CWP No. 13356 of 2011 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CWP No. 13356 of 2011 (O&M) Date of Decision : 28.7.2011 Gian Chand Jain & another .......... Petitioners Versus The State of Haryana & others ...... Respondents **** CORAM : HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present : Mr. Shailendra Jain, Advocate for the petitioners. **** AUGUSTINE GEORGE MASIH, J. Through this writ petition the petitioners have prayed for a writ of certiorari to quash the order dated 30.4.2010 (Annexure P-9) passed by respondent No.1 rejecting the representation of the petitioners, wherein they had prayed for release of land which stood acquired. Challenge has also been posed to notifications dated 29.1.2003 (Annexure P-5) and dated 28.1.2004 (Annexure P-7) issued under Sections 4 & 6 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') respectively, as also the award dated 27.1.2006 (Annexure P-13). Counsel for the petitioners contends that the petitioners are owners in possession of land measuring 13 Kanal 6 Marlas situated in revenue estate of village Narsinghpur, Tehsil and District Gurgaon since 1995. They purchased the said piece of land, over which there already CWP No. 13356 of 2011 -2- existed an industrial unit. The unit was registered as a small scale industry since 1991 for carrying on business of manufacture of Readymade Garments and Dyeing and Printing. The boundary wall encircles the land. Notification under Section 4 of the Act was issued on 29.1.2003 to which objections under Section 5-A of the Act were filed. These objections were not accepted and notification under Section 6 of the Act dated 28.1.2004 was issued. As per declaration the land of the petitioners was required for public purpose, namely for setting up of the Industrial Complex, to be planned and developed as “Special Economic Zone”, Phase-I in villages Khandsa, Narsinghpur, Mohammadpur Jharsa, Garoli Khurd and Harsru Tehsil and District Gurgaon. Award was passed on 27.1.2006. Petitioners filed CWP No. 11366 of 2006, which was disposed of by this Court vide order dated 29.10.2007 with liberty to the petitioners to file representation before the respondents, which was directed to be considered and decided in accordance with law. In the representation, the petitioners pleaded discrimination along with other grounds, but the same has not been dealt with by the respondents while considering the representation and rejecting the same vide its impugned order dated 30.4.2010. Counsel for the petitioners contends that the order rejecting the representation of the petitioners is not in accordance with law and, thus, cannot be sustained. The earlier writ petition, which was filed by the petitioners i.e. CWP No. 11366 of 2006 was disposed of by this Court vide order dated 29.10.2007, which reads as under :- “Present : Mr. Ranjit Saini, Advocate for the petitioners. Mr. Ashish Kapoor, Addl. A.G. Haryana. Mr. A.K. Pathania, Advocate for H.S.I.D.C. Heard learned counsel for the parties CWP No. 13356 of 2011 -3- and perused the record. Though the acquisition in question has been made for the purpose of SEZ but there is no challenge to the constitution of that zone or to the collaboration agreement with Reliance Haryana SEZ Limited. Hence, we do not express any opinion on the legality of these issues. Learned counsel for the petitioners submitted that similarly situated houses of other persons have already been released although those houses are also in the category of non conforming use. It is contended that the petitioners have approached this Court soon after passing of the award. This is admitted that the petitioners did not approach the High Powered Committee constituted under the orders of this Court for consideration of exemption application under Section 48 of the Land Acquisition Act. On the other hand, Sh. A.K. Pathania, learned counsel for H.S.I.D.C., who has though not filed a reply, submitted that as per Expert Committee report, existence of petitioners' houses on the land in question is not denied but it being a non-confirming use for the purpose of Government policy, may not be considered for exemption of Section 48 of the Act. We have carefully considered the rival submissions and we find no ground to interfere with the acquisition process. However, as similarly situated houses of collaterals of the petitioners, as also some other similar properties as admitted by H.S.I.D.C. have been released, we deem it appropriate in the interest of justice to dispose of this writ petition, with liberty to the petitioners, to approach the Government for similar relief, particularly in terms of unified CWP No. 13356 of 2011 -4- policy, placed on record of this Court in CWP No10412 of 2007 (Unitech Ltd. And another V. State of Haryana), vide affidavit of Commissioner and Secretary, Urban Estate and Town Planning, Haryana. Thus, this writ petition is disposed of, with the aforesaid liberty and a direction to the Commissioner and Secretary, Urban Estate and Town Planning, Haryana, to consider the representation of the petitioners, if so made, within a period of four weeks on merits from the date of receipt of the representation with a certified copy of this order.” Perusal of the above order would indicate that it was the submission of the counsel for the petitioners that similarly situated houses of other persons have already been released and, therefore, the primary thrust of the counsel for the petitioners was that their residential houses were being acquired. It is on that basis the Court had proceeded to dispose of the writ petition with liberty to the petitioners to file representation before the respondents with a further direction to the respondents to take a decision thereon. Counsel for the petitioners has submitted that the order does not reflect the correct position, as the claim of the petitioners in the writ petition was for the release of their land, on which there was construction, which was built for industrial purpose. The plea of discrimination was primarily based on the ground that similarly situated properties were released from acquisition by the respondents, whereas the land of the petitioners was not being similarly treated. This contention of the counsel for the petitioners cannot be accepted in the light of the fact that the order dated 29.10.2007 was passed by this Court in the presence of the counsel for the parties. In case, the facts as recorded in the order were not in CWP No. 13356 of 2011 -5- conformity with the pleadings and arguments raised by the counsel for the petitioners, the petitioners