Surya Woollen and Others vs State of Haryana and Others

Amol Rattan Singh, J.—These three petitions were clubbed together for hearing in view of the fact that they challenge common acquisition proceedings, by which the land/plots of the petitioners were sought to be acquired by the respondent-State, by a common notification dated 10.05.1989, issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter called "the Act") and subsequent notification dated 09.05.1990, issued under Section 6 thereof.

The first petition that was filed being CWP No. 4948 of 1992, the facts are initially being taken from that case and subsequently the relevant facts of other petitions would be considered, where necessary.

The six petitioners of the lead petition, are stated to be a partnership firm and its five partners respectively, with the land measuring 6120 sq. yards, stated to have been purchased by the firm (petitioner no.1) in the year 1987, upon which an industrial shed comprising a machinery shed, godown, office complex and other rooms are stated to have been constructed. The remaining open space is also stated to be used for keeping raw materials for the factory, which is stated to be manufacturing yarn for blankets.

The industrial unit is stated to be a Small Scale Industry, earning profits and generating employment to about 70 persons.

In the other two petitions also, factory sheds etc. are stated to have been constructed, the factories being running industrial units.

The land/plots in question are stated to be abutting the G.T. Road going to Delhi, in Panipat town, within its municipal limits.

The petition further states that the entire area, on both sides of the G.T. Road, has mushroomed like an industrial area, though the area behind the factories, at the time of filing of the petition (22 years ago), was stated to be agricultural land; the contention being that there was ample vacant land available and as such, there was no need for acquisition of land that was already being utilized for industrial purposes.

As noticed above, the respondent-State issued a notification under Section 4 of the Act on 10.05.1989, for acquisition of the petitioners'' land, comprised in Khasra Nos. 25/4 and 7, in village Patti Maqdoom Jadgan and Khasra No. 5494/97/1 in Patti Taraf Insar. The purpose of acquisition was for development and utilization of industrial institutions, and residential and commercial area, for Sectors 6,7 and 8 of Panipat.

The total area sought to be acquired vide the above-said notification was 334.15 acres of land in Patti Taraf Insar, 31.34 acres of land in village Kabri and 5.13 acres of land in Patti Maqdoom Jadgan.

The petitioners filed objections under Section 5-A of the Act on 06.06.1989, stating therein that their land was lying in an established factory area upon which they had raised a huge construction in the shape of factory sheds, quarters, boundaries etc. and that there was enough vacant/agricultural land in the vicinity which could be utilized for the purpose to be achieved and that such agricultural land was much lower in price as compared to industrial land and for that reason too, it would unnecessarily burden the State exchequer to acquire land being already used for industrial purposes, other than the fact that the purpose had already been served by the petitioners.

However, as alleged, without considering the objections, the declaration under Section 6 of the Act was notified on 09.05.1990, after which the petitioners received a notice under Section 9 of the Act, asking them to file their claim, upon which the writ petition was filed in this Court and, while issuing notice, a co-ordinate Bench stayed dispossession of the petitioners from the constructed portion of the land on 01.05.1992, after which the case was admitted to regular hearing on 27.01.1994, with interim directions continuing till date.

Similarly, dispossession from the constructed areas was also stayed on 01.05.1992 in CWP No. 4949 of 1992 and on 06.05.1992 in CWP No. 5188 of 1992.

In the reply filed by the respondent-State, it has been stated that constructed area along with proportionate area, in all measuring 2 Kanals, 7 Marlas and 19 Biswas (approximately 1525 sq. yards), of the petitioners'' land (in CWP No.4948 of 1992), was released and the remaining vacant area, part of which was falling in the 30 meters wide green belt, has already been acquired vide Award dated 07.05.1992, but possession could not be taken in view of the stay orders of this Court, dated 01.05.1992.

[Obviously, the State gave benefit to the petitioners greater than that what had been granted to them by this Court vide the said stay order, inasmuch as, the respondents were only restrained from taking possession of the constructed portion and not the vacant portion, as per the said order.]

