CWP No. 8474 of 2006 and other connected cases 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 28.09.2010 CWP No. 8474 of 2006 M/s K.K.International, Sector 29, HUDA, Panipat and another ….. PETITIONERS VERSUS The State of Haryana and others ….. RESPONDENTS CWP No. 9403 of 2006 Malik Industry and others ….. PETITIONERS VERSUS The State of Haryana and others ….. RESPONDENTS CWP No. 9374 of 2006 M/s R.S. Dye House, Village Kheri Nangal, Tehsil and District Panipat and another ….. PETITIONERS VERSUS The State of Haryana and others ….. RESPONDENTS CWP No. 9372 of 2006 M/s Jeevan Handloom and another ….. PETITIONERS VERSUS The State of Haryana and others ….. RESPONDENTS CWP No. 11818 of 2007 Attar Shinup Ltd. and another ….. PETITIONERS VERSUS The State of Haryana and others ….. RESPONDENTS CWP No. 9347 of 2006 Satpal Singh and another ….. PETITIONERS VERSUS The State of Haryana and others ….. RESPONDENTS CWP No. 8474 of 2006 and other connected cases 2 CWP No. 9346 of 2006 Gulshan Kumar and another ….. PETITIONERS VERSUS The State of Haryana and others ….. RESPONDENTS CWP No. 9361 of 2006 Vijay Goel and others ….. PETITIONERS VERSUS The State of Haryana and others ….. RESPONDENTS CWP No. 9373 of 2006 M/s Sarvi International and another ….. PETITIONERS VERSUS The State of Haryana and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Pawan Kumar Mutneja, Advocate, for the petitioners. Mr. Kamal Sehgal, Addl. A.G. Haryana, for respondents No. 1 and 2. Mr. Gaurav Mohunta, Advocate, for respondent No. 3 (in CWP Nos. 8474, 9403, 9347, 9361, 9372 of 2006 and 11818 of 2007). Mr. Arun Walia, Advocate, for respondent No. 3 ( in CWP Nos. 9346, 9374, 9373 of 2006) *** JASBIR SINGH, J. (ORAL) This order will dispose of CWP No. 8474of 2006 titled as M/s K.K.International, Sector 29, HUDA, Panipat and another vs. The State of Haryana and others, CWP No. 9403 of 2006 titled as Malik Industry and others vs. The State of Haryana and others, CWP No. 9374 of 2006 CWP No. 8474 of 2006 and other connected cases 3 titled as M/s R.S. Dye House, Village Kheri Nangal, Tehsil and District Panipat and another vs. The State of Haryana and others, CWP No. 9372 of 2006 titled as M/s Jeevan Handloom and another vs. The State of Haryana and others, CWP No. 11818 of 2007 titled as Attar Shinup Ltd. and another vs. The State of Haryana and others, CWP No. 9347 of 2006 titled as Satpal Singh and another vs. The State of Haryana and others, CWP No. 9346 of 2006 titled as Gulshan Kumar and another vs. The State of Haryana and others, CWP No. 9361 of 2006 titled as Vijay Goel and others vs. The State of Haryana and others, CWP No. 9373 of 2006 titled as M/s Sarvi International and another vs. The State of Haryana and others. Facts are being taken from CWP No. 8474 of 2006. This writ petition has been filed with a prayer to issue a writ in the nature of certiorari to quash order dated 06.05.2006 (Annexure P-21), vide which request of the petitioner, to release its running industrial unit from acquisition was rejected. Brief facts of the case are that, to acquire a vast track of land including land of the petitioners, the State of Haryana issued a notification under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') on 12.09.2001. The petitioners filed objections under Section 5-A of the Act, which did not find favour with the authorities and its land/unit was recommended for acquisition. Declaration under Section 6 of the Act was issued on 01.03.2002 and Award was passed on 11.04.2002. It is necessary to mention here that the land was acquired for public purpose i.e. development and utilization of land for shifting of Dyeing Units in Sector 29 Part-II, Panipat, Haryana. By alleging that the petitioners' was a running dyeing unit and its unit was wrongly ordered to CWP No. 8474 of 2006 and other connected cases 4 be acquired, the petitioners came to this Court by filing CWP No. 5419 of 2002. The said writ petition was disposed of along with many other writ petitions by a Division Bench of this Court by passing an order on 04.04.2002. The petitioners and many other land owners went to the Hon'ble Supreme Court. Appeals filed by them were disposed of by passing a common order in Civil Appeal No. 412 of 2006 on 10.01.2006. It is not in dispute that during pendency of the Appeals before the Hon'ble Supreme Court, as many as 28 dyeing units were left out of acquisition on the basis of decision taken by the State of Haryana, which reads thus:- “CM has seen. He has observed that only those industrial units which are functional at site their land may be released subject to the conditions marked at 'X' on NP/56. HUDA may allot additional land wherever necessary, on the prevalent HUDA rates to these units in order to provide necessary open spaces/set back lines as required under the provisions of Act and Rules. The present approved layout plan, if required, may be amended accordingly.” A specific stand was taken by the State of Haryana that those industrial units, which were functional at the site their land, shall be released subject to some conditions. The Hon'ble Supreme Court noticed a fact that earlier request of the petitioners for release of land was rejected on the following grounds:- “(i) The proposed site has been acquired by Director, Urban Estate, Haryana, and