Shamsher Singh and Others vs The State of Haryana and Others

Ashok Bhan, J.—Two questions, one of the fact and the other of law arise for determination in this case. The question of fact is - Is there in fact a policy decision taken by Govt. of Haryana not to acquire land on which construction has been raised prior to the date of notification u/s 4 of the Land Acquisition Act, 1894? If answer to this question is in affirmative then the question which arises is - What is its value ? Is it statutory in nature ? Would it override the provisions of the Land Acquisition Act, 1894 ?

The facts of the present case narrowly stated as per averments of the petitioners are that the petitioners are owners in possession of land measuring 2680 square yards on which houses have been constructed which are being used by the petitioners for residential and storage purposes. Government of Haryana sought to acquire total area of 369.94 acres in Hadbast No. 1 village Karnal, including the said land and construction there-on belonging to the petitioners for development and utilisation of this land for residential and commercial purpose. A notification u/s 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) expressing this intention was issued on 8.2.1989. Objections u/s 5A of the Act were filed; Ultimately, a second notification u/s 6 of the Act, was issued on 7.2.1990 stating that an area of 314.97 acres was required for development of residential and commercial plots in sector 4 and 5 in Karnal. Area of about 55 acres was left out of the purview of acquisition issued u/s 6 which was earlier included in the notification issued u/s 4 of the Act. The land belonging to the petitioners was there in the purview of acquisition, therefore, the petitioners have filed the present writ petition stating therein that there is policy of the State government not to acquire any land on which construction has been raised prior to notification u/s 4 of the Act and that this policy is more vigorously implemented particularly in case of acquisition of residential accommodation, that the notification u/s 4 of the Act issued in this case violates the declared policy of the State and, therefore, the notification issued is illegal and void and likely to be struck down as being arbitrary and contrary to the constitutional guarantee enshrined in Part-IV of the Constitution of India. The plea of discrimination has also been taken.

In the written statement filed, the pleas taken by the petitioners have been refuted. It has been stated therein that there is no policy as such of the State Govt. not to acquire land on which construction has been made. It has further been stated that objections filed u/s 5A of the Act were duly considered and rejected and the petitioners have not been discriminated as alleged; that the government can acquire land on which construction has been raised and landowners would be entitled to compensation for the super-structures. Plea of discrimination has been denied.

Petitioners filed an application and with it attached copies of certain written statements which had been filed by the State of Haryana in certain other writ petitions where an admission to the effect that Government has taken decision not to acquire land on which construction has-been raised is there.

There has been some confusion regarding the existence of the policy of the State Govt. not to acquire land on which construction has been raised. In some cases in the written statement filed by the government, it has been stated that qua that particular scheme, the portions of land on which construction had been raised, the same would be exempted from acquisition. To trace out a brief history of various cases where such pleas have been dealt with are being discussed. The first case to be decided by this Court on this point was Mohinder Singh Sharma v. State of Haryana (1988) 94 P.L.R. 498. In this case, it was not disputed that there was a government policy that the land over which the persons have raised construction was not to be acquired. No policy of the government was produced because no dispute regarding existence of the policy was raised. Learned single Judge allowed the writ petition qua the petitioners over which they had already raised constructions prior to the issuance of notification u/s 4 of the Act. This point again came up before the Division Bench of this Court in Sohan Lal v. State of Haryana 1989 PLJ 4. In this case, the contention of the landowners that their land should be released from acquisition on the ground that they had built up their houses on small pieces of land purchased by them was negatived. It was held therein as under:-

" 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 planning scheme in this behalf. The purpose of acquisition cannot be said to be beyond the scope of authority because it is for public purpose."

Again this controversy was raised in Hira Lal v. State of Haryana 1991 PLJ 783 in which the learned Single Judge held that Land Acquisition Act applies to land as well as buildings. The definition of the word ''land'' given in Section 3(a) of the Act includes all benefits which arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. It was further held that the definition of the word'' ''land'' is wider than that of Immovable property under the Transfer of Property Act and the land includes super-structures as well. In Hira Lal''s case (supra), the State Government had taken a positive stand that there was no policy of the government not to acquire the land over which constructions have been raised. This judgment was followed in another case qua the same acquisition against which L.P.A. No. 1017 of 1992 (Attar Singh v. State of Haryana and Anr.) was filed by the landowners which was dismissed in 29.9.1992. Although, it has been pleaded in a number of cases that there was a general policy of the State Govt. not to acquire land on which construction has been raised but till date no such policy has seen the light of the day and none has been produced. From this, it can safely be inferred that no such policy is in existence. The policy of fact regarding existence of such policy was examined by this Court in Hira Lal''s case (supra). As on fact, the following finding was recorded by the learned Single Judge :-

" As regards policy of the State which was so mentioned in Mohinder Singh Sharma v. State of Haryana (1988) 94 P.L.R. 498 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 written statement, 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 aforementioned case. Consequently, the petitioner cannot take the benefit of the decided case."

