Narender Kumar vs State Of Haryana And Others
2024 Latest Caselaw 9678 P&H

Punjab-Haryana High Court

Narender Kumar vs State Of Haryana And Others on 6 May, 2024

Bench: Sureshwar Thakur, Lalit Batra

                              Neutral Citation No:=2024:PHHC:062010-DB

CWP-16716-2022                                       -1-




                         AT CHANDIGARH.


                            CWP-16716-2022
                            Reserved on: 01.05.2024
                            Pronounced on: 06.05.2024


NARENDER KUMAR                                                .....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 the petitioner.

            Mr. Ankur Mittal, Addl. A.G., Haryana with
            Mr. P.P.Chahar, Sr. DAG, Haryana.
            Mr. Saurabh Mago, DAG, Haryana.

            Mr. Ankur Mittal, Advocate with
            Ms. Kushaldeep Kaur Manchanda, Advocate
            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

Government thus make the petition lands being released from

acquisition, rather on theirs becoming un-essential or unviable for

being used for the requisite public purpose.

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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."

3. It has been averred in the writ petition, that the petitioner is

owner and in physical possession of the disputed lands. The

respondents have acquired this land only for providing benefit to the

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private builders.

4. Moreover, it is also contended that the respondents have

proceeded to adopt the practices of invidious discrimination, inasmuch

as, the respondents releasing the lands of other land owners adjacent to

the petitioner's land, whereas, the respondents yet proceeding to subject

the petition lands to acquisition, through making the impugned

notification(s).

5. It has been further averred in the writ petition, that there is

un-acquired land surrounding this property and respondents cannot

utilize this land in any manner. Thus, the petition lands be released

from acquisition on being rendered unviable or un-essential.

6. 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.

"10. The land of the petitioner's affects the planning of 5 No. plots of 6 marla and 10 meter wide road and is essential for achieving the public purpose for which it was acquired."

7. 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

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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

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.

8. 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

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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

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

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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 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

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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 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

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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 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

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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.

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."

9. Furthermore, in a verdict rendered by the Hon'ble Apex

Court in case Civil Appeal No.7634 of 2023 titled as 'Nandkishor

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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 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.

10. 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

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requisite public purpose nor he can argue that thereby they be released

from acquisition.

11. Moreover, on reading of para No. 5 of the reply furnished

to the writ petition, it is revealed that the father of the petitioner filed

objections and the same were heard by the Land Acquisition

Collector,Panchkula on 20.03.2002. On the acquired lands there was 'A'

and 'B' class construction in existence over 234 square yards, which

was recommended for release. The rest of the land was vacant and

accordingly the same was recommended for acquisition. Therefore, the

objection(s) as became filed by the father of the petitioner became

decided and even releases of some portion of lands were made in favour

of the petitioner, and the remaining land required for furthering the

requisite public purpose was acquired through the impugned

notification(s). Resultantly, the acquisition notification(s) and

subsequent thereto passed award do not require any interference. The

reason being that the present petitioner is bound by the acts and

conduct of his predecessor-in-interest thereby he is estopped from

reneging from the same.

12. Furthermore, it is stated in the reply on affidavit that

possession over the acquired lands became assumed through rapat

roznamcha No.1346 dated 27.04.2004 and the same was handed over to

the beneficiary department. Moreover, when it is further indicated in

the reply, on affidavit, furnished to the writ petition, by the respondent

concerned, that despite the total amount of assessed compensation qua

the acquired lands becoming tendered, yet the petitioner not seeking

disbursement(s) thereof, and the same is lying deposited in the bank

account of Land Acquisition Collector, for therebys it becoming

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available for becoming released to the land loser concerned. Therefore,

the acquisition proceedings have but become fully and lawfully

concluded.

13. The further reason for declining the writ relief to the

petitioner is that the petitioner never challenged the acquisition

proceedings and for the first time approached this Court by filing the

present writ petition after almost eighteen years elapsing, since the

launching of acquisition proceedings under the Land Acquisition Act,

1894. Thereby also the instant petition rather is hit by a gross pervasive

vice of delays and laches.

14. 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.

15. Furthermore, the plea of the petitioner qua his still lawfully

retaining the 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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16. 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.

17. No order as to costs.

18. 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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