Civil Writ Petition No. 4952 of 2007 (1) In the High Court of Punjab and Haryana at Chandigarh Civil Writ Petition No. 4952 of 2007 Date of Decision: December 09, 2008 Abhey Ram Dahiya ---Petitioner versus State of Haryana and others ---Respondents Coram: HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE JORA SINGH Present: Mr.Rajiv Atma Ram, Senior Advocate with Mr. Shiv Charan, Advocate for the petitioner Mr.Ashish Kapoor, Addl. A.G.Haryana, for respondent No. 1 Mr. R.S.Longia, Advocate, for respondent Nos. 2 and 3 1. Whether Reporters of local papers may be allowed to see the judgments? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? M.M.KUMAR,J. This petition filed under Article 226 of the Constitution challenges order dated 29.12.2006, conveyed on 17.1.2007 [P-16 (Colly)], passed by the Chief Administrator-respondent No. 2, rejecting the claim of the petitioner for allotment of a plot under oustees quota and upholding the cancellation of allotment of Plot No. 12-P, Sector 6, Mansa Devi Complex, Panchkula, which was earlier Civil Writ Petition No. 4952 of 2007 (2) allotted to him under the oustees policy. A further prayer has been made for quashing cancellation order dated 23.8.2006 (P-13), passed by the Estate Officer, HUDA, Panchkula-respondent No. 3. Still further prayer has been made for quashing policy instructions dated 27.3.2000 (P-7) to the extent it provide for allotment of plot under 'oustees policy' only if the plot sought to be allotted under oustees policy has been floated on the acquired land. The petitioner has also sought restoration of allotment of Plot No. 12-P, Sector 6, Mansa Devi Complex, Panchkula, in his favour. Brief facts of the case are that the State of Haryana for the benefit of the persons, who were displaced due to the acquisition of their land, framed a policy on 10.9.1987 providing that the oustees who were owners of the acquired land one year before acquisition of land and if 75% or more of their total land owned by them is acquired, they are to be offered plots in the sectors to be carved out by the HUDA in lieu of their acquired land on the rates prescribed for the General Category (P-2). The said policy, however, restricted the claims of such oustees whose land was acquired on or after 10.9.1987. The policy dated 10.09.1987 was further modified and a comprehensive policy was issued on 18.3.1992 (P-3). Apart from reiterating the provisions of the earlier policy dated 10.9.1987, it was also provided that an oustee would be entitled to allotment of a plot of 500 sq. yds., if the land acquired exceeds one acre. The policy dated 18.3.1992 was further revised vide instructions dated 12.3.1993 (P-4), whereby partial modification was done to the following effect: i) Benefit under oustees policy is not to be allowed to Civil Writ Petition No. 4952 of 2007 (3) those oustees who have got residential/commercial plots from HUDA in that Urban Estate. However, this restriction is not to apply to those oustees who might have acquired property there otherwise. ii) Benefit under oustees policy was to be restricted to one-plot according to the size of the holding irrespective of the number of co-sharers. On 28.8.1998, another clarification was issued with regard to oustee policy dated 12.3.1993. The amendment was to the effect that if the land acquired is developed by HUDA for the purpose other than residential/commercial, the oustee would be offered plots in the next residential sector of Urban Estate HUDA and the amendment has been made applicable prospectively (P-6). On 27.3.2000, further instructions were issued to the effect that oustees claims would also be invited where land has been acquired prior to 10.9.1987 and such persons were to have prior right for allotment of plots (P-7). The aforementioned instructions were issued in pursuance of decision of this Court rendered in the case of Suman Aneja v. State of Haryana (CWP No. 14708 of 1990). On 8.12.2003, yet another amendment was made in the oustees policy dated 28.8.1998, whereby the allotment under oustees policy was restricted to allotment of a residential plot only. If the sector on the acquired land has been developed as non-residential then the allotment of a residential plot has to be made in the next residential sector (P-8). The petitioner’s land measuring 18 Kanals 16 Marlas, situated in village Judian, Tehsil Kalka, District Ambala, was acquired by the State of Haryana, vide notifications dated 27.8.1981 and Civil Writ Petition No. 4952 of 2007 (4) 10.1.1983 (P-1 Colly), issued under Sections 4 and 6 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’), for the public purpose, namely, for development of residential and commercial area for Panchkula Extension. During the years 2004-2005, the respondent HUDA invited applications for allotment of residential plots wherein oustee quota was also provided. The petitioner also applied vide application No. 53589 for allotment of plot under oustees quota in Sector 6, Mansa Devi Complex, Urban Estate Panchkula. On 7.12.2005, the Estate Officer-respondent No. 3 asked the petitioner to complete certain formalities and to furnish documents (P-9). The needful was done by