Civil Writ Petition No.4498 of 1993 Vs. Civil Writ Petition No.4498 of 1993 - Court Judgment

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.4498 of 1993 Date of Decision : July 11, 2013 Jugti .....Petitioner versus The State of Haryana and others .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT.

HON'BLE MR.JUSTICE SURINDER GUPTA.

Present : Mr.R.S.Mittal, Senior Advocate with Mr.Sudhir Mittal, Advocate, for the petitioneRs.Mr.S.S.Patter, Senior DAG, Haryana.

M.S.Rana, Advocate, --- 1.

Whether Reporters of Local papers may be allowed to see the judgment?.”

2. To be referred to the Reporters or not?.”

3. Whether the judgment should be reported in the Digest?.

--- Surya Kant, J.

(Oral) This order shall dispose of Civil Writ Petition Nos.4498, 4102, 4117, 4478, 5029, 8042, 3700, 3831, 3933, 3956, 3958, 3960, 3967, 3970, 4099, 4106, 4109, 4111, 4124, 4429, 4431, 4466, 4456, 4465, 4468, 4470, 4472, 4473, 4476, 4480, 4487, 4491, 4493, 4495, 4502, 4507, 6279, 6966, 7190, 3349, 3711, 3959, 3964, 4119, 4122, 4460, 6935, 4415, 4423, 4482, 4504, 4505, 6936, 3969, 4114, 4121, 4427, 4453, 4484, 6965, 3832, 4112, 4408, 4414, 4422, 4426, 4430, 5031, 3345, 4110, 4421, 4455, 4483, 5081, 3968, 4103, 4417, 4454, 4463, 5080, 4499, 5314, 4409, 4410, 4413, 3963, 3834, 4475, 6277, 6280, 3833, 3971, 4407, 4424, 4458, 4459, 4488, 4494, 4501, 5079, 6934, 6964 and 4467 of 1993, as all the cases pertain to acquisition of land by the State of Haryana for the development of Sector-12 in Sonepat by the Haryana Urban Development Authority (for short, 'HUDA').Kumar Mohinder 2013.08.13 15:31 I attest to the accuracy of this order Chandigarh CWP No.4498 of 1993 and connected cases.

[2].[2].For brevity, the facts are being extracted from CWP No.4498 of 1993.

[3].The petitioners impugn the notifications dated May 17, 1990 and May 16, 1991, issued under Sections 4 & 6 respectively of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) whereby their land has been acquired for the afore-stated public purpose.

The challenge though is laid on the ground that they were given no opportunity of hearing under Section 5-A of the Act and their objections have been rejected mechanically but essentially the petitioners seek the release of their acquired properties on the plea that they had constructed houses/structures much before the acquisition was proposed vide notification dated 17.5.1990 issued under Section 4 of the Act.

The petitioners rely upon the reply-affidavit filed by the respondents wherein the factum of existence of construction by them before issuance of notification under Section 4 of the Act is duly admitted.

[4].On illustrated basis, we may refer to the following averments made in the reply-affidavit of respondents dated 8.4.2013 recently filed in CWP No.4498 of 2013:- “......That the landowner was given an opportunity to file objections u/s 5-A of the Act and the petitioner has filed the objections.

It is further submitted that as per the survey report there were two rooMs.one shop and garage was constructed over the land in question at the time of the notification u/s 4 of the Land Acquisition Act and the Government after considering the matter and the report of Land Acquisition Kumar Mohinder 2013.08.13 15:31 I attest to the accuracy of this order Chandigarh CWP No.4498 of 1993 and connected cases.

[3].Collector decided to acquire the land of the petitioner for general public welfare i.e., sector-12 Sonipat.

It is relevant to mention here that as per the development plan petitioner's land is falling in the road area (layout plan is attached as annexure R-1)...”

[5].The petitioners also rely upon a consent order dated 17.12.1993 of this Court passed on the basis of statement made by the Advocate General Haryana in CWP No.3339 of 1993 (Lakshmi Chand versus The State of Haryana and otheRs.which also pertained to the same acquisition and it reads as follows: “...Learned Advocate General (H) states that all the constructions made before the issuance of the notification under Section 4 of the Land Acquisition Act, shall be released.

However, the State shall be at liberty to re- acquire the same in accordance with law.

In view of the statement made by the learned Advocate General, Haryana, this petition has become infructuous and is dismissed as such.....”

