WRIT PETITION 1593 of 1991 on 2 August 1989

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Chandu Singh and othersvs.The State of Haryana and anotherTilak Raj vs.The State of Haryana and anotherRam Karanvs.The State of Haryana and anotherBadle and anothervs.The State of Haryana and anotherRanjit Singh and othersvs.The State of Haryana and anotherHarish Pal and othersvs.The State of Haryana and another

C.W.P.No.1593 of 1991Date of Decision:-03 .08.2010....Petitioner(s)

....Respondent(s)C.W.P.No.1906 of 1991....Petitioner(s)....Respondent(s)C.W.P.No.1992 of 1991....Petitioner(s)....Respondent(s)C.W.P.No.1706 of 1991....Petitioner(s)....Respondent(s)C.W.P.No.1887 of 1991....Petitioner(s)....Respondent(s)C.W.P.No.2034 of 1991....Petitioner(s)....Respondent(s)

Gianinder Singh and anothervs.The State of Haryana and anotherSher Singhvs.The State of Haryana and anotherSiri Palvs.The State of Haryana and anotherJagmalvs.The State of Haryana and another Abdul Waheed Khan and othersvs.The State of Haryana and anotherBhudev Singh and othersvs.The State of Haryana and another

C.W.P.No.1929 of 1991....Petitioner(s)....Respondent(s)C.W.P.No.2036 of 1991....Petitioner(s)....Respondent(s)C.W.P.No.1863 of 1991....Petitioner(s)....Respondent(s)C.W.P.No.1994 of 1991....Petitioner(s)....Respondent(s)C.W.P.No.1886 of 1991....Petitioner(s)....Respondent(s)C.W.P.No.1705 of 1991....Petitioner(s)....Respondent(s)

Singraj and others

....Petitioner(s)

vs.

The State of Haryana and another

....Respondent(s)

C.W.P.No.1905 of 1991

Smt.Shakuntla and another

....Petitioner(s)

vs.

The State of Haryana and another

....Respondent(s)C.W.P.No.2166 of 1991

Inder Singh

....Petitioner(s)

vs.

The State of Haryana and another

....Respondent(s)

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CORAM:- HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH

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Present:-Mr.Adarsh Jain, Advocate, for the petitioners.

Mr.Kamal Sehgal, Addl.A.G., Haryana,for the respondents.

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Augustine George Masih, J.

By this order, we propose to dispose of C.W.P.Nos.1593 of1991 titled as Chandu Singh vs. The State of Haryana and another,1906 of 1991 titled as Tilak Raj vs. The State of Haryana and another,1992 of 1991 titled as Ram Karan vs. The State of Haryana and another, 1706 of 1991 titled as Badle and another vs. The State ofHaryana and another, 1887 of 1991 titled as Ranjit Singh andothers vs. State of Haryana and another, 2034 of 1991 titled as HarishPal and others vs. The State of Haryana and another, 1929 of 1991 titledas Gianinder Singh and another vs. The State of Haryana and another,2036 of 1991titled as Sher Singh vs. The State of Haryana andanother, 1863 of 1991 titled as Siri Pal vs. The State of Haryana andanother,1994 of 1991 titled as Jagmal vs. The State of Haryana andanother, 1886 of 1991 titled as Abdul Waheed Khan and others vs.The State of Haryana and another, 1705 of 1991 titled as Bhudev Singhand others vs. The State of Haryana and another, 1704 of 1991 titled asSingraj and others vs. The State of Haryana and another, 1905 of 1991titled as Smt.Shakuntla and another vs. State of Haryana and anotherand 2166 of 1991 titled as Inder Singh vs. The State of Haryana andanother, as the acquisition of the land in question is under samenotification and is of the same area as also the grounds and reasonspraying for release of the land on which residential houses of thepetitioners are in existence is also the same. Counsel for the parties havealso stated in the same terms. Accordingly, the cases are taken up forhearing together.