hence the proposed site is not under CWP No. 8474 of 2006 and other connected cases 5 your ownership. (ii) There is violation of the Punjab Scheduled Roads & Controlled Areas Restriction of Unregulated Development Act, 1963 and Rules, 1965, which is not compoundable. (iii) There is a violation of Section 7 (1) and 7 (2) of Haryana Development & Regulations of Urban Areas Act, 1975, which is not compoundable.” After hearing counsel for the parties therein, regarding those units, whose land was not released from acquisition, following observations were made by the Hon'ble Supreme Court in order dated 10.01.2006, which reads as under:- “ So far as other petitioners are concerned, it is submitted before us that they have not been communicated the ground on which their application for change of land use has been rejected. The petitioners could as well have obtained copy of the order rejecting their application for change of land use. If their applications for release of acquired land have been rejected on the ground that they have not obtained such permission, those petitioners must be given another chance to make a representation to the Government impugning the order of rejection and the reasons therefore. We should not be understood to mean that the rejection of permission is not legal and valid. Apart from the general reasons indicated in the additional affidavit we have not seen the orders passed by the competent authority rejecting the applications of the aforesaid CWP No. 8474 of 2006 and other connected cases 6 petitioners, and therefore, we express no opinion in the matter. We dispose of their Special Leave Petitions those whose applications for release of land have been kept pending or rejected as shown in the charge annexed to the additional affidavit with a direction to the aforesaid petitioners to make fresh representations to the Government against the rejection of permission for change of land use/pendency of CLU application. It will be open to the Government to consider all relevant facts in the light of the Government's policy and the guidelines and parameters laid down by it and dispose of each representation by a separate reasoned order. We may notice that though a chart is annexed to the additional affidavit filed on behalf of the State regarding grant or rejection of applications for release of land belonging to the petitioners, detailed reasons for rejection have not been mentioned in the said chart. The petitioners whose applications for grant of CLU have been rejected or kept pending shall apply to the competent authority of the State of Haryana namely, the Director, Urban Development Authority, within a period of four weeks from today, who shall dispose of the matter himself or send it for disposal to the concerned authority. After giving an opportunity to the concerned petitioners to represent their respective cases, their applications shall be disposed of by a reasoned order within a period of four months from the date on which the application is made. We make it clear that the Government policy is confined to dyeing industries which existed and were functional on the CWP No. 8474 of 2006 and other connected cases 7 date on which Section 4 Notification was published. If there is any dispute as to their existence or non existence on the relevant date, that matter may also be considered by the competent authority.” A reading of the order clearly shows that liberty was given to the petitioners and others to file representations for release of their land, which was to be considered by the competent authority in the light of Government's policy, the guidelines and the parameters laid down for release of such like running units. It was further directed that each representation shall be disposed of by passing a separate reasoned order. By taking note of a fact that applications of the petitioners therein for change of land use were either kept pending or rejected without giving any detailed reason, liberty was granted to the petitioners to apply for change of land use afresh and directions were given to the Director, Urban Development Authority to dispose of the matter, after giving an opportunity of hearing, to the petitioners to represent their case. It was specifically observed that Government's policy was confined to the dyeing industries which were in existence and functional on the date on which Section 4 notification was published. It was further stated that if there is any dispute as to existence or non-existence of any unit on the relevant date, the matter shall also be considered by the competent authority. From the very beginning, it is contention of the petitioner that its dyeing unit was running at the spot when notification under Section 4 of the Act was issued. It has taken this plea that earlier CWP No. 5419 of 2002 was filed in this Court to lay challenge to the acquisition proceedings. CWP No. 8474 of 2006 and other connected cases 8 Before the Hon'ble Supreme Court also, it was contention of the petitioner that its dyeing unit was running at the spot. In the representation made to the authorities after passing of the order by the Hon'ble Supreme Court, it was stated as under:- “ That sir, my factory is running/functional condition dyeing industry. Sir, my factory is linked with export