Though, in the reply filed by the State, it is stated that the petitioners were given a personal hearing on the objections filed under Section 5-A, before issuance of the notification under Section 6, however, subsequently, during hearing of this case on 18.12.2013, this Court had directed the State counsel to take specific instructions as to whether the notification under Section 6 was issued after considering and deciding the objections received from the land owners under Section 5-A, or not.

In response thereto, as per submissions made to this Court on behalf of the State, learned State counsel has admitted, on written instructions received, that all objections were heard by the Land Acquisition Collector who, after making an enquiry, sent his recommendation to the Government on 30.04.1990. However, since the notification dated 09.05.1990 was to be issued by the said date, so that proceedings initiated under Section 4 on 10.05.1989 did not lapse, and it was difficult to discern between new and old construction, within the short period available, Government constituted a committee for verifying the stage of construction in each case.

Thereafter, on the basis of recommendations of the Collector, as also the report of the committee, 33.32 acres of land was released before the award was announced. Of this area released, the petitioners'' land, eventually released, was about 2380 sq. yards, with 3740 sq. yards being acquired, as it was falling in the green belt.

(The above contention of the State, has been categorically argued by the learned State counsel on the basis of written instructions received in the office of the Advocate General, Haryana, by way of a letter/memo No. 1949, written to the Advocate General on 03.03.2014, by the Secretary-cum-Director General, Urban Estates, Haryana, a photocopy of which has been produced in Court. The same facts are also on record in the form of another letter also addressed to the Advocate General, dated 25.11.2013, placed on record by the petitioners in CWP No. 4949 of 1992, as Annexure P-7, filed with the additional affidavit of petitioner no.4 of that petition.).

Though an affidavit of one of the petitioners (petitioner no.2 in CWP No.4948 of 1992), dated 06.07.1993, is on record to state that no land of the petitioners has been left out, the said affidavit loses meaning in the face of the categorical stand of the State, to the contrary.

Other than that, the petitioners also filed a replication to the reply filed by the State, giving therein the details of land falling within constructed area and again reiterating the fact that even the vacant area is being utilized for storing raw-materials for the factory, in support of which some photographs have been annexed.

As per the site plan annexed with the replication, the boundary wall of the land in question, admittedly, immediately abuts the G.T. Road. About 7 Kanals of land are shown to be lying vacant, except for a Chowkidars'' shed next to the gate.

Subsequently, Civil Miscellaneous Application No. 2950 of 2014 was also moved in CWP No.4948 of 1992, on 07.03.2014, seeking therein that the impugned acquisition proceedings be declared to have lapsed in view of the provisions of Section 24(2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter to be referred to as the "new Act")

Mr. Sarin, learned Senior Advocate appearing for the petitioners, first submitted that the new land acquisition Act had already come into force w.e.f. 01.01.2014 and as such, in any case, the proceedings under the old Act of 1894 would be deemed to have lapsed, as per Section 24(2) of the new Act, since possession of the land of the petitioners had admittedly not been taken by the respondents.

To a specific query by this Court, as to how possession could have been taken in view of the stay orders operating since 1992, (even though such orders only restricted possession over the constructed area), the stand taken by the learned Senior Counsel is that, since Section 24 of the new Act does not make any distinction between lands sought to be acquired, but not taken possession of on account of stay orders of the Court, and between those lands not taken possession of on account of any lapse on the part of the State to take such possession, for a period of five years after the award had been announced, but before the commencement of the new Act, this Court could not read anything extra into the said provision (section 24), to hold that the possession having been "denied" to the State by an order of this Court, the proceedings under the old Act would not be deemed to have lapsed. He further submitted that in the case of the petitioners, neither had compensation been paid to them, nor had the State taken possession of the land; hence, the provisions of Section 24(2) of the new Act, would apply on all fours.

