Punjab-Haryana High Court
Raghubir Singh And Ors vs State Of Haryana And Ors on 29 April, 2024
Bench: Sureshwar Thakur, Lalit Batra
Neutral Citation No:=2024:PHHC:059267-DB
CWP No. 14807 of 2007 (O&M) -1- 2024:PHHC:059267-DB
In the High Court of Punjab and Haryana at Chandigarh
CWP No. 14807 of 2007 (O&M)
Reserved on : 10.4.2024
Date of Decision: 29.4.2024
Raghubir 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. P.R.Yadav, 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 28.7.2005 (Annexure P-8) issued under Section 4 of the
Land Acquisition Act, 1894 (for short 'the Act of 1894'), and, also seek the
quashing of notification dated 24.7.2006 issued under Section 6 of the Act of
1894 (Annexure P-13). Furthermore, the petitioners also seek the quashing
of the award dated 17.8.2007 (Annexure P-21).
Grounds raised in the instant petition
2. The grounds, as raised in the instant petition by the petitioners,
are that the petition land falls within the radius of 900 meters from
Ammunition Depot in Gurgaon, and, the notifications (supra) are in contrary
to the provisions contained in Works of Defence Act, 1903 (for short 'the
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Defence Act'), as no construction could be carried out on the acquired land,
as per Section 7 of the Defence Act. It is further averred in the instant
petition, that on 29.4.1982, the Town and Country Planning Department,
Haryana had issued a notification for keeping 900 meter strip arount the
Ammunition Department free from urbanization under the Defence Act. On
29.3.1996, the respondent concerned, issued a notification under Section 4
of the Act of 1894 for acquiring the lands of the petitioners for the
development of Sector Road of Sectors 2 and 3 of Urban Estate, Gurgaon.
Subsequently, notification under Section 6 of the Act of 1894 was issued on
the next day. The petitioners approached this Court by filing CWP-5529 of
1997 challenging the said notification. During the pendency of the said
petition before this Court, a compromise was effected on 3.1.1998, whereby
it was settled, that 30 meters wide strip would be given for the road, and, the
remaining land would be released. It is further averred in the instant
petition, that on 2.6.2004, a notification under Section 4 of the Act of 1894
became issued qua acquisition of the land of the petitioners, which was
outside 900 meter radius. Subsequently, a notification under Section 6 of
the Act of 1894 was issued on 31.5.2005. However, most of the land was
released from acquisition after obtaining the licence from the department.
3. It is also averred in the instant petition, that thereafter, on
28.7.2005, the respondent concerned, issued a notification under Section 4
of the Act of 1894 for acquiring the land of the petitioners falling within 900
M radius of the Ammunition Depot. The petitioners have also filed their
objections on 29.8.2005. However, the said objections became dismissed
without any specific reasons being intimated to the petitioners.
Subsequently, a notification under Section 6 of the Act of 1894 became
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issued on 24.7.2006.
Contentions of the learned counsel for the petitioners
4. The learned 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 State counsel
5. The learned State counsel, on instructions submits, that the
instant case is covered by a decision made by this Court on 10.10.2023, in
CWP No. 8881 of 1989, titled Lt. Col. Inder Singh Kalaan (deceased)
through LRs and others, and, as such, he prays that a verdict in terms of the
said verdict, be also passed in the instant petition.
Reasons for dismissing the instant petition
6. For the reasons to be assigned hereinafter, this Court finds no
merit in the instant petition, and, is constrained to dismiss it.
7. In paragraph No. 16 and 17 of B.B.Yadav's case (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
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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
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.
8. 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.
9. 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.
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10. 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.
11. 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.
12. 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
petition (supra). Pre-eminently, the petitioners in the instant case are not the
recipients 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.
13. The ire issue which makes its stark emergence(s), is that,
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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.
14. If the answer to the above issue is in the affirmative thereby this
Court would proceed to negate the writ relief(s).
15. 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.
16. 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
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security interests as embedded in the Defence Act.
17. 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.
18. 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,
rather not become compromised.
19. 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.
20. 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
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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.
21. 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)
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.
22. 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
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exercising of power of eminent domain, thus by the acquiring authority,
and/or, thereby acquisition thereofs, but would not be construable to be
expropriatory.
23. 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).
24. 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.
25. 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'.
26. 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
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occur in the military zone, thus compensation amount is required to be
determined, if not already determined.
Contention as to not granting of an opportunity of personal hearing while
deciding the objections under Section 5A of the 'Act of 1894'.
27. Since the learned State counsel, on instructions submits, that the
petitioners 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.
Final Order of this Court
28. 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.
29. 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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