IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 2308 of 2004 Date of Decision: June 21, 2010 Reshma Footwears (P) Ltd. …Petitioner Versus State of Haryana and others …Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present: For the Petitioner(s): Mr. Arun Jain, Senior Advocate with Mr. Vishal Goel, Advocate, Mr. Arun Palli, Senior Advocate with Mr. Tushar Verma, Advocate, Mr. M.L. Sharma, Advocate, Mr. J.L. Malhotra, Advocate, Mr. Sanjay Kaushal, Advocate, Mr. Harkesh Manuja, Advocate. Mr. Ramesh Hooda, Advocate. Mr. Surender Singh Dalal, Advocate, Mr. J.S. Dhull, Advocate, For the Respondent(s): Mr. Kamal Sehgal, Addl. AG, Haryana, Mr. Rajiv Sharma, Advocate, for UOI. Ms. Vandana Malhotra, Advocate, and Mr. Aman Chaudhary, Advocate, for HUDA. 1. To be referred to the Reporters or not? Yes 2. Whether the judgment should be reported in the Digest? Yes M.M. KUMAR, J. This order shall dispose of a bunch of 22 petitions2 as the acquisition of land/buildings is sought to be made by common notifications initiating the acquisition proceedings. These petitions primarily involve acquisition of CWP No. 2308 of 2004 and other connected petitions agricultural land, residential houses, and industrial units. The acquisition has been challenged on the principal grounds of procedural lapses alleging mandates of law, discrimination, violation Articles 14, 19 and 21 of the Constitution, violation of principles of natural justice and infringement of the State policy for release of constructed areas. 2. Brief facts of the case as culled out from CWP No. 2308 of 2004 are that the petitioner-M/s Reshma Footwears (P) Limited is a Company incorporated under the Companies Act, 1956, situated in the revenue estate of Sarai Aurangabad, Tehsil Bahadurgarh, District Jhajjar. In the year 1996 and 2000, the land was purchased at Sarai Aurangabad, Tehsil Bahadurgarh, District Jhajjar, on behalf of the Company by Shri Rajesh Kumar Garg, vide sale deed No. 2044, dated 26.8.1996 and by Smt. Amita Goyal & Shakuntala Devi vide sale deed No. 2156, dated 3.8.2000. The petitioner raised the construction for residential-cum- industrial purposes by spending a huge amount. An industrial unit for manufacture, sale and purchase of footwear was set up after taking No Objection Certificate from the Municipal Committee, Bahadurgarh. It is claimed that the site plan was also duly approved by the Municipal Committee, Bahadugarh because the land in question is situated within the Municipal Limits of Bahadurgarh. In that regard the petitioner also deposited the development charges of Rs. 63,515/- to the Municipal Committee, Bahadurgarh (P-11 & P-12). The petitioner is an income tax payee unit and having all basic amenities like water, sewerage, electricity, telephone connections and has also obtained non-pollution certificate from the State Pollution Control Board. It is also paying various taxes such as house tax, income tax, sales tax, professional tax and development charges to the Municipal Committee, Bahadurgarh. 3. On 17.4.2002, the respondent no. 7 State of Haryana issued a 2 CWP No. 2308 of 2004 and other connected petitions notification under Section 4 of the Land Acquisition Act, 1894 (for brevity, ‘the Act’) proposing to acquire land for a public purpose, namely, for residential, commercial and institutional Sector 1(Part), 10-11, (Part) 12 and 13 Bahadurgarh (P-41). On 14.5.2002, the petitioner filed objections under Section 5-A of the Act and requested for release of its industrial unit from acquisition. On 10.4.2003, a declaration under Section 6 of the Act was made acquiring the land in question (P- 43). 4. The respondents contested the writ petition by filing separate written statements. The stand taken by respondent Nos. 1 and 7 in the preliminary submissions of their written statement is that a bunch of five petitions challenging the same acquisition proceedings have already been dismissed by a Division Bench of this Court vide order dated 6.9.2003 (Annexure R-1) passed in CWP No. 12764 of 2004 (Om Parkash Tehlan v. State of Haryana). Another writ petition, bearing No. 11370 of 2003 pertaining to the same acquisition was dismissed on 30.4.2004 in terms of the order passed in CWP No. 12764 of 2004 (R-2). However, the factual position regarding acquisition of land by issuance of notifications dated 17.4.2002 and 10.4.2003 has not been disputed. It has been stated that the provisions of the Act have been religiously complied with, inasmuch as, after issuance of notification under Section 4 of the Act on 17.4.2002, the same was also published in the two daily newspapers, namely, ‘Haribhoomi’ (Hindi) dated 21.4.2002 and ‘The Hindu’ (English) dated 23.4.2002. Similarly, declaration was made on 10.4.2003 under Section 6 of the Act and it was also published in the afore stated newspapers on 16.4.2003. The muniadi in