Shree Chand and Others vs The State of Haryana and Others

V.K. Jhanji, J.—Learned counsel for the parties have stated that instead of deciding the application, the writ petition itself be taken on Board and decided on merits.

State of Haryana issued notification dated 18.9.1973 u/s 4 of the Land Acquisition Act, 1894 (in short ''the Act'') declaring that 19 kanals 7 marlas of land comprised of Rectangles No. 529, 537, 538 and 541 of village Ferozepur Jhirka, District Gurgaon, is likely to be needed for establishment of a Memorial Park at Ferozepur Jhirka. By another notification dated 18.5.1974 u/s 6 of the Act, the State declared that the land mentioned above was needed for public purpose of establishment of a memorial park. Award u/s 9 of the Act was passed on 20.9.1974. In this petition, challenge is to notifications Under Sections 4 and 6 of the Act and award dated 20.9.1974, by the petitioners who were erstwhile owners of the land acquired. Challenge is on the ground that the public purpose for which land of the petitioners was acquired has been put to a halt by permitting respondent No. 3 to construct shops on the land meant for park. Challenge is also to resolution. Annexure P-8, whereby Municipal Committee, Ferozepur Jhirka passed resolution that out of the income from the shopping complex, 30 per cent be given to Dam Development Society for looking after its progress works, petitioners have also challenged the action of respondents 3 and 4 in allotting shops without conducting any auction. Petitioners have stated that they have a preferential right for allotment of shops.

Upon notice of the writ petition, two sets of written statement have been filed; one by respondents in their respective written statement have stated that the writ petition is barred by principles of res-judicata inasmuch as notifications Under Sections 4 and 6 of the Act had earlier been challenged by petitioners 1 and 2 alongwith some other persons by way of filing Civil Writ Petition No. 3699 of 1982 which was dismissed by this Court on 13.5.1993 and L.P.A. No. 557 of 1993 filed against the same too met the same fate. Thereafter, SLP filed against the judgment in L.P.A. was also dismissed by the Hon''ble Supreme Court. Respondents have also submitted that not only the Shamsuddin Memorial Park has been set up in the suit land, but a community hall has also been constructed. In regard to the shops, it has been submitted that after constriction of the memorial park, some land remained unutilised and for proper maintenance and betterment of park, community centre hall etc., it was decided to construct shops so that for want of funds the purpose for which suit land was acquired may not be defeated.

After hearing the Learned counsel for the parties and going through the record. I am of the view that second petition to challenge notification u/s 4 is not maintainable, particularly when challenge to the same was made in Civil Writ Petition No. 3699 of 1982 and the said Writ Petition was dismissed by this Court. Otherwise too, petitioners are not correct in saying that purpose for which land was acquired has been changed. It is the categoric stand of the respondents that after the land was acquired, memorial park and community Hall have been constructed. There is no denial by the petitioners to this contention of the respondents. Simply because some shops have been constructed on the land which remained utilized after construction of park and community hall would not make acquisition bad. On acquisition, acquired land vested in the State free from encumbrances and if some part of it has been utilized for the purpose for which it was not acquired, it would not give any right to the land owners to challenge acquisition. In regard to the claim of petitioners that they have a preferential right to allotment of shops, it is only to be stated that no rule has been pointed out providing for such a provision. In absence of any legal right, petitioners are not entitled to the mandamus sought for in this regard.

Consequently, the writ petition being without any merit shall stand dismissed. No costs.