Punjab-Haryana High Court
Om Parkash vs State Of Haryana And Others on 6 May, 2024
Bench: Sureshwar Thakur, Lalit Batra
Neutral Citation No:=2024:PHHC:062035-DB
CWP-26186-2022 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
CWP-26186-2022
Reserved on: 01.05.2024
Pronounced on: 06.05.2024
OM PARKASH .....Petitioner
Versus
STATE OF HARYANA AND ORS. ....Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MR. JUSTICE LALIT BATRA
Argued by: Mr. Sandeep Sharma, Advocate for
Mr. Ved Parkash, Advocate
for the petitioner.
Mr. Ankur Mittal, Addl. A.G., Haryana with
Mr. P.P.Chahar, Sr. DAG, Haryana and
Mr. Saurabh Mago, DAG, Haryana.
Mr. Ankur Mittal, Advocate with
Ms. Kushaldeep K. Manchanda, Advocate and
Mr. Shivam Garg, Advocate
for respondent-HSVP.
****
SURESHWAR THAKUR, J.
1. The claim made in the instant writ petition is for a
mandamus being made upon the respondents concerned, to, in terms of
the policy dated 14.09.2018 (Annexure P-5) of the Haryana
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Government thus make the petition lands (residential house) being
released from acquisition, rather on theirs becoming un-essential or
unviable for being used for the requisite public purpose.
2. The learned counsel appearing for the petitioner has
forcefully contended, by planking submissions, on the mandate of
Section 101 A of The Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013
(hereinafter for short refer to as the 'Act of 2013') as became
incorporated in the 'Act of 2013', through Haryana Act No. 21 of 2018,
provisions whereof are extracted hereinafter, that the petition lands are
un-essential or unviable for the relevant public purpose. Therefore, he
has argued that the petition lands, irrespective of the earlier launched
acquisition proceedings under the Land Acquisition Act, 1894
(hereinafter for short called as the 'Act of 1894') thus becoming fully
terminated, rather are un-essential or are unviable for being used for the
relevant public purpose, thereby they are yet available for becoming
released from acquisition.
"101A. Power to denotify land.- When any public
purpose, for which the land acquired under the Land
Acquisition Act, 1894 (Central Act 1 of 1894) becomes
unviable or non-essential, the State Government shall be
at liberty to denotify such land, on such terms, as
considered expedient by the State Government, including
the payment of compensation on account of damages, if
any, sustained by the land owner due to such acquisition:
Provided that where a part of the acquired land has
been utilized or any encumbrances have been created, the
landowner may be compensated by providing alternative
land alongwith payment of damages, if any, as determined
by the State Government."
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3. Therefore, the learned counsel appearing for the petitioner
has planked his submission, on anvil of Section 101 A (supra) as well
as, on anchor of clause 7 of the policy dated 14.09.2018 of the Haryana
Government, but yet the said submission becomes completely
unhinged, in the face of a specific contention existing in paragraph No.
10 of the reply, on affidavit, as furnished to the petition by the
respondent concerned, contents whereof are extracted hereinafter.
"the applied land affects 45 mtr. wide sector road,
dispensary site, 2 nos. plots of 6 marla category, 5 nos.
plots of 8 marla category and 12 mtr. wide road."
4. A reading of the said contents, does make graphic
emergence(s), that the petition lands are earmarked for the apposite
public purpose and thereby are utilized, or are utilizable, and or, are
viable for facilitating the apposite public purpose. Consequently, the
counsel for the petitioner cannot argue, that the petition lands are either
un-essential or unviable for facilitating the apposite public purpose nor
he can well rest any argument premised, on the provisions of Section
101 A of the 'Act of 2013' or in view of the policy dated 14.09.2018.
Contrarily, post valid termination of earlier launched acquisition
proceedings under the 'Act of 1894', thereupon yet the retention, if any,
of the petition lands, by the petitioner, especially when they evidently
sub-serve the public purpose, thus is rather completely unlawful. The
reason being that the above ground premised on anvil of Section 101 A
of the 'Act of 2013' or upon, policy dated 14.09.2018, is completely
capricious and also is arbitrary. The reason being that the statutory
ingredients therein, appertaining to un-essentiality or unviability of the
disputed lands, thus for facilitating the apposite public purpose, rather
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are to be tested, on anvil of objective contemplations, as made by the
authority concerned, and since the above objective thereto
contemplation, is but manifestative, that the petition lands are an
integral component of the layout plans relating to the completion of the
relevant public purpose. Therefore, the learned counsel for the
petitioner has untenably planked the above argument, thus premised on
the provisions of Section 101 A of the 'Act of 2013' and/or, upon,
policy dated 14.09.2018.