[6].A pointed reference is made on behalf of the petitioner to the policy dated 26.10.2007 formulated by Government of Haryana whereunder the constructed houses/properties are exempted from acquisition if such construction was raised before issuance of notification under Section 4 of the Act.

The subsequent policy-circulars of the State Government on the same subject have also been referred to and pressed in aid.

Kumar Mohinder 2013.08.13 15:31 I attest to the accuracy of this order Chandigarh CWP No.4498 of 1993 and connected cases.

[4].[7].Mr.S.S.Patter, learned Senior Deputy Advocate General, Haryana though is unable to dispute the fact that most of the constructions raised by the petitioners were before issuance of notification under Section 4 of the Act or that the State Government itself has taken the policy decision dated 26.10.2007 as well as later policy decisions for the release of such properties none-the-less he urges and rightly so that some of the acquired properties must pave way for the public utilities, namely, namely, roads, cremation ground, electricity sub-station, water supply, health centre etc.and such properties in no circumstances can be released from acquisition.

[8].Whenever there is an acquisition for a specific 'public purpose' its immense public importance deserves to be kept in view by the Court.

The Hon'ble Supreme Court in Nand Kishore Gupta and others versus State of Uttar Pradesh and otheRs.(2010) 10 SCC 28.viewed as follows:- “Where the acquisition of land is for the companies, it cannot amount to a 'public purpose' as defined in Section 3 (f) of the Act.

But, on facts, the finding recorded by the High Court that this acquisition was not for the Company but was for 'public purpose' has to be upheld.

The Expressway is a work of immense public importance.

The State gains advantages from the construction of an expressway and so does the general public.

Creation of a corridor for fast-moving traffic resulting in curtailing the travelling time, as also the transport of goods, would be some Kumar Mohinder 2013.08.13 15:31 I attest to the accuracy of this order Chandigarh CWP No.4498 of 1993 and connected cases.

[5].factors which speak in favour of the Project being for the public purpose......”

[9].There can thus be no quarrel that in the event of conflict between 'public interest' and an 'individual's hardship' the later must make room for the former.

Those of the buildings/structures of the petitioners are built up over the land where public utilities are to be set-up such structures cannot be saved from acquisition save to the extent the respondents on re-consideration can explore the feasibility of re-alignment.

[10].The petitioner's claim for the release of their construction raised prior to issuance of Section 4 notification and which is not required to be dismantle for the purpose of any public utility, however, stands strong on its footings.

The State Government in supersession of its earlier policy dated 30.09.2007 formulated a new policy dated 26.10.2007 “regarding release of land from acquisition proceedings”.It says as follows:- “The Government has framed a comprehensive policy as detailed below:- 1) No request will be considered after one year of award.

Only those requests will be considered by the Government where objections under Section 5-A were filed.

2) Any request or application where structures have been constructed will only be considered for the release under Section 48 (1) provided the structure exists prior to section 4 and is inhabited.

3) Any factory or commercial establishment Kumar Mohinder 2013.08.13 15:31 I attest to the accuracy of this order Chandigarh CWP No.4498 of 1993 and connected cases.

[6].which existed prior to Section 4 will be considered for release.

4) Any religious institution or any building owned by community will also be considered for release.

5) Any land in respect of which an application under Section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975, has been made by the owners prior to the award for converting the land into a colony, may also be considered for release subject to the condition that the ownership of the land should be prior to the notification under Section 4 of the Act.

6) That the Government may also consider release of land in the interest of integrated and planned development for the lands where the owners have approached the Hon'ble Courts and have obtained stay dispossession.

Provided that the Government may release any land on the grounds other than stated above under Section 48(1) of the Act under exceptionally justifiable circumstances for the reasons to be recorded in writing...”

[11].The afore-stated policy has been modified by a later policy decision dated 24.1.2011 which, inter-alia, provides as follows:- “After careful consideration of the facts and Kumar Mohinder 2013.08.13 15:31 I attest to the accuracy of this order Chandigarh CWP No.4498 of 1993 and connected cases.

[7].circumstances, the Government has felt the need to review the policy referred to above.

The amended policy regarding release of land will be as under:- 1.