orders in Panipat city regarding handloom export etc. Sir, my factory's functional report is already on record submitted by DIC Panipat, required by your office/Director, Town and Country Planning, Haryana, Chandigarh. Sir, if you want to inspection of my factory it can be done but I request humbly that it should be done by considering all fluctuations in Panipat export industry and other problems of Panipat industry i.e. labour strike and problems etc. Sir I again request you that inspection of factory should be done on working days during working hours. So Sir, please reconsider my case of releasing my above mentioned factory as soon as possible.” From the perusal of the impugned order, it appears that to verify the above-said fact, no enquiry was conducted. No opportunity was given to the petitioners to prove evidence to show that its dyeing unit was in existence when the notice under Section 4 of the Act was issued. Its claim was rejected by placing reliance upon a report of a committee dated 16.12.2005 and report of the Chief Town Planner, HUDA dated CWP No. 8474 of 2006 and other connected cases 9 06.03.2006. The first report was made before the order passed by the Hon'ble Supreme Court. So far as the report dated 06.03.2006 is concerned, it is only in the shape of comments sent by the Chief Town Planner, HUDA to the competent authority. The claim of the petitioner was rejected without giving any specific finding as to whether its unit was in existence and running at the spot when notice under Section 4 was issued. The general objections, on the basis of which its claim earlier was rejected in the order, is under challenge. Before this Court also, it was averred by the petitioner that its unit is running at the spot. To verify the above-said fact, on 31.05.2006, following order was passed by this Court:- “ In pursuance to the orders dated May 26, 2006 the petitioners have placed on record numerous photographs depicting that the Unit of the petitioners is functional and is working. On the basis of the above, Mr. Mutneja, counsel for the petitioners, contends that as per the policy of the State Government (Annexure P-12) the Unit of the petitioners should have been exempted from acquisition. However, the photographs are completely contrary to the observations made by the Director, Town & Country Planning, in order dated 6.5.2006 wherein it has been categorically observed that the Unit of the petitioners is lying closed and is not functional. It has further been averred that there is an abandoned shed existing at the site. In order to resolve this factual controversy, we deem it appropriate to appoint a Local Commissioner. Accordingly, we CWP No. 8474 of 2006 and other connected cases 10 appoint Ms. Monika Jalota, Advocate, as Local Commissioner who shall visit and inspect the site tomorrow i.e. 1.6.2006 at 12:00 noon. The Local Commissioner shall make a detailed report by taking photographs etc. and shall also state categorically whether the Unit is in running condition or not. The Local Commissioner shall be paid a sum of Rs.20,000/- by the petitioners immediately on her arriving at the site. The amount shall be inclusive of the travelling expenses. Notice of motion for 4.7.2006. In the meantime, dispossession of the petitioners shall remain stayed. Copy of the order be given under the signatures of the Court Secretary.” In compliance to the order mentioned above, Local Commissioner went to the spot and submitted her report on 03.07.2006. After giving detailed observations, it was concluded that M/s K.K.International, Panipat is in working condition. We have perused the electricity bills and the photographs also which indicate towards the above-said fact. Because no finding was given by the competent authority as to whether the unit was in existence and running when notice under Section 4 was issued, we deem it appropriate to allow this writ petition and quash the order dated 06.05.2006 (Annexure P- 21) and remit the matter to the competent authority to decide it again. The petitioners be given an opportunity to produce the evidence to show that its unit was in existence and running when notice under Section 4 of the Act CWP No. 8474 of 2006 and other connected cases 11 was issued. The competent authority then shall pass an appropriate order. It is made clear that if it is proved that the petitioners' unit was in existence and running when notice under Section 4 of the Act was issued, its land will be released on the same terms and conditions, which were imposed with regard to 28 units whose land was exempted when the matter was pending in the Hon'ble Supreme Court. The petitioners are directed to appear before the competent authority (Director, Town and Country Planning-cum-Urban Estate, Haryana, at Chandigarh) on 26.10.2010, who shall then provide two effective opportunities to the petitioners to produce the evidence and then pass a speaking order in terms of the observations made by us in this order and the Hon'ble Supreme Court in order dated 10.01.2006. Needful be done within a period of two months' from today. Order passed be communicated to the petitioners and others forthwith thereafter. ( JASBIR SINGH ) JUDGE ( AUGUSTINE GEORGE MASIH ) JUDGE September 28, 2010 pj CWP No. 8474 of 2006 and other connected cases 12