5. Furthermore, the legal conundrum relating to the
impartings of significations to the apposite statutory coinages
'unviability' or 'non-essentiality' of the acquired lands has been settled
in a judgment made by this Court in case CWP No. 12432 of 2023 titled
as 'Anil Suri and another versus State of Haryana and others',
whereins, in the relevant paragraphs thereof, paras whereof are
extracted hereinafter, this Court has expounded, that mere non-
utilization of the acquired lands rather does not leverage the land loser
concerned, to claim that thereby the said acquired lands are either
unviable and/or are non-essential for furthering the requisite public
purpose. Contrarily, this Court has in the hereinafter extracted relevant
paragraphs, as carried in the verdict (supra), has taken the view, that the
nuance of the above statutory coinages, is that, it is applicable only to a
situation of evident vis major arising or to a situation where on account
of an exorbitant sum of compensation becoming determined by the
Collector concerned, thereby, the State Exchequer becoming
encumbered with an onerous financial burden, whereby, but naturally
the said facet of unviability or non-essentiality, qua the retention of the
acquired lands rather for furthering the requisite public purpose, thus
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works as a well constraint, upon the acquiring authority to conclude,
that as such the acquired lands, are amenable for becoming released or
exempted from acquisition, given their retention but becoming
financially unviable.
"72. Moreover, this Court in CWP-15174-2023, titled as "The
Press Employees and Friends Co-operative Group Housing
Society Ltd. V/s State of Haryana and others", decided on
19.07.2023, made the hereinafter extracted observations:-
"29. Section 101-A has been inserted by the State
legislature only with the intent to protect the State
Government/acquiring authority from the saving effect
of Section 6 of the Act of 1897 and that protection is
available only in the circumstances, when the acquired
land has become "unviable" and "non-essential" for
any public purpose.
30. The combined effect of Section 114 of the Act of
2013 and Section 6 of the Act of 1897 has limited the
scope and applicability of Section 101-A. The saving, as
assigned in Section 6 of the Act of 1897, would not
apply to the extent hindered by Section 101-A.
Therefore, the power to de-notify lands, by virtue of
Section 101-A, can only be invoked when the twin
statutory ingredients, are fulfilled. Therefore, the de-
notification of acquired lands is only possible when
such lands fall within the domain of the above
prescribed twin conditions, which are the mandatory
pre-conditions for the State Government to form a
subjective opinion, while taking into consideration the
larger public interest."
73. In view of the above alluded settled legal proposition,
since in the present writ petitions also, the acquisition
proceedings stood lawfully terminated, as elaborated
hereinabove, therefore, since Section 101-A of the Act of 2013,
which is only an enabling clause for the State
Government/acquiring authority to de-notify the acquired land,
but only if it becomes "unviable" and "non-essential" for any
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efficacious public purpose, thereby the said statutory provision
does not endow any right in the erstwhile landowners to either
challenge the validity of already lawfully concluded acquisition
proceedings, or, to seek release of their acquired lands, on
mere oral assertions, without bringing any cogent material on
record.
74. The power to de-notify lands, by virtue of Section 101-A,
can only be invoked when the twin statutory ingredients
thereins, i.e. the acquired lands becoming "unviable" and
"non-essential" for any public purpose, rather are
satisfactorily fulfilled. Therefore, the de-notification of
acquired lands is only possible when such lands evidently fall
within the domain of the above prescribed twin conditions,
which are the mandatory pre-conditions for the State
Government to form an objective opinion, while taking into
consideration the larger public interest.
75. Conspicuously, in the formation of the said objective
opinion, only the executive has the prerogative to take, or, to
form the said objective opinion and the landlooser(s)
concerned cannot dictate the manner of making of such
objective opinion(s), nor can thrust his standpoint, vis-a-vis,
the executive, in the latter taking a view, that the benefits of
said statutory ingredients are to be compulsorily assigned to
the landlooser(s) concerned. The reason being, that the
landlooser(s) concerned has an individualistic interest in his
seeking exemption of his acquired lands, whereas, the
executive in his making objective contemplations about the
meteing of benefits thereof to the landlooser(s) concerned, or,
not meteing benefits thereof to the landlooser(s) concerned,
thus is required to be bearing in mind the larger public
interest. Therefore, in the manner(s) of making of objective
contemplations, vis-a-vis, meteings or assignments of benefits
of the said statutory conditions, to the landlooser(s) concerned,
the imperative factor may be the inclusion of the disputed lands
in the layout plans concerned. If so, the inclusion of the
disputed lands in the layout plans renders them to be working
towards a public purpose, and/or, thereby the disputed lands
become an insegregable component of an imperative public
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purpose. Therefore, when even otherwise, this Court is barred
in the exercise of its writ jurisdiction, to review or to re-
examine the formulation of layout plans, thus by the
engineering cell of the acquiring authority concerned.
Resultantly, reverence is to be meted to the layout plans
concerned, which includes thereins the disputed lands. In
sequel, the release(s) of acquired lands, but on the above
statutory conditions, thus may be barred to be claimed by the
landlooser(s) concerned.
