner from acquisition was discriminatory has to be upheld. 6. In a case where major part of acquired land is excluded from acquisition, inference can be drawn that real purpose of acquisition was not the declared public purpose and exercise of Civil Writ Petition No.12391 of 1994 -3- **** power was malafide. In the present case, this inference is patently called for. Moreover, in absence of adoption of valid criteria for releasing and not releasing acquired land, finding of violation of Article 14 can be recorded. In the present case we have to record such a finding. In support of our view, we may refer to law laid down to this effect in the following judgments:- i) Bondu Ramaswamy and others Vs. Bangalore Development Authority and others (2010) 7 Supreme Court Cases 129. “145. We may illustrate the principle relating to positive and negative equality with reference to following notional acquisition cases: (i) Where a petitioner’s land and his neighbour’s land are of similar size and have similar structures and are similarly situated, and the policy of the Development Authority is to withdraw the acquisition in respect of lands which are “constructed”, if the neighbour’s land is deleted from the proposed acquisition on the ground that it has a construction of 1000 sq ft and the petitioner’s land is not so deleted, the petitioner will be entitled to relief on the ground of discrimination. But if the neighbour’s land measures 2000 sq ft and contains a house of 1000 sq ft and the petitioner’s land measures one acre and contains a house measuring 1000 sq ft, the petitioner cannot obviously contend that because his neighbour’s property was deleted from acquisition, being a land with a Civil Writ Petition No.12391 of 1994 -4- **** construction, his one acre land should also be deleted in entirety from the acquisition, as it had a 1000 sq ft construction. But it may be possible for him to contend that an extent equal to what was released to his neighbour, should be released. (ii) Where the lands owned by two neighbours are equal in size having similar structures, but one was constructed before the preliminary notification after obtaining a licence and the other was constructed after the preliminary notification unauthorisedly, the owner of the land with the unauthorised structure cannot obviously claim parity with the owner of the land with the authorised structure, for seeking deletion from acquisition. (iii) Where the vacant lands of A and B—two neighbours are acquired, the Authority had a policy to delete properties with constructions, as on the date of preliminary notification. Both put up unauthorised structures clandestinely overnight, after the preliminary notification. The land of B is deleted from acquisition on the ground that it has a construction. If A approaches court and claims release of his land claiming parity with B, the claim will have to be rejected. But, where the Authority admits that B’s land was deleted even though the construction was subsequent to preliminary notification, the court may direct the Authority to take appropriate Civil Writ Petition No.12391 of 1994 -5- **** action in accordance with law for cancelling the deletion. (iv) If in a village all the lands are notified and subsequently all lands except two or three small pockets are deleted without any valid ground, the persons whose lands were acquired can also seek deletion, on the ground that all the surrounding lands have been deleted. The court cannot direct deletion merely because the surrounding lands were deleted, as those deletions were illegal and not based on any valid policy. But the petitioners can contend that the very purpose of acquisition had been rendered infructuous by deletion of the majority of lands from the proposed acquisition, and the project or the scheme has ceased to exist and cannot be executed only with reference to their lands. In such a case, relief can be granted not on the ground that there has been discrimination, but on the ground that the proposed development scheme became non-existent on account of most of the lands being deleted from acquisition. Therefore, a landowner is not entitled to seek deletion of his land from acquisition, merely on the ground that lands of some others have been deleted. He should make out a justifiable cause for deleting his land from acquisition. xxx xxx xxx 156. When BDA prepares a development scheme it is Civil Writ Petition No.12391 of 1994 -6- **** required to conduct an initial survey about the availability and suitability of the lands to be acquired. While acquiring 16 villages at a stretch, if in respect of any of the villages, about 30% area of the village is not included in the notification under Section 4(1) though available for acquisition, and out of the remaining 70% area which is notified, more than half (that is, about 40% of the village area) is deleted when final notification is issued, and the acquisition is only of 30% area which is non-contiguous, it means that there was no proper survey or application of mind when formulating the development scheme or that the deletions were for extraneous or arbitrary reasons. 157. Inclusion of the land of a person in an acquisition notification, is a traumatic experience for the landowner, particularly if he was eking out his livelihood from that land. If large areas are notified and then large extents are to be deleted, it breeds corruption and nepotism among officials. It also creates hostility, mutual distrust and disharmony among the villagers, dividing them on the lines of “those who can influence and get their lands deleted” and “those who cannot”. Touts and middlemen flaunting political connections flourish, extracting money for getting lands deleted. Why subject a large number of citizens to such traumatic experience? Why not plan properly before embarking upon acquisition process? In Civil Writ Petition No.12391 of 1994 -7- **** this case, out of the four villages included at the final stages of finalising the development scheme, irregularities have been found at least in regard to three villages, thereby emphasising the need for proper planning and survey before embarking upon acquisition. 158. Where arbitrary and unexplained deletions and exclusions from acquisition, of large extents of notified lands, render the acquisitions meaningless, or totally unworkable, the court will have no alternative but to quash the entire acquisition. But where many landlosers have accepted the acquisition and received the compensation, and where possession of considerable portions of acquired lands has already been taken, and development activities have been carried out by laying plots and even making provisional or actual allotments, those factors have to be taken note of, while granting relief. The Division Bench has made an effort to protect the interests of all parties, on the facts and circumstances, by issuing detailed directions. But implementation of these directions may lead to further litigations and complications. 