Further, on the applicability of the new Act, learned Senior Counsel has argued that as per Section 113 thereof, Government has been empowered, for a period of two years from the commencement of the Act, to make an order giving effect to the provisions of the Act, for the purpose of removal of any difficulty, as long as such orders/provisions or instructions issued by the Central Government are not inconsistent with the provisions of the new Act.

He submitted that in view of the above-said provision, advice had been sought by the Government of India from the Solicitor General of India, as to whether the period spent during litigation would also be countable for the purpose of determining the five year period stipulated in Section 24(2) of the new Act or not, and the Solicitor General, vide his advice dated 28.12.2013, had opined that since the legislation (the new Act) has been passed with the objective of benefiting the land-losers, the period spent in litigation cannot be excluded from the said period of five years.

In support of this contention, Mr. Sarin has produced a photocopy of the letter dated 28.12.2013 addressed by the learned Solicitor General of India, to the Union Minister of Transport, Government of India.

He further drew attention of the Court to Explanation-I under Section 6 of the Act and thereafter to the explanation under Section 11-A thereof, which stipulate that in computing the periods within which the notifications under Sections 6 and 11-A, respectively, are to be issued, the period during which any action is stayed by a Court, is to be excluded.

Learned Senior Counsel contended that the advice of the Solicitor General, referred to above, was obviously well reasoned in view of the fact that Parliament was obviously aware that under the old Act, periods of stay granted by the Court were to be excluded in computing the period of one year and two years respectively, within which declaration/Award had to be made. Despite that, the legislature in its wisdom, did not exclude, while framing Section 24(2) of the new Act, periods of stay granted by the Court, in computing the five year period to be seen after passing of an Award under the old Act, after which no possession was taken by the State of the acquired land or no compensation for the same was deposited.

On the proposition that nothing extra can be read into a statute by the Court, other than the plain meaning thereof, he cited the following judgments:-

i) Ansal Properties and Industries Ltd. Vs. State of Haryana and Another, ;

ii) Pallawi Resources Ltd. Vs. Protos Engineering Company Pvt. Ltd., and

iii) Satheedevi Vs. Prasanna and Another, .

On the issue of the new Act having become applicable to the case of the petitioners, he cited the following judgments:

i) Pune Municipal Corporation and Another Vs. Harakchand Misirimal Solanki and Others, .

ii) Bharat Kumar vs. State of Haryana and another (Civil Appeal No. 1971 of 2014, decided on 04.02.2014).

Learned Senior Counsel lastly pointed out that, as already directed by this Court vide order dated 05.10.2013, the State counsel was to take instructions with regard to whether any land falling within the green belt abutting the G.T. Road, had been released during the pendency of these petitions. Vide the said order, three orders releasing such land were handed over to the State counsel, who was thereafter to take instructions in that regard and nothing had been stated to deny such release. As such, on the merits of the case, he submitted that the petitions deserve to be allowed on the ground of discrimination, also.

Mr. Arun Jain, learned Senior Counsel appearing for the petitioners in CWP No. 5188 of 1992, in essence, made the same submissions as made by Mr. Sarin.

Ms. Palika Monga, learned Deputy Advocate General appearing for the State of Haryana, defended the acquisition, on merits, on the ground that whatever could have been released by the Government, in terms of constructed area and proportionate vacant area, qua the petitioners in CWP No.4948 of 1992 and CWP No.5188 of 1992, has been so released and the remaining land, as was falling in the planned service road and green belt, abutting the G.T. Road (National Highway No. 1), has been acquired, including constructed area of the petitioners in CWP No. 4949 of 1992.

She submitted that, naturally, planned development requires a buffer zone between a Highway and plotted development, in the form of a green belt and a service road etc. and as such, the acquisition being essential to proper planned development, especially in a congested industrial city falling on a major arterial road of the country, the land of the petitioners cannot be released from such acquisition.

She further submitted that a large number of plots/tracts of land have already been acquired without challenge, pursuant to the impugned notifications and even where challenge was made, some writ petitions already stand dismissed.