76. In making the above inference, this Court finds support
from the replies respectively furnished to the writ petitions,
wherein, it has been categorically stated, that the acquired
lands are essential for facilitating the public purpose(s), as
carried in the respectively drawn Final Development Plans
concerned. Therefore, when the acquired lands are an
insegregable component of emergent public purposes and are
also but required for developmental activities, thereby their
release would prejudicially affect the relevant public purposes.
Therefore, for ensuring that the relevant public purposes are
not impeded, thus predominance is to be assigned to public
interest, than to the individualistic interest of the erstwhile
landowners concerned.
77. Nonetheless, it is also no more res integra that if after
utilization of the acquired land for the relevant public purpose,
rather some lands, yet remain unutilized, thereby they need not
be returned to the original landowner, rather they can either
be utilized for any other public purpose or it can be sold by
way of public auction, so as to achieve the larger public
interest. Gainful reference in this regard can be placed upon
case titled "State of Kerala v. M. Bhaskaran Pillai", AIR
1997 SC 2703, wherein, the Hon'ble Supreme Court has held
as under:-
"...3. In view of the admitted position that the land in
question was acquired under the Land Acquisition Act,
1894 by operation of section 16 of the Land Acquisition
Act, it stood vested in the State free from all
encumbrances. The question emerges: Whether the
Government can assign the land to the erstwhile
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owners? It is settled law that if the land is acquired for
a public purpose, after the public purpose was
achieved, the rest of the land could be used for any
other public purpose. In case there is no other public
purpose for which the land is needed, then instead of
disposal by way of sale to the erstwhile owner, the land
should be put to public auction and the amount fetched
in the public auction can be better utilised for the
public purpose envisaged in the Directive Principles of
the Constitution. In the present case, what we find is
that the executive order is not in consonance with the
provision of the Act and is, therefore, invalid. Under
these circumstances, the Division Bench is well justified
in declaring the executive order as invalid. Whatever
assignment is made, should be for a public purpose.
Otherwise, the land of the Government should be sold
only through the public auctions so that the public also
gets benefited by getting higher value....."
78. Also, the provisions of Section 101-A does not vest any
discretionary power in the State Government for de-
notification of the lands, which remained unutilized for a long
span, rather the only permissible ground for de-notification is
"unviability" or "non-essentiality" of the acquired lands for
being put to any efficacious public purpose.
79. Therefore, but obviously, non-utilization(s) of the
acquired lands for a prolonged duration of time does not
thereby render them to be "unviable" or "non-essential" for
the requisite public purpose. The reason being, that public
purpose is the cornerstone for acquisition(s) of the disputed
lands, and, rather on retention of the acquired lands, than
making release(s) thereof to the landlooser(s) concerned, thus
the public purpose rather would still remain intact or alive. In
consequence, the ever alive public purpose is required to be
effectively galvanized. The above would happen only on
retention of the acquired lands, than their release(s) or
exemption(s) being meted to the landlooser(s) concerned, but,
irrespective of the fact, that the disputed lands remain
unutilized for an inordinately long spell of time.
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80. In the non-purveying of enablements, vis-a-vis, the
landlooser(s) concerned qua the beneficent grace of the above
statutory conditions of "unviability" or "non-essentiality",
thus would be construed to be well exercised, rather by the
executive, only upon evident occurrence(s) of vis major or
upon exorbitant and excessive sums of compensation monies,
becoming determined by the statutory authority, thereby
making the relevant project to be financially unviable.
Therefore, to the considered mind of this Court, the limits or
the domains, besides the functionality of the above statutory
conditions, is thus, within the realm of evident emergence(s) of
vis major or upon exorbitant and excessive sums of
compensation monies, becoming determined by the statutory
authority, thereby making the relevant project to be financially
unviable.
81. The hereinabove elaborately assigned reasons are
ample for rejecting the principal argument of the learned
counsel(s) for the petitioner(s), which generates from Section
101-A of the Act of 2013, as well as, the policy dated
14.09.2018."
6. Moreover, in a verdict rendered by the Hon'ble Apex Court
in case Civil Appeal No.7634 of 2023 titled as 'Nandkishor Babulal
Agrawal Vs. The State of Maharashtra and Ors', it has been
expostulated by the Hon'ble Apex Court, thus in the relevant paragraph
thereof, para whereof is extracted hereinafter, that there cannot be a
time limit within which the authorities are expected to utilize the
acquired lands.
