Bhup Singh And Ors vs State Of Hry. And Ors
2024 Latest Caselaw 8991 P&H

Punjab-Haryana High Court

Bhup Singh And Ors vs State Of Hry. And Ors on 29 April, 2024

Bench: Sureshwar Thakur, Lalit Batra

                              Neutral Citation No:=2024:PHHC:059276-DB




CWP No. 18655 of 2006 (O&M)               -1-             2024:PHHC:059276-DB



        In the High Court of Punjab and Haryana at Chandigarh

                                          CWP No. 18655 of 2006 (O&M)
                                          Reserved on : 10.4.2024
                                          Date of Decision: 29.4.2024

Bhup Singh and others                                         ......Petitioners

                                  Versus


State of Haryana and others                                   .....Respondents


CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
       HON'BLE MR. JUSTICE LALIT BATRA

Argued by: Mr. M.L.Sareen, Senior Advocate with
           Mr. Nitin Sareen, Advocate and
           Mr. Ritesh Aggarwal, Advocate
           for the petitioners.

             Mr. Ankur Mittal, Addl. A.G., Haryana with
             Mr. Pardeep Prakash Chahar, Sr. DAG, Haryana.

             Mr. Arun Gosain, Senior Govt. Counsel
             for respondent No. 4.

             Mr. Arvind Seth, Advocate
             for the respondent-HSVP.

                          ****

SURESHWAR THAKUR, J.

1. Through the instant petition, the petitioners seek the quashing of

notification dated 2.6.2004 (Annexure P-5) issued under Section 4 of the

Land Acquisition Act, 1894 (for short 'the Act of 1894'), and, also seek the

quashing of notification dated 31.5.2005 issued under Section 6 of the Act of

1894 (Annexure P-6). Furthermore, the petitioners also seek the quashing of

the notification dated 28.7.2005 (Annexure P-7) issued under Section 4 of

the Act of 1894, and, also seek the quashing of the notification dated

24.7.2006 issued under Section 6 of the Act of 1894 (Annexure P-12).

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Grounds raised in the instant petition

2. The grounds, as raised in the instant petition by the petitioners,

are that the petitioners are owners of land comprised in khasra Nos. 20//24/3;

22//4 min, 5 min, 7 min, 8 min, 13 min, 14 min, 18 min and 26, situated in

village Sarai Alawardi, Tehsil and District Gurgaon. It is further averred in

the instant petition that the land in dispute is in close vicinity of the Air

Force Unit No. 54 Air Store Park and a part of the land in dispute is within

the restricted zone, as declared under the provisions of the Works of Defence

Act, 1903 (for short 'the Defence Act'). On 29.3.1996, the respondent

concerned, issued a notification dated 29.3.1996 under Section 4 of the Act

of 1894 for acquiring around 60 acres of land in villages concerned.

Petitioner No. 1 along with others approached this Court by filing CWP-

1997 of 1998, rather challenging the said notification, but the said petition

was disposed of by this Court vide order dated 6.3.2000, on the ground that

the State Govt. had decided to acquire only part of the land which fell within

30 meter road. It is further averred in the instant petition that thereafter the

impugned notifications Annexure P-5 and Annexure P-6 became issued to

acquire over 80 acres of land in the villages concerned. Thereafter, on

28.7.2005, the respondent concerned, again issued a notification under

Section 4 of the Act of 1894 for acquiring around 15 acres of lands in the

villages concerned. It is also averred in the petition, that petitioner No. 3

could not file objections under Section 5-A of the Act of 1894, whereas,

petitioner No. 1 and 2 filed the objections under Section 5-A of the Act of

1894. However, they were not afforded an opportunity of hearing on the

said objections, and, thereafter a notification under Section 6 of the Act of

1894, became issued on 24.7.2006.

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Contentions of the learned senior counsel for the petitioners

3. The learned senior counsel appearing for the petitioners makes

an argument, that with evidently the subject matter lands, falling within the

restrictive zone, thereby their utilizations, thus by the acquiring authority,

thus for purportedly facilitating the public project, but would not become

ably facilitated. The said argument becomes premised on a judgment, made

by this Court in case titled as 'B.B.Yadav Vs. State of Haryana and Others

reported in 2007 (3) Land L.R. 585. Apparently, the averred challenge made

in the instant writ petition becomes also rested on a premise similar to the

one which becomes orally addressed by the learned counsel for the

petitioners.

Contentions of the learned counsel for the respondents

4. The learned State counsel submits, that the notification issued

under Section 4 of the Act of 1894, was published in the Haryana Govt.

