Hira Lal vs State of Haryana and another

G.R. Majithia, J.—This judgment disposes of C.W.P. No. 2427 of 1991, C.W.P. No. 5018 of 1991, C.W.P. No. 3354 of 1991, C.W.P. No. 2932 of 1991 and C.W.P. No. 3299 of 1991 since common question of law arises for determination therein.

In these petitions challenge has been made to Notification dated March 8, 1989 under S. 4 of the Land Acquisition Act, 1894 (for short the Act) and declaration under S. 6 of the Act dated March 7,1989. A reference to relevant facts has been made from the pleadings in C.W.P. No. 2427 of 1991 except where it is otherwise necessary, reference has been made to the pleadings in other writ petitions. Land measuring 224.96 acres situated in village Kadipur, District Gurgaon was acquired for development and utilisation of same for residential and commercial area of Sectors 9, 9-A and 10 at Gurgaon. The landowner-claimants filed objections under S. 5A of the Act and some land was excluded from acquisition. After the decision of the objections under S. 5A of the Act, declaration under S. 6 of the Act was issued. Some land which was acquired under S. 4 of the Act was released from acquisition belonged to Singla Rubber Industries, The petitioner had raised Poultry Farm and his land had not been excluded from acquisition. The action of the Collector for not excluding the land under the Poultry Farm is arbitrary.

In C.W.P. No. 5018 of 1991, the petitioner is stated to have raised building on the land comprised in Khasra No. 1142/1. The property is within Municipal limits of Gurgaon and is assessed to House Tax. The Land Acquisition Collector released from acquisition the land belonging to S. K. Gupta, Nihal Singh and Ram Kishan. The land of others similarly situated was also released from acquisition.

In C.W.P. No. 3354 of 1991 it is alleged that Khasra No. 1006 adjoins the plot of the petitioner and the same has been released from acquisition.

In C.W.P. No.2932 of 1991, it is alleged that the petitioners were owners in possession of area of land ranging from 180 square yards to 200 square yards and on that areas they had raised constructions. The area in their possession was not released from acquisition.

In C.W.P. No. 3299 of 1991, it is alleged that the petitioner purchased land comprised in KhasraNo. 7/2,14measuring2 kanals. They had raised construction thereon. The construction is of ''A'' class nature and the property was being used as farm house but has not been excluded from acquisition.

In all these cases, written statements have been filed on behalf of the Land Acquisition Collector, Urban Estate Department, Haryana.

In the written statement filed in C.W.P. No. 2427 of 1991, it is pleaded that notification under S. 4 and declaration under S. 6 of the Act were challenged by various landowners through various writ petitions and those writ petitions were dismissed by a single judge of this Court on different dates. The petitioner had raised construction on land comprised in Khasra No. 10/4/4 and the land was being used for running a poultry farm. The land was acquired for residential and commercial sector. Poultry farm cannot be allowed to run in those Sectors. The petitioner was given full opportunity of hearing when his objections under S. 5 of the Act were examined. It was admitted that land measuring 5 Marias along with proportionate vacant land belonging to M/s. Singla Rubber Industries was left out of acquisition as it was found that there was construction on it at the time of publication of notification under S. 4 of the Act. The construction on plot of land which was left from acquisition was of residential nature. The petitioner is running a poultry farm and the same cannot be allowed to run in a residential and commercial sector.

In the written statement on behalf of the respondents in C.W.P. No. 5018 of 1991, it was stated that the petitioner has constructed a shop measuring 15'' x 20'' of ''B'' class construction with mala fide intention. No other construction existed on the spot when the survey was conducted by the respondent before issuing notification under S. 4 of the Act. It was denied that the petitioner had filed any objections. The construction as alleged by the petitioner was also denied.

In reply to C.W.P. No. 2932, it was stated that after the publication of the notification under S. 4 of the Act survey was conducted and the entire land referred to in the petition was completely vacant. The ownership of the various petitioners over different portions of the land was denied as alleged. The land referred to in the petition was lying vacant at the time of issuing notification under S. 4 of the Act and there was no construction on the spot. It was admitted that the land which was under factory, school building, residential house, play ground and labour quarters was excluded from acquisition.

In reply to C.W.P. No. 3299 of 1991, it was stated that the iand mentioned in the writ petition was vacant at the time of issuing notification under S. 4 of the Act. The petitioner filed objections under S. 5A of the Act and he was issued notice of hearing on the address furnished by him in the objection petition but the same was received back with the report that the address on the objection petition was incomplete. The petitioner could not be given personal hearing since the notice of hearing issued to him was received back unserved with the report that the address was incomplete. The release of land of various landowners was admitted on the ground that there were either factories or residential houses on those plots of land on the date when notification u/S. 4 was issued.

The learned counsel for the petitioners challenged the notification primarily on the ground that the authorities had adopted a pick and choose policy. The land of landowner similarly situated over which houses had been constructed was left out of acquisition while that the petitioners was not released. In support of their submission they relied upon Mohinder Singh Sharma and Others Vs. State of Haryana and Others, ; State of Haryana v. Gyan Chand Madhok 1972 RLR 110, Parhlad Singh v. State of Haryana 1991 PLJ 697 and Sukhdev Sharma v. State of Haryana 1993 (1) 103 PLR 107.