" 11. In our considered view, the High Court would be
extremely circumspect to issue a mandamus in the exercise
of its extraordinary jurisdiction under Article 226 of the
Constitution, directing to release a lawfully acquired land
only on the premise that such land has not been utilized
for the public purpose for which it was acquired. There is
no gainsaying that once the land vests in the State or its
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authorities, the `public purpose' of its acquisition can be
changed at a later stage. All that is required is that such
land should be utilized for public purposes only. In fact,
there cannot be a time limit within which the authorities
are expected to utilize the acquired land. The
Municipalities or such other agencies are expected to
have long-term plans for regulated development of urban
areas and for that purpose, certain pockets of land are
required to be kept vacant as reserve pool to cater the
future needs.
7. Therebys, also even if the acquired lands remained un-
utilized for a prolonged duration of time, or yet remain un-utilized,
therebys also it has also been declared in the verdict made by this Court
in Anil Suri's case (supra), that the dynamics of the public purpose are
ever changing and there can be yet a change from the public purpose, as
enshrined in the notification for acquisition, rather to some other public
purpose. Resultantly as such the factum of the land being yet un-
utilized cannot give any leverage to the counsel for the petitioner to
contend that they are unviable or un-essential for furthering the
requisite public purpose nor he can argue that thereby they be released
from acquisition.
8. Moreover, on reading of para No. 3 of the reply furnished
to the writ petition, it is revealed that the petitioner has not mentioned
any specific khasra/killa numbers in the present writ petition. However,
as per office record, the petitioner filed objections under Section 5-A of
the 'Act of 1894' for the release of land comprised in khasra/killa
No.38//25, but the house of the petitioner measuring 50' x 60' falls in
khasra/killa No. 38//27. After hearing of the objections under Section 5-
A of the 'Act of 1894', the house of the petitioner falling in khasra/killa
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No. 38//27 was recommended to be left out from acquisition, as the
same was constructed prior to issuance of notification under Section 4
of the 'Act of 1894', whereas, the land comprised in khasra No. 38//25
became subjected to acquisition rather for sub serving the public
purpose relating to the makings of developments of Sector - 9, Safidon.
Therebys, when the subject lands comprised in Khasra No. 38//25 are
an integral component, thus for facilitating the public purpose,
thereupon predominance is to be given to public purpose, than to the ill
individualistic interest of the present petitioner. Resultantly, the instant
petition merits dismissal.
9. Further, it is indicated in the reply furnished to the writ
petition that award No. 5 dated 19.08.2010 was announced for land
measuring 150.97 acres for Sector -9, Safidon and possession taken
vide rapat No. 494 and 500 dated 19.08.2010 and mutation sanctioned
in favour of HSVP.
10. Moreover, it is stated in the reply on affidavit that the
petitioner has received the awarded compensation comprised in a sum
of Rs. 1,24,80,966.00 for his acquired portion of land vide cheque
No.425596 dated 31.08.2010. The petitioner also filed the reference
under Section 18 of the 'Act of 1894' for re-determination of the
compensation, which has been decided on 17.12.2023 by the learned
Reference Court, whereby became enhanced the earlier assessed
compensation qua the subject lands. Moreover, when subsequently, the
petitioner also approached this Court for enhancement of compensation,
and, with the enhanced compensation amount also becoming received
by the petitioner on 05.04.2018.
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11. The effect of the above, is that, thereby the petitioner is
deemed to accept the validity of the launching of the acquisition
proceedings, whereby he is rather estopped from challenging the
validity of the launching of the acquisition proceedings.
12. Further, since the petitioner has not mentioned any specific
khasra/killa number in the instant writ petition, whereas the constructed
house falling in khasra/killa No. 38//27 had been left out from
acquisition, thereby also the acquisition notification(s) and consequent
thereto award do not require any interference.
13. Moreover, the averment as to the respondent concerned
practicing discrimination(s), thus arising from its releasing lands of
similarly situated land losers, is also merit-less, as the petitioner has not
given any specific instance, rather to thereby establish that he has been
subjected to discrimination(s) by the respondent concerned, in its
releasing the apposite lands of the land losers concerned.
14. Furthermore, the plea of the petitioner qua his lawfully
retaining possession over the subject lands, is a mis-founded plea, as,
the occupation of the petitioner, over the subject lands rather is as
trespassers thereovers and the petitioner is required to be lawfully
evicted therefroms. The above becomes sparked from the factum that
on issuance of a notification under Section 4 of the 'Act of 1894', the
land owner(s) became divested of any right, title or interest over the
acquired lands, whereas, complete investment of right, title and interest
over the acquired lands, rather became thus conferred, upon, the
acquiring authority.
Final Order of this Court.
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15. In aftermath, this Court finds no merit in the writ petition,
and, with the above observations, the same is dismissed. The impugned
notification(s), and consequent thereto award are maintained and
affirmed.
16. No order as to costs.
17. Since the main case itself has been decided, thus, all the
pending application(s), if any, also stand(s) disposed of.
(SURESHWAR THAKUR)
JUDGE
(LALIT BATRA)
06.05.2024 JUDGE
kavneet singh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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