C.W.P.No.13217 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:- 15.12.2010 C.W.P.No.13217 of 2009 Virender Kumar and others ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.13492 of 2009 Vijay Pal and another ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.13056 of 2009 Naresh Chand Jain ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.13001 of 2009 Dharam Pal and others ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.13049 of 2009 Rajinder Singh and others ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.10695 of 2009 Hari Chand Sharma and others ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.13217 of 2009 -2- C.W.P.No.4390 of 2010 Ranjit Singh and others ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.6493 of 2010 Smt.Sushila w/o Data Ram ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.6504 of 2010 Ashok Kumar ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.8329 of 2010 Sarabjit and others ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.8815 of 2010 Hira Lal and others ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) C.W.P.No.1415 of 2010 Ramanand and others ....Petitioner(s) vs. State of Haryana and others ....Respondent(s) *** CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH C.W.P.No.13217 of 2009 -3- *** Present:- Mr.Shailendra Jain, Advocate, for the petitioners in C.W.P.Nos.13217, 13492, 13056, 13001, 13049 of 2009 & 4390 of 2010. Mr.I.K.Mehta, Sr.Advocate with Mr.M.S.Kohli, Advocate, for the petitioners in CWP No.1415 of 2010. Mr.Deepak Manchanda, Advocate, for the petitioners in CWP Nos.6493 & 6504 of 2010. Mr.Ashok Tyagi, Advocate, for the petitioners in CWP No.8329 of 2010. Mr.P.R.Yadav, Advocate, for the petitioners in CWP No.6493 & 6504 of 2010. Mr.Sachin Mittal, Advocate, for the petitioners in CWP No.8815 of 2010. Mr.Abhinav Bajaj, Advocate, for the petitioners in CWP No.10695 of 2010. Mr.Vinod S.Bhardwaj, Addl.A.G., Haryana & Ms.Palika Monga, D.A.G., Haryana, for respondents No.1, 2 and 4. Mr.M.L.Saggar, Sr.Advocate with Ms.Meenu Sharma, Advocate for respondent No.3. Mr.Vikas Bishnoi, Advocate for respondent No.5 in CWP Nos.13001, 13056, 13049, 132178 & 13492 of 2009. Mrs.K.K.Kahlon, Advocate for UOI in CWP Nos.1392, 13056, 13001, 13049 & 10695 of 2009. Mr.Ashwani Kumar Bansal, Advocate for UOI in CWP Nos.4390, 6493, 6504, 8329, 1415 & 8815 of 2010. Mr.Raman Gaur, Advocate for respondent No.3. *** Augustine George Masih, J. By this order, we propose to decide CWP Nos.13217, 13492, 13056, 13001, 13049 and 10695 of 2009 4390, 6493, 6504, 8329, 1415 and 8815 of 2010 wherein notifications issued under Sections 4 & 6 of the Land C.W.P.No.13217 of 2009 -4- Acquisition Act, 1894 (hereinafter referred to as 'LA Act') dated 8.7.2008 and 21.1.2009 respectively have been impugned by the petitioners as common questions of facts and law are involved therein. The facts are taken from CWP No.13217 of 2009. The State of Haryana issued notification dated 8.7.2008 (Annexure P-3) under Section 4 of the LA Act for acquiring land for the public purpose, namely, for development of Sri Mata Sheetla Devi Shrine Complex and other public utilities in Gurgaon, Hadbast No.55 Tehsil & District Gurgaon of Sri Mata Sheetla Shrine Board, Gurgaon. The petitioners have asserted that they are owners in joint possession of the land measuring 2 Bighas, 14 Biswas comprising Khewat No.806/674, Khatoni No.1172 min, Khasra No.2289[2-14], apart from other lands situated in the revenue estate of village Gurgaon, Tehsil & District Gurgaon. Out of the total land, now land measuring 10 Biswas and 3 Biswansis is the subject- matter of acquisition. Over the said land, the petitioners have constructed 12 shops and residential houses. The shops are being used for commercial purposes at the spot by the tenants of the petitioners while in the residential houses, the petitioners are residing. The aforesaid area falls within the municipal limits of Gurgaon since 26.8.2003. The total land under acquisition as per Section 4 of the LA Act was 17 Bighas, 7 Biswas and 13 Biswansis, however, notification dated 21.1.2009 (Annexure P-5) under Section 6 of the LA Act was issued for 11 Bighas, 9 Biswas and 12 Biswansis. Thus, some land was released from acquisition by the respondents. The petitioners approached this Court challenging these notifications before the passing of the Award and this Court stayed the C.W.P.No.13217 of 2009 -5- dispossession of the petitioners. Ground for challenge to notification dated 8.7.2008 issued under Section 4 of the LA Act is that the provisions as contained under Section 4 of the LA Act have not