Only those requests will be considered by the Government for release of land under Section 48(1) where objections under Section 5-A were filed in following cases:- a) Any request or application where structure has been constructed provided the structure existed prior to Section 4, is inhabited and is being used by the owner for his own residential purposes.

b) Any factory or commercial establishment which existed prior to section 4 provided it was functional at the time of Section 4 and is also functional at the moment.

c) Any religious institution or any building owned by community which is being used for community purposes.”

2. That the Government may also consider release of land belonging to individual applicants involving self inhabited structures, factory or commercial establishment or community or religious buildings, where the owner has approached the Hon’ble High Court and has obtained stay dispossession/status quo or any restraint order.

In such cases, the decision will be taken on the merits of each individual case keeping in view the benefit to the development agency in terms of providing linkages, services and in the interest of planned Kumar Mohinder 2013.08.13 15:31 I attest to the accuracy of this order Chandigarh CWP No.4498 of 1993 and connected cases.

[8].development.

However, this clause will not be invoked for grant of licence for development of colonies.”

3. Any land in respect of which an application under Section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975 has been made by the owner prior to issuance of Section 6 for converting the land into a colony may also be considered for release subject to the condition that ownership of the land is prior to the notification under Section 4 of the Act.

In case, individual land owner makes application for grant of licence in collaboration with the developer/colonizer, the collaboration agreements should be registered before the Registering Authority before issuance of Section 6 notification.

This clause will be made applicable on the applications received after this policy has come into effect.”

[12].Since the petitioners have come up with an uncontroverted stand that their residential houses were constructed prior to issuance of notification under Section 4 of the Act and such a plea was expressly raised by them in their objections submitted under Section 5-A of the Act, it goes without saying that the petitioners are entitled to the benefit extended by the State Government vide the above- stated policy decisions.

The enforceability of these policy decisions in fact is no longer res integra as the Hon'ble Supreme Court in Patasi Devi versus State of Haryana and otheRs.(2012) 9 SCC 50.has ruled as follows:- “19.

Before this Court it has been pleaded that on the date of issuance of preliminary Kumar Mohinder 2013.08.13 15:31 I attest to the accuracy of this order Chandigarh CWP No.4498 of 1993 and connected cases.

[9].notification the appellant's land was vacant, but, this statement cannot be relied upon for denying relief to her because no such averment was made in the counter-affidavit filed before the High Court.

The policy framed by the Government of Haryana clearly stipulates release of the land on which construction had been raised prior to issuance of Section 4 notification.

The appellant's case is covered by that policy.

Therefore, her land ought to have been released as was done in the case of M/s Sharad Farm and Holdings (P) Ltd......”

[13].As regard to those petitioners whose structures cannot be released due to compelling priorities of different utilities, we are of the considered view that they shall be entitled to the benefit of allotment of alternative sites/plots in terms of another policy of the State Government formulated vide notification dated 9.10.2010.

The afore-stated comprehensive policy devolves upon various aspects of the land acquisition and its Part-D contains “Rehabilitation and Resettlement policy”.Clause 5 of Part-D deals with 'allotment' of residential plots in case where a self-occupied residential house is acquired for unavoidable reasons and it says as follows: “D.

Rehabilitation and Resettlement Policy:

5.

Allotment of residential plots in cases where a self- occupied residential house is acquired for unavoidable reasons: Recognising the sensitivity involved in acquisition of built-up residential houses/ structures for unavoidable reasons, the Government has decided to accord the highest priority to the resettlement of this category of persons.

In the fiRs.instance, all Kumar Mohinder 2013.08.13 15:31 I attest to the accuracy of this order Chandigarh CWP No.4498 of 1993 and connected cases.

[10].efforts will be made by the acquiring departments to leave out the residential structures existing in the form of clusters from acquisition except where it becomes absolutely unavoidable either due to its stand-alone character or its location being within the Right of Way of infrastructure projects such as roads, canals, railway line etc.; Accordingly, it has been decided that wherever any self-occupied residential structure/ house has to be acquired for unavoidable reasons in the process of acquisition of land by the Government for any purpose, such owners of built-up residential structures would be offered assured allotment of residential plots as per the following scale: Scale of residential plots in cases where an existing self-occupied house/residential structure is acquired Scheme applicable upto 06.09.2010 Scheme revised w.e.f.07.09.2010 Size of the Size of residential Size of the Size of residential house plot to be allotted residential house residential plot acquired acquired to be allotted Upto t”

50. sq.yards Upto 150 sq.yards 90 sqm sq.yards Above 100 but upto 100 sq.yards Above 150 but 150 sqm 200 sq.

