Deepak vs State of Punjab and Others

Hari Pal Verma, J.

Challenge in the present writ petition has been raised to the order dated 12.3.2013 (Annexure P-9) whereby claim of the petitioner for allotment of plot measuring 100 square yards as an oustee has been rejected. Challenge has also been raised to the order dated 30.1.2014 (Annexure P-10), whereby appeal against the order dated 12.3.2013 has been dismissed by respondent No. 2.

Briefly stated the facts of the case are that vide notification dated 21.2.2000 issued under Section 4 of the Land Acquisition Act and followed by the Award No. 481 dated 17.5.2001, the land of the petitioner measuring 3 Kanals 19 Marlas situated in Village Sohana, Tehsil and District Mohali was acquired. The said land was acquired for setting up of Sectors 76 to 80 of S.A.S. Nagar, Mohali. The Naib Tehsildar of the office of the Land Acquisition Collector, Urban Development Department, Punjab issued a certificate dated 14.9.2001 certifying the acquisition of 3 Kanals 19 Marlas of land belonging to the petitioner.

Claiming to be an oustee, the petitioner applied for allotment of plot measuring 100 square yards under the policy vide an application dated 18.6.2001 against form No. 22237 with respondent No. 4. He deposited the requisite earnest money of Rs. 33,500/-, which was accepted by the respondent. The case of the petitioner for allotment of a plot as an oustee remained pending and respondents made allotment of plots in the year 2009 of oustee category but name of the petitioner was not included in the draw of lots and, therefore, the petitioner submitted a detailed application dated 27.1.2009 requesting the respondent to allot a plot to him as an oustee. It is submitted that there have been disputes/litigations between the respondents and the oustees/joint khata holders of Sectors 76 to 80 as the respondents have decided to allot single plot to the joint khata holders. The dispute was ultimately settled and pursuantly a policy dated 25.5.2011 was formulated by the respondents, which was notified on 3.6.2012. The respondents did not point out any defect in the application submitted by the petitioner for allotment of plot as an oustee and that application remained pending without any objection. There was a shortfall of one marla land for completion of half acre of acquired land holding of the petitioner. The said left out one marla piece of land was further notified and acquired vide award dated 1.11.2011 for setting up of Sectors 88 and 89 of residential estate of S.A.S. Nagar. Therefore, in view of the policy of oustee, the petitioner made application dated 28.8.2012 to respondent No. 4 along with an oustee certificate with a request to consider his name in the draw of lots to be held on 31.8.2012. It has further been submitted that the respondents have issued instructions dated 8.11.1993 to the effect that if the land of an oustee is acquired by different awards, he can get the benefit for the purpose of allotment of plot while clubbing the whole of the acquired holding. The relevant clause read as under:-

"5. Where the land of the oustee was acquired at different points of time, he should be given the benefit of all the previous acquisition while considering him for the allotment of a plot in accordance with the 1983 policy."

The total land holding of the petitioner was 4 Kanal falling in Khasra No. 110//4/2 (1-8), 7/2 (0-12), 7/1/1 (2-0) situated in Village Sohana, Tehsil and District Mohali and out of the aforesaid land 3 Kanal and 19 Marla land was acquired vide award dated 17.5.2001 for setting up of Sectors 76 to 80 leaving one marla plot out of acquisition. The authorities have purposely and in order to disentitle the petitioner for the minimum size of plot measuring 100 square yards, has left one marla land from the acquisition out of Khasra No. 7/2. Since the left out land measuring one marla was of no use to the petitioner and same being part and parcel of acquisition of Sectors 76 to 80, was again acquired vide award dated 01.11.2011 for Sectors 88 and 89 of Mohali. The respondents have prepared an oustee policy and relevant extract of the policy read as under:-

"1. This policy shall be applicable in cases where land is acquired for setting up of any Residential, Institutional Industrial or Integrated Mixed-Land use Estate by any Development Authority constituted under the Punjab Regional and Town Planning and Development Act, 1995. It shall also apply for land acquisitions undertaken for filling up any critical gaps to facilitate the development of any Residential, Institutional, Industrial or Integrated Mixed Land use Estate by any private developer.

2.1. A landlord whose land has been acquired for the purposes mentioned in para 1 above, shall be eligible for being allotted a residential plot, or preferential basis as per the following table subject to such conditions as may be fixed by the Authority:-

2.2. Where half an acre or more land of several joint owners has been each land lower of the land held under joint Khata shall be eligible or allotment of a separate plot or house, as the case may be, on preferential basis subject to his eligibility which shall be determined in view of his share in the land acquired. However, all the land owners or some of the land owners may jointly apply for a plot/house or bigger size subject to their eligibility, which shall be determined on the basis of their joint ownership."