Gazette, on the same day, and, an entry of the said notification was made

vide Rapat No. 561 of 29.5.2005. It is further contended, that an opportunity

of hearing on the objections filed under Section 5-A of the Act of 1894, was

granted to petitioners No. 1 and 2, and, that petitioner No. 3 did not

deliberately file any objections. Thereafter, declaration under Section 6-A

of the Act of 1894 was made on 24.7.2006. He further submits, that the

substances of the notifications (supra) were published in two daily

newspapers, and, the said substances were also pasted on the notice board of

Halqa Patwarkhana and Tehsil Officer. Moreover, munadi was also done

through village Chowkidar by beat of drum in the vicinity concerned.

Consequently, the learned counsels submit, that therebys there was not only

adherence to the necessity of wide publicity being caused to the notifications 3 of 12

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(supra), but also the objections became well attended to. Resultantly, they

submit, that the instantly launched acquisition proceedings are flawless.

Reasons for dismissing the instant petition

5. For the reasons to be assigned hereinafter, this Court finds no

merit in the instant petition, and, is constrained to dismiss it.

6. In paragraph No. 16 and 17 of the verdict (supra), paras

whereof becomes extracted hereinafter, this Court had opined, that the

acquiring authority, in view of the said restriction(s), rather cannot facilitate

the public purpose, being executed on the subject lands, reiteratedly in view

of the subject matter lands, but falling within the restricted zone. Therefore,

this Court concluded that the launching of acquisition proceedings vis-a-vis

the thereins subject matter lands, thus being imbued with a vice, inasmuch

as, the power of eminent domain becoming colourably exercised.

16. We have perused the aforementioned provision carefully and are of the considered opinion that the State of Haryana cannot make use of the land for residential and commercial purposes in view of the restrictions imposed under Section 3 read with Section 7(b) of the Indian Works Defence Act, 1903. No construction activity would be carried out within 900 meters from the crest of the outer parapet of Explosive Area of 54, ASP, Air Force Station, Gurgaon. The State has not denied that a part of the acquired land is not within the aforementioned restricted zone. The proviso to Section 7 also shows that it is only the huts, fences or other constructions of wood or other material which can easily be destroyed or removed that can be allowed to be maintained and erected.

17. In the present case, as the residential, commercial and institutional purpose could not be achieved because of the restrictions imposed by Section 3 sub-section 7 on the part of

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the land acquired therefore, we are of the considered opinion that the acquisition of the land of the petitioner in the present case is a colourable exercise of power.

7. Therefore, in the operative part of the judgment (supra), the

challenge as became made, to the launching of acquisition proceedings in

case (supra), thus was declared to be a validly raised challenge.

8. The above made opinion by this Court, though emanates from a

Bench strength of this Court, which is co-equal, to the Bench strength of this

Court, thereby unless for valid reasons, it requires becoming departed from,

thereby it has binding and conclusive effect also upon this Court.

9. Be that as it may, since the exception to the principle, that the

ratio decidendi (supra), as becomes expostulated in the verdict (supra),

especially when the Judge Bench strength of the Court which rendered the

verdict (supra), thus is co-equal to the extant Bench strength, whereby the

verdict (supra) is required to be revered, rather is encapsulated, in the fine

principle that departings therefrom, but can be made, in case there are sound

reasons, thus for making such departures therefrom.

10. Consequently, this Court for hereinafter assigned reasons,

deems it fit and appropriate to depart from the ratio decidendi (supra), as

becomes enunciated in the verdict (supra), as becomes relied upon by the

learned counsel for the petitioner(s).

Reasons for not applying the ratio decidendi of the verdict rendered in B.B.Yadav case (supra) vis-a-vis the case in hand.

11. The stark distinguishing fact as becomes unfolded, inter-se the

facts thereins vis-a-vis the facts at hand, is embodied in the factum, that the

petitioner therein, was a recipient of a Gallantry Award and but in lieu of his

valor on the battle field, he had been assigned the petition lands in the 5 of 12

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petition (supra). Pre-eminently, the petitioner in the instant case is not a

recipient of any Gallantry award. Therefore, the emergence(s) of the stark

distinctivity (supra) inter-se the facts germane to the verdict (supra) with the

facts at hand, does thereby coax this Court to rather not apply the

expostulations of law (supra), as carried in the verdict (supra), thus to the

facts at hand.

Reasons for rejecting the submissions and averments made in the writ petition.

12. The ire issue which makes its stark emergence(s), is that,

whether in the light of the existence of the subject matter lands, thus in the

vicinity of a military zone, and when thereby, thus in terms of the relevant

statutory provisions, as become engrafted in 'the Defence Act', rather

restriction(s) become echoed vis-a-vis the utilization and enjoyment of the

petition lands, whether thus the power of eminent domain, is yet required to

be also extending or being exerciseable qua such restrictive zones.