The categorical stand of the respondent is that the land of those landowners was released from acquisition who had built houses, factories and schools. The land underneath the play-ground was also released from acquisition. The petitioner''s iand was not released since after issuing notification under S. 4 of the Act, survey was conducted and in some cases no construction was found and in cases where there existed construction and the constructed portion was under a factory or residential house that portion was released from acquisition. The statement made by the respondents in the written statement controverting the pleas of the petitioner was not challenged by the petitioner by filing a rejoinder. In the absence of any challenge to pleas in the written statement either by filing rejoinder or bringing material evidence on record, it has to be inferred that the statement made in the written statement is correct. In the written statement by the Land Acquisition Collector, he has given vivid account of the various parts of the land which have been left out of acquisition and the grounds of exclusion. The Land Acquisition Collector has also stated that the land which is under Poultry Farm could not be released from acquisition since the land had been acquired for residential and commercial purposes and in the sectors to be used for that purposes a poultry farm cannot be allowed to run for a planned development of the sector for residential and commercial purposes. The land which is put to use for purpose of the planned development cannot be excluded from acquisition. In the light of the statement in the written statement, it cannot be said that the Land Acquisition Collector had adopted the policy of pick and choose. In Mohinder Singh Sharma and Others Vs. State of Haryana and Others, the learned single Judge found that the petitioner has raised construction over the land acquired prior to the notification under S. 4 of the Act. It was on the basis of this finding that the learned Judge quashed the notification regarding the land over which the construction existed prior to the issuance of the notification. In Gyan Chand Madhok case 1972 RLR 110 P&H (supra), the learned Judge did not believe the affidavit filed by the Joint Secretary in the Court and the Bench held that some of the factories were excluded from notification under S. 6 of the Act while those similarly situated were not given the same treatment. The learned Bench recorded a finding of discrimination on the ground that it did not rely upon the affidavit filed on behalf of the State. In Parhlad Singh''s case 1991 PLJ 697 the learned single Judge observed that the constructed house or building of a citizen should be left from acquisition in such a manner that this can be put to some meaningful use. The learned Judge while dealing with the contention that the State Government while releasing out the built area from acquisition had rendered the unacquired portion as totally useless, observed thus :--

"The prayer on behalf of the petitioners is, thus, to leave at least some vacant space around the constructed area so that the non-acquired portion can be put to some meaningful use. There is considerable merit in the contention raised on behalf of petitioners. The respondents cannot acquire the property of a citizen in such a way that the non-acquired portion becomes totally useless. If it is not possible to leave vacant space, around the constructed area for various reasons, like the area under construction comes under roads, parks or other public places, then it is better to acquire even the constructed portion. However, when in consequence of the policy of the Government or otherwise, the constructed houses or buildings of a citizen are left from acquisition in such a manner that those can be put to some meaningful use. If every inch around the constructed area is acquired, then obviously the left out portion will be rendered totally useless. In C.W.P. No. 8070/1990 (Rakesh Kumar v. State of Haryana etc.) decided on February 18, 1991, the respondents agreed not only to leave 2 Biswas of land where there was a construction but also agreed to release from acquisition proportionate vacant land. Although this decision which was rendered on the statement of the respondents cannot be cited as a precedent yet the same at least provides a reasonable manner of the following policy of not acquiring constructed area.

In view of what has been stated above, there shall be a direction issued to the respondents to leave vacant land proportionate to the constructed area."

These observations clearly indicate that the area surrounding the constructed portion could also be released from acquisition so as to make the area left out from acquisition as to be properly used for the purpose for which it was being used. In Sukhdev Shrm''s 1993 103 PLR 107) this Court on a perusal of the record came to the conclusion that the land of some of the landowners similarly situated was released from acquisilion while that of the petitioner was not released. These observations were made on the basis of the proved facts of that particular case. The ratio of these judgments is not attracted to the facts of the instant case. Apart from this, there is no bar for acquiring built up area for residential/ commercial purposes for implementing the planned scheme. The landowner-claimants who are owners of the houses which have been acquired will get adequate compensation not only for the land under the houses but also for the super structure raised thereon. Reliance can therefore be placed on a judgment in a case Sohan Lal v. State of Haryana 1989 PLJ 4 where it was observed thus :--

"The other argument raised is that the petitioners purchased small pieces of land in a privately developed colony and have built their houses and the acquisition is also for the same purpose. If petitioners built their houses before the acquisition they would get compensation for the same, but it cannot be said that the Government is not entitled to acquire land for residential/ commercial purposes and to frame a planned scheme in this behalf. The purpose of acquisition cannot be said to be beyond the space of authority because is for public purpose."

For the reasons stated above, we find no merit in these writ petitions and the same are dismissed.

Petitions dismissed.