the locality by beat of drums was also made. The entry in the Rapat Roznamcha was made vide Rapat No. 361, dated 18.4.2002 and Rapat No. 334, dated 17.4.2003 respectively. After completing all the necessary formalities, the award 3 CWP No. 2308 of 2004 and other connected petitions was announced on 25.6.2004. In the parawise reply on merit, it has been stated that the objections filed by the petitioner under Section 5A of the Act were duly heard on 31.10.2002 by the Collector after giving opportunity of hearing to the petitioner through its representative. It has been denied that any land/constructed area in village Sarai Aurangabad has been released by the Government. It is claimed that the acquisition proceedings have been carried out religiously in accordance with law. With regard to existence of construction at the time of issuance of notification under Section 4 of the Act, it has been admitted in paras 8 and 10 of the written statement that there was some construction over the land in dispute but the same has been acquired by the respondent State after considering the objections under Section 5A of the Act as well as reports of the Collector and Joint Site Inspection Committee. 5. In the written statement filed on behalf of respondent Nos. 3 and 6, the stand taken in the preliminary objections is that the site of the petitioner is located in the residential zone as per the draft development plan 2021 of Bahadurgarh Town, notified in the Haryana Gazette vide notification dated 30.10.2003 (R-1). In the reply on merits, it has been stated that the building of the petitioner is being used for industrial purpose and not for residential purposes and the site falls within Controlled Area Bahadurgarh as well as extended Municipal Committee Limit of Bahadurgarh. 6. At this stage, it is pertinent to notice that the facts and the stand taken by the respondents in other cases is almost similar, as noticed in the preceding paras. The following table gives a bird’s eye view of the other cases:- 4 CWP No. 2308 of 2004 and other connected petitions Sr. No. CWP No. Year Nature of the land acquired Description of the construction, if any Whether construction prior to issuance of notification under Section 4 of the Act (Yes or No) Whether written statement filed or not. If yes by whom Whether factum of construction prior to notification u/s 4 denied. 1. 8223 200 3 Residential Petitioners purchased residential plots and constructed small houses in Krishna Nagar, Bahadurgarh, which is fully developed. Yes Affidavit dated 12.7.2004 has been filed by the Special Secretary, Urban Estates Deptt, Haryana Parawise reply not given. Only practice of the Govt. regarding release of land explained in the affidavit. 2. 1281 1 200 3 Residential Petitioners purchased land and constructed houses. Yes No No 3. 1281 2 200 3 Residential Detail not forthcoming. Yes No No 4. 1529 8 200 3 Residential Residential houses as detailed in the head note and para Nos. 1 to 3 of the petition. Yes Yes. By LAC- respondent Nos. 1 & 3 Admitted existence of construction but in scattered manner, which is disturbing the planning process. Denied that there was any ‘A’ Class construction. 5. 1667 2 200 3 Agriculture Land is highly fertile. Petitioner laid down RCC pipes etc. for irrigation. No. Yes. LAO on behalf of respondent Nos. 3 to 6 Denied the averments made in the petition. Referred various earlier judgments of this Court wherein same notifications have been upheld vis. CWP No. 12764 of 2004, and connected petitions decided on 6.9.2003. 5 CWP No. 2308 of 2004 and other connected petitions 6. 2625 200 4 Industrial Petitioner got the site plan approved from Municipal Committee, Bahadurgarh after depositing the requisite fees. Raised construction prior to Section 4 notification and running small scale unit. Yes Yes. District Town Planner, Jhajjar, on behalf of respondent Nos. 3 and 6. Construction admitted but it is unauthorized construction without prior permission of the competent authority as required under Section 8 of the Act No. 41 of 1963. 7. 2753 200 4 Industrial Petitioner got the site plan approved from Municipal Committee, Bahadurgarh after depositing the requisite fees. Raised construction prior to Section 4 notification and running industrial unit. Yes Yes. District Town Planner, Jhajjar, on behalf of respondent Nos. 3 and 6. Construction admitted but it is unauthorized construction without prior permission of the competent authority as required under Section 8 of the Act No. 41 of 1963. 8. 3290 200 4 Mixed. (School and residence Petitioner Nos. 1, 3, 5 purchased different pieces of land vide sale deed dated 28.1.2002 separately. Petitioner No. 7 and 8 purchased the land on 21.3.2002 and 23.3.2002 respectively. Petitioner No. 2 purchased the land vide sale deed dated 20.6.2002 (after notification under Section 4), mutation was sanctioned on 17.7.2002 (Para 4 of the writ petition) Not clear No No 9. 