In any particular case, the government while acquiring the land may have taken decision regarding not to acquire the land on which constructions had been raised but that would not amount to the taking of a policy decision by the government not to acquire land on which construction had been raised throughout the State of Haryana.

In this case, at the motion stage, Advocate General Haryana, was asked to appear in person to assist the Court and make a statement regarding the existence of such a policy, Advocate General, appeared and made a statement on the basis of communication No. DA-90/6360 dated 7.9.1990 from the Director, Urban Estate Haryana, Manimajra (UT) Chandigarh to the effect that there is no policy of the State Government to exempt any land from acquisition on which construction has been raised.

In this particular case, no such policy had been produced. So far as the admission made by the State in some other writ petition of which petitioners want to take advantage is concerned, it may be stated that government took a decision not to acquire land on which construction has been raised keeping in view the facts of that particular case or nature of scheme for which the land had been acquired. It is, therefore, held that there is no general policy of the Govt. of Haryana not to acquire the land on which construction had been raised; it is further held that if qua a particular acquisition government decides to exempt land with super-structures from acquisition then it does not mean that government, as a general policy, has taken decision not to acquire land on which-there are super-structures.

Although, we have held that there is not such policy but since this question is arising repeatedly in this Court, we would like to dispose of the question of law as well because that was also argued before us at length.

Plain language of Section 4 of the Act is that Government can acquire ''land in any locality likely to be needed for any public purpose''. There are no fetters put on the discretion of the government not to acquire a particular land on which construction has been raised or on any such or similar grounds. This point had arisen again in Rajinder Parshad and Company v. State of Haryana, C.W.P. No. 6241 of 1991, decided on 26.6.1991. The Division Bench of this Court took the following view :-

" Learned counsel for the petitioner contends that the writ petition is to be admitted in view of the Supreme Court decision in AIR 1987 SC 1345 since similar question i.e. to the effect that where construction has been raised the area cannot be acquired is pending consideration in similar other writ petitions in this Hon''ble Court. We find no force in this contention of the learned counsel for the petitioner for the reason that whether structures are to be exempted or not, has to be detained in the peculiar facts and circumstances of each case. It is not a question of law that in every case, constructions have to be exonerated nor such rigid law can be laid down that the land with constructions are never to be acquired. Nothing has been pointed out to show that under the law the State is bound not to acquire the constructed area."

Similar view had been taken by this Court in ''Him Lal''s case (supra). One or two unreported judgments were produced before us where notification issued u/s 4 of the Act was quashed on the ground that as per policy, the State Govt. could not acquire the land over which construction has been raised. These judgments did not notice the Division Bench judgment of this Court in Sohan Lal''s case and Rajinder Parshad''s case (supra). We have not been shown any provision of the Act under which such instructions could be issued. Even if any such instructions were to be issued they would not be statutory but the same would be for the internal guidance of the government functionaries and they may not acquire a particular piece of land keeping in view the convenience of the public in general or the persons who had raised constructions but such instructions shall remain executive in nature and cannot have statutory force. The effect cannot be given to them so as to override the statutory provisions under which the authority, under the Act had acted within the powers given to it under the Act. Such instructions cannot override the provisions contained in the Act. If the action taken is valid under the Act, it does not become invalid because it is opposed to some administrative instructions issued by the government.

However, it may be stated that it would be upto the acquiring authority not to acquire property on which construction is made but if such a property is acquired and acquisition has been made in accordance with the provisions of the Act then this Court shall not normally interfere in the discretion exercised by the acquiring authority unless it is shown that discretion has been used with ulterior motive or in violation of the principles of natural justice or discriminately tarnishing it with arbitrariness and thus rendering it violative of Article 14 of the sConstitution of India.

The land having been acquired in accordance with the provisions of the Act, we find no merit in this petition which is ordered to be dismissed. No costs.