Jagdish Chandar Dhawan vs State of Haryana

V.K. Bali, J.—Jagdish Chander Dhawan through present writ filed by him under Article 226 of the Constitution of India seeks issuance of a writ in the nature of certiorari so as to quash notifications dated February 23, 1989 and February 22, 1990, Annexure P1 and P2 issued under Sections 4 and 6 of the Land Acquisition Act. Before the matter might proceed any further it may be mentioned that this matter had come up for hearing with other bunch of petitions as a few questions involved in all the petitions were common. In Ram Kishan v. State of Haryana, CWP 1725 of 1992 decided on July 6, 1994, the common questions were decided. The challenge to the notifications on the said common grounds was rejected. The matter is now reported in 1995(1) R.L.R. 45. The contention based exclusively upon the merits of this case is with regard to leaving from the array of acquisition the constructed portion with commensurate open area as per policy of the Government.

It is the case of the petitioner that he purchased land comprised in Khewat No. 434 measuring 28 Kanals situate within the revenue estate of Tarf Mukdoom Jadgan vide registered sale deed dated June 19, 1985 for a consideration of Rs. 10.50 lacs. The mutation of the land was sanctioned in favour of the petitioner on May 7, 1986. He purchased another piece of land measuring 12 Marlas comprising in Khewat No. 435; again situate in Tarf Makdoom Jadgan, mutation whereof was sanctioned in his favour on May 7, 1986. In this manner the petitioner was owner in possession of the land measuring 28 Kanals 12 Marlas. It is the positive case of the petitioner that he had purchased the said land after having converted the foreign currency into Indian currency with an object to construct a 5 Star Hotel after taking necessary permission. Immediately after purchasing the land he constructed a palatial house having covered area of approx. 8000 sq. feet. There exists a boundary wall upto the height of 8'' which covers whole of the land detailed above. The nature of the construction is ''A'' Class and marble, teak wood etc. has been used in raising the construction and the wood work. The roofs of the building are of concrete lintel and there are various iron big gates in the boundary wall. It is further the case of the petitioner that the construction was made prior to the issuance of the notification and this fact is enough to be proved from letter dated April 18, 1988 issued under Section 12 of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963. The petitioner had received yet another notice dated February 27, 1989, copy whereof has been annexed with the petition as Annexure P3. It is this constructed area with commensurate/equivalent vacant area which is sought to be left out from the array of acquisition mentioned above on the dint of the policy issued by the Government on that behalf.

In the written statement filed on behalf of respondents even though issuance of policy by the Government so as not to acquire the constructed portion and to leave an equivalent vacant area has been denied yet in paragraph 4 of the written statement it has been clearly mentioned that the constructed area alongwith proportionate area has been left out of acquisition by the Government. In the additional affidavit filed on February 1, 1996, it has, however, been clarified that 6 Biswas equivalent to 264 sq. mtrs. have been left out. It has further been stated in this additional affidavit that the petitioner has constructed an area of 132 sq. mtrs. before issuance of notification under Section 4. It requires to be mentioned that even though there may not be any policy of the State Government so as not to acquire the constructed portion and to leave equivalent space, in hundreds of petitions filed in this Court, the fact that constructed portion with an equivalent area was left out has throughout been admitted. The position is no different in this case as well, inasmuch as it has been stated in paragraph 4 of additional affidavit that the constructed area to the extent of 132 sq. mtrs. alongwith an equivalent space has been left out from the array of acquisition. There may not exist a ground to direct the respondents so as not to acquire the constructed area with proportionate vacant area on the ground of the policy of the government but at the same time the contention of the learned Counsel that such a course should have been adopted and if not adopted would result into discrimination cannot be ignored. Be that as it may, it is admitted position in the present case that the constructed portion with proportionate open area was actually left out from the array of acquisition proceedings. The controversy is with regard to the extent of construction. Vide interim order passed by this Court on July 7, 1994, the Court had thought of resolving this controversy by appointing a Local Commissioner. The Local Commissioner has submitted her report as also annexed with the same a site plan showing the extent of construction. It is clearly made out from site plan Annexure C3 with the report of the Local Commissioner that there is absolutely no construction in Khasra No. 10/20 and 10/21. This portion has, thus, been rightly acquired by the respondents. In portion D & E of site plan Annexure C/3 the construction was only upto plinth level. There being no proper/complete construction, no case is made out to leave this constructed portion as well. In so far as portions A, B & C are concerned, it has been clearly mentioned in the report of the Local Commissioner that construction has been made on the corner of the plot which is 1 storey, made of cement, RCC columns with chips, marble flooring and with teak wood doors and windows. Admittedly it was class I construction. The construction also gave a look of palatial house with one spacious hall, two bed rooms, one big lobby, bath room, kitchen, store and marble stairs. On first floor there is a big hall room and big terrace. The flooring was of marble titles and chips. The floor area of this house is 411.76 sq. yds. The construction in portion B is 42 sq. yds. This is Security Guard Room having dimensions of 27'' x 14''. This construction was also with cement, bricks and RCC columns and was admittedly ''A'' class construction. Portion ''C'' was constructed so as to use it as a garage. The said construction is 78.22 sq. yards. This construction is also with cement, bricks and RCC columns. It may be mentioned here at this stage that vide interim order dated July 7, 1994, the Court has already expressed its opinion that this construction as per the pleadings of the parties and the documents supporting the same came about before issuance of notification under Section 4 of the Land Acquisition Act. On proper appraisal of the pleadings and the evidence brought on record as also the report of the Local Commissioner, this Court is thus of the considered view that the contents of the written statement that the petitioner had constructed only 3 Biswas which is equivalent to 162 sq. yds. is not correct. The extent of the construction being more than the one that is pleaded in the written statement. The actual constructed area in portions ''A'', ''B'' & ''C'' with proportionate open area has to be left from the array of acquisition. A perusal of site plan Annexure C 3, however, makes it clear that whereas constructed portion ''A'' is in one corner, portions B & C are in other corner. If all the constructed portions are left out the vacant space in between these portions would be far more than the petitioner deserves. As mentioned above, petitioner cannot be allowed open space more than the constructed area, yet the fact remains that the portions ''B'' & ''C'' were constructed prior to issuance of notification under Section 4 of the Land Acquisition Act. The only way that appears to Court to get out of this difficult situation and yet to settle the equities between the parties is to permit the petitioner to have an area that may be equivalent to constructed portion A, B & C put together as also to permit him to have an equivalent open space. In this manner, if portions B & C have to be acquired, the same may be acquired. But as mentioned above, the petitioner shall be permitted to have the area equivalent to portions A, B & C with an equivalent area as an open space. At this stage, the learned counsel representing the petitioner states that the area of portions A, B & C would be 531.98 sq. yards. The Court, however, gives no opinion on that and leaves it to the authority to determine this issue.

This petition is, thus, allowed to the extent mentioned above. It may, however, be clarified that the petition succeeds only to the extent that the area as fully detailed above shall not be acquired whereas the rest of the land of petitioner under notification 4 of the Land Acquisition Act may be acquired. No order as to costs.