13. If the answer to the above issue is in the affirmative thereby this

Court would proceed to negate the writ relief(s).

14. For the reasons to be assigned hereinafter, the mere existence of

the subject matter lands, in the militarized zone, whereins, there may be

statutory restriction(s), vis-a-vis, the utilization of the subject matter lands,

thus for the relevant public purpose, yet does not thereby restrict the power

of eminent domain, thus vested in the acquiring authority, besides nor in its

exercising by the acquiring authority, rather would invite any conclusion,

from this Court that even upon its becoming potentialized, qua thereby the

said power being colourably exercised.

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15. This Court in a decision rendered on 31.10.2013, in writ

petition bearing No. CWP-13543-1990, titled as 'Krishan Chand Jain and

Others Versus State of Haryana and Ors.' has while dealing with the above

conundrum made reliance, upon, two decisions rendered respectively in

[Shanti Sports Club and Anr. Vs. Union of India and Ors. 2009 (15) SCC

705 and CWP Nos. 15171-18679 of 2010 [Suresh Goel and Ors. Vs.

Union of India and Ors.] and had thereins proceeded to unequivocally hold,

that the provisions of 'the Defence Act', are required to be assigned over-

riding effect upon local laws or vis-a-vis executive policies, and that other

private interests are required to be made subordinate or subservient to the

national security interests as embedded in the Defence Act.

16. Though this Court had thereby assigned an over-riding effect to

the Act (supra), vis-a-vis the local laws or to the executive policies, but this

Court yet had not made, the power of eminent domain, as exercised by the

respondent, through its launching the acquisition proceedings under the 'Act

of 1894', rather subject to or subservient to the Act (supra). Therefore, the

existence of the subject matter lands, in the vicinity or within the militarized

zone or in an area of extreme strategic military importance, thus would not

restrict the power of eminent domain, as, vested in the acquiring authority.

However, in the said exercisings of the power of eminent domain, the

acquiring authority is also to ensure, that the lands as become brought to

acquisition rather not compromising with the national security and safety.

17. In the above regard, this Court had declared, that within the said

sensitive zone, the subject matter lands are to be kept free from all types of

construction(s), besides the subject matter lands are to be developed as an

open green area, as thereby the national security and safety would thus,

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rather not become compromised.

18. Since this Court would make alike therewith direction(s).

Therefore, any argument erected on the plank of the verdict (supra) i.e.

B.B.Yadav's case, as, made by this Court which also but for the above

reasons is distinguishable from the facts at hand, rather is not amenable for

becoming accepted.

19. Even otherwise, the construction(s) raised by the private

individuals, thus within the militarized zone or sensitive zones, though

become declared to become acquired through a notification issued in terms

of the 'Act of 1894', but yet such acquired construction(s) rather are to be

treated on a principle different, to the ones, as would govern the acquisition

of titles over unacquired construction(s), thus by private individuals.

Assuredly if a private individual raises unacquired construction(s) within the

declared sensitive zone, thereby he would invite the wrath of the apposite

statutory provisions as embodied in 'the Defence Act'. Such privately raised

unacquired construction(s) within the militarized zones or zones of strategic

military importance, rather may also require theirs becoming lawfully

demolished. Moreover, on acquisition(s) of construction(s) raised, thus in

the militarized zones, thereby, they would require in terms of expostulations

(supra), as made by this Court, qua theirs being lawfully demolished, so that

on such acquired lands, rather green areas become maintained, for thereby

thus national security becoming not compromised.

20. Since thereby the power of eminent domain, to acquire lands

falling within restrictive zones, thus would become rationalized and/or the

acquired lands rather thereby would become aligned with the national

security interests, whereas, in the event of unacquired construction(s) 8 of 12

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becoming raised by private individuals, in the restricted areas, thereby such

construction(s) would definitely jeopardize the national security and safety.

Therefore, too, on the above plank, the acquisition(s) made by the acquiring

authority, thus of lands falling in the sensitive zones, rather would become

legitimized.

21. Since the power of eminent domain also requires compensation

becoming determined. Therefore, only on compensation becoming

determined, but also in respect of lawfully raised acquired construction(s),

rather also within the sensitive zones, thus would assign sanctity to the

exercising of power of eminent domain, thus by the acquiring authority,

and/or, thereby acquisition thereofs, but would not be construable to be

expropriatory.

22. Therefore, it has to be determined from the evident facts,

whether on the subject matter lands, the apposite construction(s) were legal

or were authorized, inasmuch as, such construction(s) being raised prior to

the coming into force of 'the Defence Act' and concomitantly whether the

land-losers concerned, were respectively entitled or did not become entitled,

qua compensations becoming determined qua such lands/construction(s).