yards upto 200 sq.

yards Above 200 but upto 150 sq.yards Above 200 but 200 sqm 300 sq.

yards upto 250 sq.

yards Above 250 but 250 sqm upto 300 sq.

yards Above 300 but upto 200 sq.yards Above 300but upto 300 sqm 400 sq.

yards 400 sq.

yards Above 400 but upto 250 sq.yards Above 400 but 350 sqm 500 sq.

yards upto 500 sq.

yards Above 500 sq.yards 350 sq.yards Abov”

450. sqm sq.yards As the affected persons would be entitled to compensation on account of acquisition of land and the structures constructed thereon, the price/ cost of the plots to be allotted in favour of the affected persons as per above scale would be payable by the allottee; The benefit of allotment of a residential plot in this category would be admissible only if the acquired residential house/ structure was self- occupied and was in existence on the date of issue of Section 4 Notification, and further subject to the condition that such residential house had not been constructed by way of any encroachment on the public/ community/ government land.

The self-occupation of such house by the landowner’s family as their regular residence would be an essential condition for this purpose.

Residential structures used for rental purposes or those in the form of kothras in the fields would not be reckoned as ‘residential houses’ for this purpose; While assessing the entitlement for size of the plot to be allotted, the land under the existing residential house only would be taken into account and not the appurtenant facilities for other farm operations.

Further, while computing the area under such Residential House, the plinth area of the constructed house and equal area towards admissible open space shall be taken into account.

Appendix-4 may be referred for the basis of calculation of area; Development and allotment of the residential plots under this part would be the responsibility of the acquiring Department/ agency.

Such plots, to the extent, possible, would be carved out in the area adjoining/ in close vicinity of the village abdi deh so that the displaced/ rehabilitated persons continue to remain a part of their social milieu.

While HUDA, HSIIDC, and the HSAMB would plan their residential blocks for this part as well as for the ‘oustee’ category as one cluster, the other acquiring departments would have to acquire additional land specifically for this purpose also; Kumar Mohinder 2013.08.13 15:31 I attest to the accuracy of this order Chandigarh CWP No.4498 of 1993 and connected cases.

[11].The rates of Plots allotted under this category by HUDA and the HSIIDC shall be 20% lesser than the nodal price of the plot determined for the general public.

In all other cases, the rates of plots would be determined by the allotting agency based on the actual costs taking into account (a) the cost of acquisition of land, (b) costs incurred on provision of minimum amenities/ services, and (c) loading of the areas under roads/ streets/ services and utilities on to the plotted area.

The affected landowner would be required to submit his claim in the prescribed Application Form-4.”

[14].The State counsel could not dispute the fact that the Notification dated 9.11.2010 would also be equally applicable in the instant case and the benefits flowing from the said welfare policy percolate to the eligible petitioneRs.[15].Though it was not urged before us, we may, however, hasten to add that the policy-decisions, referred to above, have been taken by the State Government much after the subject acquisition.

There is, however, no reason to deny the benefit of these policy-decisions to the petitioners as this Court had stayed their dispossession way back in the year 1993 and these policy-decisions have come into force before the acquisition process under challenge could attain finality.

[16].For the reasons afore-stated, we allow these writ petitions in the following terms:- i) The claim of the petitioners for the release of their constructed properties from acquisition shall be considered by the respondents in the light of the Government policy dated 26.10.2007, as modified from time to time, on the premise that construction was raised by them prior to issuance of notification under Section 4 of the Act.

Resultantly, the constructions which are not found to have obstructed any 'public utility' shall be released in accordance with this policy; ii) Wherever any constructed property is required to be demolished for completion of a 'public utility' Kumar Mohinder 2013.08.13 15:31 I attest to the accuracy of this order Chandigarh CWP No.4498 of 1993 and connected cases.

[12].the effected land-owners shall be allotted residential plots in accordance with the policy- decision dated 9.11.2010; iii) The entire exercise, as directed above, shall be completed within a period of four months from the date of receiving a certified copy of this order.

iv) The interim directions issued earlier by this Court shall continue to operate till the completion of afore-stated exercise.

[17].Dasti.

(SURYA KANT) JUDGE July 11, 2013 (SURINDER GUPTA) Mohinder JUDGE Kumar Mohinder 2013.08.13 15:31 I attest to the accuracy of this order Chandigarh