As per the site-plans/maps produced by her in Court, from the record of the acquisition proceedings, CWP Nos. 6560 of 2006 and 8827 of 2003 already stand dismissed, with some other writ petitions still pending, including, of course, the present petitions.

As regards the applicability of the new Act, learned State Counsel stated that dispossession from the constructed area having been stayed by this Court, the period of stay would necessarily have to be excluded while computing five years from the date of Award, for Section 24(2) of the new Act to be applicable; and since the stay orders dated 01.05.1992, and 06.05.1992, still continue to operate in the present cases, the question of Section 24(2) becoming applicable to the case of the petitioners and the proceedings under the old Act having been deemed to have lapsed, does not arise.

Upon query as to why the State did not take possession of the remaining land of the petitioners as was not under construction and in respect of which no stay was operating, Ms. Monga submitted that since the matter was under litigation and the out-come of the writ petitions was uncertain, it was deemed prudent by the Government to not interfere in the possession of the entire land of the petitioners, because if the petitions were to be allowed eventually, planned development which may have taken place in the meantime, would be put in jeopardy and expenses incurred brought to naught.

Having given our thoughtful consideration to the above contentions with regard to the applicability of the provisions of old or new Act, it appears useful to us to firstly refer to Section 24 of the new Act which reads as follows:-

"24. (1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,

(a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating to the determination of compensation shall apply; or

(b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed.

(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act."

Though at the time of hearing, learned counsel for the parties made elaborate submission on the applicability of the provisions of the old or new Act but that issue need not detain us in view of the fact that after the judgment was reserved on 11.03.2014, the controversy has been set at rest by the Hon''ble Supreme Court in (i) Union of India (UOI) and Others Vs. Shiv Raj and Others, ; and (ii) Sree Balaji Nagar Residential Association vs. State of Tamil Nadu and Ors. (Civil Appeal No. 8700 of 2013 and connected petitions) decided on 10.09.2014. In both the cases, it has been authoritatively ruled that the period spent in the litigation due to the challenge to the award or land acquisition proceedings is not to be excluded while calculating five years from the date an award is made, for the purpose of attracting Section 24(2) of the new Act.

In the Sree Balaji Nagar Residential Association case, the Apex Court has removed all sources of doubts, if any, laying down as follows:-

"7. In reply Mr. Subramonium Prasad, AAG for the State of Tamil Nadu has produced some charts and documents to submit that compensation has been deposited in several cases with the concerned Civil Court also and in some cases the payments have been accepted by the land owners. However, even as per the chart containing details of award and payments for 3.31 hectares of land involved in the case of Vishwanathan and Ors. In C.A. No. 8701 of 2013 [arising out of S.L.P.(C) No. 9492 of 2007] an amount of Rs.26,73,851/- is shown to be lying in Revenue deposit whereas only for a small portion of land an amount of Rs.5,50,056/- is in Civil Court deposit. However, this issue need not be pursued any further because admittedly physical possession of the land involved in these appeals has not been taken over by the State and on that account alone, the land acquisition proceeding under challenge will have to be treated or declared as lapsed unless we find merit in the contention raised on behalf of State that this plea cannot be used against the State because it was prevented from taking physical possession of the lands on account of interim orders passed by the High Court and this Court.

There is no dispute that writ petitions were filed even before the making of award and interim orders have operated against the State of Tamil Nadu and, therefore, the State was not at fault in not taking physical possession of the concerned lands under acquisition. But the intention of the Legislature in enacting Section 24(2) of the 2013 Act will have to be culled out from its wordings and on the basis of other relevant provisions of this Act and the relevant case law for deciding whether the period of stay/injunction is required to be excluded in computing the five years'' period or not."

(Emphasis applied)

After considering the above in Shiv Rajs'' batch of cases (supra), the appeals of the Union of India were dismissed, one of the grounds being that Section 24(2) of the new Act would apply in a situation where possession of the land was not taken for five years or more, after the Award had been announced, or compensation had not been paid to the landowners.

