CWP No. 4871 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 4871 of 1988 (O&M) Date of decision: September 22, 2011 Tulsi and others ...Petitioners Versus The State of Haryana and others ...Respondents CORAM:- HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Gurnam Singh, Advocate, for the petitioners. Mr. Kamal Sehgal, Additional Advocate General, Haryana for respondent No.1. Mr. Sidhartath Batra, Advocate for respondents No. 2 and 3. GURDEV SINGH, J. 1. The petitioners have filed this writ petition under Article 226 of the Constitution for issuance of a writ in the nature of Mandamus directing respondents No. 1 to 3 to release the land in dispute measuring 4 bighas and 16 biswas from acquisition. According to them, the land in dispute is owned by Tulsi—petitioner No.1, who had constructed separate houses thereon for his sons. Initially the land in dispute was transferred in favour of petitioner No.1 by the Managing Officer, vide order dated 28.2.1966. Thereafter, he purchased this land from the Government of India on installment basis and the Sale Certificate dated 25.9.1985 was issued in his CWP No. 4871 of 1988 2 favour by Naib Tehsildar (Sales-cum-Managing Officer), Kurukshetra. The State of Haryana—respondent No.1 issued notification dated 2.12.1982 under Section 4 of the Land Acquisition Act, 1894 (for brevity—'the Act') for acquiring the land, including the land in dispute, for public purpose; namely, for development and utilization of land as residential, industrial and commercial under the Haryana Urban Development Authority Act, 1977 by the Haryana Urban Development Authority. That notification was followed by a declaration under Section 6 of the Act, which was published in the official gazette on 26.9.1987. The petitioners and the other landholders were asked to file their objections within a period of 30 days of the publication of that notification. Petitioner No.1 filed claim petition under Section 9 of the Act, in which he claimed the market value of the land in dispute after taking into consideration the fact that this land was situated in the heart of the City and the construction consisting of three pucca houses already existed therein, where he had been living with his sons. Thereafter, he made a representation that this land be not acquired, as he had been living, alongwith his family members, in the houses constructed therein. Similar representations made by the other landowners were accepted and their land was released from attachment, whereas his land was not released. 2. On notice having been issued, written statement was filed by the State of Haryana/respondent No.1. It pleaded that at the time notification under Section 4 of the Act was issued, the land in dispute was lying vacant. Petitioner No.1 filed objections under Section 5-A of the Act, wherein he stated that he had no other source of income except the land in dispute. He never stated in those objections that any such construction has been raised by him or his sons. Petitioner No.1 died on 25.1.1991 and the CWP No. 4871 of 1988 3 mutation in respect of the land in dispute was sanctioned in favour of his legal heirs on 24.2.1992. The amount of compensation has been paid to all the share holders, except petitioners No. 2 and 3. The petitioners cannot claim the right of exemption from acquisition on the ground that some construction exists in the land in dispute. Moreover, this land was lying vacant at the time of issuance of the notification under Section 4 of the Act. That notification and the subsequent proceedings are valid, constitutional and have been taken in accordance with law. 3. Respondents No. 2 and 3 in their written statement admitted that land of some of the landowners was released from acquisition, but, according to them, the same was done on account of the fact that the construction existed therein. Even the land of the sons of the petitioners was also released on that ground. There was no such house or construction in existence in the land in dispute at the time when notification under Section 4 of the Act was issued and, as such, the same was not released from acquisition. The layout plan has already been approved and the plots have been carved out. Those plots have since been allotted to different allottees after draw of lots. They have already paid some of the installments. The location of the alleged houses, which have been constructed subsequently on the land in dispute is such that this land cannot be released from acquisition. 4. We have heard learned counsel for the parties. 5. It has been submitted by the learned counsel for the petitioners that petitioner No.1 had already constructed houses in the land in dispute before the notification was issued under Section 4 of the Act and he and his other family members had been residing in those houses. In accordance CWP No. 4871 of 1988 4 with the policy of the Haryana Government, such land should not have been acquired and should have been released from acquisition. He also submitted that similarly situated land in respect of the other landowners was released from acquisition and non release of the land in question amounts to discrimination and is violative of Article 14 of the Constitution. Therefore, this land is liable to be released from acquisition. 6. While controverting the submissions of the learned counsel for the petitioners, it has been contended by the learned counsel for the respondents that no such construction existed at the time when notification under Section 4 of the Act was issued and that fact stands proved from the objections filed by petitioner No.1 under Section 5-A of the Act, in which he described the land in dispute as agricultural land and only source of his livelihood. The other land in which houses had been constructed by the landowners and in respect of which the notification was issued, was released from acquisition and as such, the case of those landowners is distinguishable from the case of the petitioners. Therefore, it cannot be said that any such discrimination was done. According to them, there is no merit in this writ petition and the same deserves to be dismissed. 7. A somewhat similar controversy came up for consideration before the Division Bench of this Court (CWP No. 2308 of 2004 decided on 21.6.2010) in the case case of Reshma Footwears (P) Ltd. Versus State of Haryana and others, wherein it has been held that only that land can be released from acquisition wherein the construction already existed before the issuance of the notification under Section 4 of the Act. Therefore, it is to be seen whether the alleged houses of the petitioner and his sons were already in existence when the notification under Section 4 of the Act was CWP No. 4871 of 1988 5 issued. The petitioners have not placed on record any such authenticated document from which it may be inferred that there were houses in existence in the land in dispute at the time of issuance of that notification. Respondent No.1 specifically pleaded in the written statement that petitioner No.1 preferred the objections under Section 5-A of the Act, in which it was stated that the land in dispute was agricultural land and was the only source of his livelihood. No replication was filed by the petitioner controverting that fact and in the absence thereof, the same is deemed to have been admitted. 8. For the purpose of clarity on facts, when the matter came up for consideration on 25.8.2011, the learned State counsel was asked to place on record copy of the survey report regarding the land in dispute, the objections filed under Section 5A of the Act; and the status report regarding the position existing as on the date the said order was passed. Accordingly, an affidavit of Shri Ashwani Kumar, Land Acquisition Collector, has been filed alongwith the report of the Land Acquisition Collector under Section 5A of the Act (Annexure R/1`) and the layout plan (Annexure R/2). A perusal of the affidavit and the accompanying documents shows that at the time objections under Section 5A of the Act were decided, it was found that the land in dispute was under cultivation and was not found fit for releasing from acquisition. Thus, it stands proved on record that at the time, the notification under Section 4 of the Act was issued, the land in dispute was lying vacant. Therefore, the same was not released from acquisition. 9. It has been held by Hon'ble the Supreme Court in the case of Hari Ram and another Versus State of Haryana and another (2010) 3 SCC 621, that though the land owner whose land had been acquired, cannot CWP No. 4871 of 1988 6 claim as a matter of right release of his land from acquisition, but where the State exercises its power under Section 48 for withdrawal from acquisition in respect of particular land, the landowners similarly situated have a right of similar protection. The second ground taken by the petitioners in the present petition is that the land of other similarly situated landowners has been released from acquisition and non release of the land in dispute amounts to discrimination. Nothing has been brought on record on the basis of which it may be concluded that the land which has been released from acquisition was lying vacant at the time of issuance of notification under Section 4 of the Act. Therefore, we are of the view that no discrimination has been made by the State of Haryana in respect of the petitioners. 10. We do not find any merit in this writ petition and the same is hereby dismissed. (M.M. KUMAR) (GURDEV SINGH ) ACTING CHIEF JUSTICE JUDGE September 22, 2011 prem