5967 200 4 Industrial Petitioner established small scale industries in the area owned and possessed by it. Yes No No 6 CWP No. 2308 of 2004 and other connected petitions 10. 6017 200 4 Industrial Petitioner purchased the land vide sale deeds dated 1.9.1998 and 25.3.2002, raised construction and set up an industrial unit. Yes Yes. District Town Planner, Jhajjar on behalf of respondent Nos. 3 to 6 Reply on behalf of respondent HUDA LAO on behalf of respondent Nos. 1 & 7 Petitioners raised unauthorized construction without prior permission of the competent authority. Petitioner’s site is located in the residential zone and falls within the controlled area around Bahadurgarh town. No effective reply has been filed. Construction admitted. Rest same averments as in CWP No.7528 of 2004. 11. 6107 200 4 Flour Mill- cum- Residential since Dec. 1995 Petitioner purchased the plot vide sale deed dated 9.5.1995. After getting the site plan approved by MC, Bahadurgarh, depositing of requisite fee & documents, raised construction of Flour Mill. Photographs attached. Yes Yes. District Town Planner, Jhajjar on behalf of respondent Nos. 3 to 6 Reply on behalf of respondent Nos. 2, 4 & 5 Petitioners raised unauthorized construction without prior permission of the competent authority. Petitioner’s site is located in the residential zone and falls within the controlled area around Bahadurgarh town. Acquisition has been made as per the provisions of the Act. Denied that the construction of the petitioner is of ‘A’ Class. 7 CWP No. 2308 of 2004 and other connected petitions 12. 6137 200 4 Industrial Petitioner purchased the land vide sale deeds dated 10.7.1995 and 15.5.2000, After getting the site plan approved by MC, Bahadurgarh, depositing of requisite fee & documents, raised construction of industrial unit. Yes Yes. District Town Planner, Jhajjar on behalf of respondent Nos. 3 to 6 Reply on behalf of respondent Nos. 2, 4 & 5 Petitioners raised unauthorized construction without prior permission of the competent authority. Petitioner’s site is located in the residential zone and falls within the controlled area around Bahadurgarh town. Acquisition has been made as per the provisions of the Act. Denied that the construction of the petitioner is of ‘A’ Class. 13. 6172 200 4 Industrial Petitioner purchased the land vide sale deed dated 23.10.1997. After getting the site plan approved by MC, Bahadurgarh, depositing of requisite fee & documents, raised construction of an industrial unit. Yes Yes. Reply on behalf of respondent Nos. 2, 4 & 5 Denied that the construction of the petitioner is of ‘A’ Class. 14. 7528 200 4 Agricultural Land is being used for agriculture purposes, which is highly fertile and double crop growing, irrigated through tubewell. Emphasised that the respondents should comply with the Regional Plan 2001 under the mandatory provisions of National Capital Region Planning Board Act, 1985. No construction Yes. By LAO on behalf of respondent Nos. 3 to 6 Denied the averments made in the petition. Referred various earlier judgments of this Court wherein same notifications have been upheld vis. CWP No. 12764 of 2004, and connected petitions decided on 6.9.2003 (R-1), 8 CWP No. 2308 of 2004 and other connected petitions 15. 9122 200 4 Industrial Land was purchased by two sale deeds dated 13.12.95 & 14.12.95. After raising construction the petitioners are running industrial unit as also using the building for their residence. Yes Yes. District Town Planner, Jhajjar on behalf of respondent Nos. 3 to 6 Reply on behalf of respondent HUDA Petitioners raised unauthorized construction without prior permission of the competent authority. Petitioner’s site is located in the residential zone and falls within the controlled area around Bahadurgarh town. No effective reply has been filed. 16. 9124 200 4 Industrial Petitioners established their small scale industries much prior to Section 4 notification. Yes Yes. Estate Officer- HUDA for respondent No. 2 Acquisition has been made by the State Government in accordance with the provisions of the Act. 17. 9204 200 4 Factory Petitions using the land for the purpose of drying of card board and running a factory in the name of M/s Balore Hathkargha Board Udyog. Yes No No 18. 1107 4 200 4 Industrial Petitioner got the site plan approved from Municipal Committee, Bahadurgarh after depositing the requisite fees. Raised construction much prior to Section 4 notification and running factory. Yes Yes. LAO on behalf of respondent Nos. 1 & 7 Same averments as in CWP No.7528 of 2004. 9 CWP No. 2308 of 2004 and other connected petitions 19. 1172 1 200 4 Residential Claimed that the petitioner purchased plot prior to Section 4 notification and raised construction comprising of 8 rooms, kitchen, latrine, bath room and boundary well and living there. Photographs attached. Yes No No 20. 