159. To salvage the acquisition and to avoid hardships to BDA and its allottees and to avoid prolonged further rounds of litigations emanating from the directions of the High Court, a more equitable way would be to uphold the Civil Writ Petition No.12391 of 1994 -8- **** decision of the Division Bench, but subject BDA’s actions to certain corrective measures by requiring it to re- examine certain aspects and provide an option to the landlosers to secure some additional benefit, as an incentive to accept the acquisition. A direction to provide an option to the landlosers to seek allotment of developed plots in lieu of compensation or to provide for preferential allotment of some plots at the prevailing market price in addition to compensation will meet the ends of justice. Such directions will not be in conflict with the Bangalore Development Authority (Allotment of Sites) Rules, as they are intended to save the acquisitions. If the acquisitions are to be quashed in entirety by accepting the challenges to the acquisition on the ground of arbitrary deletions and exclusions, there may be no development scheme at all, thereby putting BDA to enormous loss. The directions of the High Court and this Court are warranted by the peculiar facts of the case and are not intended to be general directions applicable to regular acquisitions in accordance with law, without any irregularities.” ii) Hari Ram and another Vs. State of Haryana and others (2010) 3 Supreme Court Cases 621. “43. 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 Civil Writ Petition No.12391 of 1994 -9- **** 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 the 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. iii) Amita Banta and another Vs. State of Haryana and others 2010(1) RCR (Civil) 412. “27. We may now sum up our conclusions as under :- a) In view of withdrawal by the State from 90% of the acquired land without any exceptional or unforeseen situation or legally permissible objects, the notified purpose of acquisition did not exist and can be held to be a pretence. b) In absence of existence of notified public purpose, acquisition proceedings are liable to be quashed being vitiated by colourable exercise of power. c) There was no valid consideration of objections, under Section 5- A. Section 5-A read with Section 6 requires consideration of objections about existence of public purpose and fitness of the land for acquisition not only by Collector but also by the State and such consideration Civil Writ Petition No.12391 of 1994 -10- **** must be shown by filing affidavit by a person associated with the decision making at the State level, which has not been done. There is, thus, no valid consideration of objections, as required by law. d) Power of withdrawing from acquisition under Section 48 can be exercised only for an unforeseen or uncontemplated situation and not by a planned policy which may be in conflict with declared public purpose or scheme of the Act. Release of land by the State under its policy is beyond the scope of Section 48. The same can be annulled and appropriate direction issued to bring out situation existing prior to illegal actions of the State. 28. Question now is as to what should be the final order. The guiding principle has to be Ubi jus ibi remedium - Wherever there is a wrong, there is a remedy. For moulding relief the Court may have different options. The Court may quash acquisition proceedings if the same are vitiated by colourable exercise of power. In doing so, the Court cannot ignore that release becomes final and the person in whose favour acquisition proceedings are withdrawn may be immensely benefited on account of wrong exercise of discretion in his favour. He may retain benefits taken illegally. This may have to be undone. Fraud vitiates all proceedings. Civil Writ Petition No.12391 of 1994 -11- **** 29. To prevent illegal benefit being retained, the Court may quash release or withdrawal from acquisition if the same is held to be vitiated by fraud. The Court may require the State to recall such release and also to ascertain whether release was for any extraneous consideration and how wrongful gain or wrongful loss can be readjusted. Released land may be restored to the State or sold in public auction. The State itself may recall its illegal actions. It may not be possible to lay down any rigid rule as to how relief can be moulded by Court in an individual fact situation. If order of release is to be cancelled, it may be necessary to hear the affected party by the Court or the authority passing the order. 30. As noticed earlier, this Court has taken congnizance in Pardeep Yadav (supra) of general issue of exercise of power of acquisition to unauthorisedly advance policy of release in the last three years. As noted in para 7, as per figures furnished by the State of Haryana, out of 17000 acres of land notified for acquisition, award has been made only for 3876 acres i.e. for less than 25% of acquired land. In many cases referred to in para 7 above, operation and effect of release has been put in issue and stayed and prima facie view has been expressed that such release itself is liable to be quashed and land is liable to be restored to the State to be disposed of by Civil Writ Petition No.12391 of 1994 -12- **** public auction so that loss caused to the State and unlawful gain made by beneficiaries can be undone. 31. In the present case, parties in whose favour power of release has been illegally exercised not being before Court, this aspect is left open to be dealt with in appropriate proceedings. 32. In view of findings recorded above, impugned acquisition cannot be upheld. Accordingly, these petitions are allowed and all proceedings in pursuance of notifications dated 13.8.2001 under Section 4 and dated 9.8.2002 under Section 6 of the Act, are quashed. 7. In view of the above, this petition has to be allowed. 8. Question is as to what relief be granted to the petitioner. In normal course, we would have ordered the restoration of the plot of the petitioner to him but having regard to the fact that possession was allegedly taken over by the Improvement Trust in the year 1980 and allotted to some one else, we direct the Improvement Trust to allot the petitioner one kanal plot in any of its scheme at a reserve price within three months from today. (Adarsh Kumar Goel) Judge October 27,2010 (Ajay Kumar Mittal) Pka Judge Civil Writ Petition No.12391 of 1994 -13- ****