been complied with. The requirement of Section 4 of the LA Act that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality, has not been complied with. It has been submitted that the copy of the notification dated 8.7.2008 was sent to the Patwari by the District Revenue Officer-cum-Land Acquisition Collector- respondent No.2 for publication in the locality which has been entered at Rapat Roznamcha No.2257 dated 4.8.2008 showing that the public notice of the substance of said notification was made in the land in question in a loud voice through Munadi Kurinda which was alleged to have been carried out by one Sanjay son of Raja Ram. It has been mentioned in the copy supplied to the petitioners that Sanjay son of Raja Ram has thumb marked the same. This document is a manipulated document as the Rapat Roznamcha does not contain the thumb impression of Sanjay. It was merely put on papers and as a matter of fact, no Munadi was carried out in the locality. The Municipal Council, Gurgaon on 26.8.2003 had taken over the area in question and, thus, the charge of the Gram Panchayat, Gurgaon is no more in existence. There is no Chowkidar by the name of Sanjay with the Municipal Council, Gurgaon ever since then and, thus, the mandatory provisions of Section 4 of the LA Act, having not been complied with, notifications issued under Sections 4 & 6 of the LA Act deserve to be quashed. It is further the contention of the petitioners that they have been discriminated against while releasing the land of similarly situated land owners whereas the objections as filed by them have not been either taken C.W.P.No.13217 of 2009 -6- into consideration or have been rejected. No proper enquiry as well as recommendations were made by the Land Acquisition Collector. Lands comprised in Khasra Nos.2283, 2058, 2290/4, 2292, 2293, 2294 have been released from acquisition while issuing notification under Section 6 of the LA Act. Khasra No.2283 has some constructed houses whereas Khasra No.2058 is totally lying vacant, except two shops. Similar is the position with regard to Khasra Nos.2290/4, 2293 and 2294 whereas there is very small constructed area. As regards Khasra No.2292, the same is totally lying vacant. The petitioners owned Khasra No.2289 which is thickly constructed and it has been acquired. Lands in the vicinity of the petitioners have been released from acquisition, which is totally discriminatory. Another ground for challenging the acquisition is that the area which is being sought to be acquired by notifications issued under Sections 4 & 6 of the LA Act falls within 900 meters of the Air Force Station, Ammunition Depot, Gurgaon (hereinafter referred to as Ammunition Depot). These 900 meters are restricted belt from the boundary of the Ammunition Depot and as per the notification issued under Sections 3 and 7 of the Indian Works of Defence Act, 1903 (hereinafter referred to as Defence Act), the latest of these series of notifications is dated 14.2.2007 appended as Annexure P-20, no buildings or structures are allowed to be constructed, created or erected nor any tree can be planted from the crest of the outer parapet of the Ammunition Depot as the purpose for which the land is being acquired cannot be achieved i.e. for development of Sri Mata Sheetla Devi Mandir Pooja Sathal Complex and other public utilities in Gurgaon. Thus, notifications deserve to be quashed as the public purpose sought to be achieved cannot be fulfilled in the light of the notification C.W.P.No.13217 of 2009 -7- issued under the Defence Act. It is on these grounds that the petitioners have prayed for quashing of the notifications issued under Sections 4 and 6 of the LA Act. In response to the writ petition, the Land Acquisition Collector, respondent No.2, has not disputed the fact that some land has been released from acquisition which the petitioners have asserted in their writ petition but the only justification put-forth for release of the same is that the land of the petitioners was vacant at the time of issuance of notification under Section 4 of the Act whereas on the other pieces of land, there were constructions. It is stated that in Khasra No.2283, there existed constructed houses. In Khasra No.2058, there exist residential houses, three shops and a boundary wall. The land comprised in Khasra No.2290/4 which has constructed portion, only has been released. Similarly, the land comprised in Khasra Nos.2292 & 2294 having residential houses has been released accordingly. As regards the contention of the petitioners that there has been no proper publication of the notification in the locality as no Munadi