Of course, other than the above ground, the appeals of the Union of India, in the aforesaid batch of cases, were also dismissed on merits.

In a connected appeal before the Apex Court, in that batch, (Civil Appeal No. 1579 of 2010), which was filed by a landowner, a somewhat similar situation (though not identical) existed, as in the present cases before us, inasmuch as, despite the writ petition filed before the Delhi High Court (and a review petition filed thereafter), having been dismissed on 27.07.2007, possession of the land in dispute was not taken by the Union of India, even though there was no stay in the SLP/Appeal filed by the landowner before the Supreme Court. Thus, with the Award having been announced way back in 1987-88 and a seven year period having elapsed between dismissal of the petition before the High Court and the matter having remained pending before the Supreme Court, and possession not having been taken by the Union of India, the appeal filed by the landowner was allowed by the Supreme Court.

Though, in the present cases before us, the situation is not identical, inasmuch as these petitions are still pending before this Court, with a stay order operating, however, factually, possession was not taken by the respondents, possibly for the reason argued by the learned State counsel (or for any other reason which we would not go into without material in that regard before us), despite the fact that, as already noticed earlier, the stay on dispossession, ordered by this Court in 1992, was only with regard to the constructed area with the petitioners and not with regard to any vacant area.

In Sree Balaji Nagar Residential Association case, it was further held by their Lordships as under:-

"9. From a plain reading of Section 24 of the 2013 Act it is clear that Section 24(2) of the 2013 Act does not exclude any period during which the land acquisition proceeding might have remained stayed on account of stay or injunction granted by any Court. In the same Act, proviso to Section 19(7) in the context of limitation for publication of declaration under Section 19(1) and the Explanation to Section 69(2) for working out the market value of the land in the context of delay between preliminary notification under Section 11 and the date of the award, specifically provide that the period or periods during which the acquisition proceedings were held up on account of any stay or injunction by the order of any court be excluded in computing the relevant period. In that view of the matter it can be safely concluded that the Legislature has consciously omitted to extend the period of five years indicated in Section 24(2) even if the proceedings had been delayed on account of an order of stay or injunction granted by a court of law or for any reason. Such casus omissus cannot be supplied by the court in view of law on the subject elaborately discussed by this Court in the case of Padma Sundara Rao (Dead) and Ors. vs. State of T. N. and Ors. (2003) 2 SCC 533.

On a conjoint reading of the decisions of the Hon''ble Supreme Court in (i) Bharat Kumar Vs. State of Haryana and Another, , (ii) Bimla Devi Vs. State of Haryana, and (iii) Sree Balaji Nagar Residential Association (supra), it stands crystallized that irrespective of any interim order passed by any Court, the acquisition proceedings shall stand lapsed in terms of Section 24(2) of the new Act, if possession is not taken by the Government for five years after the date of the award. In this manner, the interpretation given by Supreme Court to Section 24(2) of the new Act in Pune Municipal Corporation and Another Vs. Harakchand Misirimal Solanki and Others, stands reiterated and confirmed in the later decisions as well.

Following the above-cited settled principles of law, we hold that there is no ambiguity whatsoever in saying that Section 24(2) of the new Act is attracted to the facts of the case in hand and despite the stay operating at least on part of the land since the year 1992, the proceedings would have to be declared to have lapsed, for the award having been announced on 07.05.1992 with possession admittedly not having been taken of any part of the land in dispute in all the three petitions.

Hence, though we do see the significance of what has been submitted by learned State counsel, to the effect that the vacant land, as was not subject matter of stay, was also not taken possession of in view of the stay operating on part of the land falling in the ownership of the petitioners in each petition, however, since it has also been clarified by the Central Government that the new legislation being for the benefit of the land-losers, therefore, the period of litigation is not to be excluded in calculating the five years'' period giving Section 24(2), and in any case, because the same has also been held so by the Hon''ble Supreme Court, the contention of the learned State counsel cannot be accepted by us.