should have again approached the Court with appropriate application either for correction or modification of the order. The petitioners accepted the order dated 29.10.2007 and submitted representation dated 11.4.2008 (Annexure P-8). The said representation was duly considered by the Financial Commissioner & Principal Secretary to Govt. of Haryana, Industries & Commerce Department after giving opportunity of personal hearing to the petitioners. One Sh. S.P. Sharma, appeared on 21.4.2010 on behalf of the power of attorney of the petitioners. A detailed order has been passed, wherein each and every aspect including discrimination angle as projected by the petitioners have been duly considered and referred to. A perusal of the same would show proper application of mind by the competent authority and he has taken all aspects into consideration before and while taking decision on the representation. Para 14 of the order, which deals with the ground realities as it exist at the site, is reproduced herein below :- “14. The HSIIDC was called upon to submits its comments/report in the matter, which has since been received vide its letter dated 15.03.2010. The HSIIDC has submitted that the award of the above land was announced on 27.01.2006 and that the land had already been transferred to t he RHSEZ Limited. The report further states that out of the total land measuring 13 kanals 6 marlas of the applicant – petitioners, 4 kanals 9 marlas of land under Khasra No. 10//9/1/3 [1-15] and 10//2/2/1 [2-14] falls in the 50 meters wide statutory green belt along the NH 8. Khasra Nos. 10//9/1/3 and 2/2/1 are vacant and Khasra No. 10//1 is predominantly vacant except a small room measuring 15 feet x 15 feet and a tin shed measuring 30 feet x 30 feet. It further states that CWP No. 13356 of 2011 -6- the existing construction is of poor quality and is lying unused. It has also been stated that the applicant had not obtained change of land use from the competent authority in the Town and Country Planning Department before issue of Section 4 of the Act.” The documents which have been referred to by the petitioners in their representation are also duly considered in para 15 in a tabulated form. A perusal of the same would show that the land in question, although, contains some construction thereon but large portion of the land is vacant. The construction is of poor quality and is not under use. It is not even the pleaded case of the petitioners in the writ petition nor has it been argued at the time of hearing, that the industrial unit which the petitioners claim was bought by them in the year 1995 was operational or was run by them. It is also not the claim of the petitioners that there is any machinery lying in the shed / constructed area or any industrial activity is being carried out therein. As per pleadings of the petitioners in the writ petition itself, the Sub Committee, which was constituted vide notification issued on 4.8.2004 to consider the cases of the land owners for release of land being acquired for setting up of the Special Economic Zone, Phase-I, was to act as per the policy which was adopted by the State Government. The guidelines framed and followed by the Committee required an industrial unit to be in operation with or without getting change of land use (CLU). It further required that the entrepreneur should have applied for grant of CLU before the issuance of notification under Section 4 of the Act, in case, the unit was not in operation. The petitioners did not fulfill these two conditions, as is apparent from the impugned order according to which, as have been stated above, that the unit was not operational when the notification under Section 4 of the Act CWP No. 13356 of 2011 -7- was issued on 29.01.2003. Further the CLU was applied for by the petitioners only on 15.11.2007 i.e. after more than 18 months of the announcement of the award dated 27.1.2006. That apart the petitioners did not initially avail an opportunity of appearing before the Committee constituted by the Government vide notification dated 4.8.2004. As per the records, the possession of the land was taken and after the announcement of the award, the possession had been transferred to HSIIDC and the conveyance deed stands executed by the HSIIDC in favour of Reliance Haryana Special Economic Zone Ltd. (RHSL) in 2007. The possession has also been delivered to RHSL. The above would show that the petitioners are not interested in running the unit but are only interested to hang on to the land but there also they have not been vigilant to approach the Court in time. Firstly, they approached this Court by filing CWP No. 11366 of 2006 on 25.7.2006 i.e. after about six months of the pronouncement of the award. By the time they had approached the Court, the land vested with the State. A perusal of the order dated 29.10.2007, passed by this Court in CWP No. 11355 of 2006, preferred by the petitioners, would show that the Court found no ground to interfere with the acquisition process and thus had proceeded to uphold the acquisition of land of the petitioners and had only granted liberty to the petitioners to file a representation for release of land on the ground that the similarly situated houses of the collaterals of the petitioners stood released. The petitioners, thus, through this writ petition cannot assail acquisition proceedings, which has already been upheld in the case of the petitioners itself. The petitioners can only challenge the impugned order dated 30.4.2010 rejecting the representation of the petitioners, which as has been stated above, is well reasoned and justified, and does not call for any interference by this Court. CWP No. 13356 of 2011 -8- There is yet another reason why this Court is not inclined to interfere in the matter. Petitioners have approached this Court after a delay of more than 14 months from the date of passing of the order dated 30.4.2010, which is impugned in the present writ petition. No explanation, whatsoever, has been given by the petitioners for approaching this Court at this belated stage which tilts the balance of equity against them. Nothing has been placed on record which would suggest, what to say establish, that the petitioners are in possession of the land in question except for the bald assertions. They are not interested in running the unit but to extract profit from sale of the land as the prices have now shot up due to the development which has taken place all around. Finding no merit in this writ petition, the same stands dismissed. (JASBIR SINGH) (AUGUSTINE GEORGE MASIH) JUDGE JUDGE 28.7.2011 'sp'