was got conducted, has stated in his reply that the substance of the said notification under Section 4 of the Act was pasted on the notice board of Halqua Patwarkhana and Tehsil Office. Munadi was also got done through village Chowkidar by beating the empty drum in the village and in the vicinity of the land to be acquired. To the specific averment made by the petitioners that there was no Chowkidar by the name of Sanjay son of Raja Ram, there is no denial to the said fact nor there is any explanation coming forth. As regards the contention of the petitioners that their objections have not been properly disposed of , the said fact has been vehemently denied and it has been stated that proper hearing was afforded C.W.P.No.13217 of 2009 -8- to them and after considering their objections, the same were rejected. Respondent No.3-Sri Mata Sheetla Devi Shrine Board has contended that the land was required for the public purpose, namely, for development of Sri Mata Sheetla Devi Shrine Complex and other public utilities at Gurgaon as a large number of devotees participate and attend the Mandir especially during the Mela time. The existing area covered by the Shrine Board is not sufficient to accommodate the devotees and it becomes necessary for the Shrine Board to extend the area for parking and sitting of the devotees attending the Mela. During the course of hearing, counsel for the Shrine Board has made a statement that no permanent structures would be erected on the acquired land and the provisions of the Defence Act would be strictly complied with. Qua discrimination, as alleged by the petitioners, it is the stand of respondent No.4-District Town Planner (HQ) Haryana that the construction raised by the petitioners on the land at the site is not in accordance with law as they have not obtained the statutory approval as mandated under the Defence Act. Any claim on account of construction raised on the land being not in accordance with law, cannot be claimed for seeking parity with the land released as per the policy dated 26.10.2007 of the Government of Haryana. It has further been pleaded that as per notification dated 8.1.1996 pertaining to the final development plan of Gurgaon, a 900 meter wide strip of land around the Ammunition Depot has to be kept free from urbanization under the provisions of the Defence Act. The said provision has also been incorporated in the explanatory note of the Final Development Plan 2021 AD for the controlled areas of Gurgaon Manesar Urban Complex, notified vide notification dated 5.2.2007. Hence, C.W.P.No.13217 of 2009 -9- the construction by the petitioners is violative of the provisions of the Final Development Plans dated 8.1.1996 as well as 5.2.2007 applicable to the area notified in the writ petitions which has been duly notified and prepared under the Punjab Scheduled Roads and Controlled Areas Restrictions of Unregulated Development Act, 1963 (hereinafter referred to as Punjab Scheduled Roads Act). We have heard counsel for the parties and have gone through the records of the case. In the light of the reply filed by the respondents, this Court vide order dated 23.9.2010 while adjourning the case to 24.9.2010, had directed the State of Haryana to produce the records of Land Acquisition Collector and all other records regarding this acquisition. In compliance to the said directions, records were produced on 24.9.2010. The Rapat Roznamcha containing Rapat No.2257 dated 4.8.2008 was also produced in Court and a photocopy thereof was taken on record. A perusal of the original Rapat Roznamcha clearly shows that no thumb impression was affixed on the Roznamcha. The Rapat Roznamcha is in Hindi but above the name of Sanjay Putra Raja Ram, LTI in English, has been mentioned. The assertion, therefore, of the petitioners stands proved that it was merely an eye-wash and the entry was made to complete the formalities whereas no Munadi was got conducted in the locality as per the requirement of Section 4 of the LA Act. Section 4 of the LA Act states that whenever it appears to the Appropriate Government that the land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect is required to be published in the Official Gazette. Apart from this, C.W.P.No.13217 of 2009 -10- the same has to be published in two daily newspapers having circulation in that locality of which at least one has to be in the regional language. The Collector has been mandated to cause public notice of the substance of such notification to be given at convenient places in the said locality. Therefore, three separate modes of notice to the public have been provided under