Civil Writ Petition No.5975 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 12.05.2011 Hukam Singh & anr. ....petitioners Versus The Union of India & anr. .....respondents CORAM: HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.A.C.Jain, Advocate for the petitioners Ms.Anjali Kukkar, Advocate for Union of India Mr.Kamal Sehgal, Additional Advocate General, Haryana *** RAKESH KUMAR GARG J.: By way of present writ petition, challenge has been laid to the notice/notification dated 04.06.1985(Annexure P-3), whereby land measuring 15 bighas 6 biswas(76K-10M) including the land of the petitioners measuring 3 bighas 12 biswas had been acquired under Section 7(1) of the Requisitioning and Acquisition of Immovable Property Act, 1952 (in short 'the Act'), with a prayer to quash the aforesaid notice/notification. As per the averments made in the writ petition, the petitioners are owners of khasra No.5566/2018 measuring 3 bighas 12 Civil Writ Petition No.5975 of 1988 2 biswas in the revenue estate of village Gurgaon. Said land of the petitioners was requisitioned by the Government in the year 1946 under the provisions of the Act. According to the petitioners, thereafter, respondents had put up a boundary wall on the said area. Adjoining the boundary wall, is the land owned by the petitioners and other land owners. Admittedly, the land of the petitioners was not de-requisitioned although some of the land was released from requisition by the respondents vide Annexure P -2. However, according to the petitioners, the land in dispute was never in the use of the military authorities and in fact the petitioners and other landowners were in possession thereof, since long, and they had been using that land for their own purposes and for raising crops etc. It is the further case of the petitioners that their land has been acquired vide impugned notification under Section 7(1) of the Act in violation of the provisions of Section 7(3) of the aforesaid Act, as no construction has been made by the respondents over their requisitioned land and, thus, the acquisition proceedings being bad in law, notification Annexure P-3 is liable to be quashed. Learned counsel for the petitioners has relied upon AIR 1989 Delhi 116 Brij Narain vs.Union of India and etc. to contend that the power of acquisition of a requisitioned property is conditional on the existence of the circumstances enumerated therein. It is not a general power of acquisition for a public purpose. If the public purpose exists on account of circumstances outside sub-Section(3) of Sec.7 of 1952 Act, then one has necessarily to resort to the Land Acquisition Act, 1894. Learned counsel for the petitioners has further argued that since the requisitioned land was not used, it must be held that the purpose for which the property was requisitioned ceased to exist and the owner had acquired a right to be put in possession thereof under the proviso to Section 6 of the Act. Civil Writ Petition No.5975 of 1988 3 In support of his case, learned counsel has also relied upon AIR 1962 Supreme Court 247 The Union of India and anr.vs.Ram Kanwar & Ors. The writ petition has been contested by the respondents, inter alia submitting in the written statement that the entire land was under occupation of Air Force since 1946 onwards and was never under cultivation by the petitioners and they had raised MES assets on it as per Annexure R-4 and, thus, the notification under challenge has been issued in accordance with law and the writ petition is liable to be dismissed. On July 19, 1988, after noticing the contention raised by learned counsel for the petitioners following order was passed by this Court: "Says inter alia that the land of the petitioners which was put to agricultural use could not be acquired by the respondent-Union of India employing Section 7 of the Requisitioning and Acquisition of Immovable Property Act, 1952 and resort could only be had to the provisions of the Land Acquisition Act. Notice of motion for October 10, 1988." Thereafter, the writ petition was admitted vide order dated January 30, 1989 which reads thus: “Admitted. Status quo regarding possession in the meanwhile. The case be listed for final hearing on 20th March, 1989.” We have heard learned counsel for the parties and have perused the pleadings and other documents on record of the case. According to the learned counsel appearing on behalf of the petitioners, sub-section 3 of Section 7 of the Act, provides that no property under Section 7 shall be acquired except in the two situations Civil Writ Petition No.5975 of 1988 4 namely where works during the period of requisition had been constructed in or over such land at the expense of the Central Government and the Central Government decides that the value of or the right to use such works should be secured or preserved for the purpose of the Government or where costs of restoring the properties to the condition at the time of its acquisition will, in determination of the Central Government, be excessive. According to the learned counsel for the petitioners, the aforesaid two conditions have not been satisfied in the instant case as there is no construction of any nature whatsoever except small construction in khasra Nos.10862/3175/2026 to 2028 and 1974 and the requisitioned property was not put to any further use, thus, the acquisition of the land of the petitioners comprised in khasra No.5566/2018 cannot be made under the provisions of the Section 7(1) of the Act. On the other hand, learned counsel appearing on behalf of the respondents has referred to para No.4,5 and 14(b) of the written statement filed on behalf of the Assistant Defence Estates Officer, wherein it has been mentioned that land acquired in the project is contiguous to the land already acquired for defence/Air Force and important installation viz.MES offices and water points already exist on the land under dispute and the same cannot be spared from acquisition in any way. The aforesaid paragraphs of the written statement read thus: 4 The contents of para 4 are admitted to the extent that the land shown in red colour in the site plan Annexure R-2 and not P-1 comprising khasra No.7176/2023/1, 2023/3/1, 5566/2018, 10858/2022/1/2, 10862/3175/2026 to 2028/3, 10863/3175/2026 to 2028/4, 10866/3176/2029 to 2031/3, 1974/2 and 1974 Min was not de- requisitioned. It is denied that only a part of khasra Civil Writ Petition No.5975 of 1988 5 Nos.10862/3175/2026 to 2028/3 remained in possession of Air Force. The fact is that the entire land remained under physical occupation of Air Force and they had raised MES assets on it as per list Annexure R-4 as the sanction for its acquisition was received. The remaining para is wrong and hence denied. In fact land comprising above khasra Nos.was in occupation of Air Force authorities and they had raised MES assets on it as per list attached as Annexure R-4. 