the petitioner vide letter dated 8.12.2005 (P-10 Colly). Thereafter the petitioner was called upon to attend the draw of lots held on 31.3.2006 (P-11). The petitioner being successful in the draw of lots, was allotted Plot No. 12P in Sector 6, Mansa Devi Complex, Panchkula, as is evident from the list of successful applicants of draw of lots (P-12). On 23.8.2006, the Estate Officer-respondent No. 3 passed an order that the claim of the petitioner for allotment of residential plot in Sector 6, Mansa Devi Complex, Panchkula, in lieu of acquisition of his land in the year 1985 for development of Sector 5, Panchkula, did not fall within the purview of policy guidelines. Accordingly, the amount of Rs. 2,10,000/- deposited by the petitioner on account of 10% of the earnest money was refunded to him (P-13). Feeling aggrieved, the petitioner filed C.W.P. No. 14075 of 2006 in this Court seeking quashing of order dated 23.8.2006 and and restoration of allotted Plot No. 12-P, Sector 6, Mansa Devi Civil Writ Petition No. 4952 of 2007 (5) Complex, Panchkula. After noticing the factual position and in view of the statement made by the Chief Administrator, HUDA that the grievance of the petitioner would be examined by him at his own level, a Division Bench of this Court disposed of the aforementioned writ petition by observing that the matter would be re-examined by the Chief Administrator, HUDA at his own level and all the grievance raised by the petitioner were to be looked into. Petitioner was granted liberty to approach this Court again if an adverse order is passed. In the meantime Plot No. 12P, Sector 6, Panchkula, was not to be allotted to any other person (P-15). In pursuance to the direction issued by this Court, the Chief Administrator-respondent No. 2 has passed the impugned order dated 29.12.2006, again rejecting the claim of the petitioner on the ground that since the land of the petitioner was acquired in the year 1985 for development of Sector 5, Mansa Devi Complex, Panchkula, where no individual residential plots were carved out, therefore, his claim for allotment of plot under oustees quota in newly floated Sector 6, Mansa Devi Complex, Panchkula, cannot be considered being not covered under the oustees policy dated 8.12.2003, inasmuch as, his case falls under the policy dated 22.10.1997 (P-16 Colly). Mr. Rajiv Atma Ram, learned Senior counsel has taken us through the policies providing allotment of plots to oustees on account of acquisition of their land. Those policies are dated 10.9.1987 (Annexure P-2), 18.3.1992 (Annexure P-3), 12.3.1993 (Annexure P-4), 22.10.1997 (Annexure P-5), 28.8.1998 (Annexure P- 6), 27.3.2000 (Annexure P-7) and 8.12.2003 (Annexure P-8). The Civil Writ Petition No. 4952 of 2007 (6) basic tenor of the policy floated in the year 1987 (Annexure P-2) is to create obligation on the State to take care of touching human problems and the Courts must be on the side of the helpless individual whose land has been acquired. It would be anomalous to hold that while acquiring the land for the purposes of developing it to provide houses and other facilities to one section of the population and at the same time permit the State to displace those persons while rendering them homeless or without shelter. It would be proving the proverb 'rob Peter to pay Paul'. In Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536, Hon'ble the Supreme Court observed that Directive Principles of State Policy do not license the government to adopt such a policy. The basic essence of the judgment rendered by a Division Bench of this Court in the case of Suman Aneja V. State of Haryana 1994(1) RRR 381 is to ensure that the oustee is not treated adversely while acquiring his land for developing the same for residential and commercial purposes for various other sections of society. A perusal of policy dated 10.9.1987 (Annexure P-2) makes it evident that only those land owners were made eligible for allotment of a plot under the oustees quota who were owners of the acquired land at least for one year before the acquisition and that 75% of the total area of their land or more must have been acquired. The policy had restricted the claims of such oustees whose land was acquired on or after 10.9.1987. Some changes continued to be made in the aforementioned policy on 18.3.1992 (Annexure P-3), Civil Writ Petition No. 4952 of 2007 (7) 12.3.1993 (Annexure P-4) and 22.10.1997 (Annexure P-5). The basic changes brought by the amendments made on 18.3.1992 and 12.3.1993 are that an oustee was to be entitled to the allotment of a plot of 500 sq. yds. if he acquired area exceeds one acre. Subsequent amendment dated 12.3.1993 further provided that the benefit of oustees policy was not to be given to those who have got residential/commercial plot from HUDA in that urban estate. The restriction was however, not to apply to those oustees who might have acquired the property in the urban estate concerned otherwise. It was further clarified that benefit of the oustees policy was to be restricted to one plot according the size of the holding irrespective of the number of co-sharers. There was no policy change made by instructions dated 22.10.1997 (Annexure P-5). However, a significant change was brought about by the policy dated 28.8.1998 and, therefore, it would be profitable to read the same in extenso as it would have material bearing on the question raised in the instant policy:- “The present policy on the subject inforce envisaged that the allotment of residential/commercial plots under oustee policy shall be restricted to the allotment within the Sector for which the land has been acquired. This stipulation of the policy have been creating a practical problem at the implementation stage. Some time, the acquired land belonging to the land owners/oustees is developed by HUDA for the purposes other than for residential/commercial like recreational sector Civil Writ Petition No. 4952 of 2007 (8) institutional zones, group housing societies and industrial purposes etc. etc. Then the land owners/oustees of the particular sector are totally out of the purview of the policy and the land owners are not entitled for allotment of residential plots in lieu of their acquired land. After careful consideration, the authority in its 74th meeting held on 20.8.1998, vide agenda item no. A-74(7) in partial modification of the policy on the subject inforce have decided that if the plot under the oustees policy cannot be offered to the oustees in the same sector then they should be offered residential/commercial plots in the next residential sector of that Urban Estate, which may be floated and developed by HUDA. This amendment/provisions will be made applicable prospectively. All other terms and conditions shall however, remain the same.” The aforementioned policy shows that for the first time HUDA made oustees of the land eligible for allotment of a plot in the urban estate other than the one in which the land of the oustee was acquired. The oustees till the date of this policy were not entitled to be considered for allotment of a plot in any other urban estate except the one in which their land was acquired. The other difficulty faced by the oustees had been that earlier to 10.9.1987 they were not eligible, which was removed by the policy instructions dated 27.3.2000 (Annexure P- Civil Writ Petition No. 4952 of 2007 (9) 7). According to these instructions, even those oustees were made eligible whose land has been acquired prior to 10.9.1987 provided the plots were still available while floating the scheme on such land. We find considerable force in the arguments raised by Mr. Rajiv Atma Ram that the petitioner became eligible for allotment of a plot on 27.3.2000 because his land was acquired in 1983 prior to the cut off date of 10.9.1987. The policy instructions dated 27.3.2000( Annexure P-7) has the limited benefit only in respect of the plots carved out on the acquired land of the oustees. However, the policy instructions dated 28.8.1998 are also in operation which are supplementary to the policy instructions dated 27.3.2000(Annexure P-7). The net result is that these policy instructions has to be construed in accordance with the tenor of the judgment of Division Bench in Suman Aneja’s case (Supra). It would be profitable to extract the rationale which permeated the Division Bench judgment and the same reads as under:- “It is to be noted that the purpose underlying the Rehabilitation Scheme for oustees is basically one involving an obligation on the State to take care of a touching human problem and if it is at all possible to lean, we must lean on the side of the helpless individuals whose land was been acquired. It would be anomalous to hold that while acquiring the land for the purpose of land development to provide house and other facilities Civil Writ Petition No. 4952 of 2007 (10) to one section of the populace, those person whose land had been acquired, should be adversely treated or left homeless and without shelter.” On the basis of the aforementioned guidelines afforded by the Division Bench, we are left with no doubt that the petitioner became eligible as oustee for the first time on 27.3.2000 because earlier he was not covered by any of the policies as his land was acquired in the year 1983. The policy dated 27.3.2000 (Annexure P-7) first time included the oustees of pre 10.9.1987 in the group of beneficiaries. Then the policy instructions dated 28.8.1998 (Annexure P-6) have also adopted a liberal approach by extending the benefit to the oustees without confining them to the allotment of plots only for the acquisition in which their area has been acquired. Any other interpretation would defeat the basic rationale of rehabilitation of such oustees because the oustees did not have any control over the plans of respondent-HUDA, who may decide to develop the industrial area on the acquired land of oustees. When the land belonging to the petitioner was acquired with the object of developing residential and commercial area then the public purpose was changed later on and it was developed as a commercial Sector. When the impugned orders dated 29.12.2006/17.1.2007 (Annexure P-16) is examined in the light of the aforementioned principle it becomes evident that the spirit Civil Writ Petition No. 4952 of 2007 (11) of the instructions stand violated inasmuch as