Section 4(1) of the LA Act i.e. publication in (i) the official Gazette; (ii) two daily newspapers circulated in the locality of which at least one should be in the regional language and (iii) the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The first two modes of public notice as required by this Section stand fulfilled in the present case. The third mode which the Collector was required to fulfil, has not been complied with. The original records, reference whereof has been made above, clearly show that the beat of drum in the locality through a Chowkidar was merely a paper transaction and an entry was made in the Rapat Roznamcha. There is no thumb mark of the alleged Chowkidar Sanjay son of Raja Ram on the Rapat Roznamcha. There is no specific denial to the assertion made by the petitioners in the writ petition that there is/was no Chowkidar by the name of Sanjay son of Raja Ram working with the Gram Panchayat or Municipal Council, Gurgaon. At the time of production of the records on 24.9.2010, counsel for the respondent-State had also conceded this fact, on instructions from the official present in Court. On this short ground, the writ petition deserves to be allowed. The Land Acquisition Act is an ex-proprietary legislation and the provisions of the Statute, therefore, should be strictly construed as it C.W.P.No.13217 of 2009 -11- deprives a person of his land without consent. It has been held by the Hon'ble Supreme Court in the case of Khub Chand and others vs. State of Rajasthan and others, AIR 1967 SC 1074 in paras 6 and 7 as follows:- “6. This argument was not accepted by the High Court, and, in our view rightly. The provisions of a statute conferring power on the Government to compulsorily acquire lands shall be strictly construed. Section 4 in clear terms says that the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The provisions is mandatory in terms. Doubtless, under certain circumstances, the expression 'shall' is Construed as “may”. The term “shall” in its ordinary significance is mandatory and the Court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from ether parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations. The object underlying the said direction in S.4 is obvious. Under sub-s.(2) of S.4 of the Act, after such a notice was given, C.W.P.No.13217 of 2009 -12- the officer authorised by the Government in that behalf could enter the land and interfere with the possession of the owner in the manner prescribed thereunder. The Legislature thought that it was absolutely necessary that before such officer can enter the land of another, the owner thereof should have a clear notice of the intended entry. The fact that the owner may have notice of the particulars of the intended acquisition under S.5 (2) does not serve the purpose of S. 4, for such a notice shall be given after the appropriate officer or officers enter the land and submit the particulars mentioned in S.4. The objects of the two sections are different: the object of one section is to give intimation to the person whose land is sought to be acquired, of the intention of the officer to enter his land before he does so and that of the other is to enable him to know the particulars of the land which is sought to be acquired. In the Land Acquisition Act, 1894 (Central Act 1 of 1894) there is no section corresponding to S.5(2) of the Act. Indeed sub-s.(2) of S.5 of the Act was omitted by Act 15 of 1960 and S.5A was suitably amended to bring the said provision in conformity with those of Central Act 1 of 1894. Whatever may be said on the question of construction after the said amendment-on which we do not express any opinion-before the amendment. Ss.4 and 5(2) were intended to serve different purposes. C.W.P.No.13217 of 2009 -13- 7. Indeed, the wording of S.4(2) of the Act leads to the same conclusion. It says, “thereupon it shall be lawful for any officer generally or specially authorised by the Government in this behalf, and for his servants and workmen to enter upon and survey and take levels of any land in such locality...........” The Expressions “thereupon” and “shall be lawful” indicate that unless such a public notice is given, the officer or his servants cannot enter the land. It is a necessary condition for the exercise of the power of entry. The non-compliance with the said condition makes the entry of the officer or his servants unlawful. On the express terms of sub-s.