Brahampal Singh vs State of Haryana

G.C. Garg, J.—The challenge here is. to the notification issued under Sections 4 and 6 of the Land Acquisition Act, 1894 (for short ''the Act'') on the ground of discrimination.

Land measuring 132.06 acres situated within the revenue estate of village Meola Maharajpur, Tehsil Ballabgarh, District Faridabad was notified under Section 4 of the Act, proposing its acquisition for public purpose, namely, for development and utilization of land as residential and commercial area of Sector 46, PartII of the FaridabadBallabgarh Controlled Area, by the Haryana Urban Development Authority. The persons interested in the land could file objections to the acquisition within 30 days of the publication of the notification. The petitioner did not file any objection against the proposed acquisition though his land was included in the notification under Section 4 of the Act. Some other landowners seem to have filed objections to the proposed acquisition. The State Government after considering the matter issued final notification dated July 7, 1989, under Section 6 of the Act acquiring the entire land measuring 132.06 acres as any notified under Section 4 of the Act. Notifications issued under Sections 4 and 6 are Annexures, P3 and P4 to the writ petition. The petitioner and his coowners had raised certain construction in the shape of rooms in an area measuring 132'' x 165'' on a part of the acquired land with the permission of the Faridabad Complex Administration. According to the petitioner, these houses were constructed on Khasra No. 11 Rectangle No. 88 situated contiguous to the abadi of village Meola Maharajpur and he alongwith other members of the family is residing therein. The case of the petitioner further is that an area measuring 86.48 acres of land situated within the revenue estate of village Meola Maharajpur, was earlier proposed to be acquired in the year 1986 for the same purposes wherein the land of the petitioner was not notified for acquisition being under houses. It is in these premises, the acquisition has been challenged by the petitioner on the ground that under the policy framed by the State Government for acquiring the land, it has been provided that the lands on which the buildings have been constructed be not acquired and the respondents in this case have failed to follow this policy while issuing notifications, Annexures P3 and P4 and by acquiring the land of the petitioner comprised in Khasra No. 11 of Rectangle No. 88. It is in this context, contended that the persons who have built their houses in the land owned by them cannot be deprived of their residences by resorting to the process of acquitting of land in the pick and choose manner by violating the provisions of Article 14 of the Constitution of India.

It will be proper to notice at this stage that a local commissioner was appointed by this Court on an application moved by the petitioner as it was contented that the construction of the buildings on the land of the petitioner was of ''A'' category but the same was denied and was alleged to be of ''C'' category, in the written statement. Besides the covered area of the building was also disputed. The local Commissioner submitted her report dated February 25, 1992 and she on the basis of visual inspection, reported that their existed houses in Khasra No. 11/88 on an area of 7144 square feet and that the construction existing thereon was of ''A'' category and was not in any way inferior to the construction of houses in Khasra Nos. 5/2 and 6.

Learned counsel for the petitioner vehemently contended that the acquisition of land under the house belonging to the petitioner and having ''A'' category construction is not only illegal and against the Government policy but this action is discriminatory also and is thus, hit by Article 14 for the Constitution of India, inasmuch as the houses of others having ''A'' category construction have been left out of acquisition whereas the houses of the petitioners, also having ''A'' category construction have been acquired.

Having given my thoughtful consideration to the entire matter, I see no merit in the contention of the learned counsel. A reference to the written statement would show that the petitioner did not file objections as contemplated by Section 5A of the Act against the proposed acquisition either within the time allowed or even thereafter. No occasion was thus provided by the petitioner to the State of the Land Acquisition Collector to consider, whether the land of the petitioner over which his houses existed, was liable to be excluded or not. Notification under Section 4 of the Act was published not only in the official gazette but also in two daily newspapers besides a public notice to the substance of such notification in the locality. It is, neither shown nor alleged in the petition that the petitioner had no knowledge of the notification issued under Section 4 of the Act and it was on that count, he, could not file objection under Section 5A. Once the objections under Section 5A of the Act are not filed, it has to be taken that the landowner had no objection to the acquisition of the land and consequently issuance of notification under Section 6 of the Act. It would, however, be a different matter if the landowner could not fide objections within the time allowed for any sufficient cause. In the circumstances, the petitioner can succeed only if he is able to show that either of the two notifications issued under Sections 4 and 6 of the Act is liable to be quashed on any justiciable ground. Learned counsel for the petitioner has not been able to point out any material on record to contend that the notifications under Sections 4 and 6 of the Act were not published in accordance with law or am vitiated for any other reason. It has been specifically averred in the written, statement that the notifications were published as contemplated by the provisions of Sections 4 and 6 of the Act.