Though, now it would only be academic to go into that issue, in view of what has been said herein above, however, we still need, at least briefly, to refer to the merits of the case, where the government has admitted to having considered the objections under Section 5-A only after the declaration under Section 6 was notified.

Such a course would not be permissible, as a decision by the Government on the recommendations of the Land Acquisition Collector, after hearing of objections under Section 5-A, must be taken before issuance of the declaration under Section 6 of the old Act. However, since, firstly, such release after issuance of the notification under Section 6 has not prejudiced the petitioners in at least two of the petitions before us, and, more importantly, in view of the fact that the present petitions are to be allowed in terms of the judgments of the Last Court, we make no further comment on that aspect.

Otherwise of course, de-hors any technicalities, we are in agreement with the stand of the State, that land, as is falling within the green belt and the service road area abutting the G.T. Road, could not have been released and as such, had the acquisition proceedings not lapsed by operation of Section 24(2) of the new Act, we would have been inclined to uphold the acquisition to that extent at least, as already said earlier, despite certain possible discrimination pointed out to us by learned counsel for the petitioners.

With regard to discrimination, it has been admitted, as shown on the site plan on the record produced, that a godown of one M/s. Adarsh Weavers, also falling partly within the service road area, was released in 1992 itself and the land of one Subhash Gupta, also falling partly in the service road area, was also so released. Similarly, land belonging to M/s. Radhika Handlooms, Model Woollen Mills and Kapoor Carpets, parts of which also fall within the green belt/service road area, were also released. On the other hand, land belonging to numerous other persons, similarly situated, was acquired and writ petitions, filed by different persons, have also already been dismissed.

Further, though 2380 sq. yards land of the petitioners in CWP No.4948 of 1992 and 12453 sq. yards land belonging to the petitioners in CWP No. 5188 of 1992 was released, being constructed area along with proportionate vacant area, no land of the petitioners in CWP No. 4949 of 1992 was released (not even the constructed area), as it is stated to be falling in the green belt and service road planned.

As a matter of fact, the State needs to inquire into this issue, as to why and in what circumstances lands of those persons who were similarly situated and were falling within the green belt/service road area, were released much before any new Land Acquisition Act was even in the process of being promulgated. However, since we are allowing these petitions in view of the law laid down, on Section 24(2) of the new Act, we leave that issue open to the State to inquire into.

For the reasons afore-stated, the writ petitions are allowed and the land acquisition proceedings qua the petitioners, initiated vide notification under Section 4 of the Act on 10.05.1989, culminating in the award dated 07.05.1992, are held to have lapsed in terms of Section 24(2) of the new Act.

Having held so, we cannot be oblivious to the fact that the acquired land is abutting a national Highway within Panipat city and has been acquired for a public purpose of paramount importance, namely, to provide a ''greenbelt'' and service road in a congested urban area where the vehicular traffic is a constant source of pollution. It is true that once the acquisition proceedings are declared to have lapsed, the acquired land/property goes back into the hands of the owner(s) free from all encumbrances. However, it does not mean that the public purpose of acquisition has also lost its sanctity. It appears to us that in the changed circumstances, the respondent-authorities can be given breathing time to re-consider the desirability of re-acquiring the subject property in accordance with provision of the new Act. In other words, if the authorities are of the view that the subject land/property is required for the development of greenbelt or any other bona fide public purpose, in that case, the petitioner(s) shall be entitled to only the compensation in accordance with the new Act and nothing more. We thus direct the petitioner(s) to maintain status quo with regard to the transfer of title, raising of construction and/or creation of any encumbrance upon the subject property, in any manner whatsoever, for a period of one year so as to enable the respondents to acquire the same in accordance with the provisions of the new Act, if need be. Such a recourse is being adopted in the larger public interest in the light of the view taken in similar circumstances in (i) Raj Kumar Jain Vs. State of Haryana, ; and (ii) Guru Amarjit Singh vs. State of Punjab, CWP No. 12481 of 1997 decided on 08.07.2014.