Since the petitioner was deprived of from the allotment of plot measuring 100 square yards under the oustee category, he approached this Court by way of CWP No. 17380 of 2012 for allotment of a plot under the oustee category as he has deposited the requisite earnest money. The petitioner has formulated his basis on the Government instruction dated 8.11.1993 as well as the latest policy dated 25.5.2011. The said writ petition was disposed of with the following observation:-

"Keeping in view the fact that the claim of the petitioner is still pending consideration, we deem it appropriate to dispose of this writ petition with a direction to respondent Nos. 2 to 4 to consider and dispose of the above mentioned claim of the petitioner by passing a speaking order in accordance with the Government Policies, referred to above and the instances relied upon by the petitioner, within a period of three months from the date of receiving a certified copy of this order. Ordered accordingly."

Accordingly, pursuant to the directions dated 6.9.2012 issued in CWP No. 17380 of 2012, respondent No. 4 has passed the impugned order dated 12.3.2013, wherein the claim of the petitioner has been rejected on the ground that as the land of the petitioner in Sectors 76 to 80 was less than 4 Kanal, he is not fulfilling the requisite condition as laid down in the oustees'' policy. The petitioner challenged the said order dated 12.3.2013 by way of appeal before respondent No. 2 but the said appeal was dismissed on the ground that the land of the petitioner was acquired vide two different awards and by clubbing the said land, the petitioner cannot be given the benefit of allotment of plot measuring 100 square yards as per the oustees'' policy. In order to become entitle for allotment of 100 square yards plot, land measuring 4 Kanal is required to be acquired as per the policy dated 25.5.2011. Thus, the claim of the petitioner was declined and the respondents declined to club the awards for the purpose of allotment of plot as an oustee.

It is in the aforesaid circumstances the petitioner has filed the present writ petition challenging the order dated 12.3.2013 (Annexure P-9) and dated 30.1.2014 (Annexure P-10).

On notice having been issued to the respondents, a short reply has been filed by the respondent i.e. Greater Mohali Area Development Authority. The respondent has submitted that claim of the petitioner for allotment of 100 square yards was rejected and conveyed vide letter dated 22.4.2013 for getting the refund of earnest money. In order to claim the benefit of oustee category under the policy a minimum half acre land is required to be acquired, whereas in the case in hand, the land measuring 3 Kanal and 19 Marlas situated in Village Sohana belonging to the petitioner was acquired vide award No. 481 dated 17.5.2001. The land measuring 1 Marla situated in Village Sohana was acquired through separate acquisition proceedings vide award No. 512 dated 1.11.2011. It has also been pleaded that no joint Khata clubbing is permitted in respect of acquisition made from time to time and as per policy dated 25.5.2011 and the present policy of 2013, there is no provision of clubbing the acquired land and the minimum acquired land should not be less than half acre so as to claim benefit under the oustees'' category.

We have heard learned counsel for the parties.

Learned counsel for the petitioner contended that the claim for allotment of 100 square yards plot under the oustees'' category deserves to be accepted as his total land measuring 4 Kanal has been acquired by the respondents for setting up Sectors 76 to 80 and Sectors 88 and 89, Mohali for residential purpose. Initially the respondents have acquired 3 Kanal 19 Marla land vide award dated 17.5.2001 and the left out one marla land was also acquired vide award dated 01.11.2011. The total land of the petitioner was utilised for setting up of aforesaid sectors, therefore, merely because one marla land was left out in initial acquisition, he cannot be deprived of his rights of allotment of plot as an oustee. Under the oustees'' policy there is no provision of segregating the acquisition of land for the purpose of allotment of plot as an oustee. He further argued that the land owners, whose land has been acquired for the purposes mentioned in the policy, the oustee shall be eligible for being allotted a residential plot on preferential basis as per the quantum of land acquired viz a viz approximate size of plot for which he is eligible. Since the total land measuring 4 Kanal has been acquired, the petitioner is therefore, entitled to be allotted a plot of 100 square yards as per the policy.

On the other hand learned counsel for the respondent has argued that in order to claim the benefit of oustees'' category under the policy, the minimum land acquired should not be less than half acre, whereas the land measuring 3 Kanal 19 Marla situated in Village Sohana owned by the petitioner was acquired vide award dated 17.5.2001 and one marla land was acquired vide award dated 1.11.2011. Thus, land was acquired by way of different acquisition proceedings. In this manner, clubbing is not permissible under the oustee policy.

We have heard learned counsel for the parties and have no hesitation to hold that the present writ petition deserves to be accepted.

A bare perusal of the oustees'' policy shows that there is no provision of segregation and while considering the claim of the land owner/petitioner, the total land which has been acquired, is required to be noticed and considered. Merely because by one award the land measuring 3 Kanal and 19 Marla was acquired and by another award one marla left out land was acquired, will not disentitle the claim of the petitioner for allotment of plot under the oustees'' category. We can not accept the arguments of learned counsel for the respondents that there is no provision of clubbing. Even if there is no provision of clubbing, the policy nowhere provide the segregation as well.

Therefore, the present writ petition is allowed and the order dated 12.3.2013 (Annexure P-9) and order dated 30.1.2014 (Annexure P-10) are quashed. The petitioner is held entitled to be considered for allotment of plot measuring 100 square yards under the oustees'' category on the basis of his total acquired land measuring 4 Kanal. The respondents shall complete this exercise within two months from today.