Briefly, the facts are that the Government of Haryana, UrbanEstate Department, issued a notification dated 2.8.1989 under Section 4 ofthe Land Acquisition Act, 1894 (hereinafter referred to as 'the Act')proposing to acquire 194.97 acres of land situated in the revenue estate ofvillage Mewla Maharajpur, Hadbast No.4, Tehsil Ballabgarh, District

Faridabad, for development and utilization of the notified land as residentialand commercial purposes in Sector 45 of Faridabad under the HaryanaUrban Development Authority Act, 1977. Almost all the petitioners in thewrit petitions submitted their objections under Section 5-A of the Act. Theappropriate Government, on consideration of the same, did not accept all theobjections leading to the issuance of a notification under Section 6 of theAct on 1.8.1990 wherein a declaration was issued for acquisition of 184.66acres of land meaning thereby that 10.31 acres of land was exempted fromacquisition. Thereafter, notice under Section 9 of the Act was served on thepetitioners on 15.1.1991 leading to the filing of the above-mentioned writpetitions praying therein for release of the constructed houses of thepetitioners as had been released qua others for example residential housesconstructed in Khasra No.14, 15/1 and 15/2 of rectangle No.50 as also ofChhote Lal and others, who have built their houses on the land comprisingkhasra No.22/2 of rectangle No.49. Houses constructed by Jamal andothers on khasra No.18 of rectangle No.42 have also been exempted fromacquisition. The petitioners have contended that they are similarly situatedand have their built up houses in the same vicinity, but they have beendiscriminated against, thereby leading to violation of Article 14 of theConstitution of India. It has been pleaded that their objections have beenwrongly rejected whereas the objections of similarly placed persons havebeen accepted and their residential houses have been released while thehouses of the petitioners which are their only residential houses have beenacquired. Accordingly, the petitioners have prayed for quashing ofnotifications dated 2.8.1989 and 1.8.1990 issued under Sections 4 and 6 ofthe Act respectively, as well as notice dated 15.1.1991 issued under Section 9 of the Act.

State of Haryana has contested the claim of the petitioners;however, in reply to the assertions made by the petitioners with regard tothe release of residential houses of similarly placed persons, no specificdenial has been made of the assertions, except for that of Jamal andothers as it has been stated that they had filed a writ petition in thisCourt but it has not been averred about any stay granted by this Court orthe stage of the case.

As regards the construction in some of the cases, the factum ofthere being C- class construction before issuance of the notification underSection 4 of the Act, has been admitted, while in some cases it has beenpleaded that the acquired land which was having construction on it standsreleased. In some other cases, it has been stated that there was noconstruction on the land at the time of issuance of notification underSection 4 of the Act. In two of the writ petitions, no reply has been filedwherein the petitioners have asserted that they have constructed their housesbefore the issuance of notification under Section 4 of the Act. It would notbe out of way to mention here that the respondents have simply pleaded inthe reply that the land of the petitioners has been acquired in accordancewith the Act but it has not been pleaded that by exempting the land of thepetitioners or releasing the same from acquisition, the purpose of the LandAcquisition Act would stand frustrated.

Counsel for the petitioners submits that the petitioners havewith great difficulty constructed their residential houses in the land inquestion and have no other residential houses. If the petitioners areuprooted from the land at this stage, especially when residential houses of similarly placed persons in the same vicinity stand exempted fromacquisition while issuing notification under Section 6 of the Act, theywould be rendered homeless. The petitioners also deserve the sametreatment and are entitled to the said benefit. The respondents cannot beallowed to discriminate the petitioners without assigning any distinctionbetween the claim of the petitioners and other similarly placed personsqua the same nature of land and structures. They further contend that theresidential houses of the petitioners would in no manner impinge uponor infringe the object and purpose of acquisition, as the land is intendedto be acquired for the purpose of residential and commercial developmentand utilization. They further contend that the writ petitions be allowedand the residential houses along with the land be exempted fromacquisition.