(2), the officer or his servants can enter the land to be acquired only if that condition is complied with. If it is not complied with, he or his servants cannot exercise the power of entry under S.4(2), with the result that if the expression “shall” is construed as “may”, the object of the sub-section itself will be defeated. The statutory intention is, therefore, clear namely, that the giving of public notice is mandatory. If so, the notification issued under S.4 without complying with the said mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equally void.” The same view has been expressed by the Hon'ble Supreme Court in the case of Ajay Krishan Shinghal and others vs. Union of C.W.P.No.13217 of 2009 -14- India and others, 1996 (10) SCC 721 which has again been reiterated by the Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation Ltd. vs. Darius Shapur Chenai and others, (2005) 7 SCC 627. In view of the above, the present writ petitions deserve to be allowed and notifications dated 8.7.2008 and 21.8.2009 issued under Sections 4 and 6 of the LA Act deserve to be quashed qua the petitioners only. Ordered accordingly. An issue, which is a cause of concern for this Court is the unauthorized construction of residential building(s) and other commercial establishment(s) which are and have come into existence within the restricted 900 meters of the outer parapet of the Ammunition Depot. It is the assertion of the petitioners that they have constructed their 'A-Class' residential houses and commercial establishments, such as shops, in the land under acquisition which admittedly fall within the 900 meters of the restricted area. It has been admitted by the respondents in their written statement that lands have been exempted from acquisition only for the reason that there were residential houses and commercial establishments including shops in existence. However, it has not been specified as to whether these constructions were made or could continue to exist on the land after the declaration issued under Section 3 of the Defence Act. If these constructions are illegal, they cannot be allowed to exist in violation of the provisions of law. In the case of Vishal Properties (P) Ltd. vs. State of Uttar Pradesh, (2007) 11 SCC 172, the Hon'ble Supreme Court held that Article C.W.P.No.13217 of 2009 -15- 14 is not meant to perpetuate an illegality. It provides for positive equality and not negative equality. The Courts cannot issue a direction that the same mistake be perpetuated on the ground of discrimination or hardship. Any action/order contrary to law does not confer any right upon any person for similar treatment and an order made in favour of a person in violation of the prescribed procedure cannot form a legal premise for any other person to claim parity with the said illegal or irregular order. A judicial Forum cannot be used to perpetuate the illegalities. It is in the light of these basic legal principles as held by the Hon'ble Supreme Court and within these parameters, can a person assert his right of violation of Article 14 of the Constitution. Merely because some constructed structures have been left out of acquisition or have been released from acquisition would not be enough to assert the violation of the principles of equality as found in Article 14. Article 14 guarantees equality before law and not equality in subverting law nor in securing illegal benefits. Authority having extended favours illegally in case of some or several persons cannot be a ground to issue mandamus directing repetition thereof by applying the principle of equality. Section 3 of the Defence Act reads as follows:- “3. Declaration and notice that restrictions will be imposed.-(1) Whenever it appears to the Central Government that it is necessary to impose restrictions upon the use and enjoyment of land in the vicinity of any work of defence or of any site intended to be used or to be acquired for any such work, in order that such land may be kept free from buildings and other obstructions, a declaration shall be made to that effect C.W.P.No.13217 of 2009 -16- under the signature of a Secretary to such Government or of some officer duly authorised to certify its orders. (2) The said declaration shall be published in the “Official Gazette” and shall state the district or other territorial division in which the land is situated and the place where a sketch plan of the land, which shall be prepared on a scale not smaller than six inches to the mile and shall distinguish the boundaries referred to in section 7, may be inspected; and the Collector shall cause public notice of the substance of the said declaration to be given at convenient places in the locality. (3) The said declaration shall be conclusive proof that it is necessary to keep the land free from buildings and