the principle of prospective application provided in the instructions dated 28.8.1998 has been given restricted meaning. It is undisputed that the application of the petitioner made in the year 2004 to the Estate Officer HUDA. Panchkula for allotment of one kanal plot was rightly found in order by the Standing Screening Committee headed by Zonal Administrator and it has passed the following order :- “The committee came to conclusion that land of the applicant falls in Sector-5 MDC in which group housing plots have been carved out and is adjoining Sector-6, MDC, Panchlkula. The committee found the applicant eligible, subject to clarification from DTP(P) and LAO(P). It may also be verified by EO (P) that the applicant has not been allotted any HUDA plot and is also not a member of any group Housing Society as well as after completing all formalities as per HUDA policy. A clarification may also be sought from Headquarters. The Committee decided to keep the 1 kanal plot reserved.” The policy instructions dated 27.3.2000 had to be read in consonance with the instructions dated 28.8.1998(Annexure P-6) once the petitioner became eligible on 27.3.2000 then it cannot be concluded that even if the instructions dated 28.8.1998 are applied prospectively then the petitioner would be entitled to the benefit of those Civil Writ Petition No. 4952 of 2007 (12) instructions. The Chief Administrator has committed error of law while interpreting the policy dated 27.3.2000 (Annexure P-7) by ignoring the policy dated 28.8.1998 (Annexure P-6). The aforesaid error is apparent from the concluding para where he observed that the land of the petitioner was acquired in the year 1983 and no individual residential plot was carved out in that Sector, therefore, he was not entitled to any allotment in the oustees quota in accordance with the policy guidelines dated 27.3.2000 (Annexure P-7) and the claim made by him in respect of allotment of plot in Sector-6, Mansa Devi complex, Panchkula could not be considered. The interpretation adopted by the Chief Administrator, HUDA cannot be accepted as it would defeat the basic object of the policy instructions which recognised unenviable fate of an oustee. Any other interpretation to the policy would result into complete denial to the oustees like the petitioner whose land has been acquired prior to 1987 because it is unlikely that at this stage any plot would be available even if the land was developed for residential purposes. We are further of the view that the aforementioned interpretation must be adopted because otherwise it may result into violation of mandate of judgment of Hon'ble the Supreme Court rendered in the case of State of U.P. v. Pista Devi and others 1986(4) SCC 251. Civil Writ Petition No. 4952 of 2007 (13) Hon'ble the Supreme Court has taken notice of wholesome principle laid down in Section 21(2) of the Delhi Development Act, 1957. The aforesaid Section provides that in case of acquisition of land in so far as it is practicable, 'displaced person' must be provided with an opportunity to obtain such accommodation suitable to their reasonable requirements on terms settled with due regard to the price at which such land had been acquired from them. After taking notice of the aforesaid provisions, Hon'ble the Supreme Court observed in para 10 as under:- “Although the said section is not in terms applicable to the present acquisition proceedings, we are of the view that the above provision in the Delhi Development Act contains a wholesome principle which should be followed by all Development Authorities throughout the country when they acquire large tracts of land for the purposes of land development in urban areas. We hope and trust that the Meerut Development Authority, for whose benefit the land in question has been acquired, will as far as practicable provide a house site or shop site of reasonable size on reasonable terms to each of the expropriated persons who have no houses or shop buildings in the urban area in Civil Writ Petition No. 4952 of 2007 (14) question.” Keeping in view the observation of Hon'ble the Supreme Court in Pista Devi's case (supra) and Division Bench judgment of this Court in Suman Aneja's case (supra) , we are of the view that the order passed by the Chief Administrator, HUDA (Annexure P-16) cannot stand legal scrutiny and thus, liable to be set aside. For the reasons aforementioned, this petition succeeds and we find that the order dated 29.12.2006 rejecting the claim of the petitioner for allotment of plot under oustees quota upholding the cancellation of Plot No. 12-P, Sector 6, Mansa Devi Complex, Panchkula is unsustainable and is hereby quashed. The petitioner is held entitled to the allotment of Plot No. 12-P, Sector-6, Mansa Devi Complex, Panchkula which has been rightly allotted to him in pursuance to his application filed by him in the year 2004, which succeeds in the draw of lots. The respondents are directed to complete all the formalities for transfer of the plot to the petitioner expeditiously preferably within a period of two months from the date of receipt of a copy of this order. (M.M.KUMAR) JUDGE (JORA SINGH) JUDGE December 09, 2008 PARAMJIT