On the other hand, counsel for the respondents submits that theGovernment is entitled to acquire the land as well as built up houses. Thereis no bar with regard to acquisition of residential houses. All provisions ascontained under the Land Acquisition Act have been fully complied with.On acquisition of the residential houses and the land of the petitioners, theywould be paid adequate compensation in accordance with law and,therefore, they cannot make a grouse in this regard. He has, however, notbeen able to distinguish the claim of the petitioners for release of theirresidential houses, in any manner vis-a-vis. the houses of the land ownerswho have built up their residential houses in khasra Nos.14, 15/1 and 15/2of rectangle No.50 as also Chhote Lal and others, who have built up theirhouses on the land comprising khasra No.2 of rectangle No.49, whose landhas been exempted from notification under Section 6 of the Act.

We have heard counsel for the parties and have gone throughthe records of the case.

The above-mentioned writ petitions require to be put in fourdifferent categories for proper consideration and effective decision of thesecases.

The first category cases are those wherein the petitioners haveasserted that they had constructed their residential houses before theissuance of notification under Section 4 of the Act, which fact has beenadmitted by the respondents in their written statement. These writpetitions are C.W.P.Nos.1593, 1906, 1992, 1706, 1887, 2034 and 1929 of1991. Out of these cases, in some of the writ petitions, it has been assertedby the respondents that some rooms have been built up after the issuanceof the notification under Section 4 of the Act by the petitioners.

The second category of cases are those wherein it has beenasserted by the petitioners that they had constructed their residential housesbefore the issuance of the notification under Section 4 of the Act but nowritten statement has been filed by the respondents. These areC.W.P.Nos.2036 and 1863 of 1991.

The third category of cases would be cases where the factum ofconstruction of the houses before issuance of the notification under Section4 of the Act has been admitted by the respondents. However, it has beenstated that the constructed area stood already released. C.W.P.Nos.1994,1886 and 1705 of 1991 belong to this category.

The fourth category are the cases where although it has beenasserted by the petitioners in their writ petitions that they had constructedtheir residential houses before the issuance of the notification under Section

4 of the Act but in the written statement filed by the State of Haryana, it hasbeen asserted that there was no construction on the land when notificationunder Section 4 of the Act was issued. C.W.P.Nos.1704 of 1991,C.W.P.No.1905 of 1991 and C.W.P.No.2166 of 1991 are the cases in thiscategory.

In none of the cases, replication has been filed by thepetitioners and, therefore, the facts as mentioned by the respondents in theirwritten statement have not been controverted by the petitioners.

There can be no dispute with regard to the assertion made bythe counsel for the respondents that not only the land but also thestructures on the land can be acquired under the Act. However, the decisionof the State Government in not granting exemption from acquisition orreleasing the land of a land owner arbitrarily and resorting todiscriminatory approach qua similarly placed and situated land, wouldviolate Article 14 of the Constitution of India. The case in hand is not theone where it is either the assertion of the petitioners or of the StateGovernment that the exemption which has been granted to the similarlyplaced land owners, whose residential houses have been released fromnotification under Section 6 on consideration of the objections filed underSection 5-A of the Act, is in violation of the provisions of the Act orcontrary to law with a mala fide intention to provide any benefit to thosepersons; neither is it a case where due to some mistake or result of a fraudor corrupt method, the land of the land owners has been exempted fromnotification. There is nothing, even remote to suggest that the land ownerswhose residential houses have been released have derived the benefitillegally. In such circumstances, the land owners, who are similarly