1180 9 200 4 Residential Claimed that the petitioner raised construction prior to Section 4 notification comprising of 2 rooms, kitchen, latrine, bath room and boundary well and living there. Yes Yes. By Chief Coordinator Planner (NCR), Haryana, Panchkula on behalf of respondent No. 3 Estate Officer, HUDA on behalf of respondent Nos. 2, 4 and 5 Construction admitted. Award of the built up area has not been announced. 21. 1181 3 200 4 Residential Claimed that the petitioner purchased plot prior to Section 4 notification and raised construction comprising of 2 shed rooms of 36 x 30, one room of 14 x 14, kitchen, latrine, bath room and boundary well and living there. Yes Yes. LAO on behalf of respondent Nos. 1 and 7 Land has been acquired in accordance with the provisions of the Act. No objection under Section 5A of the Act was filed by the petitioner. Petitioner is not recorded as owner in possession of the land in question in the revenue record. Similar writ petition being CWP No. 11370 of 2003 has been dismissed on 30.4.2004. Vague reply has been given regarding construction in para 2 on merits. 10 CWP No. 2308 of 2004 and other connected petitions 7. Mr. M.L. Sharma, learned counsel for the petitioner has made the following broad submissions:- (i) The acquisition proceedings are vitiated because substance of the notification issued under Section 4 of the Act was not published in the locality nor was the substance of the notification displayed at the conspicuous places. According to the learned counsel it is a mandatory provision and failure to comply with the procedure vitiates the notification issued under Section 4 of the Act. In support of his submission, learned counsel has placed reliance on a judgment of Hon’ble the Supreme Court rendered in the case of Raja Ram Jaiswal v. Collector (District Magistrate) Allahabad, (1985) 3 SCC 1. He has also relied upon another judgment of Hon’ble the Supreme Court in the case of State of Mysore v. Abdul Razak Sahib, AIR 1973 SC 2361 and two Full Bench judgments of this Court rendered in the cases of Rattan Singh v. State of Punjab, 1976 P.L.J. 356 (FB) and Kashmiri Lal v. State of Punjab, 1983 P.L.J. 549 (FB). He has also relied upon a Division Bench judgment of this Court rendered in the case of Man Singh v. State of Punjab, 1980 P.L.J. 414 (DB) and a Single Bench judgment of this Court rendered in the case of Punjab State v. Sansar Preet Mandal, 1990 LACC 617 (P&H). (ii) Mr. Sharma has then submitted that the right of hearing contemplated under Section 5A of the Act is a right akin to fundamental right and, therefore, after hearing of the objections by the Land Acquisition Collector, the reasons for rejecting the objections or the consolidated order is required to be communicated to the objectors/interested persons, especially when the prices of the land has increased manifold. He has maintained that non- communication of reasons would result into violation of the principles of 11 CWP No. 2308 of 2004 and other connected petitions natural justice and the right of the petitioners would be prejudiced as they would have no say before the State Government which is to determine the issue finally. In support of his submission, learned counsel has placed reliance on the judgments of Hon’ble the Supreme Court rendered in the cases of Gulabras Keshavrao Patil v. State of Gujarat, (1996) 2 SCC 26 and Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627. Learned counsel has substantiated his argument by submitting that the function of the Land Acquisition Collector while making recommendations under Section 5A of the Act are quasi-judicial in nature and, therefore passing of speaking order is mandatory for rejecting or accepting the objections. He has also contended that communication of such an order/recommendation to the land owners/objectors is part of the principles of natural justice. In that regard he has placed reliance on the judgments of Hon’ble the Supreme Court rendered in the cases of State of Mysore v. V.K. Kangan, (1976) 2 SCC 895, Shri Mandir Sita Ramji v. Governor of Delhi, AIR 1974 SC 1868, Farid Ahmed Abdul Samad v. Municipal Corporation of the City of Ahmedabad, (1976) 3 SCC 719 . (iii) Another submission made by the learned counsel for the petitioners is that plain land, residential houses and factories etc. belonging to influential persons have been released from acquisition, which is arbitrary and smacks of discrimination. He has emphasised that it is acolourable exercise of power where pick and chose formulas have been applied. According to the learned counsel, the notification acquiring the land involves four villages. In village Bahadurgarh 58.16 acres, in village Balaur 25 acres and in village Barketabad 4.79 acres of land have been released from