A reference to notifications under Sections 4 and 6 of the Act would further show that the land measuring 132.06 acres was notified for acquisition under Section 4 and no part of this area was excluded from acquisition while issuing notification under Section 6 of the Act. The contention of the learned counsel thus, that the houses similarly situated as that of the petitioner have been excluded from acquisition, is without basis. The mere fact that while issuing notification under Section 4 of the Act in the year 1986, Annexure P2, the land of the petitioner was not included when the land for similar purpose was sought to be acquired, is not a ground to hold the petitioner''s land could not be acquired subsequently. Even otherwise, it cannot be disputed that the State has a right to acquire land over which the houses have been constructed even before the issuance of notification under Section 4 of the Act. Simply because the landowners have constructed houses on a portion of the acquired land before the issuance of notification under Section 4, cannot in law be said to be a good ground for setting at naught the acquisition. In the present case, it is not disputed that some construction did exist at the time of issuance of notification under Section 4 of the Act. It however, cannot be concluded definitely that the entire construction as reported by the local Commissioner did exist at the time of issuance of notification under Section 4 of the Act. The nature of construction, whether of ''A'' category or ''C'' category again, is no ground to quash the notifications and set at naught to the extent of land over which the houses of ''A'' category are standing. The State has an absolute right to acquire property it decides to acquire for public purposes and at public expense. The landowner has a right to claim compensation at the market value as contemplated by Section 23 of the Act.

As regards the policy of the State Government, suffice to say that no such policy has been placed on the record or brought to my notice during the course of arguments. This matter is also not resintergra. The matter was considered in Hira Lal v. State of Haryana and another, 1991 PLJ 783 : 1992(1) R.R.R. 224; wherein N.C. Jain, J. in the matter of policy of the State Government of Haryana, observed as under:

"As regards policy of the State, which was. so mentioned in Mohinder Singh Sharma v. State of Haryana, 1988 PLJ 525 : 1988(2) R.R.R. 502 is concerned, it has been categorically stated in the return and submitted before me during the course of arguments that no policy was framed by the State of Haryana that constructed portion would be released out of acquisition. No policy decision has been brought to my notice by the counsel for the petitioners. According to Mr. R.C. Setia, Additional A.G., Haryana, a wrong admission was made in the writstatement that there was a policy decision. No policy decision was either annexed with the return and nothing was taken note of it by a Single Bench of this Court while deciding the afore mentioned case. Consequently, the petitioner cannot take benefit of the decided case."

It may also be noted here that The Utters Patent Appeal against the judgment in Hira Lal v. State of Haryana (supra) has already been dismissed.

The other contention of the learned counsel for the petitioner may also be noticed, namely, that the petitioner has already constructed house and the acquisition is also for the same purpose and, therefore, the land of the petitioner ought not to have been acquired. Again there is no merit in the contention. If the petitioner has built houses before the acquisition, he would get the compensation in terms of Section 23 of the Act, not only for the land underneath the houses but also in respect of the superstructure. It cannot, as a matter of law, be said that the Government is not entitled to acquire land for residential/commercial purposes and frame a scheme in that behalf qua the land over which the houses already existed and may or may not be in haphazard manner. The purpose of acquisition in this case cannot be said to be beyond the scope of the authority only on the ground that the land has been acquired for the purpose, namely, the houses in this case, which had already been constructed by the landowner.

The allegation of the petitioner that the State has resorted to the policy of pick and choose by releasing the houses of some landowners similarly situated as that of the petitioner, is not supported by any fact on record. In the present case, the entire land, as was notified under Section 4 of the Act, has been notified for acquisition under Section 6 of the Act. The question of leaving the land of any landowner therefore, did not arise in this case. The mere fact that the land of the petitioner was not included in the proposed notification issued in the year 1986, will not in any way show that the petitioner has been discriminated. It is, thus, obvious that no pick and choose method was adopted by the Land Acquisition Collector or the State Government in respect of the impugned acquisition. It has rather been stated in the return that the land was acquired as per the planning made by the District Town Planner and approved by the appropriate authority without any discrimination to anyone.

No other point was argued before me.

For the reasons recorded above, the writ petition fails and is hereby dismissed. No costs.

Revision dismissed.