Conclusion

situated, have a right to receive similar treatment by the State Government.They cannot be discriminated against. All actions of the State have to befair and for legitimate reasons. The State Government cannot pick andchoose some land owners and exempt their land from acquisition and denythe same benefit to other similarly situated land owners. In the present case,the respondent-State has failed to give any explanation, what to say ofreasonable one, with regard to the allegations of discrimination qua theresidential houses of similarly placed land-owners. The specific pleadingsin the writ petitions, mentioning the names of land owners, khasra andrectangle numbers whose residential houses in the same vicinity and areahave been exempted/released from acquisition have not been denied by therespondents. Nor any reasons have been assigned for notreleasing/exempting the land of the petitioners where their residentialhouses exist. This apparently leads to the conclusion that the respondent-State had not acted fairly and has discriminated with regard to thepetitioners. It is also not the case of the respondents that the release ofresidential houses of the petitioners would frustrate the purpose ofacquisition. It would not be out of way to mention here that the purpose ofacquisition of the land is for residential and commercial development andutilization and what is being sought to be exempted by the petitioners aretheir only residential houses. A plea has been raised by the respondentsthat the rooms which have been constructed by the petitioners in most of thecases are of C-class construction whereas in some of the cases the sameis of B-Class as well. However, that would not be relevant as theHon'ble Supreme Court in the case ofSube Singh and othersvs. State of Haryana and others, (2001) 7 SCC 545 has held that the class of construction on the land of land-owners to be taken into consideration forrelease or exemption from acquisition is not based on intelligibledifferentia and a rationale basis germane to the purpose. Accordingly, theclass of construction does not make a difference for consideringexemption from acquisition.

As has been held above, the respondent-State has discriminatedqua the petitioners in cases where the residential houses were in existenceprior to the issuance of the notification under Section 4 of the Act.Accordingly, cases falling in category No.1 i.e. C.W.P.Nos.1593, 1906,1992, 1706, 1887, 2034 and 1929 of 1991 are allowed. Direction is issuedto the respondents in these cases to release the land of the petitioners fromacquisition to the extent occupied by the structures which were used forresidential purpose only on the date of issuance of notification underSection 4 of the Act along with equal open area for the beneficialenjoyment of the petitioners from their land. It is clarified here that landunder the constructed area not being used for residential purpose strictlyi.e. for purposes subservient to agriculture like tube-well, cattle shed,fodder store/shed, dairy farming, poultry farming etc. shall not betreated as released as it would violate and not fit in the purpose ofacquisition.

As regards category No.2 i.e. C.W.P.Nos.2036 and 1863 of1991, since no reply has been filed by the respondents, a direction is issuedto the respondents to verify the claim of the petitioners and if it is found asper the records that there were constructed residential houses before theissuance of notification under Section 4 of the Act, directions as issued incategory No.1 cases shall apply.

As regards category No.3 i.e.C.W.P.Nos.1994, 1886 and 1705of 1991, these writ petitions deserve to be dismissed on the ground that theconstructed area of the residential houses stand already released and,therefore, no directions with regard to the land to the extent occupied by thestructures is required to be issued. However, in case equal open areaabutting the structure has not been released for the beneficial enjoyment ofthe petitioners, the same shall be released by the respondents from the landof the petitioners.

However, directions issued in the above categories of casesshall not come in the way of the Authorities in removing the structures, ifthe same is required for roads, hospitals or other civic amenities orcommon sites or public utility areas as per the lay-out plan. Therespondents shall try as far as possible to retain the structures unless itbecomes difficult for them to have a planned development withoutremoving them. It would also be open to the Authorities to makeadjustments or re-adjustments of plots for the purpose of planneddevelopment and in case it becomes necessary to give an additional area tothe petitioners, the petitioners shall be bound to take the additional areaand also be bound to pay cost for such area, as is chargeable to otherallottees. The petitioners shall also be bound to pay the developmentcharges as is charged from the other allottees.

The afore-stated directions be complied with by therespondents within a period of four months from today. Till then, interimorder in their favour shall continue to operate.

As regards category No.4 i.e.C.W.P.Nos.1704, 1905 and2166 of 1991, these are the cases where specific stand of the respondents is that there was no construction on the land in question whennotification under Section 4 of the Land Acquisition Act was issued Noreplication having been filed by the petitioners, the averment made by therespondents is taken to be correct and, therefore, the petitioners cannotclaim discrimination qua the constructed residential houses of others.Accordingly, their writ petitions deserve to be dismissed. Orderedaccordingly.

Photostat copy of this order be placed in the other connectedcases.

( JASBIR SINGH )JUDGE

( AUGUSTINE GEORGE MASIH )JUDGE

August 03[rd] , 2010poonam

Whether referred to Reporters?

Yes/No.