5 That the contents of para 5 are wrong and denied. The entire land forming kh.No.7176/2023/1, 7176/2023/3/1, 5566/2018, 10858/2022/1/2, 10862/3175/2026 to 2028/3, 10863/3175/2026 to 2028/4, 10866/3176/2029 to 2031/3, 1974/2 1974 min is physically under occupation of Air Force authorities since the year 1946 and thereafter MES assets have been constructed on the land as per list enclosed as Annexure R-4 and as shown on plan R-2. 14(b) The allegations contained in para 14 (b) are false and against the facts and hence denied. The fact is that the land acquired in the project is contiguous to the land already acquired and is required for defence/Air Force as important installation viz.MES offices and water points already do exist on the land under dispute and the same cannot be spared from acquisition in any way. It is useful to refer to Section 7 of the Act, which reads Civil Writ Petition No.5975 of 1988 6 thus: 7. Power to acquire requisitioned property - (1) Where any property is subject to requisition, the Central Government may, if it is of opinion that it is necessary to acquire the property for a public purpose, at any time acquire such property by publishing in the Official Gazette a notice to the effect that the Central Government has decided to acquire the property in pursuance of this section : Provided that before issuing such notice, the Central Government shall call upon the owner of, or any other person who, in the opinion of the Central Government, may be interested in, such property to show cause why the property should not be acquired; and after considering the cause, if any, shown by any person interested in the property and after giving the parties an opportunity of being heard, the Central Government may pass such orders as it deems fit. (2) When a notice as aforesaid is published in the Official Gazette, the requisitioned property shall, on and from the beginning of the day on which the notice is so published, vest absolutely in the Central Government free from all encumbrances and the period of requisition of such property shall end. (3) No property shall be acquired under this section except in the following circumstances, namely:- (a) Where any works have, during the period of requisition, been constructed on, in or over, the property wholly or partially at the expense of the Central Government and the Government decides that the value of, or the right to use, such works should be secured or preserved for the purposes of Government; or (b) where the cost of restoring the property to its condition at the time of its requisition would, in the Civil Writ Petition No.5975 of 1988 7 determination of the Central Government, be excessive and the owner declines to accept release from requisition of the property without payment of compensation for so restoring the property. (4) Any decision or determination of the Central Government under sub-section (3) shall be final and shall not be called in question in any Court. (5) For the purposes of clause (a) of sub-section (3) “works” includes buildings, structures and improvements of every description. A perusal of the aforesaid provisions of the Act would show that under sub-Section(1) of Section 7 of the Act, the Government has power to acquire requisitioned property for a public purpose and the same can be done at any time by publishing a notice in the Official Gazette to the effect that the Cental Government has decided to acquire the property in pursuance to this Section and after giving a show cause notice to the person interested in such property and after giving the parties an opportunity of being heard and when a notice is published in the Official Gazette the requisitioned property vests absolutely in the Central Government free from all incumbrances. The petitioners have not raised any grievance regarding non-compliance of Section 7(1) i.e.issuance of any show cause notice or of grant of an opportunity of being heard or publishing of the notice under Section 7(1) in the Official Gazette, thus, proper procedure has been adopted by the respondent-authorities for acquisition of the land. Sub-Section 3 of Section 7 is an exception, which provides that the requisitionned property can be acquired only in the circumstances as mentioned under sub-Section 3 clause (a) and (b) of Section 7. It is also relevant to point out that as per sub-Section 5 of Section 7 for the purpose of acquisition under clause (a) of sub-Section 3 the definition of “works” includes building, structures and improvements Civil Writ Petition No.5975 of 1988 8 of every description. It has come on record that the respondents have constructed MES offices and water points on the land in dispute and the same cannot be spared from acquisition in any way. Thus, even the structures and water points have been constructed, moreover, the said land has been fenced. It is clearly established from Annexure R-4 that MES buildings/structures exist on a part of the land acquired vide impugned notification. It could also not be disputed that the respondent-authorities are having water points in the acquired area and a boundary wall has been constructed. Thus, the respondents have improved the land in dispute and have constructed structures. It is not necessary that the respondent- authorities were required to construct whole of the acquired area. Even if some structures have been raised, may be in any part of the acquired land, it cannot be said that there is no construction on the land of the petitioners or the requisitioned land was not put to any use. That being so, no fault can be found with the impugned notification as the acquisition has been made within the four corners of Section 7(3) of the Act and judgment in the case of Brij Narain(Supra) relied upon by the petitioners is of no help to him. The judgement in the case of Union of India vs.Ram Kanwar(Supra) is also not applicable to the facts and circumstances of the present case as in the instant case, the land in dispute has been acquired, whereas in the aforesaid judgement, it was a case of requisitioning of land and it was found that the requisitioned property was not put to use for a number of years and the purpose for which the property was requisitioned, ceased to exist and in the said circumstances, it was held that the owner had a right to be put in possession,thereof. In the present case, the land in dispute,after requisition, has been put to use by the respondent-authorities and thereafter it stood acquired. Thus, the judgement cited by the counsel for Civil Writ Petition No.5975 of 1988 9 the petitioner is not relevant. No other point has been argued. For the reasons recorded above,we find no merit in this writ petition. Dismissed. (JASBIR SINGH) (RAKESH KUMAR GARG) JUDGE JUDGE 12.05.2011 neenu