23. Therefore, since the acquired lands, which were evidently

vacant at the time of their lawful acquisition(s) being made and whereafters'

construction(s) became raised thereons, thereby the land-losers concerned

would not become entitled to compensation, thus for those construction(s)

which became evidently raised post the launching of lawful acquisition

proceedings. Moreover, the said construction(s) would be un-authorized and

would become subject to theirs becoming lawfully demolished.

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24. Nonetheless, if the relevant construction(s) which were

evidently raised prior to the launching of the acquisition proceedings,

thereupon, such construction(s) are amenable for determination of

compensation. However, subject to such construction(s) being raised but

prior to the coming into force of 'the Defence Act'.

25. Moreover, if the said construction(s) exist within the militarized

zone or in the restricted zone, thereupon, the acquiring authority may not in

terms of the verdict (supra) raise construction(s) thereons, but shall maintain

it as a green area, so that thereby the national interests and security, thus do

not become compromised. Pre-eminently even in respect of the lands, which

occur in the military zone, thus compensation amount is required to be

determined, if not already determined.

Contention as to non-publication of the substance of notification under Section 4 of the 'Act of 1894' and reasons for rejecting the same.

26. Moreover, the averments, as to no wide publicity being given to

the notification (supra), is merit-less, as on reading of replies, on affidavit, to

the writ petition(s), by the respondent, it is revealed that the notification

under Section 4 of the 'Act of 1894' rather was published in Haryana

Government Gazette, on the same day. Moreover, an entry qua the

notification was made in the patwari Halqa Roznamcha Wakayati vide rapat

No. 561 dated 29.5.2005 vis-a-vis the land situated in the revenue estate of

village concerned. In addition, the substance of the notification under

Section 4 of the Act became published in two daily newspapers i.e. Dainik

Bhaskar (Hindi) dated 30.7.2005 and National Herald (English) dated

30.7.2005. The substance of the said notification was also pasted on the

notice board of Halqa Patwar Khana and Tehsil Office. Munadi was also

done through village chowkidar by beating of empty drum in the villages 10 of 12

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and in the vicinity of the land to be acquired.

27. Furthermore, on reading of the reply, it is revealed that the

substance of issuance of declaration under Section 6 was published in the

Haryana Gazette on the same day and was also published in the daily

newspapers as per the requirement of the 'Act of 1894'. Moreover, the

substance of the declaration (supra) was pasted on the notice board of the

Halqa Patwar Khana and Tehsil office.

28. Therefore, therebys there is but complete adherence to all the

mandatory statutory prescription(s), therebys the launching of the acquisition

proceedings cannot be construed to become vitiated. Resultantly, therebys

the petitioners had notice of the launching of acquisition proceedings.

Therefore, they cannot contend, that for any purported want of wide

publicity to the apposite notification, thus they did not acquire any

knowledge in respect thereof, nor can they argue that thereby they became

disabled to rear the apposite objections, especially when some did file the

said objections.

Contention as to not granting of an opportunity of personal hearing while

deciding the objections under Section 5A of the 'Act of 1894'.

29. A reading of reply to the instant petition, reveals that the

petitioner No. 1 and 2 were granted opportunity to file objections under

Section 5-A of the 'Act of 1894' and they also availed the said opportunity,

through theirs filing objections to the acquisition proceedings. However, the

objection(s) as became filed by the petitioners (supra) became decided

against the petitioners, thus leading to the makings of the impugned

notification/declaration. Therefore, the order dismissing the apposite

objections is a well informed order, and, thereby it is required to be upheld.

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30. So far as petitioner No. 3 is concerned, from a perusal of the

reply on affidavit, furnished to the instant petition, it is evident, that despite

an apposite opportunity being granted to the said petitioner(s), yet the said

petitioner(s) deliberately not availing the said opportunity nor his preferring

objections in terms of Section 5-A of the Act of 1894, before the Collector

concerned. In the face of abandonment of the said opportunity by the

petitioner concerned, to thus prefer objections under Section 5-A of the Act

of 1894, before the Collector concerned, thereby the said made

abandonments, thus tantamounts to his acquiescing to the valid launching of

the acquisition proceedings, besides fosters a further conclusion, that the

petitioners become estopped to claim before this Court, that either they

became forestalled to raise objections or the said objections became

summarily dismissed. Thus any averments/contention that no opportunity of

personal hearing was granted, is merit-less.

Final Order of this Court

31. In aftermath, this Court finds no merit in the writ petition, and,

with the above observations, the same is dismissed. The impugned

notifications, and, award are maintained and affirmed.

32. The pending application(s), if any, is/are also disposed of.

(SURESHWAR THAKUR) JUDGE

(LALIT BATRA) JUDGE April 29, 2024 Gurpreet

Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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