acquisition whereas the houses, factories and plain area belonging to the petitioners have not 12 CWP No. 2308 of 2004 and other connected petitions been released. In support of his submission, learned counsel has placed reliance on a latest judgment of Hon’ble the Supreme Court rendered in the case of Hari Ram & another v. The State of Haryana and others (2010) 3 SCC 621 and has drawn our attention to some scathing remarks made by Hon’ble the Supreme Court against the respondent State with regard to favouritism in releasing the land from acquisition. In respect of industrial unit, he has drawn our attention to CWP No. 9204 of 2004 where the factory belonging to that petitioner has been released from acquisition whereas the stand taken in the cases of the present petitioners is that the existence of factory is not compatible for the scheme of residential area. He has also referred to various instances where the houses, like the one belonging to the petitioners have been excluded whereas those of the present petitioners have been acquired. The other instances with regard to plain land have also been cited. According to the learned counsel, the construction raised by the petitioners whether in respect of the factory or in respect of the residential area have not been denied and it is conceded that it was raised before issuance of notification under Section 4 of the Act. In that regard he has placed reliance on the report dated 27.1.2004 of the Joint Inspection Committee under the Chairmanship of Shri Shyamal Mishra, IAS, Administrator, HUDA, Faridabad. A perusal of the aforesaid report shows that an area measuring 12.44 acres in village Baktarabad was withdrawn from acquisition without giving any reason. (iv) Learned counsel has then submitted that once the petitioners have raised construction after obtaining sanction to the site plan then the principle in the nature of estoppel would come into play. Placing reliance on the averments made in paragraphs 6 to 11 of CWP No. 2308 of 2004, Mr. Sharma has 13 CWP No. 2308 of 2004 and other connected petitions argued that the sanction was accorded on 22.9.2000 (P-9) and the building was to be raised within a period of one year i.e. on or before 21.9.2001. After sanctioning of the site plan the petitioner had raised construction (P-13). The other connected documents placed on record are the deposit of amount for development charges in the Municipal Council, Bahadurgarh (P-10 & P-11). He has also referred to various documents showing the issuance of Sales Tax number. Even sanction was accorded by the Haryana State Pollution Control Board on 14.9.2000 (P-22). He has also attached the electricity bills (P-23 to P-26), telephone bills (P-27 to P-30) and Sales Tax receipts (P-31 & P-32). On the basis of the aforesaid, learned counsel has argued that before notification under Section 4 of the Act was issued on 17.4.2002, the factory was constructed and was in production. Therefore, there was legitimate expectation that after religiously complying with detailed provisions of law, the petitioner would enjoy his property without any objection from any quarter. In that regard, he has placed reliance on a Division Bench judgment of this Court rendered in the case of Eros City Developers Private Ltd. v. State of Haryana, 2008 (2) RCR 291. He has further submitted that in cases where the land is situated in municipal area and no declaration has been made under the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 (for brevity, ‘the 1963 Act’), then no permission for change of land use is required to be obtained. According to the learned counsel a notification declaring the area under dispute as Controlled Area under Section 4 of the 1963 Act was issued on 30.10.2003 (R-1) and same cannot be given retrospective effect because it would result into demolishing a number of houses/residences, factories and commercial establishments. He has 14 CWP No. 2308 of 2004 and other connected petitions submitted that in such a situation no acquisition is permissible when the State agencies themselves have accorded sanctions. In that regard he has placed reliance on two Division Bench judgments of this Court rendered in the cases of State of Haryana v. Kartar Singh, 1989(1) Recent Criminal Reports 161 and Mahant Ram v. State of Punjab, 1984 PLJ 52. (v) The last submission made by the learned counsel is that the policy framed by the respondent State on 26.10.2007 is fully applicable to all these cases because it exempts/excludes any construction from acquisition, which has been raised in accordance with law. In that regard he has drawn our attention to letter dated 26.1.1991 where the general policy has been laid down and the same has been followed and applied for releasing the constructed areas belonging to various other persons. In any case, Mr. Sharma has placed reliance on